Orendain had ceased to be its rehabilitation receiver at the time of the
DAY 1 CASES
G.R. No. 166836 September 4, 2013
SAN MIGUEL PROPERTIES, INC., PETITIONER,
vs.
SEC. HERNANDO B. PEREZ, ALBERT C. AGUIRRE, TEODORO B.
ARCENAS, JR., MAXY S. ABAD, JAMES G. BARBERS, STEPHEN N.
SARINO, ENRIQUE N. ZALAMEA, JR., MARIANO M. MARTIN,
ORLANDO O. SAMSON, CATHERINE R. AGUIRRE, AND ANTONIO V.
AGCAOILI, RESPONDENTS.
DECISION
BERSAMIN, J.:
The pendency of an administrative case for specific performance brought
by the buyer of residential subdivision lots in the Housing and Land Use
Regulatory Board (HLURB) to compel the seller to deliver the transfer
certificates of title (TCTs) of the fully paid lots is properly considered a
ground to suspend a criminal prosecution for violation of Section 25 of
Presidential Decree No. 9571 on the ground of a prejudicial question. The
administrative determination is a logical antecedent of the resolution of the
criminal charges based on non-delivery of the TCTs.
Antecedents
Petitioner San Miguel Properties Inc. (San Miguel Properties), a domestic
corporation engaged in the real estate business, purchased in 1992, 1993
and April 1993 from B.F. Homes, Inc. (BF Homes), then represented by
Atty. Florencio B. Orendain (Orendain) as its duly authorized rehabilitation
receiver appointed by the Securities and Exchange Commission
(SEC),2 130 residential lots situated in its subdivision BF Homes
Parañaque, containing a total area of 44,345 square meters for the
aggregate price of ₱106,248,000.00. The transactions were embodied in
three separate deeds of sale.3 The TCTs covering the lots bought under the
first and second deeds were fully delivered to San Miguel Properties, but
20 TCTs covering 20 of the 41 parcels of land with a total area of 15,565
square meters purchased under the third deed of sale, executed in April
1993 and for which San Miguel Properties paid the full price of
₱39,122,627.00, were not delivered to San Miguel Properties.
On its part, BF Homes claimed that it withheld the delivery of the 20 TCTs
for parcels of land purchased under the third deed of sale because Atty.
transactions after being meanwhile replaced as receiver by FBO Network
Management, Inc. on May 17, 1989 pursuant to an order from the SEC.4
BF Homes refused to deliver the 20 TCTs despite demands. Thus, on
August 15, 2000, San Miguel Properties filed a complaint-affidavit in the
Office of the City Prosecutor of Las Piñas City (OCP Las Piñas) charging
respondent directors and officers of BF Homes with non-delivery of titles in
violation of Section 25, in relation to Section 39, both of Presidential
Decree No. 957 (I.S. No. 00-2256).5
At the same time, San Miguel Properties sued BF Homes for specific
performance in the HLURB (HLURB Case No. REM-082400-
11183),6 praying to compel BF Homes to release the 20 TCTs in its favor.
In their joint counter-affidavit submitted in I.S. No. 00-2256,7 respondent
directors and officers of BF Homes refuted San Miguel Properties’
assertions by contending that: (a) San Miguel Properties’ claim was not
legally demandable because Atty. Orendain did not have the authority to
sell the 130 lots in 1992 and 1993 due to his having been replaced as BF
Homes’ rehabilitation receiver by the SEC on May 17, 1989; (b) the deeds
of sale conveying the lots were irregular for being undated and
unnotarized; (c) the claim should have been brought to the SEC because
BF Homes was under receivership; (d) in receivership cases, it was
essential to suspend all claims against a distressed corporation in order to
enable the receiver to effectively exercise its powers free from judicial and
extra-judicial interference that could unduly hinder the rescue of the
distressed company; and (e) the lots involved were under custodia legis in
view of the pending receivership proceedings, necessarily stripping the
OCP Las Piñas of the jurisdiction to proceed in the action.
On October 10, 2000, San Miguel Properties filed a motion to suspend
proceedings in the OCP Las Piñas,8 citing the pendency of BF Homes’
receivership case in the SEC. In its comment/opposition, BF Homes
opposed the motion to suspend. In the meantime, however, the SEC
terminated BF Homes’ receivership on September 12, 2000, prompting
San Miguel Properties to file on October 27, 2000 a reply to BF Homes’
comment/opposition coupled with a motion to withdraw the sought
suspension of proceedings due to the intervening termination of the
receivership.9
On October 23, 2000, the OCP Las Piñas rendered its
resolution,10 dismissing San Miguel Properties’ criminal complaint for
violation of Presidential Decree No. 957 on the ground that no action could
be filed by or against a receiver without leave from the SEC that had
1
appointed him; that the implementation of the provisions of Presidential
Decree No. 957 exclusively pertained under the jurisdiction of the HLURB;
that there existed a prejudicial question necessitating the suspension of
the criminal action until after the issue on the liability of the distressed BF
Homes was first determined by the SEC en banc or by the HLURB; and
that no prior resort to administrative jurisdiction had been made; that
there appeared to be no probable cause to indict respondents for not being
the actual signatories in the three deeds of sale.
On February 20, 2001, the OCP Las Piñas denied San Miguel Properties’
motion for reconsideration filed on November 28, 2000, holding that BF
Homes’ directors and officers could not be held liable for the non-delivery
of the TCTs under Presidential Decree No. 957 without a definite ruling on
the legality of Atty. Orendain’s actions; and that the criminal liability would
attach only after BF Homes did not comply with a directive of the HLURB
directing it to deliver the titles.11
San Miguel Properties appealed the resolutions of the OCP Las Piñas to the
Department of Justice (DOJ), but the DOJ Secretary denied the appeal on
October 15, 2001, holding:
After a careful review of the evidence on record, we find no cogent reason
to disturb the ruling of the City Prosecutor of Las Piñas City. Established
jurisprudence supports the position taken by the City Prosecutor
concerned.
There is no dispute that aside from the instant complaint for violation of
PD 957, there is still pending with the Housing and Land Use Resulatory
Board (HLURB, for short) a complaint for specific performance where the
HLURB is called upon to inquire into, and rule on, the validity of the sales
transactions involving the lots in question and entered into by Atty.
Orendain for and in behalf of BF Homes.
As early as in the case of Solid Homes, Inc. vs. Payawal, 177 SCRA 72, the
Supreme Court had ruled that the HLURB has exclusive jurisdiction over
cases involving real estate business and practices under PD 957. This is
reiterated in the subsequent cases of Union Bank of the Philippines versus
HLURB, G.R. [No.] 953364, June 29, 1992 and C.T. Torres Enterprises vs.
Hilionada, 191 SCRA 286.
The said ruling simply means that unless and until the HLURB rules on the
validity of the transactions involving the lands in question with specific
reference to the capacity of Atty. Orendain to bind BF Homes in the said
transactions, there is as yet no basis to charge criminally respondents for
non-delivery of the subject land titles. In other words, complainant cannot
invoke the penal provision of PD 957 until such time that the HLURB shall
have ruled and decided on the validity of the transactions involving the lots
in question.
WHEREFORE, the appeal is hereby DENIED.
SO ORDERED.12 (Emphasis supplied)
The DOJ eventually denied San Miguel Properties’ motion for
reconsideration.13
Ruling of the CA
Undaunted, San Miguel Properties elevated the DOJ’s resolutions to the CA
on certiorari and mandamus (C.A.-G.R. SP No. 73008), contending that
respondent DOJ Secretary had acted with grave abuse in denying their
appeal and in refusing to charge the directors and officers of BF Homes
with the violation of Presidential Decree No. 957. San Miguel Properties
submitted the issue of whether or not HLURB Case No. REM-082400-
11183 presented a prejudicial question that called for the suspension of
the criminal action for violation of Presidential Decree No. 957.
In its assailed decision promulgated on February 24, 2004 in C.A.-G.R. SP
No. 73008,14 the CA dismissed San Miguel Properties’ petition, holding and
ruling as follows:
From the foregoing, the conclusion that may be drawn is that the rule on
prejudicial question generally applies to civil and criminal actions only.
However, an exception to this rule is provided in Quiambao vs. Osorio
cited by the respondents. In this case, an issue in an administrative case
was considered a prejudicial question to the resolution of a civil case
which, consequently, warranted the suspension of the latter until after
termination of the administrative proceedings.
Quiambao vs. Osorio is not the only instance when the Supreme Court
relaxed the application of the rule on prejudicial question.
In Tamin vs. CA involving two (2) civil actions, the Highest Court similarly
applied the rule on prejudicial question when it directed petitioner therein
to put up a bond for just compensation should the demolition of private
respondents’ building proved to be illegal as a result of a pending cadastral
suit in another tribunal.
2
City of Pasig vs. COMELEC is yet another exception where a civil action
involving a boundary dispute was considered a prejudicial question which
must be resolved prior to an administrative proceeding for the holding of a
plebiscite on the affected areas.
In fact, in Vidad vs. RTC of Negros Oriental, Br. 42, it was ruled that in the
interest of good order, courts can suspend action in one case pending
determination of another case closely interrelated or interlinked with it.
It thus appears that public respondent did not act with grave abuse of
discretion x x x when he applied the rule on prejudicial question to the
instant proceedings considering that the issue on the validity of the sale
transactions x x x by x x x Orendain in behalf of BF Homes, Inc., is closely
intertwined with the purported criminal culpability of private respondents,
as officers/directors of BF Homes, Inc., arising from their failure to deliver
the titles of the parcels of land included in the questioned conveyance.
All told, to sustain the petitioner’s theory that the result of the HLURB
proceedings is not determinative of the criminal liability of private
respondents under PD 957 would be to espouse an absurdity. If we were
to assume that the HLURB finds BFHI under no obligation to delve the
subject titles, it would be highly irregular and contrary to the ends of
justice to pursue a criminal case against private respondents for the non-
delivery of certificates of title which they are not under any legal obligation
to turn over in the first place. (Bold emphasis supplied)
On a final note, absent grave abuse of discretion on the part of the
prosecutorial arm of the government as represented by herein public
respondent, courts will not interfere with the discretion of a public
prosecutor in prosecuting or dismissing a complaint filed before him. A
public prosecutor, by the nature of his office, is under no compulsion to file
a criminal information where no clear legal justification has been shown,
and no sufficient evidence of guilt nor prima facie case has been
established by the complaining party.
WHEREFORE, premises considered, the instant Petition for Certiorari and
Mandamus is hereby DENIED. The Resolutions dated 15 October 2001 and
12 July 2002 of the Department of Justice are AFFIRMED.
SO ORDERED. 15
The CA denied San Miguel Properties’ motion for reconsideration on
January 18, 2005.16
Issues
Aggrieved, San Miguel Properties is now on appeal, raising the following
for consideration and resolution, to wit:
THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE
ERRORS WHEN IT DISMISSED PETITIONER’S CERTIORARI AND
MANDAMUS PETITION TO ORDER AND DIRECT RESPONDENT SECRETARY
TO INDICT RESPONDENTS FOR VIOLATION OF SECTION 25, PD. 957 IN
THAT:
THE OBLIGATION OF PRIVATE RESPONDENTS TO DELIVER TO PETITIONER
THE TITLES TO 20 FULLY-PAID LOTS IS MANDATED BY SECTION 25, PD
957. IN FACT, THE OFFICE OF THE PRESIDENT HAD DULY CONFIRMED
THE SAME PER ITS DECISION DATED 27 JANUARY 2005 IN O.P. CASE NO.
03-E-203, ENTITLED "SMPI V. BF HOMES, INC.".
A FORTIORI, PRIVATE RESPONDENTS’ FAILURE AND/OR REFUSAL TO
DELIVER TO PETITIONER THE SUBJECT TITLES CONSTITUTES CRIMINAL
OFFENSE PER SECTIONS 25 AND 39, PD 957 FOR WHICH IT IS THE
MINISTERIAL DUTY OF RESPONDENT SECRETARY TO INDICT PRIVATE
RESPONDENTS THEREFOR.
IN ANY EVENT, THE HLURB CASE DOES NOT PRESENT A "PREJUDICIAL
QUESTION" TO THE SUBJECT CRIMINAL CASE SINCE THE FORMER
INVOLVES AN ISSUE SEPARATE AND DISTINCT FROM THE ISSUE
INVOLVED IN THE LATTER. CONSEQUENTLY, THE HLURB CASE HAS NO
CORRELATION, TIE NOR LINKAGE TO THE PRESENT CRIMINAL CASE
WHICH CAN PROCEED INDEPENDENTLY THEREOF.
IN FACT, THE CRIMINAL CULPABILITY OF PRIVATE RESPONDENTS
EMANATE FROM THEIR MALA PROHIBITA NON-DELIVERY OF THE TITLES
TO TWENTY (20) FULLY-PAID PARCELS OF LAND TO PETITIONER, AND
NOT FROM THEIR NON-COMPLIANCE WITH THE HLURB’S RULING IN THE
ADMINISTRATIVE CASE.
NONETHELESS, BY DECREEING THAT PETITIONER’S CRIMINAL
COMPLAINT IS PREMATURE, BOTH THE COURT OF APPEALS AND
RESPONDENT SECRETARY HAD IMPLIEDLY ADMITTED THE EXISTENCE OF
SUFFICIENT PROBABLE CAUSE AGAINST PRIVATE RESPONDENTS FOR THE
CRIME CHARGED.17
It is relevant at this juncture to mention the outcome of the action for
specific performance and damages that San Miguel Properties instituted in
3
the HLURB simultaneously with its filing of the complaint for violation of
Presidential Decree No. 957. On January 25, 2002, the HLURB Arbiter
ruled that the HLURB was inclined to suspend the proceedings until the
SEC resolved the issue of Atty. Orendain’s authority to enter into the
transactions in BF Homes’ behalf, because the final resolution by the SEC
was a logical antecedent to the determination of the issue involved in the
complaint before the HLURB. Upon appeal, the HLURB Board of
Commissioners (HLURB Board), citing the doctrine of primary jurisdiction,
affirmed the HLURB Arbiter’s decision, holding that although no prejudicial
question could arise, strictly speaking, if one case was civil and the other
administrative, it nonetheless opted to suspend its action on the cases
pending the final outcome of the administrative proceeding in the interest
of good order.18
Not content with the outcome, San Miguel Properties appealed to the
Office of the President (OP), arguing that the HLURB erred in suspending
the proceedings. On January 27, 2004, the OP reversed the HLURB Board’s
ruling, holding thusly:
The basic complaint in this case is one for specific performance under
Section 25 of the Presidential Decree (PD) 957 – "The Subdivision and
Condominium Buyers’ Protective."
As early as August 1987, the Supreme Court already recognized the
authority of the HLURB, as successor agency of the National Housing
Authority (NHA), to regulate, pursuant to PD 957, in relation to PD 1344,
the real estate trade, with exclusive original jurisdiction to hear and decide
cases "involving specific performance of contractual and statutory
obligation filed by buyers of subdivision lots … against the owner,
developer, dealer, broker or salesman," the HLURB, in the exercise of its
adjudicatory powers and functions, "must interpret and apply contracts,
determine the rights of the parties under these contracts and award[s]
damages whenever appropriate."
Given its clear statutory mandate, the HLURB’s decision to await for some
forum to decide – if ever one is forthcoming – the issue on the authority of
Orendain to dispose of subject lots before it peremptorily resolves the
basic complaint is unwarranted, the issues thereon having been joined and
the respective position papers and the evidence of the parties having been
submitted. To us, it behooved the HLURB to adjudicate, with the usual
dispatch, the right and obligation of the parties in line with its own
appreciation of the obtaining facts and applicable law. To borrow from
Mabubha Textile Mills Corporation vs. Ongpin, it does not have to rely on
the finding of others to discharge this adjudicatory functions.19
After its motion for reconsideration was denied, BF Homes appealed to the
CA (C.A.-G.R. SP No. 83631), raising as issues: (a) whether or not the
HLURB had the jurisdiction to decide with finality the question of Atty.
Orendain’s authority to enter into the transaction with San Miguel
Properties in BF Homes’ behalf, and rule on the rights and obligations of
the parties to the contract; and (b) whether or not the HLURB properly
suspended the proceedings until the SEC resolved with finality the matter
regarding such authority of Atty. Orendain.
The CA promulgated its decision in C.A.-G.R. SP No. 83631,20 decreeing
that the HLURB, not the SEC, had jurisdiction over San Miguel Properties’
complaint. It affirmed the OP’s decision and ordered the remand of the
case to the HLURB for further proceedings on the ground that the case
involved matters within the HLURB’s competence and expertise pursuant
to the doctrine of primary jurisdiction, viz:
[T]he High Court has consistently ruled that the NHA or the HLURB has
jurisdiction over complaints arising from contracts between the subdivision
developer and the lot buyer or those aimed at compelling the subdivision
developer to comply with its contractual and statutory obligations.
Hence, the HLURB should take jurisdiction over respondent’s complaint
because it pertains to matters within the HLURB’s competence and
expertise. The proceedings before the HLURB should not be suspended.
While We sustain the Office of the President, the case must be remanded
to the HLURB. This is in recognition of the doctrine of primary jurisdiction.
The fairest and most equitable course to take under the circumstances is
to remand the case to the HLURB for the proper presentation of
evidence.21
Did the Secretary of Justice commit grave abuse of discretion in upholding
the dismissal of San Miguel Properties’ criminal complaint for violation of
Presidential Decree No. 957 for lack of probable cause and for reason of a
prejudicial question?
The question boils down to whether the HLURB administrative case
brought to compel the delivery of the TCTs could be a reason to suspend
the proceedings on the criminal complaint for the violation of Section 25 of
Presidential Decree No. 957 on the ground of a prejudicial question.
Ruling of the Court
The petition has no merit.
4
1.
Action for specific performance, even if pending in the HLURB, an
administrative agency, raises a prejudicial question BF Homes’ posture
that the administrative case for specific performance in the HLURB posed a
prejudicial question that must first be determined before the criminal case
for violation of Section 25 of Presidential Decree No. 957 could be resolved
is correct.
A prejudicial question is understood in law to be that which arises in a case
the resolution of which is a logical antecedent of the issue involved in the
criminal case, and the cognizance of which pertains to another tribunal. It
is determinative of the criminal case, but the jurisdiction to try and resolve
it is lodged in another court or tribunal. It is based on a fact distinct and
separate from the crime but is so intimately connected with the crime that
it determines the guilt or innocence of the accused.22 The rationale behind
the principle of prejudicial question is to avoid conflicting decisions. 23 The
essential elements of a prejudicial question are provided in Section 7, Rule
111 of the Rules of Court, to wit: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of such issue
determines whether or not the criminal action may proceed.
The concept of a prejudicial question involves a civil action and a criminal
case. Yet, contrary to San Miguel Properties’ submission that there could
be no prejudicial question to speak of because no civil action where the
prejudicial question arose was pending, the action for specific performance
in the HLURB raises a prejudicial question that sufficed to suspend the
proceedings determining the charge for the criminal violation of Section
2524of Presidential Decree No. 957. This is true simply because the action
for specific performance was an action civil in nature but could not be
instituted elsewhere except in the HLURB, whose jurisdiction over the
action was exclusive and original.25
The determination of whether the proceedings ought to be suspended
because of a prejudicial question rested on whether the facts and issues
raised in the pleadings in the specific performance case were so related
with the issues raised in the criminal complaint for the violation of
Presidential Decree No. 957, such that the resolution of the issues in the
former would be determinative of the question of guilt in the criminal case.
An examination of the nature of the two cases involved is thus necessary.
An action for specific performance is the remedy to demand the exact
performance of a contract in the specific form in which it was made, or
according to the precise terms agreed upon by a party bound to fulfill
it.26 Evidently, before the remedy of specific performance is availed of,
there must first be a breach of the contract.27 The remedy has its roots in
Article 1191 of the Civil Code, which reads:
Article 1191. The power to rescind obligations is implied in reciprocal ones,
in case one of the obligors should not comply with what is incumbent upon
him.
The injured party may choose between the fulfillment and the rescission of
the obligation, with the payment of damages in either case. He may also
seek rescission, even after he has chosen fulfillment, if the latter should
become impossible. x x x (Emphasis supplied)
Accordingly, the injured party may choose between specific performance
or rescission with damages. As presently worded, Article 1191 speaks of
the remedy of rescission in reciprocal obligations within the context of
Article 1124 of the former Civil Code which used the term resolution. The
remedy of resolution applied only to reciprocal obligations, such that a
party’s breach of the contract equated to a tacit resolutory condition that
entitled the injured party to rescission. The present article, as in the
former one, contemplates alternative remedies for the injured party who is
granted the option to pursue, as principal actions, either the rescission or
the specific performance of the obligation, with payment of damages in
either case.28
On the other hand, Presidential Decree No. 957 is a law that regulates the
sale of subdivision lots and condominiums in view of the increasing
number of incidents wherein "real estate subdivision owners, developers,
operators, and/or sellers have reneged on their representations and
obligations to provide and maintain properly" the basic requirements and
amenities, as well as of reports of alarming magnitude of swindling and
fraudulent manipulations perpetrated by unscrupulous subdivision and
condominium sellers and operators,29 such as failure to deliver titles to the
buyers or titles free from liens and encumbrances. Presidential Decree No.
957 authorizes the suspension and revocation of the registration and
license of the real estate subdivision owners, developers, operators, and/or
sellers in certain instances, as well as provides the procedure to be
observed in such instances; it prescribes administrative fines and other
penalties in case of violation of, or non-compliance with its provisions.
Conformably with the foregoing, the action for specific performance in the
HLURB would determine whether or not San Miguel Properties was legally
entitled to demand the delivery of the remaining 20 TCTs, while the
criminal action would decide whether or not BF Homes’ directors and
officers were criminally liable for withholding the 20 TCTs. The resolution
5
of the former must obviously precede that of the latter, for should the
HLURB hold San Miguel Properties to be not entitled to the delivery of the
20 TCTs because Atty. Orendain did not have the authority to represent BF
Homes in the sale due to his receivership having been terminated by the
SEC, the basis for the criminal liability for the violation of Section 25 of
Presidential Decree No. 957 would evaporate, thereby negating the need
to proceed with the criminal case.
Worthy to note at this juncture is that a prejudicial question need not
conclusively resolve the guilt or innocence of the accused. It is enough for
the prejudicial question to simply test the sufficiency of the allegations in
the information in order to sustain the further prosecution of the criminal
case. A party who raises a prejudicial question is deemed to have
hypothetically admitted that all the essential elements of the crime have
been adequately alleged in the information, considering that the
Prosecution has not yet presented a single piece of evidence on the
indictment or may not have rested its case. A challenge to the allegations
in the information on the ground of prejudicial question is in effect a
question on the merits of the criminal charge through a non-criminal
suit.30
2.
Doctrine of primary jurisdiction is applicable
That the action for specific performance was an administrative case
pending in the HLURB, instead of in a court of law, was of no consequence
at all. As earlier mentioned, the action for specific performance, although
civil in nature, could be brought only in the HLURB. This situation conforms
to the doctrine of primary jurisdiction. There has been of late a
proliferation of administrative agencies, mostly regulatory in function. It is
in favor of these agencies that the doctrine of primary jurisdiction is
frequently invoked, not to defeat the resort to the judicial adjudication of
controversies but to rely on the expertise, specialized skills, and
knowledge of such agencies in their resolution. The Court has observed
that one thrust of the proliferation is that the interpretation of contracts
and the determination of private rights under contracts are no longer a
uniquely judicial function exercisable only by the regular courts.31
The doctrine of primary jurisdiction has been increasingly called into play
on matters demanding the special competence of administrative agencies
even if such matters are at the same time within the jurisdiction of the
courts. A case that requires for its determination the expertise, specialized
skills, and knowledge of some administrative board or commission because
it involves technical matters or intricate questions of fact, relief must first
be obtained in an appropriate administrative proceeding before a remedy
will be supplied by the courts although the matter comes within the
jurisdiction of the courts. The application of the doctrine does not call for
the dismissal of the case in the court but only for its suspension until after
the matters within the competence of the administrative body are threshed
out and determined.32
To accord with the doctrine of primary jurisdiction, the courts cannot and
will not determine a controversy involving a question within the
competence of an administrative tribunal, the controversy having been so
placed within the special competence of the administrative tribunal under a
regulatory scheme. In that instance, the judicial process is suspended
pending referral to the administrative body for its view on the matter in
dispute. Consequently, if the courts cannot resolve a question that is
within the legal competence of an administrative body prior to the
resolution of that question by the latter, especially where the question
demands the exercise of sound administrative discretion requiring the
special knowledge, experience, and services of the administrative agency
to ascertain technical and intricate matters of fact, and a uniformity of
ruling is essential to comply with the purposes of the regulatory statute
administered, suspension or dismissal of the action is proper.33
3.
Other submissions of petitioner are unwarranted
It is not tenable for San Miguel Properties to argue that the character of a
violation of Section 25 of Presidential Decree No. 957 as malum
prohibitum, by which criminal liability attached to BF Homes’ directors and
officers by the mere failure to deliver the TCTs, already rendered the
suspension unsustainable.34 The mere fact that an act or omission was
malum prohibitum did not do away with the initiative inherent in every
court to avoid an absurd result by means of rendering a reasonable
interpretation and application of the procedural law. Indeed, the
procedural law must always be given a reasonable construction to preclude
absurdity in its application.35 Hence, a literal application of the principle
governing prejudicial questions is to be eschewed if such application would
produce unjust and absurd results or unreasonable consequences.
San Miguel Properties further submits that respondents could not validly
raise the prejudicial question as a reason to suspend the criminal
proceedings because respondents had not themselves initiated either the
action for specific performance or the criminal action.1âwphi1 It contends
that the defense of a prejudicial question arising from the filing of a related
6
case could only be raised by the party who filed or initiated said related
case.
The submission is unfounded. The rule on prejudicial question makes no
distinction as to who is allowed to raise the defense. Ubi lex non distinguit
nec nos distinguere debemos. When the law makes no distinction, we
ought not to distinguish.36
WHEREFORE, the Court AFFIRMS the decision promulgated on February
24, 2004 by the Court of Appeals in CA-G.R. SP NO. 73008; and ORDERS
petitioner to pay the costs of suit.
SO ORDERED.
PAREDES VS TALINO………….FILL IN HERE
G.R. No. 212340, August 17, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GERRJAN
MANAGO Y ACUT, Accused-Appellant.
DECISION
PERLAS-BERNABE, J.:
Before the Court is an ordinary appeal1 filed by accused-appellant Gerrjan
Manago y Acut (Manago) assailing the Decision2 dated May 20, 2013 and
the Resolution3 dated November 6, 2013 of the Court of Appeals (CA) in
C.A.-G.R. CEB-C.R. No. 01342, which affirmed the Decision4 dated March
23, 2009 of the Regional Trial Court of Cebu City, Branch 58 (RTC), in
Criminal Case No. CBU-79707, finding Manago guilty beyond reasonable
doubt of violating Section 11, Article II5 of Republic Act No. (RA)
9165,6otherwise known as the "Comprehensive Dangerous Drugs Act of
2002."
The Facts
On April 10, 2007, an Information7 was filed before the RTC, charging
Manago of Possession of Dangerous Drugs, defined and penalized under
Section 11, Article II of RA 9165, the accusatory portion of which
reads:ChanRoblesVirtualawlibrary
That on or about the 16th day of March, 2007, at about 11:50 in the
evening, in the City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with deliberate intent, and without
authority of law, did then and there have in his possession and under his
control one (1) heat-sealed transparent plastic packet of white crystalline
substance weighing 5.85 grams containing Methylamphetamine
Hydrochloride[sic], a dangerous drug, without being authorized by law.
CONTRARY TO LAW.8chanroblesvirtuallawlibrary
According to the prosecution, at around 9:30 in the evening of March 15,
2007, PO3 Antonio Din (PO3 Din) of the Philippine National Police (PNP)
Mobile Patrol Group was waiting to get a haircut at Jonas Borces Beauty
Parlor when two (2) persons entered and declared a hold-up. PO3 Din
identified himself as a police officer and exchanged gun shots with the two
suspects. After the shootout, one of the suspects boarded a motorcycle,
while the other boarded a red Toyota Corolla. The plate numbers of the
vehicles were noted by PO3 Din.9chanrobleslaw
After the incident, PO3 Din received word from Barangay Tanod Florentine
Cano (Cano),10 that the robbery suspects were last seen in Barangay Del
Rio Pit-os. Thus, S/Insp. George Ylanan (S/Insp. Ylanan) conducted an
investigation in the said barangay, and discovered that before the robbery
incident, Manago told Cano that three persons - namely, Rico Lumampas,
Arvin Cadastra, and Allan Sordiano - are his employees in his roasted
chicken business, and they were to stay in Manago's house. Further, upon
verification of the getaway vehicles with the Land Transportation Office,
the police officers found out that the motorcycle was registered in
Manago's name, while the red Toyota Corolla was registered in the name
pf Zest-O Corporation, where Manage worked as a District Sales
Manager.11chanrobleslaw
With all the foregoing information at hand, the police officers, comprised of
a team including PO3 Din and S/Insp. Ylanan, conducted a "hot pursuit"
operation one (1) day after the robbery incident, or on March 16, 2007, by
setting up a checkpoint in Sitio Panagdait. At around 9:30 in the evening
of even date, the red Toyota Corolla, then being driven by Manago, passed
through the checkpoint, prompting the police officers to stop the vehicle.
The police officers then ordered Manago to disembark, and thereafter,
conducted a thorough search of the vehicle. As the search produced no
contraband, the police officers then frisked Manago, resulting in the
discovery of one (1) plastic sachet containing a white crystalline substance
suspected to be methamphetamine hydrochloride or shabu. The police
officers seized the plastic pack, arrested Manago, informed him of his
constitutional rights, and brought him and the plastic pack to their
headquarters. Upon reaching the headquarters, S/Insp. Ylanan turned over
the seized plastic pack to PO3 Joel Taboada, who in turn, prepared a
7
request for a laboratory examination of the same. SPO1 Felix Gabijan then
delivered the said sachet and request to Forensic Chemist Jude Daniel
Mendoza of the PNP Crime Laboratory, who, after conducting an
examination, confirmed that the sachet contained methamphetamine
hydrochloride or shabu.12chanrobleslaw
In his defense, Manago denied possessing the plastic pack recovered by
the police officers. He claimed that at around 11:50 in the evening of
March 16, 2007, he was about to start his vehicle and was on his way
home from the office when a pick-up truck stopped in front of his car.
Three (3) police officers armed with long firearms disembarked from the
said track. One of the officers knocked on the door of Manago's vehicle and
asked for his driver's license, to which Manago complied. When the same
officer saw Manago's name on the license, the former uttered "mao na
ni (this is him)." Manago was then ordered to sit at the back of his car as
the vehicle was driven by one of the police officers directly to the Cebu
City Police Station. After arriving at the police station, Manago was
interrogated about who the robbers were and to divulge their whereabouts
so that no criminal charges would be filed against him. Manago claimed
that he requested for a phone call with his lawyer, as well as a copy of the
warrant for his arrest, but both requests went unheeded. After he was
dispossessed of his laptop, wallet, and two (2) mobile phones, he was then
photographed and placed in a detention cell. Thereafter, he was brought to
the Cebu City Prosecutor's Office where he was charged with, among
others, illegal possession of shabu.13chanrobleslaw
Prior to his arraignment, Manago filed a Motion to Dismiss for Lack of
Probable Cause and/or Motion for the Suppression of
Evidence,14 contending, inter alia, that there is neither probable cause
nor prima facieEvidence to conduct an arrest and search on him; as such,
the item seized torn him, i.e., the plastic sachet containing shabu, is
inadmissible in evidence pursuant to the fruit of the poisonous tree
doctrine.15 However, in kn Order16 dated May 31, 2007, the RTC denied
the said motion. The RTC held that while (a) the police officers, through
PO3 Din, had no personal knowledge of Manago's involvement in the
robbery as they had to conduct in investigation to identify him as the
registered owner of the motorcycle and (b) there was no in flagrante
delicto arrest as Manago was merely driving and gave no indication that he
was committing an offense, the RTC nevertheless held that there was a
valid warrantless search of a moving vehicle, considering that PO3 Din had
probable cause to believe that Manago was part of the robbery, because
the latter was driving the getaway vehicle used in the March 15, 2007
robbery incident.17chanrobleslaw
On July 12, 2007, Manago was arraigned with the assistance of counsel
and pleaded not guilty to the charge against him.18chanrobleslaw
During the course of the trial, the contents of the plastic sachet were re-
examined by the National Bureau of Investigation, revealing that out of
the 5.7158 grams of white crystalline substance contained in the sachet,
only 0.3852 grams is methamphetamine hydrochloride, while the rest is
potassium aluminum sulphate or tawas, which is not a dangerous drug
substance. Thus, Manago applied for and was granted bail.19chanrobleslaw
The RTC Ruling
In a Decision20 dated March 23, 2009, the RTC found Manago guilty
beyond reasonable doubt of possession of 0.3852 grams of shabu and
accordingly, sentenced him to suffer the penalty of imprisonment for a
period of twelve (12) years and one (1) day, as minimum, to fifteen (15)
years, as maximum, and to pay a fine in the amount of
P300,000.00.21chanrobleslaw
Echoing its earlier findings in its May 31, 2007 Order, the RTC found that
the police officers conducted a valid warrantless search of a moving
vehicle, considering that PO3 Din positively identified the red Toyota
Corolla, then being driven by Manago, as the getaway vehicle in the March
15, 2007 robbery incident. Thus, the item found in the search, i.e., the
plastic sachet containing shabu obtained from Manago, is admissible in
evidence and is enough to sustain a conviction against him for violation of
Section 11, Article II of RA 9165.22chanrobleslaw
Manago moved for reconsideration23 and applied for bail pending appeal,
which were, however, both denied in an Omnibus Order24 dated May 12,
2009. Aggrieved, Manago appealed his conviction before the
CA.25cralawredchanrobleslaw
The CA Proceedings
Upon Manago's motion to post bail, the CA rendered a Resolution 26 dated
August 13, 2010, allowing Manago to post bail in the amount of
P200,000.00, noting that the quantity of the shabu seized from him was
only 0.3852 grams, thus bailable, and that the Office of the Solicitor
General did not oppose Manago's motion.27chanrobleslaw
In a Decision28 dated May 20, 2013, the CA affirmed Manago „
conviction in toto. It held that the police officers conducted a valid hot
pursuit operation against Manago, considering that PO3 Din personally
identified him as the one driving the red Toyota Corolla vehicle used in the
March 15, 2007 robbery incident. As such, the CA concluded that the
warrantless arrest conducted against Manago was valid, and consequently,
the plastic sachet seized from him containing shabu is admissible in
8
evidence as it was done incidental to a lawful arrest.29chanrobleslaw person to be arrested has committed it; and cralawlawlibrary

Undaunted, Manago moved for reconsideration,30 which was denied in a (c) When the person to be arrested is a prisoner who has escaped from a
Resolution31 dated November 6, 2013; hence, the instant appeal. penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
The Issue Before the Court transferred from one confinement to another.

The issue for the Court's resolution is whether or not Manage's conviction In cases falling under paragraphs (a) and (b) above, the person arrested
for violation of Section 11, Article II of RA 9165 should be upheld. without a warrant shall be forthwith delivered to the nearest police station
or jail and shall be proceeded against in accordance with Section 7 of Rule
The Court's Ruling 112.
Under the foregoing provision, there are three (3) instances when
The appeal is meritorious. warrantless arrests may be lawfully effected. These are: (a) an arrest of a
suspect in flagrante delicto; (b) an arrest of a suspect where, based
Section 2, Article III32 of the 1987 Constitution mandates that a search on personal knowledge of the arresting officer, there is probable
and seizure must be carried out through or on the strength of a cause that said suspect was the perpetrator of a crime which had
judicial warrant predicated upon the existence of probable just been committed; and (c) an arrest of a prisoner who has escaped
cause, absent which such search and seizure becomes from custody serving final judgment or temporarily confined during the
"unreasonable" within the meaning of the said constitutional pendency of his case or has escaped while being transferred from one
provision. To protect the people from unreasonable searches and confinement to another.36chanrobleslaw
seizures, Section 3 (2), Article III33 of the 1987 Constitution provides that
evidence obtained and confiscated on the occasion of such unreasonable In warrantless arrests made pursuant to Section 5 (b), it is essential
searches and seizures are deemed tainted and should be excluded for that the element of personal knowledge must be coupled with the
being the proverbial fruit of a poisonous tree. In other words, evidence element of immediacy; otherwise, the arrest may be nullified, and
obtained from unreasonable searches and seizures shall be resultantly, the items yielded through the search incidental thereto will be
inadmissible in evidence for any purpose in any rendered inadmissible in consonance with the exclusionary rule of the
proceeding.34chanrobleslaw 1987 Constitution. In Pestilos v. Generoso,37the Court explained the
requirement of immediacy as follows:ChanRoblesVirtualawlibrary
One of the recognized exceptions to the need of a warrant before a search Based on these discussions, it appears that the Court's appreciation of the
may be effected is a search incidental to a lawful arrest. In this instance, elements that "the offense has just been committed" and "personal
the law requires that there first be a lawful arrest before a search knowledge of facts and circumstances that the person to be arrested;
can be made — the process cannot be reversed.35chanrobleslaw committed it" depended on the particular circumstances of the case.

A lawful arrest may be effected with or without a warrant. With respect to However, we note that the element of "personal knowledge of facts or
the latter, the parameters of Section 5, Rule 113 of the Revised Rules of circumstance" under Section 5 (b), Rule 113 of the Revised Rules of
Criminal Procedure should - as a general rule - be complied Criminal Procedure requires clarification.
with:ChanRoblesVirtualawlibrary
SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private The phrase covers facts or, in the alternative, circumstances. According to
person may, without a warrant, arrest a person: the Black's Law Dictionary, "circumstances are attendant or accompanying
facts, events or conditions." Circumstances may pertain to events or
chanRoblesvirtualLawlibrary(a) When, in his presence, the person to be actions within the actual perception, personal evaluation or observation of
arrested has committed, is actually committing, or is attempting to commit the police officer at the scene of the crime. Thus, even though the police
an offense; officer has not seen someone actually fleeing, he could still make a
warrantless arrest if, based on his personal evaluation of the
(b) When an offense has just been committed and he has probable cause circumstances at the scene of the crime, he could determine the existence
to believe based on personal knowledge of facts or circumstances that the of probable cause that the person sought to be arrested has committed the

9
crime. However, the determination of probable cause and the gathering of
facts or circumstances should be made immediately after the commission
of the crime in order to comply with the element of immediacy.
In other words, the clincher in the element of "personal knowledge
of facts or circumstances" is the required element of immediacy
within which these facts or circumstances should be gathered. This
required time element acts as a safeguard to ensure that the police
officers have gathered the facts or perceived the circumstances
within a very limited time frame. This guarantees that the police
officers would have no time to base their probable cause finding on
facts or circumstances obtained after an exhaustive investigation.
The reason for the element of the immediacy is this - as the time gap from
the commission of the crime to the arrest widens, the pieces of information
gathered are prone to become contaminated and subjected to external
factors, interpretations and hearsay. On the other hand, with the
element of immediacy imposed under Section 5 (b), Rule 113 of
the Revised Rules of Criminal Procedure, the police officer's
determination of probable cause would necessarily be limited to
raw or uncontaminated facts or circumstances, gathered as they
were within a very limited period of time. The same provision adds
another safeguard with the requirement of probable cause as the standard
for evaluating these facts of circumstances before the police officer could
effect a valid warrantless arrest.38 (Emphases and underscoring supplied)
In this case, records reveal that at around 9:30 in the evening of March
15, 2007, PO3 Din personally witnessed a robbery incident while he was
waiting for his turn to have a haircut at Jonas Borces Beauty Parlor. After
his brief shootout with the armed robbers, the latter fled using a
motorcycle and a red Toyota Corolla. Through an investigation and
verification made by the police officers headed by PO3 Din and S/Insp.
Ylanan, they were able to: (a) find out that the armed robbers were
staying in Barangay Del Rio Pit-os; and (b) trace the getaway vehicles to
Manago. The next day, or on March 16, 2007, the police officers set up a
checkpoint in Sitio Panagdait where, at around 9:30 in the evening, the
red Toyota Corolla being driven by Manago passed by and was intercepted
by the police officers. The police officers then ordered Manago to
disembark the car, and from there, proceeded to search the vehicle and
the body of Manago, which search yielded the plastic sachet
containing shabu. Thereupon, they effected Manago's arrest.
The foregoing circumstances show that while the element of personal
knowledge under Section 5 (b) above was present - given that PO3 Din
actually saw the March 15, 2007 robbery incident and even engaged the
armed robbers in a shootout - the required element of immediacy was not
met. This is because, at the time the police officers effected the
warrantless arrest upon Manago's person, investigation and verification
proceedings were already conducted, which consequently yielded sufficient
information on the suspects of the March 15, 2007 robbery incident. As the
Court sees it, the information the police officers had gathered therefrom
would have been enough for them to secure the necessary warrants
against the robbery suspects. However, they opted to conduct a "hot
pursuit" operation which - considering the lack of immediacy -
unfortunately failed to meet the legal requirements therefor. Thus, there
being no valid warrantless arrest under the "hot pursuit" doctrine, the CA
erred in ruling that Manago was lawfully arrested.
In view of the finding that there was no lawful arrest in this case, the CA
likewise erred in ruling that the incidental search on Manago's vehicle and
body was valid. In fact, the said search was made even beforehe was
arrested and thus, violated the cardinal rule on searches incidental to
lawful arrests that there first be a lawful arrest before a search can
be made.
For another, the Court similarly finds the RTC's ruling that the police
officers conducted a lawful warrantless search of a moving vehicle on
Manago's red Toyota Corolla untenable.
In Caballes v. People,39 the Court explained the concept of warrantless
searches on moving vehicles:ChanRoblesVirtualawlibrary
Highly regulated by the government, the vehicle's inherent mobility
reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity. Thus, the
rules governing search and seizure have over the years been
steadily liberalized whenever a moving vehicle is the object of the
search on the basis of practicality. This is so considering that before a
warrant could be obtained, the place, things and persons to be searched
must be described to the satisfaction of the issuing judge - a requirement
which borders on the impossible in the case of smuggling effected by the
use of a moving vehicle that can transport contraband from one place to
another with impunity. We might add that a warrantless search of a
moving vehicle is justified on the ground that it is not practicable
to secure a warrant because the vehicle can be quickly moved out
of the locality or jurisdiction in which the warrant must be
sought. Searches without warrant of automobiles is also allowed for the
purpose of preventing violations of smuggling or immigration laws,
provided such searches are made at borders or "constructive borders" like
checkpoints near the boundary lines of the State.40 (Emphases and
underscoring supplied)
A variant of searching moving vehicles without a warrant may entail
the setup of military or police checkpoints - as in this case - which,
10
based on jurisprudence, are not illegal per se for as long as its
necessity is justified by the exigencies of public order and
conducted in a way least intrusive to motorists.41 Case law further
states that routine inspections in checkpoints are not regarded as violative
of an individual's right against unreasonable searches, and thus,
permissible, if limited to the following: (a) where the officer merely draws
aside the curtain of a vacant vehicle which is parked on the public fair
grounds; (b) simply looks into a vehicle; (c) flashes a light therein without
opening the car's doors; (d) where the occupants are not subjected to a
physical or body search; (e) where the inspection of the Vehicles is limited
to a visual search or visual inspection; and (e) where the routine check is
conducted in a fixed area.42chanrobleslaw
It is well to clarify, however, that routine inspections do not give police
officers carte blanche discretion to conduct warrantless searches in the
absence of probable cause. When a vehicle is stopped and subjected to an
extensive search - as opposed to a mere routine inspection - such a
warrantless search has been held to be valid only as long as the officers
conducting the search have reasonable or probable cause to believe before
the search that they will find the instrumentality or evidence pertaining to
a crime, in the vehicle to be searched.43chanrobleslaw
In the case at bar, it should be reiterated that the police officers had
already conducted a thorough investigation and verification proceedings,
which yielded, among others: (a) the identities of the robbery suspects;
(b) the place where they reside; and (c) the ownership of the getaway
vehicles used in the robbery, i.e., the motorcycle and the red Toyota
Corolla. As adverted to earlier, these pieces of information were already
enough for said police officers to secure the necessary warrants to accost
the robbery suspects. Consequently, there was no longer any exigent
circumstance that would have justified the necessity of setting up the
checkpoint in this case for the purpose of searching the subject vehicle. In
addition, it is well to point out that the checkpoint was arranged for the
targeted arrest of Manago, who was already identified as the culprit of the
robbery incident. In this regard, it cannot, therefore, be said that the
checkpoint was meant to conduct a routinary and indiscriminate search of
moving vehicles. Rather, it was used as a subterfuge to put into force the
capture of the fleeing suspect. Unfortunately, this setup cannot take the
place of - nor skirt the legal requirement of - procuring a valid
search/arrest warrant given the circumstances of this case. Hence, the
search conducted on the red Toyota Corolla and on the person of its driver,
Manago, was unlawful.
In fine, Manago's warrantless arrest, and the search incidental thereto,
including that of his moving vehicle were all unreasonable and unlawful. In
consequence, the shabu seized from him is rendered inadmissible in
evidence pursuant to the exclusionary rule under Section 3 (2), Article III
of the 1987 Constitution. Since the confiscated shabu is the very corpus
delicti of the crime charged, Manago must necessarily be acquitted and
exonerated from criminal liability.44chanrobleslaw
WHEREFORE, the appeal is GRANTED. The Decision dated May 20, 2013
and the Resolution dated November 6, 2013 of the Court of Appeals in
C.A.-G.R. CEB-C.R. No. 01342 are hereby REVERSED and SET ASIDE.
Accordingly, accused-appellant Gerrjan Manago y Acut as
hereby ACQUITTED of the crime of violation of Section 11, Article II of
Republic Act No. 9165.
SO ORDERED.cha
G.R. No. L-24273 April 30, 1969
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
PEDRO FIGUEROA, BOY AHIJAL, CELEDONIO CARINGAL, KARIM
JAUKAL, RAJAH MAHAMMAD, MUSTALI GAJALI, ALI MAHAMMAD,
STAJI BADTANG and ENTAS BAANG, defendants-appellees.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Pacifico P. de Castro and Solicitor Conrado T. Limcaoco for plaintiff-
appellant.
Jesus M. Dator for defendants-appellees.
TEEHANKEE, J.:
Appeal by the State from the Order of the Court of First Instance of
Palawan sustaining the motion to quash the information on the ground
that in the Court's opinion, the accused were not given ample chance and
opportunity to be heard in the preliminary investigation conducted by the
investigating fiscal.
The accused were apprehended on December 13, 1964 by officers and
crew of the Philippine Navy RPS "Antique" off the island of Tara within the
province of Palawan, having in their possession and custody, aboard the
kumpit M/L "Pershia" three hundred eighty-eight cases (of 50 cartons per
case) of "Old Gold" blue seal cigarettes, without first having paid the
Government the specific taxes due thereon in the amount of P102,432.00.
The accused with their cargo were brought to Philippine Navy
Headquarters at Manila, where they were investigated on December 14,
1964 by investigating officers of the Naval Judge Advocate General and
before whom they individually executed affidavits in question and answer
11
form. All nine accused admitted the fact of their having been apprehended
off Tara Island aboard the kumpit loaded with the untaxed cigarettes,
which they had gotten from Jolo, Sulu and which, according to the patron
of the vessel, Pedro Figueroa, he was taking to Hulugan, Tanza, Cavite to
sell there. 1Provincial Fiscal Zoilo Alviar of Palawan later on the same day
showed up at the Navy Headquarters and conducted a preliminary
investigation, taking the sworn written statements of the arresting officers,
among them Servicemen Rodolfo Baltazar and Esteban Sumil,2 as well as
of the accused. The accused jointly executed a statement stating that they
knew they would have to face criminal charges before the Court as a result
of their apprehension, that they were agreeable to Fiscal Alviar conducting
the preliminary investigation of their case in Manila and that they were
waiving the provision of Section 125 of the Revised Penal Code, as follows:
SA SINUMANG KINAUUKULAN:
Kaming nakalagda sa ibaba ay nagsasabing kami ay nahuli ng sasakyang
dagat ng Philippine Navy sa dagat na pumapaligid sa isla ng Tara, malapit
sa Busuanga, Palawan sa umaga ng December 13, 1964;
Na hinuli kami dahil sa ang aming sasakyang dagat (Unnamed) ay
kinapapalagyan ng mga sigarilyong blue seal nangangahulugang walang
bayad ng tax sa BIR;
Na nalalaman naming dahil sa pagkakahuli sa amin ay mapapaharap kami
sa husgado upang harapin ang sakdal laban sa amin;
Nang dahil dito, kami ay sumasangayon na humarap sa Provincial Fiscal ng
Palawan, si Fiscal ZOILO Q. ALVIAR, dito rin sa Maynila at makunan ng
karapatang "preliminary investigation" sang ayon sa batas ng korte
suprema (Rules of Court);
Upang mabigyan ng kaukulang panahon ang nasabing Fiscal, ay
pumapayag kaming itatwa ang aming karapatang sang-ayon sa Sec. 125
ng kodigo penal na naguutos sa sinumang opisyal ng gobierno na dalhin
ang sinumang tao, na nahuli hinggil sa isang paglabag sa batas, sa opisyal
ng husgado (judicial authorities) sa loob ng anim na oras.
Maynila, December 14, 1964.
Fiscal Alviar then interrogated the accused individually, confronted them
with their affidavits in the presence of the arresting officers Servicemen
Baltazar and Sumil and had the accused identify their respective affidavits
and signatures thereon; the accused testified further that the contents of
their affidavits were explained to them and that the facts stated therein
were true; the fiscal further asked them whether they had any questions
to ask from Servicemen Baltazar and Sumil to which they replied in the
negative.3
On the next day, December 15, 1964, Fiscal Alviar sent from Manila a
telegram to his assistant at Puerto Princesa, Palawan, stating that he had
conducted a preliminary investigation in Manila and instructing his
assistant to file the corresponding information for illegal possession of the
untaxed 388 cases of cigarettes against the accused.4
On the following day, December 16, 1964, Fiscal Alviar wrote a letter to
Assistant Fiscal R. Abaca, stating that the accused would be brought by the
Philippine Navy to Puerto Princesa by the same arresting officers,
Servicemen Baltazar and Sumil. He suggested to his assistant that while
he had already conducted a preliminary investigation in Manila, the latter
should conduct still another investigation in Puerto Princesa, by asking all
of the respondents and the arresting officers to identify and affirm the
truth and correctness of their previous sworn statements given before
Fiscal Alviar in Manila, "to obviate any technical defect of the preliminary
investigation that I conducted."5 This was what Assistant Fiscal Abaca did
upon the arrival of the accused and the arresting officers at Puerto
Princesa on December 19, 1964, at 8:15 A.M.6 He advised the accused
that they were entitled to counsel,7 but they declined and readily
reaffirmed their previous sworn statements before Fiscal Alviar in
Manila.8 Their sworn statements to this effect were again taken down in
writing before Assistant Fiscal Abaca, who thereafter filed on the same
day, December 19, 1964, the corresponding information for violation of
Section 174 in relation to Section 183 of the National Internal Revenue
Code, as amended by Republic Act No. 4097.9 The information bore the
earlier date of December 16, 1964 but was subscribed and sworn and filed
in court on December 19, 1964 by Fiscal Abaca. Fiscal Abaca later stated
under oath at the hearing that he prepared the information on December
19, 1964 and that the date of December 16, appearing on the information
was but a clerical error.10 The accused Pedro Figueroa and Celedonio
Caringal posted bail, while their co-accused remained under detention, and
the case was scheduled for arraignment on January 19, 1966.
On January 11, 1965, counsel for the accused filed a Motion to Quash,
alleging that in violation of Section 14, Rule 112 of the new Rules of Court,
the information against the accused was "filed by the Provincial Fiscal
without conducting a preliminary investigation or if there was any, it was
conducted in Manila and not in Palawan, the province where the alleged
crime was committed."11 The motion was heard on the next day and Fiscal
Alviar filed a written opposition where he informed the Court that
"According to the records of this case 2nd Assistant Provincial Fiscal Abaca
12
conducted a preliminary investigation on December 19, 1964, in which
investigation he interrogated the witnesses for the prosecution as well as
the accused under oath and recorded their testimonies.... In their
statements, both the prosecution witnesses and those of the accused, all
admitted and affirmed the truth and correctness of their statements which
were shown to them and were read to them by the investigating Fiscal,
Fiscal Abaca. Although these statements that were referred to in the
investigation conducted by Assistant Provincial Fiscal Abaca, were taken by
Provincial Fiscal Alviar in the City of Manila, this fact makes no difference
in the validity of the preliminary investigation conducted by 2nd Assistant
Provincial Fiscal Abaca, because the witnesses were only reiterating before
him what they have already testified to before Fiscal Alviar. There can be
irregularity in the investigation conducted by 2nd Assistant Provincial Fiscal
Abaca, by the mere fact that instead of retaking their statements, he
showed and read to them their previous statements and asked each and
every one of them whether, these were their statements and whether they
affirm the truth and correctness of the fact stated, in which case, they all
acknowledged that those were their statements and each affirmed the
truth thereof. In said investigation, the accused did not raise any defense
nor adduce any fact to exculpate them. Under these circumstances, there
is no ground to say that accused were not given a chance to be heard or
any opportunity to interpose their defenses in the preliminary
investigation." 12
Fiscal Alviar further presented to the Court the records of the investigation
of the accused.13lawphi1.nêt Notwithstanding all these, the lower court
took the extraordinary step of placing Assistant Fiscal Abaca on the stand,
questioned him extensively14 and likewise had him cross-examined
extensively by defense counsel,15 at the end of which he announced the
granting of the motion to quash, denied summarily the fiscal's motion for
reconsideration, and there after dictated in open court his order,
dismissing the information and ordering the Fiscal "to conduct a new
preliminary investigation in this case in order to afford the accused all the
chances to be heard in the preliminary investigation." The pertinent
portions of his Order read:
It appears that a preliminary investigation of this case was conducted by
the Provincial Fiscal in Manila. Then the accused were brought to Puerto
Princesa, by the apprehending officers on December 19, 1964. The
Provincial Fiscal sent a telegram to First Assistant Provincial Fiscal Miclat,
Exh. "A", requesting him to file a rush case of Illegal Possession of
Smuggled Goods against the herein accused, which telegram was received
by Second Assistant Provincial Fiscal Abaca who was then in charge of
office in the absence of First Assistant Provincial Fiscal Miclat. The accused
and the prosecution witnesses saw Fiscal Abaca on December 19, 1964. Lt.
Hernandez of the Philippine Navy delivered to Fiscal Abaca a letter from
Fiscal Alviar dated December 16, 1954 Exh. "1" which is self-explanatory.
Right then on December 19, 1964, when the prosecution witnesses went
to the office of the Provincial Fiscal, Fiscal Abaca supposedly conducted a
preliminary investigation. The first questions appearing in the statement of
the prosecution witnesses were the very questions which were suggested
by Fiscal Alviar to Fiscal Abaca in his letter to him Exh. "1". After the
investigation of the prosecution witnesses, the accused were investigated
also. The investigation was made hurriedly on the understanding of the
investigating Fiscal that they were under custody. There is no showing at
all whether they waived their rights to Section 125 of the Revised Penal
Code or not to warrant an immediate preliminary investigation without
giving the accused the chance to prepare. Besides, the Fiscal, in the
opinion of the Court, was of the notion that the investigation made in
Manila was sufficient as could be gleaned from the telegram Exh "A".
xxx xxx xxx
From the facts obtaining in this case, the Court is of the opinion, and so
holds, that the accused in this case were not given ample chance and
opportunity to be heard in the preliminary investigation which is against
the provisions of Sec 14, Rule 112 of the Rules of Court. Honestly
speaking, the Court believes that Sec. 14 of Rule 112 of the Rules of Court
has not been substantially complied with by the investigating Fiscal.16
We hold the lower court's order quashing the information for lack of
substantial compliance with Section 14 of Rule 112 of the Rules of Court to
be patently erroneous and set it aside.lawphi1.nêt
1. Assuming that the trial court felt that the accused should have been
given more "ample chance and opportunity to be heard in the preliminary
investigation", then what it could properly have done, since in its own
Order it recognized that Fiscal Abaca had conducted a preliminary
investigation although "hurriedly" in its opinion, was not to dismiss the
information but to hold the case in abeyance and conduct its own
investigation or require the fiscal to hold a reinvestigation. This Court,
speaking through now Mr. Chief Justice Concepcion in People vs.
Casiano,17 had stressed this as the proper procedure, pointing out that
"the absence of such investigation did not impair the validity of the
information or otherwise render it defective. Much less did it affect the
jurisdiction of the Court of First Instance over the present case."
2. The record amply shows, however, that in compliance with the
requirements of Rule 112, section 14 on preliminary investigations by
provincial or city, fiscals or state attorneys, the assistant fiscal of Palawan
conducted the investigation in the presence of the arresting officers and
13
the accused18 and afforded them "the right to be heard, to cross-examine
the complainant and his witnesses, and to adduce evidence in (their)
favor." The fiscal duly advised respondents of their right to counsel but the
accused chose merely to reiterate their sworn statements previously given
before Fiscal Alviar in Manila, and their affirmation thereof under oath was
duly taken down in writing before the fiscal. The accused chose not to
raise any defense nor adduce any evidence to exculpate themseIves. The
fact that the questions asked by the fiscal of the prosecution witnesses and
the accused "were the very questions which were suggested by Fiscal
Alviar to Fiscal Abaca in his letter to him, Exh. '1'", i.e. to affirm the truth
and correctness of their previous statements, did not affect the validity
and regularity of the investigation proceedings. Where a witness or
accused has previously given a statement, it is a perfectly valid procedure
often availed of to avoid needless waste of time to just ask him whether he
affirms the same statement and the truth and correctness of the contents
thereof. To require the investigating fiscal to repeat the same questions
asked of, and answered by, the complaining witnesses and the accused in
their previous testimonies before Fiscal Alviar, as the lower court would
apparently indicate as the appropriate procedure would have served no
useful purpose nor added a whit of evidence as to the reasonable
probability of the guilt of the accused, for purposes of the filing of the
information, in the light of their statements admitting their apprehension
in flagrante delicto for possession of the untaxed cigarettes, which
statements remain unrepudiated by them. There was no basis, therefore,
for the lower court's finding that the investigating fiscal had failed to
substantially comply with the requirements of Rule 112, section 14 of the
Rules of Court.
If the case has already been filed in court and no preliminary investigation
has been conducted by the fiscal because the accused has not made the
waiver referred to in the preceding paragraph, the accused may, within a
period of five (5) days from the time he learns of the filing of the
information, ask for a reinvestigation thereof with the same right to cross-
examine the witnesses against him and adduce evidence in his favor.
The immediate and "hurried" investigation conducted on December 19,
1964 by the investigation fiscal in Puerto Princesa, considering that the
accused were under detention by virtue of their lawful arrest on December
13, 1964 was but in compliance with the requirements of the abovequoted
rule.21
4. But assuming that the lower Court had correctly found that there was
no waiver by the accused of the provisions of Section 125 of the Revised
Penal Code, neither would it have been justified in dismissing the
information. For Rule 112, section 15 expressly authorizes the fiscal to
immediately file the case in court against a detained person arrested
without a warrant, without conducting a preliminary investigation, where
the accused has not made such waiver. The right granted by the Rule to
the accused in such cases is "within a period of five (5) days from the time
he learns of the filing of the information, (to) ask for a reinvestigation
thereof with the same right to cross-examine the witnesses against him
and adduce evidence in his favor." This, the accused failed to do, for the
information against them was filed on December 19, 1964 and they did
not ask for such reinvestigation within a 5-day period thereafter. Their
Motion to Quash was filed much later only on January 11, 1965.

3. The lower Court's finding that "there is no showing at all whether (the
5. The lower Court erred in choosing to believe against the uncontradicted
accused) waived their rights to Section 125 of the Revised Penal Code or
sworn testimony of the investigating fiscal that the information was
not to warrant an immediate preliminary investigation without giving the
prepared on December 16, 1964, three days before it was actually
accused the chance to prepare" is not borne out by the record. The joint
subscribed and filed with the Court. It refused to believe the fiscal's
waiver executed by the accused is reproduced hereinabove,19 and the
explanation that the date "16" appearing oil the information was a
investigating fiscal had precisely informed the Court that
typographical error ... because if it was really so the subscribing fiscal
"(N)otwithstanding such waiver the investigation must be terminated
should have corrected it." But such overlooked typographical errors do
within seven days from its inception, so that in this case there is that
occur frequently. At any rate, this was a mere triviality which was of no
element of expediency. If we will have the investigation later, the accused
relevance to the issues. The information was not complete until it was
have to be released"20 pursuant to Section 15 of Rule 112, which provides:
subscribed together with the fiscal's sworn certification "on December 19,
1964, the date when the preliminary investigation was conducted", as held
SEC. 15. Investigation of person in custody. — Where the accused is by the Court itself in its Order.
detained without a warrant for his arrest, he may ask for a preliminary
investigation by a proper officer in accordance with the preceding sections,
6. This Court finds also that the procedure adopted by the lower court of
but he must sign a waiver of the provisions of Article 125 of the Revised
placing the investigating fiscal on the witness stand and subjecting him to
Penal Code, as amended. Notwithstanding such waiver the investigation
cross-examination by defense counsel was highly improper. Aside from the
must be terminated within seven (7) days from its inception.
sworn certification in the information by the investigating fiscal that he had

14
duly conducted a preliminary investigation, the entire record of the
investigation with the sworn statements of the complaining witnesses and
the accused had been presented to the Court. The lower Court may have
had its reasons for directing questions to the fiscal to satisfy itself that the
accused's rights had been duly safeguarded, such as giving them a chance
to cross-examining the complaining witnesses. But to have the fiscal
placed on the witness stand and have the defense counsel cross-examine
and argue with him on points of law, as to whether the affirmation by the
arresting officers and the accused of their previous testimonies without
retaking them was sufficient compliance with the Rules of Court and
impertinent questions as to whether "the statement of the Philippine Navy
as complainant" was taken, was uncalled for. The lower Court disregarded
the presumption that official duty has been regularly performed22 and the
well-settled rule that when nothing appears affirmatively on the record
that a preliminary investigation was not in fact held, an objection on the
ground of denial or deprivation thereof deserves scant consideration by
virtue of the presumption that both the court as well as the prosecution
proceeded in accordance with law.23 Certainly, defense counsel must first
overcome the presumption of regularity in the performance of official duty
and present strong prima facie evidence of irregularity or falsification of
the investigating fiscal's certification and record of the investigation for the
Court to deny them the faith and credence properly due them.
7. A final word on the summary nature of preliminary investigation
proceedings seems appropriate, in order to obviate the recurrence of these
cases, where the State's efforts at great expense and zeal to thwart
traffickers in smuggled goods who undermine the national economy are
frustrated by a distorted view of the nature and purpose of preliminary
investigations. The late Mr. Justice Jose P. Laurel, speaking for this Court
in 1941, placed the role and object of preliminary investigations in proper
perspective, thus "... Its oft-repeated purpose is to secure the innocent
against hasty, malicious, and oppressive prosecutions, and to protect him
from open and public accusation of crime, from the trouble, expenses and
anxiety of a public trial, and also to protect the State from useless and
expensive prosecutions. The new Rules were drafted in the light of the
Court's experience with cases where preliminary investigations had
dragged on for weeks and even months. The Court had intended to
remove this clog upon the judicial machinery and to make a preliminary
investigation as simple and as speedy as is consistent with the substantial
rights of the accused. The investigation is advisedly called preliminary, to
be followed by the trial proper. The investigating judge or prosecuting
officer acts upon probable-cause and reasonable belief, not upon proof
beyond a reasonable doubt. The occasion is not for the full and exhaustive
display of the parties' evidence; it is for the presentation of such evidence
only as may engender well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. When all this is
fulfilled, the accused will not be permitted to cast about for fancied
reasons to delay the proceedings; the time to ask for more is at the
trial...."24
ACCORDINGLY, the order appealed from is hereby set aside and the lower
Court is directed to proceed with the arraignment and trial of the accused
upon the information filed in the case. With costs in solidum against
defendants-appellees.
G.R. No. 147932 January 25, 2006
LAILA G. DE OCAMPO, Petitioner,
vs.
THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B.
DACARRA, and ERLINDA P. ORAYAN, Respondents.
DECISION
CARPIO, J.:
The Case
This petition for certiorari1 assails the Resolutions dated 15 September
2000 and 19 April 2001 of the Secretary of the Department of Justice
("DOJ Secretary") in I.C. No. 99-6254.2 The DOJ Secretary3 denied Laila G.
De Ocampo’s ("petitioner") petition for review of the investigating
prosecutor’s finding of probable cause against her for homicide4 in relation
to Section 10(a), Article VI of Republic Act No. 7610 ("RA 7610") 5 and for
violation of the same provision of RA 7610. The DOJ Secretary6 also denied
petitioner’s motion for reconsideration.
The Facts
The present case arose from a sworn statement of respondent Magdalena
B. Dacarra ("Magdalena") executed before the Women’s Desk of the CPD
Police Station in Batasan Hills, Quezon City on 10 December 1999.
Magdalena stated that on 4 December 1999, her nine-year-old son Ronald
complained of dizziness upon arriving home at about six in the evening.
Ronald then vomited, prompting Magdalena to ask what happened. Ronald
replied that petitioner, who was Ronald’s teacher, banged his head against
that of his classmate Lorendo Orayan ("Lorendo"). Magdalena inspected
Ronald’s head and saw a woundless contusion. Due to Ronald’s continued
vomiting, Magdalena brought him to a quack doctor (arbularyo) on 5
December 1999. The following morning, Magdalena brought Ronald to the
15
East Avenue Medical Center where he underwent an x-ray. The attending
physician informed Magdalena that Ronald’s head had a fracture. Blood
oozed out of Ronald’s nose before he died on 9 December 1999.
Lorendo also executed a sworn statement narrating how petitioner banged
his head against Ronald’s.
During the inquest proceedings on 14 December 1999, Assistant Quezon
City Prosecutor Maria Lelibet Sampaga ("inquest prosecutor") ruled as
follows:
Evidence warrants the release of the respondent for further investigation
of the charges against her. The case is not proper for inquest as the
incident complained of happened on December 4, 1999. Further, we find
the evidence insufficient to support the charge for homicide against the
respondent. There is no concrete evidence to show proof that the alleged
banging of the heads of the two minor victims could be the actual and
proximate cause of the death of minor Ronald Dacarra y Baluton. Besides,
the police report submitted by the respondent in this case states that said
victim bears stitches or sutures on the head due to a vehicular accident.
There is no certainty, therefore, that respondent’s alleged wrongdoing
contributed or caused the death of said victim.7
Subsequently, the case was referred to Assistant Quezon City Prosecutor
Lorna F. Catris-Chua Cheng ("investigating prosecutor") for preliminary
investigation. She scheduled the first hearing on 6 January 2000.
Respondent Erlinda P. Orayan ("Erlinda"), Lorendo’s mother, attended the
hearing of 6 January 2000 and alleged that petitioner offered
her P100,000, which she initially accepted, for her and her son’s non-
appearance at the preliminary investigation. Erlinda presented the money
to the investigating prosecutor.
On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging
incident, and Melanie Lugales, who claimed to be another victim of
petitioner’s alleged cruel deeds, filed their sworn statements with the
Office of the Quezon City Prosecutor.
On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner
invoked the disposition of the inquest prosecutor finding insufficient
evidence to support the charges against her. Petitioner assailed the
omission in Magdalena’s sworn statement about Ronald’s head injury due
to a vehicular accident in November 1997. Petitioner pointed out the
absence of damage or injury on Lorendo as borne out by his medical
certificate. Petitioner contended that the head-banging incident was not
the proximate cause of Ronald’s death, but the failed medical attention or
medical negligence. Petitioner also alleged that Jennilyn Quirong and
Melanie Lugales have immature perception. Petitioner further asserted that
the causes of death stated in Ronald’s Death Certificate are hearsay and
inadmissible in the preliminary investigation.
Ronald’s Death Certificate shows the immediate cause of his death as
"Cardio Pulmonary Arrest," the underlying cause as "Cerebral Edema," and
other significant conditions contributing to death as "Electrolyte imbalance
and vomiting." The Autopsy Report, obtained by the investigating
prosecutor from the PNP Crime Laboratory in Camp Crame, states the
cause of death as "Intracranial hemorrhage secondary to traumatic injury
of the head."
The investigating prosecutor issued a Resolution finding probable cause
against petitioner for the offenses charged. The dispositive portion of the
Resolution reads:
WHEREFORE, in view of the foregoing, it is respectfully recommended that
[petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of R.A.
7610 and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail
recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A.
7610 provides that:
"For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, par. 2 and 263, par. 1 Act No.
3815, as amended, the Revised Penal Code, for the crimes of
murder, homicide, other intentional mutilation and serious physical
injuries, respectively, shall be reclusion perpetua when the victim is under
twelve (12) years of age."
Bail recommended: No bail recommended – Homicide, in relation to Art.
VI, Sec. 10, R.A. 7610; and Twenty Thousand pesos (P20,000.00) – Viol.
of Sec. 10(a) of R.A. 76108
Consequently, petitioner filed a petition for review with the DOJ.
In her appeal to the DOJ, petitioner contended that the investigating
prosecutor showed bias in favor of complainants Magdalena and Erlinda
("complainants") for not conducting a clarificatory hearing and unilaterally
procuring the autopsy report. Petitioner argued that the investigating
prosecutor erred in concluding that her alleged act of banging Ronald and
Lorendo’s heads was the cause of Ronald’s injury and that such was an act
of child abuse. Petitioner also alleged that it is the Office of the
16
Ombudsman which has jurisdiction over the case, and not the Quezon City The Issues
Prosecutor’s Office.
Petitioner raises the following issues:
The Resolution of the DOJ Secretary
1. Whether petitioner was denied due process during the
The DOJ Secretary denied the petition for review. The DOJ Secretary held preliminary investigation; and
that there was no bias in complainants’ favor when the investigating
prosecutor did not conduct a clarificatory hearing and unilaterally procured 2. Whether there is probable cause against petitioner for homicide
the autopsy report as nothing precluded her from doing so. under Article 249 of the Revised Penal Code in relation to Section
10(a), Article VI of RA 7610 and for violation of Section 10(a),
The DOJ Secretary upheld the investigating prosecutor’s finding that Article VI of RA 7610.
Ronald’s injury was the direct and natural result of petitioner’s act of
banging Ronald and Lorendo’s heads. The DOJ Secretary stated that The Ruling of the Court
petitioner never denied such act, making her responsible for all its
consequences even if the immediate cause of Ronald’s death was allegedly
The petition lacks merit.
the failed medical attention or medical negligence. The DOJ Secretary held
that assuming there was failure of medical attention or medical negligence,
these inefficient intervening causes did not break the relation of the felony Before resolving the substantive issues in this case, the Court will address
committed and the resulting injury. the procedural issue raised by the Office of the Solicitor General
("OSG").11 The OSG contends that instead of Rule 65, Rule 43 is applicable
to the present case. Thus, the OSG argues that the petition should be
The DOJ Secretary rejected petitioner’s claim that she is innocent as held
dismissed outright for being filed with this Court, instead of with the Court
by the inquest prosecutor. The inquest prosecutor did not dismiss the
of Appeals, under a wrong mode of appeal. On the other hand, assuming
case. She merely recommended petitioner’s release for further
Rule 65 applies, the OSG points out that the petition for certiorari should
investigation since the case was not proper for inquest and the evidence
be filed with the Court of Appeals.
was then insufficient.

Based on Memorandum Circular No. 58,12 the resolution of the DOJ

The DOJ Secretary further stated that the omission in Magdalena’s sworn
Secretary is appealable administratively to the Office of the President since
statement about Ronald’s head injury due to a vehicular accident in
the offenses charged in this case are punishable by reclusion
November 1997 and the absence of any injury on Lorendo are
perpetua.13 From the Office of the President, the aggrieved party may file
inconsequential.
an appeal with the Court of Appeals pursuant to Rule 43.14

Moreover, the DOJ Secretary ruled that whether the statements of the
Even assuming that the DOJ Secretary committed grave abuse of
causes of death in the death certificate and autopsy report are hearsay,
discretion in rendering the assailed Resolutions amounting to lack or
and whether Jennilyn Quirong and Melanie Lugales have immature
excess of jurisdiction, petitioner should have filed the instant petition
perception, are evidentiary matters which should be determined during
for certiorari with the Court of Appeals. Hence, on the issue alone of the
trial. The DOJ Secretary also sustained the investigating prosecutor’s
propriety of the remedy sought by petitioner, this petition
conclusion that the banging of Ronald and Lorendo’s heads is an act of
for certiorarimust fail. However, considering the gravity of the offenses
child abuse.
charged and the need to expedite the disposition of this case, the Court
will relax the rules and finally resolve this case in the interest of
Petitioner filed a motion for reconsideration9 which the DOJ Secretary substantial justice.
denied in his Resolution dated 19 April 2001.10
Whether petitioner was denied
Hence, this petition. due process during the preliminary investigation

17
Absence of a clarificatory hearing
The Court rejects petitioner’s contention that she was denied due process
when the investigating prosecutor did not conduct a clarificatory hearing. A
clarificatory hearing is not indispensable during preliminary investigation.
Rather than being mandatory, a clarificatory hearing is optional on the part
of the investigating officer as evidenced by the use of the term "may" in
Section 3(e) of Rule 112. This provision states:
(e) If the investigating officer believes that there are matters to be
clarified, he may set a hearing to propound clarificatory questions to the
parties or their witnesses, during which the parties shall be afforded an
opportunity to be present but without the right to examine or cross-
examine. xxx15 (emphasis supplied)
The use of the word "may" in a statute commonly denotes that it is
directory in nature. The term "may" is generally permissive only and
operates to confer discretion.16 Under Section 3(e) of Rule 112, it is within
the discretion of the investigation officer whether to set the case for
further hearings to clarify some matters.
In this case, the investigating prosecutor no longer conducted hearings
after petitioner submitted her counter-affidavit. This simply means that at
that point the investigating prosecutor believed that there were no more
matters for clarification. It is only in petitioner’s mind that some "crucial
points" still exist and need clarification. In any event, petitioner can raise
these "important" matters during the trial proper.
Petitioner was not deprived of due process since both parties were
accorded equal rights in arguing their case and presenting their respective
evidence during the preliminary investigation. Due process is merely an
opportunity to be heard.17 Petitioner cannot successfully invoke denial of
due process since she was given the opportunity of a hearing.18 She even
submitted her counter-affidavit to the investigating prosecutor on 18
January 2000.
Preliminary investigation is merely inquisitorial. It is not a trial of the case
on the merits.19 Its sole purpose is to determine whether a crime has been
committed and whether the respondent is probably guilty of the
crime.20 It is not the occasion for the full and exhaustive display of the
parties’ evidence.21 Hence, if the investigating prosecutor is already
satisfied that he can reasonably determine the existence of probable cause
based on the parties’ evidence thus presented, he may terminate the
proceedings and resolve the case.
Obtaining a copy of the autopsy report
Petitioner argues that she was denied the right to examine evidence
submitted by complainants when the investigating prosecutor unilaterally
obtained a copy of the autopsy report from the PNP Crime Laboratory.
Petitioner fails to persuade us. Though the autopsy report is not part of the
parties’ evidence, the Rules on preliminary investigation do not forbid the
investigating prosecutor from obtaining it. Neither is there a law requiring
the investigating prosecutor to notify the parties before securing a copy of
the autopsy report. The autopsy report, which states the causes of
Ronald’s death, can either absolve or condemn the petitioner.
Unfortunately for petitioner, the investigating prosecutor found that the
autopsy report bolstered complainants’ allegations.
Moreover, there is nothing to support petitioner’s claim that the
investigating prosecutor was biased in favor of complainants. There are
other pieces of evidence aside from the autopsy report upon which the
investigating prosecutor based her finding of probable cause. The autopsy
report is not the sole piece of evidence against petitioner. The sworn
statement of the other victim, Lorendo, and the eyewitness account of
Jennilyn Quirong, substantiate the charges against petitioner. Petitioner’s
failure to deny the occurrence of the head-banging incident also
strengthened complainants’ allegations.
Petitioner mistakenly cites Section 3(d) of Rule 11222 in arguing that the
investigating prosecutor should not go beyond the evidence presented by
complainants in resolving the case. This provision applies if the respondent
cannot be subpoenaed or if subpoenaed fails to submit her counter-
affidavit within the prescribed period. Such is not the case here where
petitioner filed her counter-affidavit and both parties presented their
respective evidence.
Whether there is probable cause
for the offenses charged against petitioner
Existence of probable cause
Petitioner challenges the finding of probable cause against her for the
offenses charged arguing that the head-banging incident was not the
proximate cause of Ronald’s death. Petitioner insists that efficient
intervening events caused Ronald’s death.
We do not agree. There is probable cause for the offenses charged against
petitioner. Probable cause is the existence of such facts and circumstances
18
as would excite the belief in a reasonable mind that a crime has been
committed and the respondent is probably guilty of the crime.23
In the present case, Ronald, a nine-year-old student, died five days after
his teacher, petitioner in this case, allegedly banged his head against that
of his classmate Lorendo. There is nothing in the records showing
petitioner’s specific denial of the occurrence of such act. Petitioner simply
stated that "the head-banging incident happened but [she] did not
perpetrate it."24 In effect, petitioner admits the occurrence of the head-
banging incident but denies committing it.
The alleged intervening events before Ronald died, namely: (a) the
consultation with a quack doctor, and (b) the three-day confinement in the
East Avenue Medical Center, are not sufficient to break the relation of the
felony committed and the resulting injury. Were it not for the head-
banging incident, Ronald might not have needed medical assistance in the
first place.
These circumstances which allegedly intervened causing Ronald’s death
are evidentiary matters which should be threshed out during the trial. The
following are also matters better left for the trial court to appreciate: (a)
the contents of the death certificate and autopsy report, (b) the medical
records of Ronald’s accident in November 1997, (c) the perception of
witnesses Jennilyn Quirong and Melanie Lugales, and (d) the alleged lack
of medical assistance or medical negligence which caused Ronald’s death.
To repeat, what is determined during preliminary investigation is only
probable cause, not proof beyond reasonable doubt.25 As implied by the
words themselves, "probable cause" is concerned with probability, not
absolute or moral certainty.26
Asserting her innocence, petitioner continues to invoke the disposition of
the inquest prosecutor finding insufficient evidence for the charges against
her. As correctly ruled by the DOJ Secretary, the inquest prosecutor did
not dismiss the case but merely recommended it for further investigation
since it was not proper for inquest and the evidence was then insufficient.
Moreover, petitioner’s active participation in the preliminary investigation
without questioning the propriety of such proceedings indicates petitioner’s
agreement with the recommendation of the inquest prosecutor for the
further investigation of the case.
Charges of Homicide and Child Abuse
Petitioner’s single act of allegedly banging the heads of her students had
two distinct victims, namely Ronald and Lorendo. Therefore, petitioner has
to face prosecution for cruelty to each victim. For Ronald’s death,
petitioner is being charged with homicide under Article 249 of the Revised
Penal Code27 in relation to Section 10(a), Article VI of RA 7610 punishable
by reclusion perpetua.28 However, this does not mean that petitioner is
being charged with the distinct offenses of homicide and child abuse for
Ronald’s death. On the other hand, for her cruelty to Lorendo, petitioner is
being charged with violation of Section 10(a), Article VI of RA 7610
punishable by prision mayor in its minimum period.
Contrary to petitioner’s contention, Section 10(a), Article VI of RA 7610 is
clear. This provision reads:
(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the child’s
development including those covered by Article 59 of Presidential Decree
No. 603, as amended, but not covered by the Revised Penal Code, as
amended, shall suffer the penalty of prision mayor in its minimum period.
Ambiguity is a condition of admitting two or more meanings, of being
understood in more than one way, or of referring to two or more things at
the same time. A statute is ambiguous if it is susceptible to more than one
interpretation.29 In the present case, petitioner fails to show convincingly
the ambiguity in Section 10(a), Article VI of RA 7610.
Section 3(b), Article VI of RA 7610 defines "child abuse" as the
maltreatment, whether habitual or not, of the child which includes physical
abuse and cruelty. Petitioner’s alleged banging of the heads of Ronald and
Lorendo is clearly an act of cruelty.
In a petition for certiorari like this case, the primordial issue is whether the
DOJ Secretary acted with grave abuse of discretion amounting to lack or
excess of jurisdiction. The Court rules that the DOJ Secretary did not
commit grave abuse of discretion in finding that there is probable cause to
charge petitioner of the crimes of homicide and child abuse. The Court
further rules that the investigating prosecutor did not act with grave abuse
of discretion in securing motu proprio the autopsy report and in not calling
for a clarificatory hearing. This ruling does not diminish in any way the
constitutional right of petitioner to be presumed innocent until the contrary
is proven.
WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions
of the Secretary of Justice dated 15 September 2000 and 19 April 2001 in
I.C. No. 99-6254. No pronouncement as to costs.
19
SO ORDERED.
DAY 2 CASES
G.R. No. 59241-44 July 5, 1989
PEDRO TANDOC, ROGELIO ERCELLA, RUDY DIAZ, JUAN
ROSARIO, AND FRED MENOR, petitioners,
vs.
THE HONORABLE RICARDO P. RESULTAN, in his capacity as
Presiding Judge of the City Court of San Carlos City
(Pangasinan), ARNULFO PAYOPAY, MANUEL CANCINO, and
CONRADO PAYOPAY, SR., respondents.
PADILLA, J.:
Petition for certiorari assailing the Orders of the City Court of San
1 show that at about 6:35 o'clock in the afternoon of
Carlos City, Pangasinan, dated 13 August 1981, finding
reasonable ground to believe that petitioners Pedro Tandoc,
Rogelio Ercella, Rudy Diaz, Juan Rosario and Fred Menor had
probably committed the crimes of "Trespass to Dwelling", "Serious
Physical Injuries", "Less Serious Physical Injuries" and "Grave
Threats", docketed as Criminal Cases Nos. 2105, 2106, 2107 and
2108; and the Order 2 dated 21 October 1981, denying petitioners'
motion for a re-investigation of the complaint by the Office of the
City Fiscal of San Carlos City. The incident which gave rise to the
petition at bar is as follows:
On 19 October 1980, a criminal complaint docketed as I.S. No. 80-
198 was lodged with the Office of the City Fiscal of San Carlos
City, Pangasinan, with the charges of "Serious Physical Injuries",
filed by Bonifacio Menor against respondent Arnulfo (Arnold)
Payopay; "Slight Physical Injuries", filed by Fred de la Vega
against respondent Beda Acosta, and "Trespass to Dwelling", filed
by Pacita Tandoc against respondents Arnulfo (Arnold) Payopay,
Beda Acosta, Manuel Cancino, Nadong Fernandez and Arturo
Syloria.
Pending the resolution of said complaint, Arnulfo (Arnold) Payopay
and his father Conrado Payopay, Sr., together with Manuel
Cancino, also filed a complaint on 2 December 1980 3 with the
Office of the City Fiscal, San Carlos City, Pangasinan, against
Pedro Tandoc, Pacita Tandoc, Rudy Diaz, Fred Menor, Rogelio
Ercella, Juan Rosario and Fred de la Vega, with the charges of
"Trespass to Dwelling", "Serious Oral Defamation", "Grave
Threats" and "Physical Injuries", docketed as I.S. No. 80-233.
On 10 December 1980, the investigating fiscal found reasonable
ground to believe that respondents Arnulfo (Arnold) Payopay, Beda
Acosta, Manuel Cancino, Nadong Fernandez and Arturo Syloria
committed the crimes charged in I.S. 80-198, 4 thus
The evidence in the above-cited complaints tend to
October 19,1980, at the house of Pacita B. Tandoc,
situated at Rizal Avenue, SCC, the respondents
entered the store and dinning [sic] room of the
complainant without her permission. There was a
sort of altercation between the complainant and
respondent, Arnold Payopay, regarding the stoning
of the store and house of complainant, Tandoc. In
the course of their altercation, respondent Arnold
Payopay picked up stones and struck the
complainant Tandoc but instead her helper Bonifacio
Menor was hit and suffered physical injuries which
according to the medico-legal certificate will heal for
[sic] more than thirty days. She further declared that
respondent, Beda Acosta, who was behind Arnold
Payopay picked up stone [sic] struck her but
unfortunately her helper, Fred de la Vega, was hit
and suffered injuries which injury will heal in less
than nine days according to the medical certificate.
The matter was reported to the Barangay Chairman
20
 of the place and to the Office of the Station
Commander. In support of the complaint are the
sworn statements of Bonifacio Menor, Fred de la
Vega and Barangay Chairman Hermogenes
Salangad.
xxx xxx xxx
After evaluating the evidence on hand and the
entries in the police blotter the undersigned finds that
there is reasonable ground to believe that the crime
of Trespass To Dwelling, has been committed by all
respondents; Serious Physical Injuries, has been
committed by respondent Arnold Payopay; and
Slight Physical Injuries, has been committed by
respondent Beda Acosta. The latter case has not
been referred to the Barangay Chairman as the case
will soon prescribe and that the affidavit of
complainant was just endorsed on November 28,
1980. I most respectfully recommend that the
corresponding Informations be filed in Court.
From the aforequoted resolution, respondents filed a Motion for
Reconsideration, but the same was denied in a resolution dated 5
January 1981. 5 Consequently, the corresponding informations for
"Slight Physical Injuries", "Trespass to Dwelling" and "Serious
Physical Injuries" were filed with the City Court of San Carlos City,
docketed as Criminal Cases Nos. 1992, 2000 and 2001,
respectively. 6
With respect to the criminal complaint docketed as I.S. No. 80-233
filed by Arnulfo (Arnold) Payopay and Manuel Cancino against
petitioners for "Serious Oral Defamation", "Grave Threats" and
"Physical Injuries", the Office of the City Fiscal recommended the
dropping of said charges on the ground that they "were found to be
in a [sic] nature of a countercharge, the same having been filed
after more than one (1) month from the date of the alleged incident
of 19 October 1980." However, as to the charge of "Trespass to
Dwelling" filed by Conrado Payopay, Sr. against Pedro Tandoc,
a prima facie case was found by the investigating fiscal. 7 Thus, on
28 January 1981, an informations 8 for "Trespass to Dwelling" was
filed with the City Court of San Carlos City, docketed as Criminal
Case No. 2017.
On 28 July 1981, respondents Arnulfo (Arnold) Payopay, Conrado
Payopay, Sr. and Manuel Cancino, directly lodged with the City
Court of San Carlos City the following criminal complaints against
herein petitioners, 9 to wit:
— Criminal Case No. 2105, entitled "People v. Pedro Tandoc,
Rogelio Ercella, Rudy Diaz, Juan Rosario and Fred Menor", for
Serious Physical Injuries, filed by Arnulfo (Arnold) Payopay as
private complainant.
— Criminal Case No. 2106, entitled "People vs. Rudy Diaz, Juan
Rosario and Fred Menor", for Trespass to Dwelling, filed by
Conrado Payopay, Sr. as private complainant.
— Criminal Case No. 2107, entitled "People vs. Pedro Tandoc,
Rudy Diaz, Juan Rosario and Fred dela Vega", for Less Serious
Physical Injuries, filed by Manuel Cancino as private complainant.
— Criminal Case No. 2108, entitled "People vs. Pedro Tandoc,
Rudy Diaz, Rogelio Ercella, Juan Rosario & Fred Menor", for
Grave Threats to Kill, with Arnulfo (Arnold) Payopay as private
complainant.
On 13 August 1981, the City Court of San Carlos City issued
several Orders 10 which are the subject of the petition at bar,
whereby the court a quo, after conducting a preliminary
examination of the four (4) aforementioned cases, found
reasonable ground to believe that the offenses charged may have
been committed by the accused (now petitioners) and that the
latter were probably guilty thereof. The issuance of warrants of
arrest was ordered against herein petitioners, although said
warrants were later suspended upon motion of the petitioners. A
21
motion for reconsideration of the aforesaid resolution was filed by
petitioners, but it was denied. 11 They moved for a re-investigation
of the cases by the Office of the City Fiscal. On 21 October 1981,
the court a quo denied said motion. 12 Petitioners sought a
reconsideration of said order, but it was likewise denied, 13 hence,
this petition.
The sole issue to be resolved in the case at bar is whether or not
the city court has the power and authority to conduct anew a
preliminary examination of charges, which were previously the
subject of a preliminary investigation conducted by the Office of the
City Fiscal and thereafter dismissed by the latter.
A preliminary investigation is intended to protect the accused from
the inconvenience, expense and burden of defending himself in a
formal trial unless the reasonable probability of his guilt shall have
been first ascertained in a fairly summary proceeding by a
competent officer. It is also intended to protect the state from
having to conduct useless and expensive trials. 14
There are two (2) stages in a preliminary investigation; first, the
preliminary examination of the complainant and his witnesses prior
to the arrest of the accused to determine whether or not there is
ground to issue a warrant of arrest; second, preliminary
investigation proper, wherein the accused, after his arrest, is
informed of the complaint filed against him and is given access to
the testimonies and evidence presented, and he is also permitted
to introduce evidence in his favor. The purpose of this stage of
investigation is to determine whether or not the accused should be
released or held before trial. 15
Preliminary investigation is merely inquisitorial, and it is often the
only means of discovering the persons who may be reasonably
charged with a crime, to enable the fiscal to prepare his complaint
or information. 16 It is not a trial of the case on the merits and has
no purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the
accused is guilty thereof, and it does not place the person against
whom it is taken in jeopardy. 17
Under Section 10, Rule 112 of the 1964 Revised Rules of Criminal
Procedure, in cases falling within the exclusive jurisdiction of an
inferior court, as well as in cases within the concurrent jurisdiction
of the city courts or municipal courts with Courts of First Instance,
the accused was not entitled to be heard in a preliminary
investigation proper. 18The reason behind this rule is as follows.
Indeed, balancing the considerations, the
withholding of the right of the preliminary
investigation from the accused in cases triable by the
inferior courts involving offenses with lower penalties
than those exclusively cognizable by courts of first
instance, could not be termed an unjust or unfair
distinction. The loss of time entailed in the conduct of
preliminary investigations, with the consequent
extension of deprivation of the accused's liberty, in
case he fails to post bail, which at times outlasts the
period of the penalty provided by law for the offense,
besides the mental anguish suffered in protracted
litigations, are eliminated with the assurance of a
speedy and expeditious trial for the accused, upon
his arraignment (without having to undergo the
second stage of the preliminary investigation), and of
a prompt verdict on his guilt or innocence. On the
other hand, the so-called first stage of preliminary
investigation or the preliminary examination,
conducted by the duly authorized officer, as borne
out by the examination and sworn written statement
of the complainants and their witnesses, generally
suffices to establish the existence of reasonable
ground to charge the accused with having committed
the offense complained of. 19
The preliminary examination prior to the issuance of a warrant of
arrest and the sworn statements of the complainant and his
22
witnesses are sufficient to establish whether "there is a reasonable
ground to believe that an offense has been committed and the
accused is probably guilty thereof', to prevent needless waste or
duplication of time and effort. 20
In the case at bar, the offenses charged against petitioners for
"Trespass to Dwelling", "Grave Threats" and "Physical Injuries"
were all within the jurisdiction of the City Court of San Carlos City.
Under the circumstances, the complaints could be filed directly with
the City Court which is empowered to conduct a preliminary
examination for purposes of issuance of warrants of arrest, and
thereafter to proceed with the trial of the cases on the merits. The
preliminary investigation proper conducted by the Office of the City
Fiscal could have been dispensed with. Neither did the earlier
order of dismissal of the complaints by the investigating fiscal bar
the filing of said complaints with the city court on the ground of
double jeopardy.
... . The result of a preliminary investigation can
neither constitute nor give rise to the defense of
double jeopardy in any case, because such
preliminary investigation is not and does not in itself
constitute a trial or even any part thereof. The only
purpose of a preliminary investigation is to
determine, before the presentation of evidence by
the prosecution and by the defense, if the latter party
should wish to present any, whether or not there are
reasonable grounds for proceeding formally and
resolutely against the accused (People vs. Peji
Bautista, G.R. No. 45739, April 25, 1939; U.S. vs. Yu
Tuico, 34 Phil. 209). In order that the defense of
jeopardy may lie, there must be a former judgment,
either of acquittal or of conviction, rendered by a
court competent to render the same, not only by
reason of the offense committed, which must be the
same or at least comprised within it, but also by
reason of the place where it was committed. Under
the established facts it cannot be stated that the
same circumstances exist in the case under
consideration. Consequently, the defense of double
jeopardy is untenable. 21
As long as the offense charged has not prescribed, the city court
has the power and authority to conduct a preliminary examination
and proceed with the trial of the case properly within its jurisdiction.
The prescriptive period of a crime depends upon the penalty
imposed by law. The penalty of arresto mayor is imposed by law
for the crimes of "Trespass to Dwelling", 22 "Grave Threats", which
is not subject to a condition 23 and "Less Serious Physical Injuries"
which has incapacitated the offended party for ten (10) days or
shall require medical attendance for the same period; 24 for
"Serious Physical Injuries" which has caused illness or incapacity
for labor for more than thirty (30) days, the penalty is arresto mayor
in its maximum period to prision correccional in its minimum
period. 25 The prescriptive period of offenses punishable by arresto
mayor is five (5) years, while crimes punishable by correctional
penalties prescribe in ten (10) years. 26 The incident at bar occurred
on 19 October 1980, while the complaints were filed with the City
Court nine (9) months from said occurrence or on 28 July 1981,
thus, the crimes charged had not yet prescribed under the given
facts.
From the order of the City Court finding reasonable ground to
believe that a crime was committed and the accused probably
guilty thereof, petitioners cannot seek a re-investigation by the
Office of the City Fiscal. The re-investigation sought by petitioners
applies only to instances where a case is cognizable by the Court
of First Instance but filed with the City Court for purposes of
preliminary investigation only and thereafter dismissed by the latter
on the ground that no prima facie case exists. However, for cases
cognizable by inferior courts and filed with the same not only for
purposes of preliminary investigation but for trial on the merits, the
Office of the City Fiscal has no authority to re- investigate.
WHEREFORE, the petition is hereby DISMISSED. Costs against
petitioners.
23
SO ORDERED.
G.R. No. 126005 January 21, 1999
PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE
DY, petitioners,
vs.
COURT OF APPEALS, BILLY CERBO and JONATHAN
CERBO, respondents.
PANGANIBAN, J.:
In our criminal justice system, the public prosecutor has the quasi-
judicial discretion to determine whether or not case should be filed
in court. Courts must. respect the exercise of such discretion when
the information filed against the accused valid on its face, and no
manifest error, grave abuse of discretion or prejudice can be
imputed to the public prosecutor.
The Case
Before us is a Petition for Review under Rule 45, seeking to
reverse the June 28, 1996 Decision and the August 27, 1996
Resolution of the Court of Appeals 1 in CA-GR SP No. 36018. 2 The
assailed Decision dismissed the Petition for Certiorari filed by the
petitioners, which sought to annul and set aside two Orders of the
Regional Trial Court of Nabunturan, Davao: the June 28, 1994
Order dismissing the Information for murder filed against Private
Respondent Billy Cerbo and the August 18, 1994 Order denying
petitioners' motion for reconsideration.
The assailed August 27, 1996 Court of Appeals (CA) Resolution
likewise denied petitioners' motion for reconsideration.
The Facts
The case below arose from the fatal shooting of Petitioner Dy's
mother, Rosalinda Dy, in which the primary suspect was Private
Respondent Jonathan Cerbo, son of Private Respondent Billy
Cerbo.
The procedural and factual antecedents of the case were
summarized in the challenged Decision of the Court of Appeals as
follows:
On August 30, 1993, Rosalinda Dy, according to the
petition, was shot at pointblank range by private
respondent Jonathan Cerbo in the presence and at
the office of his father, private respondent Billy
Cerbo at Purok 9, Poblacion, Nabunturan, Davao.
On September 2, 1993, eyewitness Elsa B. Gumban
executed an affidavit positively identifying private
respondent Jonathan Cerbo as the assailant. (Annex
C, Rollo, p. 34).
On September 20, 1993, private respondent
Jonathan Cerbo executed a counter-affidavit
interposing the defense that the shooting was
accidental (Annex D: Rollo, pp. 35-36).
On October 6, 1993, the 3rd Municipal Circuit Trial
Court of Nabunturan-Mawab, Davao, after a
preliminary investigation, found "sufficient ground to
engender a well-founded belief" that the crime of
murder has been committed by private respondent
Jonathan Cerbo and resolved to forward the entire
records of the case to the provincial prosecutor at
Tagum, Davao (Annex E, Rollo, pp. 37-38).
After [an] information for murder was filed against
Jonathan Cerbo, petitioner Alynn Plezette Dy,
daughter of the victim Rosalinda Dy, executed an
affidavit-complaint charging private respondent Billy
24
Cerbo of conspiracy in the killing (Annex F, Rollo, p.
39), supported by a supplemental affidavit of Elsa B.
Gumban, alleging "in addition" to her previous
statement that:
3. In addition to my said sworn
statement, I voluntarily and freely aver
as follows:
a) I vividly recall that while my mistress
Rosalinda Go and I were in the office
of Billy Cerbo at about 11:45 a.m. on
August 30, 1993, Mr. Cerbo personally
instructed me to fetch the food from
the kitchen [and to bring it] to the office
instead of the dining room.
b) While bringing the food, Mr. Cerbo
again instructed me to place the food
[o]n a corner table and commanded
me to sit behind the entrance door and
at the same time Mr. Cerbo positioned
Rosalinda [on] a chair facing the
entrance door for an easy target.
c) Immediately after Rosalinda was
shot, Mr. Billy Cerbo called his son
Jonathan who was running, but did not
and ha[s] never bothered to bring
Rosalinda to a hospital or even apply
first aid.
d) To my surprise, Mr. Billy Cerbo,
instead of bringing Rosalinda to the
hospital, brought her to the funeral
parlor and immediately ordered her to
be embalmed without even informing
her children or any of her immediate
relatives xxx.' Annex G. Rollo, p. 40.)
Private respondent Billy Cerbo submitted a counter-
affidavit denying the allegations of both petitioner
Alynn Plezette Dy and Elsa B. Gumban (Annex
H, Rollo, pp. 41-42).
On or about April 8, 1994, Prosecutor Protacio
Lumangtad filed a "Motion for leave of court to
reinvestigate the case" (Annex I, Rollo, pp. 43-44)
which was granted by the respondent judge in an
order dated April 28, 1994 (Annex J, Rollo, p. 45).
In his resolution dated May 5, 1994, Prosecutor
Lumangtad recommended the filing of an amended
information including Billy Cerbo
". . . as one of the accused in the murder case . . ."
(Annex K: Rollo, pp. 46-49).
Accordingly, the prosecution filed an amended
information including Billy Cerbo in the murder case.
A warrant for his arrest was later issued on May 27,
1994 (Rollo, p. 27).
Private respondent Billy Cerbo then filed a motion to
quash warrant of arrest arguing that the same was
issued without probable cause (Rollo, p. 27).
On June 28, 1994, respondent Judge issued the first
assailed order dismissing the case against Billy
Cerbo and recalling the warrant for his arrest[;] the
dispositive portion of [the order] reads:
IN THE LIGHT OF ALL THE
FOREGOING, [an] order is hereby
issued DISMISSING the case as
against Billy Cerbo only.
25
 Let, therefore, the warrant of arrest,
dated May 27, 1994, be RECALLED.
The prosecution is hereby ordered to
withdraw its Amended Information and
file a new one charging Jonathan
Cerbo only.
SO ORDERED. (Rollo, pp. 29-30).
Private Prosecutor Romeo Tagra filed a motion for
reconsideration which was denied by the respondent
judge in his second assailed order dated August 18,
1994 (Annex B, Rollo, pp. 31-33). 3
The Ruling of the Court of Appeals
In its 10-page Decision, the Court of Appeals debunked petitioners'
assertion that the trial judge committed a grave abuse of discretion
in recalling the warrant of arrest and subsequently dismissing the
case against Billy Cerbo. Citing jurisprudence,4 the appellate court
held as follows:
The ruling is explicit. If upon the filing of the
information in court, the trial judge, after reviewing
the information and the documents attached thereto,
finds that no probable cause exists, must either call
for the complainant and the witnesses or simply
dismiss the case.
Petitioners question the applicability of the doctrine
laid down in the above[-]mentioned case, alleging
that the facts therein are different from the instant
case. We rule that the disparity of facts does not
prevent the application of the principle.
We have gone over the supplemental affidavit of
Elsa B. Gumban and taking into account the
additional facts and circumstances alleged therein,
we cannot say that respondent judge gravely abused
his discretion in dismissing the case as against
private respondent Billy Cerbo for lack of probable
cause.
xxx xxx xxx
The prosecution, if it really believed that Billy Cerbo
is probably guilty by conspiracy, should have
presented additional evidence sufficiently and
credibly demonstrating the existence of probable
cause.
xxx xxx xxx 5
In sum, the Court of Appeals held that Judge Eugenio Valles did
not commit grave abuse of discretion in recalling the warrant of
arrest issued against Private Respondent Billy Cerbo and
subsequently dismissing the Information for murder filed against
the private respondent, because the evidence presented thus far
did not substantiate such charge.
Hence, this petition.6
The Assigned Errors
Petitioner Dy avers:
1) The Court of Appeals gravely erred in holding that
the Regional Trial Court Judge had the authority to
reverse [the public prosecutor's] finding of probable
cause to prosecute accused . . . and thus dismiss
the case filed by the latter on the basis of a motion to
quash warrant of arrest.
2) The Court of Appeals gravely erred in fully and
unqualifiedly applying the case of Allado, et. al. vs.
26
 PACC, et. al. G.R. No. 113630, [to] the case at
bench despite [the] clear difference in their
respective factual backdrop[s] and the contrary
earlier jurisprudence on the matter. 7
On the other hand, the solicitor general posits this sole issue:
Whether the Court of Appeals erred in finding that no
probable cause exists to merit the filing of charges
against private respondent Billy Cerbo.8
Essentially, the petitioners are questioning the propriety of the trial
court's dismissal, for want of evidence, of the Information for
murder against Private Respondent Billy Cerbo.
In resolving this petition, the discussion of the Court will revolve
around the points: first, the determination of probable cause as an
executive and judicial function and, second, the applicability
of Allado and Salonga to the case at bar.
The Court's Ruling
The petition is meritorious. The trial court erred in dismissing the
information filed against the private respondent. Consequently the
Court of Appeals was likewise in error when it upheld such ruling.
Executive Determination
of Probable Cause
The determination of probable cause during a preliminary
investigation is a function that belongs to the public prosecutor. It is
an executive function, 9 the correctness of the exercise of which is
matter that the trial court itself does not and may not be compelled
to pass upon. The Separate (Concurring) Opinion of former Chief
Justice Andres R. Narvasa in Roberts v. Court of Appeals 10 succinctly
elucidates such point in this wise:
xxx xxx xxx
In this special civil action, this Court is being asked
to assume the function of a public prosecutor. It is
being asked to determine whether probable cause
exists as regards petitioners. More concretely, the
Court is being asked to examine and assess such
evidence as has thus far been submitted by the
parties and, on the basis thereof, make a conclusion
as to whether or not it suffices "to engender 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 is a function that this Court should not be called
upon to perform. It is a function that properly pertains
to the public prosecutor, one that, as far as crimes
cognizable by a Regional Trial Court are concerned,
and notwithstanding that it involves an adjudicative
process of a sort, exclusively pertains, by law, to
said executive officer, the public prosecutor. It is
moreover a function that in the established scheme
of things, is supposed to be performed at the very
genesis of, indeed, prefatorily to, the formal
commencement of a criminal action. The
proceedings before a public prosecutor, it may well
be stressed, are essentially preliminary, prefatory
and cannot lead to a final, definite and authoritative
adjudgment of the guilt or innocence of the persons
charged with a felony or crime.
Whether or not that function has been correctly
discharged by the public prosecutor — i.e., whether
or not 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. It is not for instance
permitted for an accused, upon the filing of the
27
 information against him by the public prosecutor, to
preempt trial by filing a motion with the Trial Court
praying for the quash or dismissal of the indictment
on the ground that the evidence upon which the
same is based is inadequate. Nor is it permitted, on
the antipodal theory that the evidence is in truth
inadequate, for the complaining party to present a
petition before the Court praying that the public
prosecutor be compelled to file the corresponding
information against the accused.
xxx xxx xxx
Indeed, the public prosecutor has broad discretion to determine
whether probable cause exists and to charge those whom be or
she believes to have committed the crime as defined by law.
Otherwise stated, such official has the quasi-judicial authority to
determine whether or not a criminal case list be filed in
court.11 Thus, in Crespo v. Mogul,12we ruled:
It is a cardinal principle that all criminal actions either
commenced by complaint or by information shall be
prosecuted under the direction and control of the
fiscal. The institution of a criminal action depends
upon the sound discretion of the fiscal. He may or
may not file the complaint or information, follow or
not follow that presented by the offended party,
according to whether the evidence, in his opinion, is
sufficient or not to establish the guilt of the accused
beyond reasonable doubt. The reason for placing the
criminal prosecution under the direction and control
of the fiscal is to prevent malicious or unfounded
prosecutions by private persons. . . . Prosecuting
officers under the power vested in them by the law,
not only have the authority but also the duty of
prosecuting persons who, according to the evidence
received from the complainant, are shown to be
guilty of a crime committed within the jurisdiction of
their office. They have equally the duty not to
prosecute when the evidence adduced is not
sufficient to establish a prima facie case.
This broad prosecutoral power is however nor unfettered, because
just as public prosecutors are obliged to bring forth before the law
those who have transgressed it, they are also constrained to be
circumspect in filing criminal charges against the innocent. Thus,
for crimes cognizable by regional trial courts, preliminary
investigations are usually conducted. In Ledesma v. Court of
Appeals, 13 we discussed the purposes and nature of a preliminary
investigation in this manner:
The primary objective of a preliminary investigation
is to free respondent from the inconvenience,
expense, ignominy and stress of defending
himself/herself in the course of a formal trial, until the
reasonable probability of his or her guilt in a more or
less summary proceeding by a competent office
designated by law for that purpose. Secondarily,
such summary proceeding also protects the state
from the burden of the unnecessary expense an
effort in prosecuting alleged offenses and in holding
trials arising from false, frivolous or groundless
charges.
Such investigation is not part of the trial. A full and
exhaustive presentation of the parties' evidence is
not required, but only such as may engender a well-
grounded belief than an offense has been committed
and that the accused is probably guilty thereof. By
reason of the abbreviated nature of preliminary
investigations, a dismissal of the charges as a result
thereof is not equivalent to a judicial pronouncement
of acquittal. Hence, no double jeopardy attaches.
Judicial Determination of
28
 Probable Cause
The determination of probable cause to hold a person for trial must
be distinguished from the determination of probable cause to issue
a warrant of arrest, which is a judicial function. The judicial
determination of probable cause in the issuance of arrest warrants
has been emphasized in numerous cases. In Ho v. People, 14 the
Court summarized the pertinent rulings on the subject, as follows:
The above rulings in Soliven, Inting and Lim, Sr.
were iterated in Allado v. Diokno, where we
explained again what probable cause means.
Probable cause for the issuance of a warrant of
arrest is the existence of such facts and
circumstances that would lead a reasonably discreet
and prudent person to believe that an offense has
been committed by the person sought to be arrested.
Hence, the judge, before issuing a warrant of arrest,
"must satisfy himself that based on the evidence
submitted, there is sufficient proof that a crime has
been committed and that the person to be arrested is
probably guilty thereof." At this stage of the criminal
proceeding, the judge is not yet tasked to review in
detail the evidence submitted during the preliminary
investigation. It is sufficient that he personally
evaluates such evidence in determining probable
cause. In Webb v. De Leon we stressed that the
judge merely determines the probability, not the
certainty, of guilt of the accused and, in doing so, he
need not conduct a de novo hearing. He simply
personally reviews the prosecutor's initial
determination finding probable cause to see if it is
supported by substantial evidence.
xxx xxx xxx
In light of the aforecited decisions of this Court, such
justification cannot be upheld. Lest we be too
repetitive, we only emphasize three vital matters
once more: First, as held in Inting, the determination
of probable cause by the prosecutor is for a purpose
different from that which is to be made by the judge.
Whether there is reasonable ground to believe that
the accused is guilty of the offense charged and
should be held for trial is what the prosecutor passes
upon. The judge, on the other hand, determines
whether a warrant of arrest should be issued against
the accused, i.e., whether there is a necessity for
placing him under immediate custody in order not to
frustrate the ends of justice. Thus, even if both
should base their findings on one and the same
proceeding or evidence, there should be no
confusion as to their distinct objectives.
Second, since their objectives are different, the
judge cannot rely solely on the report of the
prosecutor in finding probable cause to justify the
issuance of a warrant of arrest. Obviously and
understandably, the contents of the prosecutor's
report will support his own conclusion that there is
reason to charge the accused of an offense and hold
him for trial. However, the judge must decide
independently. Hence, he must have supporting
evidence, other than the prosecutor's bare report,
upon which to legally sustain his own findings on the
existence or non-existence of probable cause to
issue an arrest order. This responsibility of
determining personally and independently the
existence of non-existence of probable cause is
lodged in him by no less than the most basic law of
the land. Parenthetically, the prosecutor could ease
the burden of the judge and speed up the litigation
process by forwarding to the latter not only the
information and his bare resolution, but also so much
of the records and the evidence on hand as to
enable His Honor to make his personal and separate
29
 judicial finding on whether to issue a warrant of
arrest.
Lastly, It is not required that the complete or entire
records of the case during the preliminary
investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts
by obliging them to examine the complete records of
every case all the time simply for the purpose of
ordering the arrest of the accused. What is required,
rather, is that the judge must have sufficient
supporting documents (such as the complaint,
affidavits, counter-affidavits, sworn statements of
witnesses or transcript of stenographic notes, if any)
upon which to make his independent judgment, or at
the very least, upon which to verify the findings of
the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and
entirely on the prosecutor's recommendation, as the
Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of regularity
in the performance of his duties and functions, which
in turn gives his report the presumption of accuracy,
the Constitution, we repeat, commands the judge to
personally determine probable cause in the issuance
of warrants of arrest. This Court has consistently
held that a judge fails in his bounded duty if he relies
merely on the certification or the report of the
investigating officer.
xxx xxx xxx
Verily, a judge cannot be compelled to issue a warrant of arrest if
he or she deems that there is no probable cause for doing so.
Corollary to this principle, the judge should not override the public
prosecutor's determination of probable cause to hold an accused
for trial on the ground that the evidence presented to substantiate
the issuance of an arrest warrant was insufficient, as in the present
case.
Indeed, it could be unfair to expect the prosecution to present all
the evidence needed to secure the conviction of the accused upon
the filing of the information against the latter. The reason is found
in the nature and the objective of a preliminary investigation. Here,
the public prosecutors do not decide whether there is evidence
beyond reasonable doubt of the guilt of the person charged; they
merely determine "whether there is sufficient ground to engender a
well-founded belief that a crime . . . has been committed and that
the respondent is probably guilty thereof, and should be held for
trial." 15 Evidentiary matters must be presented and heard during
the trial. 16Therefore, if the information is valid on its face, and there
is no showing of manifest error, grave abuse of discretion and
prejudice on the part of the public prosecutor , the trial court should
respect such determination.
Inapplicabilty of Allado
and Salonga
The Court of Appeals anchored its ruling on the pronouncement
made in Allado v. Diokno:" . . . [I]f, upon the filing of the information
in court, the trial judge, after reviewing the information and the
documents attached thereto, must either call for the complainant
and the witnesses themselves or simply dismiss the case. There is
no reason to hold the accused for trial and further expose him to an
open and public accusation of the crime when no probable cause
exists." 17
In Allado, Petitioners Diosdado Jose Allado and Roberto I.
Mendoza, practicing lawyers, were accused by the Presidential
Anti-Crime Commission (PACC) of kidnapping with murder and
ordered by Judge Roberto C. Diokno to be arrested without bail.
The petitioners questioned the issuance of the warrants for their
arrest contending that the respondent judge acted with grave
abuse of discretion and in excess of his jurisdiction in holding that
30
there was probable cause against them. They contended that the
trial court relied merely on the resolution of the investigating panel
and its certification that probable cause existed, without personally
determining the admissibility and sufficiency of the evidence for
such finding and without stating the basis thereof. They maintained
that the records of the preliminary investigation, which was the sole
basis of the judge's ruling, failed to establish probable cause
against them that would justify the issuance of warrants for their
arrest.
The Court declared that Judge Diokno has indeed committed grave
abuse of discretion in issuing the arrest warrants. Contrary to the
constitutional mandate and established jurisprudence, he merely
relied on the certification of the prosecutors as to the existence of
the probable cause, instead of personally examining the evidence,
the complainant and his witness." For otherwise," the Court said
"he would have found out that the evidence thus far presented was
utterly insufficient to warrant the arrest of the petitioners" 18
In categorically stating that the evidence so far presented did not
meet the standard of probable cause and subsequently granting
the petition, the Court noted the following circumstances: first,
the corpus delicti was not established, and there was serious doubt
as to the alleged victim's death: second, the extra judicial
statement of the principal witness, who had priorly confessed his
participation in the crime, was full of material inconsistencies; and
third, the PACC operatives who investigated the case never
implicated the petitioners.
Citing Salonga v. Cruz-Paño, the Court of Appeals pointed out that
when there was no prima facie case against a person sought to be
charged with a crime, "the judge or fiscal, therefore, should not go
on with the prosecution in the hope that some credible evidence
might later turn out during trial, for this would be flagrant violation
of a basic right which the courts are created to uphold."19
In the aforecited case, Petitioner Jovito R. Salonga sought to bar
the filing of an Information for violation of the revised Anti-
Subversion Act, which Judge Ernani Cruz-Pano had ordered to be
filed against him. In sustaining the petitioner, the Court held that
the evidence upon which the Information was based was not
sufficient to charge him for a violation of the Revised Subversion
Act.
In all, the Court decreed in both cases that there was no basis in
law and in fact for the judicial and executive determination at
probable cause. The Court also held that the government, while
vested with the right and the duty to protect itself and its people
against transgressors of the law, must perform the same in a
manner that would not infringe the perceived violators' rights as
guaranteed by the Constitution.
However, the present case is not on all fours
with Allado and Salonga. First, Elsa Gumban, the principal
eyewitness to the killing of Rosalinda Dy, was not a participation or
conspirator in the commission of the said crime. In Allado and
Salonga, however, the main witnesses were the confessed
perpetrators of the crimes, whose testimonies the court deemed
'tainted'.20 Second, in the case at bar, the private respondent was
accorded due process, and no precipitate haste or bias during the
investigation of the case can be imputed to the public prosecutor.
On the other hand, the Court noted in Allado the "undue haste in
the filing of the Information and in the inordinate interest of the
government" in pursuing the case; 21 and in Salonga, " . . . the
failure of the prosecution to show that the petitioner was probably
guilty of conspiring to commit the crime, the initial disregard of
petitioner's constitutioner rights [and] the massive and damaging
publicity against him." 22 In other words, while the respective sets of
evidence before the prosecutors in the Allado and Salonga were
"utterly insufficient" to support a finding of probable cause, the
same cannot be said of the present case.
We stress that Allado and Salonga constitute exceptions to the
general rule and may be invoked only if similar circumstances are
clearly shown to exist. But as the foregoing comparisons show,
31
such similarities are absent in the instant case. Hence, the rulings
in the two aforementioned cases cannot apply to it.
Motion Without Requisite Notice
One more thing, Petitioners aver that Private Respondent Cerbo
did not give them a copy of the Motion to Quash the Warrant of
Arrest, which had been issued against him, or a notice of the
scheduled hearing. Thus, they contend, Judge Valles should not
have entertained such motion.
It is settled that every written motion in a trial court must be set for
hearing by the applicant and served with the notice of hearing
thereof, in such a manner as to ensure its receipt by the other
party. The provisions on this matter in Section 4 and 5, Rule 15 of
the Rules of the Court,23 are categorical and mandatory
character. 24 Under Section 6 of the said rule, no motion shall be
acted upon by the court without proof of service thereof. The
rationale for this rule is simple: unless the movants set the time
and the place of hearing, the court will be unable to determine
whether the adverse parties agree or object to the motions, since
the rules themselves do not fix any period within which they may
file their replies or oppositions.25
The motion to quash the warrant of arrest in the present case
being pro forma, inasmuch as the requisite copy and notice were
not duly served upon the adverse party, the trial court had no
authority to act on it.
Epilogue
In granting this petition, we are not prejudging the criminal case or
the guilt or innocence of Private Respondent Billy Cerbo. We
simply saying that, as a general rule, if the information is valid on
its face and there is no showing of manifest error, grave abuse of
discretion or prejudice on the part of the public prosecutor, courts
should not dismiss it for 'want of evidence,' because evidentiary
matters should be presented and heard during the trial. The
functions and duties of both the trial court and the public
prosecutor in "the proper scheme of things" in our criminal justice
system should be clearly understood.
The rights of the people from what could sometimes be an
''oppressive" exercise of government prosecutorial powers do need
to be protected when circumstances so require. But just as we
recognize this need, we also acknowledge that the State must
likewise be accorded due process. Thus, when there is no showing
of nefarious irregularity or manifest error in the performance of a
public prosecutor's duties, courts ought to refrain from interfering
with such lawfully and judicially mandated duties.
In any case, if there was palpable error or grave abuse of
discretion in the public prosecutor's finding of probable cause, the
accused can appeal such finding to the justice secretary 26 and
move for the deferment or suspension of the proceeding until such
appeal is resolved.
WHEREFORE, the petition is GRANTED. The assailed Decision of
the Court of Appeals is hereby REVERSED and SET ASIDE. The
case is REMANDED to the Regional Trial Court of Nabunturan,
Davao, which is ordered to reinstate the amended information
against Private Respondent Billy Cerbo and to proceed with
judicious speed in hearing the case. No. costs. 1âwphi 1.nêt
SO ORDERED.
G.R. No. 125359 September 4, 2001
ROBERTO S. BENEDICTO and HECTOR T.
RIVERA, petitioners,
vs.
THE COURT OF APPEALS, HON. GUILLERMO L. LOJA, SR.,
PRESIDING JUDGE, REGIONAL TRIAL COURT OF MANILA,
BRANCH 26, and PEOPLE OF THE PHILIPPINES, respondents.
QUISUMBING, J.:
32
Assailed in this petition is the consolidated decision rendered on
May 23, 1996, by the Court of Appeals in CA-G.R. SP No. 35928
and CA-G.R. SP No. 35719. CA-G.R. SP No. 35928 had affirmed
the order dated September 6, 1994, of the Regional Trial Court,
Manila, Branch 26, insofar as it denied petitioners’ respective
Motions to Quash the Informations in twenty-five (25) criminal
cases for violation of Central Bank Circular No. 960. Therein
included were informations involving: (a) consolidated Criminal
Cases Nos. 91-101879 to 91-101883 filed against Mrs. Imelda R.
Marcos, Roberto S. Benedicto, and Hector T. Rivera; (b)
consolidated Criminal Cases Nos. 91-101884 to 91-101892 filed
against Mrs. Marcos and Benedicto; and (c) Criminal Cases Nos.
92-101959 to 92-101969 also against Mrs. Marcos and Benedicto.
Note, however, that the Court of Appeals already dismissed
Criminal Case No. 91-101884.
The factual antecedents of the instant petition are as
follows:
On December 27, 1991, Mrs. Imelda Marcos and Messrs.
Benedicto and Rivera were indicted for violation of Section 10 of
Circular No. 9601 relation to Section 342 of the Central Bank Act
(Republic Act No. 265, as amended) in five Informations filed with
the Regional Trial Court of Manila. Docketed as Criminal Cases
Nos. 91-101879 to 91-101883, the charge sheets alleged that the
trio failed to submit reports of their foreign exchange earnings from
abroad and/or failed to register with the Foreign Exchange
Department of the Central Bank within the period mandated by
Circular No. 960. Said Circular prohibited natural and juridical
persons from maintaining foreign exchange accounts abroad
without prior authorization from the Central Bank.3 It also required
all residents of the Philippines who habitually earned or received
foreign currencies from invisibles, either locally or abroad, to report
such earnings or receipts to the Central Bank. Violations of the
Circular were punishable as a criminal offense under Section 34 of
the Central Bank Act.
That same day, nine additional Informations charging Mrs. Marcos
and Benedicto with the same offense, but involving different
accounts, were filed with the Manila RTC, which docketed these as
Criminal Cases Nos. 91-101884 to 91-101892. The accusatory
portion of the charge sheet in Criminal Case No. 91-101888 reads:
That from September 1, 1983 up to 1987, both dates
inclusive, and for sometime thereafter, both accused,
conspiring and confederating with each other and with the
late President Ferdinand E. Marcos, all residents of Manila,
Philippines, and within the jurisdiction of this Honorable
Court, did then and there wilfully, unlawfully and feloniously
fail to submit reports in the prescribed form and/or register
with the Foreign Exchange Department of the Central Bank
within 90 days from October 21, 1983 as required of them
being residents habitually/customarily earning, acquiring or
receiving foreign exchange from whatever source or from
invisibles locally or from abroad, despite the fact they
actually earned interests regularly every six (6) months for
the first two years and then quarterly thereafter for their
investment of $50-million, later reduced to $25-million in
December 1985, in Philippine-issued dollar denominated
treasury notes with floating rates and in bearer form, in the
name of Bank Hofmann, AG, Zuring, Switzerland, for the
benefit of Avertina Foundation, their front organization
established for economic advancement purposes with
secret foreign exchange account Category (Rubric) C.A.R.
No. 211925-02 in Swiss Credit Bank (also known as SKA)
in Zurich, Switzerland, which earned, acquired or received
for the accused Imelda Romualdez Marcos and her late
husband an interest of $2,267,892 as of December 16,
1985 which was remitted to Bank Hofmann, AG, through
Citibank, New York, United States of America, for the credit
of said Avertina account on December 19, 1985, aside from
the redemption of $25 million (one-half of the original $50-
M) as of December 16, 1985 and outwardly remitted from
the Philippines in the amounts of $7,495,297.49 and
$17,489,062.50 on December 18, 1985 for further
33
 investment outside the Philippine without first complying
with the Central Bank reporting/registering requirements.
CONTRARY TO LAW.4
The other charge sheets were similarly worded except the days of
the commission of the offenses, the name(s) of the alleged dummy
or dummies, the amounts in the foreign exchange accounts
maintained, and the names of the foreign banks where such
accounts were held by the accused.
On January 3, 1992, eleven more Informations accusing Mrs.
Marcos and Benedicto of the same offense, again in relation to
different accounts, were filed with the same court, docketed as
Criminal Cases Nos. 92-101959 to 92-101969. The Informations
were similarly worded as the earlier indictments, save for the
details as to the dates of the violations of Circular No. 960, the
identities of the dummies used, the balances and sources of the
earnings, and the names of the foreign banks where these
accounts were maintained.
All of the aforementioned criminal cases were consolidated before
Branch 26 of the said trial court.
On the same day that Criminal Cases Nos. 92-101959 to 92-
101969 were filed, the Central Bank issued Circular No.
13185 which revised the rules governing non-trade foreign
exchange transactions. It took effect on January 20, 1992.
On August 24, 1992, the Central Bank, pursuant to the
government’s policy of further liberalizing foreign exchange
transactions, came out with Circular No. 1356,6 which amended
Circular No. 1318. Circular No. 1353 deleted the requirement of
prior Central Bank approval for foreign exchange-funded
expenditures obtained from the banking system.
Both of the aforementioned circulars, however, contained a saving
clause, excepting from their coverage pending criminal actions
involving violations of Circular No. 960 and, in the case of Circular
1âwphi 1.nêt No. 1353, violations of both Circular No. 960 and Circular No.
1318.
On September 19, 1993, the government allowed petitioners
Benedicto and Rivera to return to the Philippines, on condition that
they face the various criminal charges instituted against them,
including the dollar-salting cases. Petitioners posted bail in the
latter cases.
On February 28, 1994, petitioners Benedicto and Rivera were
arraigned. Both pleaded not guilty to the charges of violating
Central Bank Circular No. 960. Mrs. Marcos had earlier entered a
similar plea during her arraignment for the same offense on
February 12, 1992.
On August 11, 1994, petitioners moved to quash all the
Informations filed against them in Criminal Cases Nos. 91-101879
to 91-101883; 91-101884 to 91-101892, and 91-101959 to 91-
101969. Their motion was grounded on lack of jurisdiction, forum
shopping, extinction of criminal liability with the repeal of Circular
No. 960, prescription, exemption from the Central Bank’s reporting
requirement, and the grant of absolute immunity as a result of a
compromise agreement entered into with the government.
On September 6, 1994, the trial court denied petitioners’ motion. A
similar motion filed on May 23, 1994 by Mrs. Marcos seeking to
dismiss the dollar-salting cases against her due to the repeal of
Circular No. 960 had earlier been denied by the trial court in its
order dated June 9, 1994. Petitioners then filed a motion for
reconsideration, but the trial court likewise denied this motion on
October 18, 1994.
On November 21, 1994, petitioners moved for leave to file a
second motion for reconsideration. The trial court, in its order of
November 23, 1994, denied petitioners’ motion and set the
consolidated cases for trial on January 5, 1995.
34
Two separate petitions for certiorari and prohibition, with similar
prayers for temporary restraining orders and/or writs of preliminary
injunction, docketed as CA-G.R. SP No. 35719 and CA-G.R. SP
No. 35928, were respectively filed by Mrs. Marcos and petitioners
with the Court of Appeals. Finding that both cases involved
violations of Central Bank Circular No. 960, the appellate court
consolidated the two cases.
On May 23, 1996, the Court of Appeals disposed of the
consolidated cases as follows:
WHEREFORE, finding no grave abuse of discretion on the
part of respondent Judge in denying petitioners’ respective
Motions to Quash, except that with respect to Criminal Case
No. 91-101884, the instant petitions are hereby DISMISSED
for lack of merit. The assailed September 6, 1994 Order, in
so far as it denied the Motion to Quash Criminal Case No.
91-101884 is hereby nullified and set aside, and said case
is hereby dismissed. Costs against petitioners.
SO ORDERED.7
Dissatisfied with the said decision of the court a quo, except with
respect to the portion ordering the dismissal of Criminal Case No.
91-101884, petitioners filed the instant petition, attributing the
following errors to the appellate court:
THAT THE COURT ERRED IN NOT FINDING THAT THE
INFORMATIONS/CASES FILED AGAINST PETITIONERS-
APPELLANTS ARE QUASHABLE BASED ON THE
FOLLOWING GROUNDS:
(A) LACK OF JURISDICTION/FORUM
SHOPPING/NO VALID PRELIMINARY
INVESTIGATION
(B) EXTINCTION OF CRIMINAL LIABILITY
1) REPEAL OF CB CIRCULAR NO. 960 BY
CB CIRCULAR NO. 153;
2) REPEAL OF R.A. 265 BY R.A. 76538
(C) PRESCRIPTION
(D) EXEMPTION FROM CB REPORTING
REQUIREMENT
GRANT OF ABSOLUTE IMMUNITY.9
Simply stated, the issues for our resolution are:
(1) Did the Court of Appeals err in denying the Motion to
Quash for lack of jurisdiction on the part of the trial court,
forum shopping by the prosecution, and absence of a valid
preliminary investigation?
(2) Did the repeal of Central Bank Circular No. 960 and
Republic Act No. 265 by Circular No. 1353 and Republic Act
No. 7653 respectively, extinguish the criminal liability of
petitioners?
(3) Had the criminal cases in violation of Circular No. 960
already prescribed?
(4) Were petitioners exempted from the application and
coverage of Circular No. 960?
(5) Were petitioners’ alleged violations of Circular No. 960
covered by the absolute immunity granted in the
Compromise Agreement of November 3, 1990?
On the first issue, petitioners assail the jurisdiction of the Regional
Trial Court. They aver that the dollar-salting charges filed against
them were violations of the Anti-Graft Law or Republic Act No.
35
3019, and the Sandiganbayan has original and exclusive
jurisdiction over their cases.
Settled is the rule that the jurisdiction of a court to try a criminal
case is determined by the law in force at the time the action is
instituted.10 The 25 cases were filed in 1991-92. The applicable law
on jurisdiction then was Presidential Decree 1601.11 Under P.D.
No. 1606, offenses punishable by imprisonment of not more than
six years fall within the jurisdiction of the regular trial courts, not the
Sandiganbayan.12
In the instant case, all the Informations are for violations of Circular
No. 960 in relation to Section 34 of the Central Bank Act and not,
as petitioners insist, for transgressions of Republic Act No. 3019.
Pursuant to Section 34 of Republic Act No. 265, violations of
Circular No. 960 are punishable by imprisonment of not more than
five years and a fine of not more than P20,000.00. Since under
P.D. No. 1606 the Sandiganbayan has no jurisdiction to try criminal
cases where the imposable penalty is less than six years of
imprisonment, the cases against petitioners for violations of
Circular No. 960 are, therefore cognizable by the trial court. No
error may thus be charged to the Court of Appeals when it held
that the RTC of Manila had jurisdiction to hear and try the dollar-
salting cases.
Still on the first issue, petitioners next contend that the filing of the
cases for violations of Circular No. 960 before the RTC of Manila
Constitutes forum shopping. Petitioners argue that the prosecution,
in an attempt to seek a favorable verdict from more than one
tribunal, filed separate cases involving virtually the same offenses
before the regular trial courts and the Sandiganbayan. They fault
the prosecution with splitting the cases. Petitioners maintain that
while the RTC cases refer only to the failure to report interest
earnings on Treasury Notes, the Sandiganbayan cases seek to
penalize the act of receiving the same interest earnings on
Treasury Notes in violation of the Anti-Graft Law’s provisions on
prohibited transactions. Petitioners aver that the violation of
Circular No. 960 is but an element of the offense of prohibited
transactions punished under Republic Act No. 3019 and should,
thus, be deemed absorbed by the prohibited transactions cases
pending before the Sandiganbayan.
For the charge of forum shopping to prosper, there must exist
between an action pending in one court and another action
pending in one court and another action before another court: (a)
identity of parties, or at least such parties as represent the same
interests in both actions; (b) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (c) the
identity of the two preceding particulars is such that any judgment
rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under
consideration.13 Here, we find that the single act of receiving
unreported interest earnings on Treasury Notes held abroad
constitutes an offense against two or more distinct and unrelated
laws, Circular No. 960 and R.A. 3019. Said laws define distinct
offenses, penalize different acts, and can be applied
independently.14 Hence, no fault lies at the prosecution’s door for
having instituted separate cases before separate tribunals
involving the same subject matter.
With respect to the RTC cases, the receipt of the interest earnings
violate Circular No. 960 in relation to Republic Act No. 265
because the same was unreported to the Central Bank. The act to
be penalized here is the failure to report the interest earnings from
the foreign exchange accounts to the proper authority. As to the
anti-graft cases before the Sandiganbayan involving the same
interest earnings from the same foreign exchange accounts, the
receipt of the interest earnings transgresses Republic Act No. 3019
because the act of receiving such interest is a prohibited
transaction prejudicial to the government. What the State seeks to
punish in these anti-graft cases is the prohibited receipt of the
interest earnings. In sum, there is no identity of offenses charged,
and prosecution under one law is not an obstacle to a prosecution
under the other law. There is no forum shopping.
36
Finally, on the first issue, petitioners contend that the preliminary
investigation by the Department of Justice was invalid and in
violation of their rights to due process. Petitioners argue that
government’s ban on their travel effectively prevented them from
returning home and personally appearing at the preliminary
investigation. Benedicto and Rivera further point out that the joint
preliminary investigation by the Department of Justice, resulted to
the charges in one set of cases before the Sandiganbayan for
violations of Republic Act No. 3019 and another set before the
RTC for violation of Circular No. 960.
Preliminary investigation is not part of the due process guaranteed
by the Constitution.15 It is an inquiry to determine whether there is
sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty
thereof.16 Instead, the right to a preliminary investigation is
personal. It is afforded to the accused by statute, and can be
waived, either expressly or by implication.17 The waiver extends to
any irregularity in the preliminary investigation, where one was
conducted.
The petition in the present case contains the following admissions:
1. Allowed to return to the Philippines on September 19,
1993 … on the condition that he face the criminal charges
pending in courts, petitioner-appellant Benedicto, joined by
his co-petitioner Rivera, lost no time in attending to the
pending criminal charges by posting bail in the above-
mentioned cases.
2. Not having been afforded a real opportunity of attending
the preliminary investigation because of their forced
absence from the Philippines then, petitioners-appellants
invoked their right to due process thru motions for
preliminary investigation … Upon denial of their demands
for preliminary investigation, the petitioners intended to
elevate the matter to the Honorable Court of Appeals and
actually caused the filing of a petition for
certiorari/prohibition sometime before their arraignment but
immediately caused the withdrawal thereof … in view of the
prosecution’s willingness to go to pre-trial wherein petitioner
would be allowed access to the records of preliminary
investigation which they could use for purposes of filing a
motion to quash if warranted.
3. Thus, instead of remanding the Informations to the
Department of Justice … respondent Judge set the case for
pre-trial in order to afford all the accused access to the
records of prosecution…
xxx
5. On the basis of disclosures at the pre-trial, the
petitioners-appellants Benedicto and Rivera moved for the
quashing of the informations/cases…18
The foregoing admissions lead us to conclude that petitioners have
expressly waived their right to question any supposed irregularity in
the preliminary investigation or to ask for a new preliminary
investigation. Petitioners, in the above excerpts from this petition,
admit posting bail immediately following their return to the country,
entered their respective pleas to the charges, and filed various
motions and pleadings. By so doing, without simultaneously
demanding a proper preliminary investigation, they have waived
any and all irregularities in the conduct of a preliminary
investigation.19 The trial court did not err in denying the motion to
quash the informations on the ground of want of or improperly
conducted preliminary investigation. The absence of a preliminary
investigation is not a ground to quash the information.20
On the second issue, petitioners contend that they are being
prosecuted for acts punishable under laws that have already been
repealed. They point to the express repeal of Central Bank Circular
No. 960 by Circular Nos. 1318 and 1353 as well as the express
repeal of Republic Act No. 265 by Republic Act No. 7653.
Petitioners, relying on Article 22 of the Revised Penal
37
Code,21 contend that repeal has the effect of extinguishing the right
to prosecute or punish the offense committed under the old laws.22
As a rule, an absolute repeal of a penal law has the effect of
depriving a court of its authority to punish a person charged with
violation of the old law prior to its repeal.23 This is because an
unqualified repeal of a penal law constitutes a legislative act of
rendering legal what had been previously declared as illegal, such
that the offense no longer exists and it is as if the person who
committed it never did so. There are, however, exceptions to the
rule. One is the inclusion of a saving clause in the repealing statute
that provides that the repeal shall have no effect on pending
actions.24 Another exception is where the repealing act reenacts
the former statute and punishes the act previously penalized under
the old law. In such instance, the act committed before the
reenactment continues to be an offense in the statute books and
pending cases are not affected, regardless of whether the new
penalty to be imposed is more favorable to the accused.25
In the instant case, it must be noted that despite the repeal of
Circular No. 960, Circular No. 1353 retained the same reportorial
requirement for residents receiving earnings or profits from non-
trade foreign exchange transactions.26Second, even the most
cursory glance at the repealing circulars, Circular Nos. 1318 and
1353 shows that both contain a saving clause, expressly providing
that the repeal of Circular No. 960 shall have no effect on pending
actions for violation of the latter Circular.27 A saving clause
operates to except from the effect of the repealing law what would
otherwise be lost under the new law.28 In the present case, the
respective saving clauses of Circular Nos. 1318 and 1353 clearly
manifest the intent to reserve the right of the State to prosecute
and punish offenses for violations of the repealed Circular No. 960,
where the cases are either pending or under investigation.
Petitioners, however, insist that the repeal of Republic Act No. 265,
particularly Section 34,29 by Republic Act No. 7653, removed the
applicability of any special sanction for violations of any non-trade
foreign exchange transactions previously penalized by Circular No.
960. Petitioners posit that a comparison of the two provisions
shows that Section 3630 of Republic Act No. 7653 neither retained
nor reinstated Section 34 of Republic Act No. 265. Since, in
creating the Bangko Sentral ng Pilipinas, Congress did not include
in its charter a clause providing for the application of Section 34 of
Republic Act No. 265 to pending cases, petitioners’ pending dollar-
salting cases are now bereft of statutory penalty, the saving clause
in Circular No. 1353 notwithstanding. In other words, absent a
provision in Republic Act No. 7653 expressly reviving the
applicability of any penal sanction for the repealed mandatory
foreign exchange reporting regulations formerly required under
Circular No. 960, violations of aforesaid repealed Circular can no
longer be prosecuted criminally.
A comparison of the old Central Bank Act and the new Bangko
Sentral’s charter repealing the former show that in consonance
with the general objective of the old law and the new law "to
maintain internal and external monetary stability in the Philippines
and preserve the international value of the peso,"31 both the
repealed law and the repealing statute contain a penal cause
which sought to penalize in general, violations of the law as well as
orders, instructions, rules, or regulations issued by the Monetary
Board. In the case of the Bangko Sentral, the scope of the penal
clause was expanded to include violations of "other pertinent
banking laws enforced or implemented by the Bangko Sentral." In
the instant case, the acts of petitioners sought to be penalized are
violations of rules and regulations issued by the Monetary Board.
These acts are proscribed and penalized in the penal clause of the
repealed law and this proviso for proscription and penalty was
reenacted in the repealing law. We find, therefore, that while
Section 34 of Republic Act No. 265 was repealed, it was
nonetheless, simultaneously reenacted in Section 36 of Republic
Act No. 7653. Where a clause or provision or a statute for the
matter is simultaneously repealed and reenacted, there is no
effect, upon the rights and liabilities which have accrued under the
original statute, since the reenactment, in effect "neutralizes" the
repeal and continues the law in force without interruption.32 The
rule applies to penal laws and statutes with penal provisions. Thus,
38
the repeal of a penal law or provision, under which a person is
charged with violation thereof and its simultaneous reenactment
penalizing the same act done by him under the old law, will neither
preclude the accused’s prosecution nor deprive the court of its
jurisdiction to hear and try his case.33 As pointed out earlier, the act
penalized before the reenactment continues to remain an offense
and pending cases are unaffected. Therefore, the repeal of
Republic Act No. 265 by Republic Act No. 7653 did not extinguish
the criminal liability of petitioners for transgressions of Circular No.
960 and cannot, under the circumstances of this case, be made a
basis for quashing the indictments against petitioners.
Petitioners, however, point out that Section 36 of Republic Act No.
7653, in reenacting Section 34 of the old Central Act, increased the
penalty for violations of rules and regulations issued by the
Monetary Board. They claim that such increase in the penalty
would give Republic Act No. 7653 an ex post facto application,
violating the Bill of Rights.34
Is Section 36 of Republic Act No. 7653 and ex post
facto legislation?
An ex post facto law is one which: (1) makes criminal an act done
before the passage of the law and which was innocent when done,
and punishes such an act; (2) aggravates a crime, or makes it
greater than it was when committed; (3) changes the punishment
and inflicts a greater punishment than the law annexed to the crime
when committed; (4) alters the legal rules of evidence, and
authorizes conviction upon less or different testimony than the law
required at the time of the commission of the offense; (5) assuming
to regulate civil rights, and remedies only, in effect imposes penalty
or deprivation of a right for something which when done was lawful;
and (6) deprives a person accused of a crime of some lawful
protection to which he has become entitled such as the protection
of a former conviction or acquittal, or a proclamation of amnesty.35
The test whether a penal law runs afoul of the ex post facto clause
of the Constitution is: Does the law sought to be applied
retroactively take "from an accused any right that was regarded at
the time of the adoption of the constitution as vital for the protection
of life and liberty and which he enjoyed at the time of the
commission of the offense charged against him."36
The crucial words in the test are "vital for the protection of life and
liberty."37 We find, however, the test inapplicable to the penal
clause of Republic Act No. 7653. Penal laws and laws which, while
not penal in nature, nonetheless have provisions defining offenses
and prescribing penalties for their violation operate
prospectively.38 Penal laws cannot be given retroactive effect,
except when they are favorable to the accused.39 Nowhere in
Republic Act No. 7653, and in particular Section 36, is there any
indication that the increased penalties provided therein were
intended to operate retroactively. There is, therefore, no ex post
facto law in this case.
On the third issue, petitioners ask us to note that the dollar interest
earnings subject of the criminal cases instituted against them were
remitted to foreign banks on various dates between 1983 to 1987.
They maintain that given the considerable lapse of time from the
dates of the commission of the offenses to the institution of the
criminal actions in 1991 and 1992, the State’s right to prosecute
them for said offenses has already prescribed. Petitioners assert
that the Court of Appeals erred in computing the prescriptive period
from February 1986. Petitioners theorize that since the remittances
were made through the Central Bank as a regulatory authority, the
dates of the alleged violations are known, and prescription should
thus be counted from these dates.
In ruling that the dollar-salting cases against petitioners have not
yet prescribed, the court a quo quoted with approval the trial
court’s finding that:
[T]he alleged violations of law were discovered only after
the EDSA Revolution in 1986 when the dictatorship was
toppled down. The date of the discovery of the offense,
therefore, should be the basis in computing the prescriptive
39
 period. Since (the) offenses charged are punishable by
imprisonment of not more than five (5) years, they prescribe
in eight (8) years. Thus, only a little more than four (4) years
had elapsed from the date of discovery in 1986 when the
cases were filed in 1991.40
The offenses for which petitioners are charged are penalized by
Section 34 of Republic Act No. 265 "by a fine of not more than
Twenty Thousand Pesos (P20,000.00) and by imprisonment of not
more than five years." Pursuant to Act No. 3326, which mandates
the periods of prescription for violations of special laws, the
prescriptive period for violations of Circular No. 960 is eight (8)
years.41 The period shall commence "to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and institution of
judicial proceedings for its investigation and punishment."42 In the
instant case, the indictments against petitioners charged them with
having conspired with the late President Ferdinand E. Marcos in
transgressing Circular No. 960. Petitioners’ contention that the
dates of the commission of the alleged violations were known and
prescription should be counted from these dates must be viewed in
the context of the political realities then prevailing. Petitioners, as
close associates of Mrs. Marcos, were not only protected from
investigation by their influence and connections, but also by the
power and authority of a Chief Executive exercising strong-arm
rule. This Court has taken judicial notice of the fact that Mr.
Marcos, his family, relations, and close associates "resorted to all
sorts of clever schemes and manipulations to disguise and hide
their illicit acquisitions."43 In the instant case, prescription cannot,
therefore, be made to run from the dates of the commission of
those offenses were not known as of those dates. It was only after
the EDSA Revolution of February, 1986, that the recovery of ill-
gotten wealth became a highly prioritized state policy,44 pursuant to
the explicit command of the Provisional Constitution.45 To ascertain
the relevant facts to recover "ill-gotten properties amassed by the
leaders and supporters of the (Marcos) regime"46 various
government agencies were tasked by the Aquino administration to
investigate, and as the evidence on hand may reveal, file and
prosecute the proper cases. Applying the presumption "that official
duty has been regularly performed",47 we are more inclined to
believe that the violations for which petitioners are charged were
discovered only during the post-February 1986 investigations and
the tolling of the prescriptive period should be counted from the
dates of discovery of their commission. The criminal actions
against petitioners, which gave rise to the instant case, were filed
in 1991 and 1992, or well within the eight-year prescriptive period
counted from February 1986.
The fourth issue involves petitioners’ claim that they incurred no
criminal liability for violations of Circular No. 960 since they were
exempted from its coverage.
Petitioners postulate that since the purchases of treasury notes
were done through the Central Bank’s Securities Servicing
Department and payments of the interest were coursed through its
Securities Servicing Department/Foreign Exchange Department,
their filing of reports would be surplusage, since the requisite
information were already with the Central Bank. Furthermore, they
contend that the foreign currency investment accounts in the Swiss
banks were subject to absolute confidentiality as provided for by
Republic Act No. 6426,48 as amended by Presidential Decree Nos.
1035, 1246, and 1453, and fell outside the ambit of the reporting
requirements imposed by Circular No. 960. Petitioners further rely
on the exemption from reporting provided for in Section
10(q),49 Circular No. 960, and the confidentiality granted to Swiss
bank accounts by the laws of Switzerland.
Petitioners correctly point out that Section 10(q) of Circular No. 960
exempts from the reporting requirement foreign currency eligible
for deposit under the Philippine Foreign Exchange Currency
Deposit System, pursuant to Republic Act No. 6426, as amended.
But, in order to avail of the aforesaid exemption, petitioners must
show that they fall within its scope. Petitioners must satisfy the
requirements for eligibility imposed by Section 2, Republic Act No.
6426.50 Not only do we find the record bare of any proof to support
petitioners’ claim of falling within the coverage of Republic Act No.
40
6426, we likewise find from a reading of Section 2 of the Foreign Benedicto, his family, as well as to officers and employees of firms
Currency Deposit Act that said law is inapplicable to the foreign owned or controlled by Benedicto under the aforesaid Agreement
currency accounts in question. Section 2, Republic Act No. 6426 covers the suits filed for violations of Circular No. 960, which gave
speaks of "deposit with such Philippine banks in good standing, as rise to the present case.
may…be designated by the Central Bank for the purpose."51 The
criminal cases filed against petitioners for violation of Circular No. The pertinent provisions of the Compromise Agreement read:
960 involve foreign currency accounts maintained in foreign banks,
not Philippine banks. By invoking the confidentiality guarantees WHEREAS, this Compromise Agreement covers the
provided for by Swiss banking laws, petitioners admit such reports remaining claims and the cases of the Philippine
made. The rule is that exceptions are strictly construed and apply Government against Roberto S. Benedicto including his
only so far as their language fairly warrants, with all doubts being associates and nominees, namely, Julita C. Benedicto,
resolved in favor of the general proviso rather than the Hector T. Rivera, x x x
exception.52 Hence, petitioners may not claim exemption under
Section 10(q). WHEREAS, specifically these claims are the subject matter
of the following cases (stress supplied):
With respect to the banking laws of Switzerland cited by
petitioners, the rule is that Philippine courts cannot take judicial 1. Sandiganbayan Civil Case No. 9
notice of foreign laws.53 Laws of foreign jurisdictions must be
alleged and proved.54 Petitioners failed to prove the Swiss law 2. Sandiganbayan Civil Case No. 24
relied upon, either by: (1) an official publication thereof; or (2) a
copy attested by the officer having the legal custody of the record, 3. Sandiganbayan Civil Case No. 34
or by his deputy, and accompanied by a certification from the
secretary of the Philippine embassy or legation in such country or 4. Tanodbayan (Phil-Asia)
by the Philippine consul general, consul, vice-consul, or consular
agent stationed in such country, or by any other authorized officer 5. PCGG I.S. No. 1.
in the Philippine foreign service assigned to said country that such
officer has custody.55 Absent such evidence, this Court cannot take
xxx
judicial cognizance of the foreign law invoked by Benedicto and
Rivera.
WHEREAS, following the termination of the United States
and Swiss cases, and also without admitting the merits of
Anent the fifth issue, petitioners insist that the government granted
their respective claims and counterclaims presently involved
them absolute immunity under the Compromise Agreement they
in uncertain, protracted and expensive litigation, the
entered into with the government on November 3, 1990. Petitioners
Republic of the Philippines, solely motivated by the desire
cite our decision in Republic v. Sandiganbayan, 226 SCRA 314
for the immediate accomplishment of its recovery mission
(1993), upholding the validity of the said Agreement and directing
and Mr. Benedicto being interested to lead a peaceful and
the various government agencies to be consistent with it.
normal pursuit of his endeavors, the parties have decided to
Benedicto and Rivera now insist that the absolute immunity from
withdraw and/or dismiss their mutual claims and
criminal investigation or prosecution granted to petitioner
41
counterclaims under the cases pending in the Philippines,
earlier referred to (underscoring supplied);
xxx
II. Lifting of Sequestrations, Extension of Absolute Immunity
and Recognition of the Freedom to Travel
a) The Government hereby lifts the sequestrations over the
assets listed in Annex "C" hereof, the same being within the
capacity of Mr. Benedicto to acquire from the exercise of his
profession and conduct of business, as well as all the
haciendas listed in his name in Negro Occidental, all of
which were inherited by him or acquired with income from
his inheritance…and all the other sequestered assets that
belong to Benedicto and his corporation/nominees which
are not listed in Annex "A" as ceded or to be ceded to the
Government.
Provided, however, (that) any asset(s) not otherwise settled
or covered by this Compromise Agreement, hereinafter
found and clearly established with finality by proper
competent court as being held by Mr. Roberto S. Benedicto
in trust for the family of the late Ferdinand E. Marcos, shall
be returned or surrendered to the Government for
appropriate custody and disposition.
b) The Government hereby extends absolute immunity, as
authorized under the pertinent provisions of Executive
Orders Nos. 1, 2, 14 and 14-A, to Benedicto, the members
of his family, officers and employees of his corporations
above mentioned, who are included in past, present and
future cases and investigations of the Philippine
Government, such that there shall be no criminal
investigation or prosecution against said persons for acts
(or) omissions committed prior to February 25, 1986, that
may be alleged to have violated any laws, including but not
limited to Republic Act No. 3019, in relation to the
acquisition of any asset treated, mentioned or included in
this Agreement. lawphil.net
x x x56
In construing contracts, it is important to ascertain the intent of the
parties by looking at the words employed to project their intention.
In the instant case, the parties clearly listed and limited the
applicability of the Compromise Agreement to the cases listed or
identified therein. We have ruled in another case involving the
same Compromise Agreement that:
[T]he subject matters of the disputed compromise
agreement are Sandiganbayan Civil Case No. 0009, Civil
Case No. 00234, Civil Case No. 0034, the Phil-Asia case
before the Tanodbayan and PCGG I.S. No. 1. The cases
arose from complaints for reconveyance, reversion,
accounting, restitution, and damages against former
President Ferdinand E. Marcos, members of his family, and
alleged cronies, one of whom was respondent Roberto S.
Benedicto.57
Nowhere is there a mention of the criminal cases filed against
petitioners for violations of Circular No. 960. Conformably with
Article 1370 of the Civil Code,58 the Agreement relied upon by
petitioners should include only cases specifically mentioned
therein. Applying the parol evidence rule,59 where the parties have
reduced their agreement into writing, the contents of the writing
constitute the sole repository of the terms of the agreement
between the parties.60 Whatever is not found in the text of the
Agreement should thus be construed as waived and
abandoned.61 Scrutiny of the Compromise Agreement will reveal
that it does not include all cases filed by the government against
Benedicto, his family, and associates.
Additionally, the immunity covers only "criminal investigation or
prosecution against said persons for acts (or) omissions committed
prior to February 25, 1986 that may be alleged to have violated any
42
penal laws, including but not limited to Republic Act No. 3019, in
relation to the acquisition of any asset treated, mentioned, or
included in this Agreement."62 It is only when the criminal
investigation or case involves the acquisition of any ill-gotten
wealth "treated mentioned, or included in this Agreement"63 that
petitioners may invoke immunity. The record is bereft of any
showing that the interest earnings from foreign exchange deposits
in banks abroad, which is the subject matter of the present case,
are "treated, mentioned, or included" in the Compromise
Agreement. The phraseology of the grant of absolute immunity in
the Agreement precludes us from applying the same to the criminal
charges faced by petitioners for violations of Circular No. 960. A
contract cannot be construed to include matters distinct from those
with respect to which the parties intended to contract. 64
In sum, we find that no reversible error of law may be attributed to
the Court of Appeals in upholding the orders of the trial court
denying petitioners’ Motion to Quash the Informations in Criminal
Case Nos. 91-101879 to 91-101883, 91-101884 to 91-101892, and
92-101959 to 92-101969. In our view, none of the grounds
provided for in the Rules of Court65 upon which petitioners rely,
finds applications in this case.
On final matter. During the pendency of this petition, counsel for
petitioner Roberto S. Benedicto gave formal notice to the Court
that said petitioner died on May 15, 2000. The death of an accused
prior to final judgment terminates his criminal liability as well as the
civil liability based solely thereon.66
WHEREFORE, the instant petition is DISMISSED. The assailed
consolidated Decision of the Court of Appeals dated May 23, 1996,
in CA-G.R. SP No. 35928 and CA G.R. SP No. 35719,
is AFFIRMED WITH MODIFICATION that the charges against
deceased petitioner, Roberto S. Benedicto, particularly in Criminal
Cases Nos. 91-101879 to 91-101883, 91-101884 to 101892, and
92-101959 to 92-101969, pending before the Regional Trial Court
of Manila, Branch 26, are ordered dropped and that any criminal as
well as civil liability ex delicto that might be attributable to him in
the aforesaid cases are declared extinguished by reason of his
death on May 15, 2000. No pronouncement as to costs.
l aw phil.net
SO ORDERED.
G.R. No. 143375 July 6, 2001
RUTH D. BAUTISTA, petitioner,
vs.
COURT OF APPEALS, OFFICE OF THE REGIONAL STATE
PROSECUTOR, REGION IV, and SUSAN ALOÑA, respondents.
BELLOSILLO, J.:
This petition for certiorari presents a new dimension in the ever
controversial Batas Pambansa Bilang 22 or The Bouncing Checks
Law. The question posed is whether the drawer of a check which is
dishonored due to lack of sufficient funds can be prosecuted under
BP 22 even if the check is presented for payment after ninety (90)
days from its due date. The burgeoning jurisprudence on the
matter appears silent on this point.
Sometime in April 1998 petitioner Ruth D. Bautista issued to
private respondent Susan Aloña Metrobank Check No. 005014037
dated 8 May 1998 for P1,500,000.00 drawn on Metrobank Cavite
City Branch. According to private respondent, petitioner assured
her that the check would be sufficiently funded on the maturity
date.
On 20 October 1998 private respondent presented the check for
payment. The drawee bank dishonored the check because it was
drawn against insufficient funds (DAIF).
On 16 March 1999 private respondent filed a complaint-affidavit
with the City Prosecutor of Cavite City.1 In addition to the details of
the issuance and the dishonor of the check, she also alleged that
she made repeated demands on petitioner to make arrangements
for the payment of the check within five (5) working days after
43
receipt of notice of dishonor from the bank, but that petitioner failed
to do so.
Petitioner then submitted her own counter-affidavit asserting in her
defense that presentment of the check within ninety (90) days from
due date thereof was an essential element of the offense of
violation of BP 22. Since the check was presented for payment 166
days after its due date, it was no longer punishable under BP 22
and therefore the complaint should be dismissed for lack of merit.
She also claimed that she already assigned private respondent her
condominium unit at Antel Seaview Condominium, Roxas
Boulevard, as full payment for the bounced checks thus
extinguishing her criminal liability.
On 22 April 1999, the investigating prosecutor issued a resolution
recommending the filing of an Information against petitioner for
violation of BP 22, which was approved by the City Prosecutor.
On 13 May 1999 petitioner filed with the Office of the Regional
State Prosecutor (ORSP) for Region IV a petition for review of the
22 April 1999 resolution. The ORSP denied the petition in a one
(1)-page resolution dated 25 June 1999. On 5 July 1999 petitioner
filed a motion for reconsideration, which the ORSP also denied on
31 August 1999. According to the ORSP, only resolutions of
prosecutors dismissing a criminal complaint were cognizable for
review by that office, citing Department Order No. 223.
On 1 October 1999 petitioner filed with the Court of Appeals a
petition for review of the resolution of the ORSP, Region IV, dated
22 April 1999 as well as the order dated 31 August 1999 denying
reconsideration. The appellate court issued the assailed Resolution
dated 26 October 1999 denying due course outright and dismissing
the petition.2 According to respondent appellate court -
A petition for review is appropriate under Rule 42 (1997
Rules of Civil Procedure) from a decision of the Regional
Trial Court rendered in the exercise of its appellate
jurisdiction, filed in the Court of Appeals. Rule 43 x x x
provides for appeal, via a petition for review x x x from
judgment or final orders of the Court of Tax Appeals and
Quasi-Judicial Agencies to the Court of Appeals.
Petitioner's "Petition for Review" of the ORSP resolution
does not fall under any of the agencies mentioned in Rule
43 x x x x It is worth to note that petitioner in her three (3)
assigned errors charged the ORSP of "serious error of law
and grave abuse of discretion." The grounds relied upon by
petitioner are proper in a petition for certiorari x x x x Even if
We treat the "Petition for Review" as a petition for certiorari,
petitioner failed to allege the essential requirements of a
special civil action. Besides, the remedy of petitioner is in
the Regional Trial Court, following the doctrine of hierarchy
of courts x x x x (italics supplied)
First, some ground rules. This case went to the Court of Appeals
by way of petition for review under Rule 43 of the 1997 Rules of
Civil Procedure. Rule 43 applies to "appeals from judgments or
final orders of the Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or authorized by any
quasi-judicial agency in the exercise of quasi-judicial functions."3
Petitioner submits that a prosecutor conducting a preliminary
investigation performs a quasi-judicial function, citing Cojuangco v.
PCGG,4 Koh v. Court of Appeals,5 Andaya v. Provincial Fiscal of
Surigao del Norte6 and Crespo v. Mogul.7 In these cases this Court
held that the power to conduct preliminary investigation is quasi-
judicial in nature. But this statement holds true only in the sense
that, like quasi-judicial bodies, the prosecutor is an office in the
executive department exercising powers akin to those of a court.
Here is where the similarity ends.
A closer scrutiny will show that preliminary investigation is very
different from other quasi-judicial proceedings. A quasi-judicial
body has been defined as "an organ of government other than a
court and other than a legislature which affects the rights of private
parties through either adjudication or rule-making."8
44
In Luzon Development Bank v. Luzon Development Bank
Employees,9 we held that a voluntary arbitrator, whether acting
solely or in a panel, enjoys in law the status of a quasi-judicial
agency, hence his decisions and awards are appealable to the
Court of Appeals. This is so because the awards of voluntary
arbitrators become final and executory upon the lapse of the period
to appeal;10 and since their awards determine the rights of parties,
their decisions have the same effect as judgments of a court.
Therefore, the proper remedy from an award of a voluntary
arbitrator is a petition for review to the Court of Appeals, following
Revised Administrative Circular No. 1-95, which provided for a
uniform procedure for appellate review of all adjudications of quasi-
judicial entities, which is now embodied in Rule 43 of the 1997
Rules of Civil Procedure.
On the other hand, the prosecutor in a preliminary investigation
does not determine the guilt or innocence of the accused. He does
not exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only means of
discovering the persons who may be reasonably charged with a
crime and to enable the fiscal to prepare his complaint or
information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the
accused is guilty thereof.11 While the fiscal makes that
determination, he cannot be said to be acting as a quasi-court, for
it is the courts, ultimately, that pass judgment on the accused, not
the fiscal.12
Hence, the Office of the Prosecutor is not a quasi-judicial body;
necessarily, its decisions approving the filing of a criminal
complaint are not appealable to the Court of Appeals under Rule
43. Since the ORSP has the power to resolve appeals with finality
only where the penalty prescribed for the offense does not
exceed prision correccional, regardless of the imposable fine,13 the
only remedy of petitioner, in the absence of grave abuse of
discretion, is to present her defense in the trial of the case.
Besides, it is well-settled that the courts cannot interfere with the
discretion of the fiscal to determine the specificity and adequacy of
the offense charged. He may dismiss the complaint forthwith if he
finds it to be insufficient in form or substance or if he finds no
ground to continue with the inquiry; or, he may otherwise proceed
with the investigation if the complaint is, in his view, in due and
proper form.14
In the present recourse, notwithstanding the procedural lapses, we
give due course to the petition, in view of the novel legal question
involved, to prevent further delay of the prosecution of the criminal
case below, and more importantly, to dispel any notion that
procedural technicalities are being used to defeat the substantive
rights of petitioner.
Petitioner is accused of violation of BP 22 the substantive portion
of which reads -
Section 1. Checks without sufficient funds. - Any person
who makes or draws and issues any check to apply on
account or for value, knowing at the time of issue that he
does not have sufficient funds in or credit with the drawee
bank for the payment of such in full upon presentment,
which check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit or would have been
dishonored for the same reason had not the drawer, without
any valid reason, ordered the bank to stop payment, shall
be punished by imprisonment of not less than thirty (30)
days but not more than one (1) year or by a fine of not less
than but not more than double the amount of the check
which fine shall in no case exceed Two Hundred Thousand
Pesos, or both such fine and imprisonment at the discretion
of the court.
The same penalty shall be imposed upon any person who,
having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to
keep sufficient funds or to maintain a credit to cover the full
45
 amount of the check if presented within a period of ninety
(90) days from the date appearing thereon, for which reason
it is dishonored by the drawee bank x x x x (italics supplied).
An analysis of Sec. 1 shows that The Bouncing Checks
Law penalizes two (2) distinct acts: First, making or drawing and
issuing any check to apply on account or for value, knowing at the
time of issue that the drawer does not have sufficient funds in or
credit with the drawee bank; and, second, having sufficient funds in
or credit with the drawee bank shall fail to keep sufficient funds or
to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date
appearing thereon, for which reason it is dishonored by the drawee
bank.15
In the first paragraph, the drawer knows that he does not have
sufficient funds to cover the check at the time of its issuance, while
in the second paragraph, the drawer has sufficient funds at the
time of issuance but fails to keep sufficient funds or maintain credit
within ninety (90) days from the date appearing on the check. In
both instances, the offense is consummated by the dishonor of the
check for insufficiency of funds or credit.
The check involved in the first offense is worthless at the time of
issuance since the drawer had neither sufficient funds in nor credit
with the drawee bank at the time, while that involved in the second
offense is good when issued as drawer had sufficient funds in or
credit with the drawee bank when issued.16 Under the first offense,
the ninety (90)-day presentment period is not expressly provided,
while such period is an express element of the second offense.17
From the allegations of the complaint, it is clear that petitioner is
being prosecuted for violation of the first paragraph of the offense.
Petitioner asserts that she could not be prosecuted for violation of
BP 22 on the simple ground that the subject check was presented
166 days after the date stated thereon. She cites Sec. 2 of BP 22
which reads -
Sec. 2. Evidence of knowledge of insufficient funds. - The
making, drawing and issuance of a check payment which is
refused by the drawee because of insufficient funds in or
credit with such bank, when presented within ninety (90)
days from the date of the check, shall be prima facie
evidence of knowledge of such insufficiency of funds or
credit unless such maker or drawer pays the holder thereof
the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not
been paid by the drawee (italics supplied).
Petitioner interprets this provision to mean that the ninety (90)-day
presentment period is an element of the offenses punished in BP
22. She asseverates that "for a maker or issuer of a check to be
covered by B.P. 22, the check issued by him/her is one that is
dishonored when presented for payment within ninety (90) days
from date of the check. If the dishonor occurred after presentment
for payment beyond the ninety (90)-day period, no criminal liability
attaches; only a civil case for collection of sum of money may be
filed, if warranted." To bolster this argument, she relies on the view
espoused by Judge David G. Nitafan in his treatise - 18
Although evidentiary in nature, section 2 of the law must be
taken as furnishing an additional element of the offense
defined in the first paragraph of section 1 because it
provides for the evidentiary fact of "knowledge of
insufficiency of funds or credit" which is an element of the
offense defined in said paragraph; otherwise said provision
of section 2 would be rendered without meaning and
nugatory. The rule of statutory construction is that the parts
of a statute must be read together in such a manner as to
give effect to all of them and that such parts shall not be
construed as contradicting each other. The same section
cannot be deemed to supply an additional element for the
offense under the second paragraph of section 1 because
the 90-day presentment period is already a built-in element
in the definition of said offense (italics supplied).
46
We are not convinced. It is fundamental that every element of the
offense must be alleged in the complaint or information, and must
be proved beyond reasonable doubt by the prosecution. What facts
and circumstances are necessary to be stated must be determined
by reference to the definitions and the essentials of the specific
crimes.19
The elements of the offense under BP 22 are (a) the making,
drawing and issuance of any check to apply to account or for
value; (b) the maker, drawer or issuer knows at the time of issue
that he does not have sufficient funds in or credit with the drawee
bank for the payment of such check in full upon its presentment;
and, (c) the check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would have been dishonored
for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment.20
The ninety (90)-day period is not among these elements. Section 2
of BP 22 is clear that a dishonored check presented within the
ninety (90)-day period creates a prima facie presumption of
knowledge of insufficiency of funds, which is an essential element
of the offense. Since knowledge involves a state of mind difficult to
establish, the statute itself creates a prima facie presumption of the
existence of this element from the fact of drawing, issuing or
making a check, the payment of which was subsequently refused
for insufficiency of funds.21 The term prima facieevidence denotes
evidence which, if unexplained or uncontradicted, is sufficient to
sustain the proposition it supports or to establish the facts, or to
counterbalance the presumption of innocence to warrant a
conviction.22
The presumption in Sec. 2 is not a conclusive presumption that
forecloses or precludes the presentation of evidence to the
contrary.23 Neither does the term prima facie evidence preclude the
presentation of other evidence that may sufficiently prove the
existence or knowledge of insufficiency of funds or lack of credit.
Surely, the law is not so circumscribed as to limit proof of
knowledge exclusively to the dishonor of the subject check when
presented within the prescribed ninety (90) day period. The
deliberations on the passage of BP 22 (then known as Cabinet Bill
No. 9) between the author, former Solicitor General Estelito P.
Mendoza, and Bataan Assemblyman Pablo Roman prove insightful
-
MR. ROMAN: x x x x Under Section 1, who is the person
who may be liable under this Section? Would it be the
maker or the drawer? How about the endorser, Mr.
Speaker?
MR. MENDOZA: Liable.
MR. ROMAN: The endorser, therefore, under Section 1 is
charged with the duty of knowing at the time he endorses
and delivers a check . . . .
MR. MENDOZA: If the endorser is charged for violation of
the Act then the fact of knowledge must be proven by
positive evidence because the presumption of knowledge
arises only against the maker or the drawer. It does not
arise as against endorser under the following section (italics
supplied).
MR. ROMAN: But under Section 1, it says here: "Any
person who shall make or draw or utter or deliver any
check." The preposition is disjunctive, so that any person
who delivers any check knowing at the time of such making
or such delivery that the maker or drawer has no sufficient
funds would be liable under Section 1.
MR. MENDOZA: That is correct Mr. Speaker. But, as I said,
while there is liability even as against endorser, for
example, the presumption of knowledge of insufficient funds
arises only against the maker or drawer under Section 2.
MR. ROMAN: Yes, Mr. Speaker. It is true; however, under
Section 1, endorsers of checks or bills of exchange would
47
 find it necessary since they may be charged with the
knowledge at the time they negotiate bills of exchange they
have no sufficient funds in the bank or depository.
MR. MENDOZA: In order that an endorser may be held
liable, there must be evidence showing that at the time he
endorsed the check he was aware that the drawer would
not have sufficient funds to cover the check upon
presentation. That evidence must be presented by the
prosecution. However, if the one changed is the drawer,
then that evidence need not be presented by the
prosecution because that fact would be established by
presumption under Section 2 (italics supplied).24
An endorser who passes a bad check may be held liable under BP
22, even though the presumption of knowledge does not apply to
him, if there is evidence that at the time of endorsement, he was
aware of the insufficiency of funds. It is evident from the foregoing
deliberations that the presumption in Sec. 2 was intended to
facilitate proof of knowledge and not to foreclose admissibility of
other evidence that may also prove such knowledge. Thus, the
only consequence of the failure to present the check for payment
within ninety (90) days from the date stated is that there arises
no prima facie presumption of knowledge of insufficiency of funds.
But the prosecution may still prove such knowledge through other
evidence. Whether such evidence is sufficient to sustain probable
cause to file the information is addressed to the sound discretion of
the City Prosecutor and is a matter not controllable by certiorari.
Certainly, petitioner is not left in a lurch as the prosecution must
prove knowledge without the benefit of the presumption, and she
may present whatever defenses are available to her in the course
of the trial.
The distinction between the elements of the offense and the
evidence of these elements is analogous or akin to the difference
between ultimate facts and evidentiary facts in civil cases. Ultimate
facts are the essential and substantial facts which either form the
basis of the primary right and duty or which directly make up the
wrongful acts or omissions of the defendant, while evidentiary
facts are those which tend to prove or establish said ultimate
facts.25Applying this analogy to the case at bar, knowledge of
insufficiency of funds is the ultimate fact, or element of the offense
that needs to be proved, while dishonor of the check presented
within ninety (90) days is merely the evidentiary fact of such
knowledge.
It is worth reiterating that courts will not normally interfere with the
prosecutor's discretion to file a criminal case when there
is probable cause to do so. Probable cause has been defined as
the existence of such facts and circumstances as would excite the
belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.26 The prosecutor has ruled
that there is probable cause in this case, and we see no reason to
disturb the finding.
WHEREFORE, the assailed Resolution of the Court of Appeals
dated 26 October 1999 which dismissed the petition for review
questioning the resolution of the Office of the Regional State
Prosecutor, Region IV, dated 22 April 1999, and its order dated 31
August 1999 denying reconsideration is AFFIRMED. Costs against
petitioner.
SO ORDERED. 1âwphi1.nêt
G.R. No. 176795 June 30, 2008
SPS. CAROLINA and REYNALDO JOSE, petitioners,
vs.
SPS. LAUREANO and PURITA SUAREZ, respondents.
DECISION
TINGA, J.:
48
Petitioners filed this case assailing the Decision1 of the Court of
Appeals in CA-G.R. CEB SP No. 00397 dated 17 August 2006
which affirmed the Orders2 of the Regional Trial Court (RTC) of
Cebu City, Branch 19 restraining Branches 2 and 5 of the
Municipal Trial Court in Cities (MTCC) of Cebu City from
proceeding with the criminal cases for violation of Batas Pambansa
Bilang 22 (B.P. Blg. 22) filed against respondent Purita Suarez.
The facts of the case follow.
Respondents, spouses Laureano and Purita Suarez, had availed of
petitioner Carolina Jose’s (Carolina) offer to lend money at the
daily interest rate of 1% to 2%. However, Carolina and her
husband, petitioner Reynaldo Jose, later on increased the interest
to 5% per day, which respondents were forced to accept because
they allegedly had no other option left. It then became a practice
that petitioners would give the loaned money to Purita and the
latter would deposit the same in her and her husband’s account to
cover the maturing postdated checks they had previously issued in
payment of their other loans. Purita would then issue checks in
favor of petitioners in payment of the amount borrowed from them
with the agreed 5% daily interest.
On 7 May 2004, respondents filed a Complaint3 against petitioners
seeking the declaration of "nullity of interest of 5% per day, fixing of
interest, recovery of interest payments"4 and the issuance of a writ
of preliminary injunction, alleging that the interest rate of 5% a day
is iniquitous, contrary to morals, done under vitiated consent and
imposed using undue influence by taking improper advantage of
their financial distress. They claimed that due to serious liquidity
problems, they were forced to rely on borrowings from banks and
individual lenders, including petitioners, and that they had to
scramble for funds to cover the maturing postdated checks they
issued to cover their other borrowings. In their prayer, respondents
stated:
WHEREFORE, it is prayed that upon the filing of the instant
case and in accordance with the 1997 Rules on Civil
Procedure[,] a writ of preliminary injunction or at least a
temporary restraining order be issued restraining defendant
from enforcing the checks as listed in Annex "E" including
the filing of criminal cases for violation of B.P. [Blg.] 22 and
restraining defendants from entering plaintiffs’ store and
premises to get cash sales and other items against plaintiffs
will [sic] under such terms and conditions as this Court may
affix.5
Thereafter, at the instance of Carolina, several cases for violation
of B.P. Blg. 226 were filed against respondent Purita before the
MTCC of Cebu City, Branches 2 and 5. Purita, in turn filed motions
to suspend the criminal proceedings on the ground of prejudicial
question, on the theory that the checks subject of the B.P. Blg. 22
cases are void for being contra bonos mores or for having been
issued in payment of the iniquitous and unconscionable interest
imposed by petitioners. The motions were denied.7
Respondents thereafter filed before the RTC a "Motion for Writ of
Preliminary Injunction with Temporary Restraining Order"8 seeking
to restrain the MTCCs from further proceeding with the B.P. Blg. 22
cases on the ground of prejudicial question. Petitioners opposed
the motion. Nevertheless, the RTC through its 20 December 2004
Order9issued a writ of preliminary injunction, thereby enjoining the
MTCCs from proceeding with the cases against Purita. Petitioners
sought reconsideration of the order but their motion was denied
due course in the RTC’s 3 February 2005 Order.10
Petitioners elevated the case to the Court of Appeals11 and
questioned the propriety of the RTC’s issuance of a preliminary
injunction based on a prejudicial question. The appellate court
stated that respondents had sought to annul the checks for being
void pursuant to Article 1422 of the Civil Code which provides that
"a contract which is the direct result of a previous illegal contract, is
also void and inexistent." Accordingly, the appellate court
concluded that if the checks subject of the criminal cases were
later on declared null and void, then said checks could not be
made the bases of criminal prosecutions under B.P. Blg. 22. In
49
other words, the outcome of the determination of the validity of the
said checks is determinative of guilt or innocence of Purita in the
criminal case.12
The appellate court also observed that respondents’ resort to an
application for preliminary injunction could not be considered as
forum shopping since it is the only remedy available to them
considering the express proscription of filing a petition for certiorari
against interlocutory orders issued in cases under B.P. Blg. 22
which are governed by the rules on summary procedure.13
Before us, petitioners submit that because under Section 6, Rule
111 of the Rules on Criminal Procedure a petition to suspend
proceedings on the ground of prejudicial question should be filed in
the same criminal action, the RTC has no jurisdiction to issue the
writ of preliminary injunction as it is not the court where the B.P.
Blg. 22 cases were filed. Moreover, they argue that respondents
are guilty of forum shopping because after the denial of their
motion to suspend the proceedings before Branches 2 and 5 of the
MTCC, they resorted to the filing of a motion for preliminary
injunction before the RTC also on the ground of prejudicial
question; therefore, they succeeded in getting the relief in one
forum (RTC) which they had failed to obtain in the first forum
(MTCCs). Likewise, petitioners claim that the Court of Appeals
erred in holding that the civil case poses a prejudicial question to
the B.P. Blg. 22 cases, thus resulting in the erroneous suspension
of the proceedings the latter cases. Finally, petitioners posit that
the RTC erred in issuing the preliminary injunction because
respondents have no clear and unmistakable right to its issuance.14
Respondents, for their part, state that the possibility of a ruling in
the civil case to the effect that the subject checks are contra bonos
mores and hence null and void constitutes a prejudicial question in
the B.P. Blg. 22 cases. Thus, proceeding with the trial in the
criminal cases without awaiting the outcome of the civil case is
fraught with mischievous consequences.15 They cite the case
of Medel v. Court of Appeals,16 wherein the Court nullified the
interest rate of 5.5% per month for being contra bonos
mores under Article 1306 of the Civil Code, and recomputed the
interest due at the rate of 1% per month.17 Thus, if their loans are
computed at 1% per month, it would mean that the checks subject
of the B.P. Blg. 22 cases are not only fully paid but are also in fact
overpaid. They also invoke the case of Danao v. Court of
Appeals18 wherein the Court allegedly ruled that there is no
violation of B.P. Blg. 22 if the dishonored checks have been
paid.19 They claim that since the 5% interest per day was not
contained in any written agreement, per Article 195620 of the Civil
Code, petitioners are bound to return the total interest they
collected from respondents. Respondents point out that they
incorporated in their complaint an application for preliminary
injunction and temporary restraining order to restrain Carolina from
enforcing the interest and from filing criminal cases for violation of
B.P. Blg. 22. Quoting the RTC, respondents explain:
Since there was no proof at that time that plaintiff sustain or
are about to sustain damages or prejudice if the acts
complained of are not enjoined, the application was not
acted upon by the Court. When the attention of the Court
was invited by the plaintiffs of the refusal of the MTC,
Branches 2 and 5, to suspend the criminal proceedings
despite being appraised of the pendency of this case, the
Court has to act accordingly.21
Respondents maintain that they are not guilty of forum shopping
because after the denial by the MTCCs of their motion to suspend
proceedings, their only available remedy was the filing of an
application for preliminary injunction in the existing civil case filed
earlier than the B.P. Blg. 22 cases. In any case, respondents argue
that the rule on forum shopping is not intended to deprive a party to
a case of a legitimate remedy.22 Finally, they claim that the case
falls under the exceptions to the rule that the prosecution of
criminal cases may not be enjoined by a writ of injunction,
considering that in this case there is a prejudicial question which
is sub judice, and that there is persecution rather than
prosecution.23
50
The case hinges on the determination of whether there exists a
prejudicial question which necessitates the suspension of the
proceedings in the MTCCs.
We find that there is none and thus we resolve to grant the petition.
A prejudicial question generally comes into play in a situation
where a civil action and a criminal action are both pending and
there exists in the former an issue which must be preemptively
resolved before the latter may proceed, because howsoever the
issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of the
accused in the criminal case. The rationale behind the principle of
prejudicial question is to avoid two conflicting decisions. It has two
essential elements: (i) the civil action involves an issue similar or
intimately related to the issue raised in the criminal action; and (ii)
the resolution of such issue determines whether or not the criminal
action may proceed.24
Now the prejudicial question posed by respondents is simply this:
whether the daily interest rate of 5% is void, such that the checks
issued by respondents to cover said interest are likewise void for
being contra bonos mores, and thus the cases for B.P. Blg. 22 will
no longer prosper.
The prejudicial question theory advanced by respondents must fail.
In the first place, the validity or invalidity of the interest rate is not
determinative of the guilt of respondents in the criminal cases. The
Court has consistently declared that the cause or reason for the
issuance of a check is inconsequential in determining criminal
culpability under B.P. Blg. 22.25 In several instances, we have held
that what the law punishes is the issuance of a bouncing check
and not the purpose for which it was issued or the terms and
conditions relating to its issuance; and that the mere act of issuing
a worthless check is malum prohibitum provided the other
elements of the offense are properly proved.26
The nature and policy of B.P. Blg. 22 were aptly enunciated by the
Court in Meriz v. People,27 when it stated:
x x x. [B.P. Blg.] 22 does not appear to concern itself with
what might actually be envisioned by the parties, its
primordial intention being to instead ensure the stability and
commercial value of checks as being virtual substitutes for
currency. It is a policy that can easily be eroded if one has
yet to determine the reason for which checks are issued, or
the terms and conditions for their issuance, before an
appropriate application of the legislative enactment can be
made. The gravamen of the offense under [B.P. Blg.] 22 is
the act of making or issuing a worthless check or a check
that is dishonored upon presentment for payment. The act
effectively declares the offense to be one of malum
prohibitum. The only valid query then is whether the law has
been breached, i.e., by the mere act of issuing a bad check,
without so much regard as to the criminal intent of the
issuer.28
Thus, whether or not the interest rate imposed by petitioners is
eventually declared void for being contra bonos mores will not
affect the outcome of the B.P. Blg. 22 cases because what will
ultimately be penalized is the mere issuance of bouncing checks.
In fact, the primordial question posed before the court hearing the
B.P. Blg. 22 cases is whether the law has been breached, that is, if
a bouncing check has been issued.
The issue has in fact been correctly addressed by the MTCCs
when respondents’ motion to suspend the criminal proceedings
was denied upon the finding that there exists no prejudicial
question which could be the basis for the suspension of the
proceedings. The reason for the denial of the motion is that the
"cases can very well proceed for the prosecution of the accused in
order to determine her criminal propensity … as a consequence of
the issuance of several checks which subsequently … bounced"
for "what the law punishes is the issuance and/or drawing of a
51
check and upon presentment for deposit or encashment, it was
dishonored due to insufficient funds [or] account closed." 29
There being no prejudicial question, the RTC and, consequently,
the Court of Appeals gravely erred when they allowed the
suspension of the proceedings in the B.P. Blg. 22 cases.
Now, on to other matters.
We find that respondents are guilty of forum shopping. There is
forum shopping when a party seeks to obtain remedies in an action
in one court, which had already been solicited, and in other courts
and other proceedings in other tribunals. Forum shopping is the act
of one party against another, when an adverse judgment has been
rendered in one forum, of seeking another and possibly favorable
opinion in another forum other than by appeal or by special civil
action of certiorari; or the institution of two or more acts or
proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition.30
Respondents filed their motions to suspend proceedings in the
MTCCs hearing the B.P. Blg. 22 cases but unfortunately, the same
were denied. Failing to get the relief they wanted, respondents
sought before the RTC, the suspension of the criminal proceedings
which was granted. Respondents tried to extricate themselves from
the charge of forum shopping by explaining that after the denial of
their motions to suspend, their only remedy was the application for
preliminary injunction in the civil case—a relief which they had
already asked for in their complaint and which was also initially not
granted to them. Any which way the situation is viewed,
respondents’ acts constituted forum shopping since they sought a
possibly favorable opinion from one court after another had issued
an order unfavorable to them.
The Court notes that three cases, namely, Ras v. Rasul,31 Medel v.
CA32 and Danao v. Court of Appeals33—finding no application to
the instant case—were mentioned by the RTC, the Court of
Appeals and by respondents themselves in support of their
position.
Ras v. Rasul cropped up in the order of the RTC which was quoted
with approval by the Court of Appeals. According to the RTC, the
ruling in the said case allegedly "can be squarely applied in this
case which nullified and set aside the conviction in a criminal case
because of a prejudicial question."34 We do not agree. The Ras
case involves a petition for nullification of a deed of sale on the
ground of forgery. While the civil case was pending, an information
for estafa was filed against the respondent in the civil case. The
Court ruled that there were prejudicial questions considering that
the defense against the charge of forgery in the civil case is based
on the very same facts which would be determinative of the guilt or
innocence of the respondent in the estafa case. The instant case is
different from Ras inasmuch as the determination of whether the
5% daily interest is contra bonos mores and therefore void, or that
the total amount loaned from petitioners has been sufficiently paid,
will not affect the guilt or innocence of Purita because the material
question in the B.P. Blg. 22 cases is whether Purita had issued a
bad check, regardless of the purpose or condition of its issuance.
Medel v. CA is the case upon which respondents anchor their
claim that the interest due on their loans is only 1% per month and
thus they have already overpaid their obligation to petitioners.
In Medel, the Court declared that the rate of 5.5% interest per
month on a P500,000.00 loan is iniquitous, unconscionable and
hence contrary to morals, and must equitably be reduced to 12%
per annum. While the Medel case made a finding that the
stipulated interest rate is excessive and thus may be equitably
reduced by the courts, we do not see how a reduction of the
interest rate, should there be any, or a subsequent declaration that
the amount due has been fully paid, will have an effect on the
determination of whether or not Purita had in fact issued bouncing
checks.
Meanwhile, respondents misunderstood our ruling in Danao v.
Court of Appeals, which they claim to have ruled that there could
52
be no violation of B.P. Blg. 22 if the dishonored checks have been
paid. In Danao, the accused was convicted by the trial court for
having issued two checks which eventually bounced. The Court
found that there was no proof of receipt by the accused of any
notice of nonpayment of the checks, and thus there was no way of
determining when the five-day period prescribed in Section 2 of
B.P. Blg. 22 would start and end. Thus, the presumption or prima
facie evidence of knowledge of the insufficiency of funds or credit
at the time of the issuance of the checks did not arise. While there
was a finding that the accused had already paid her obligations
prior to receipt of the complainant’s demand letter,35 there was no
declaration from the Court that such payment exonerated accused
from liability for having issued bouncing checks. Instead, accused
was acquitted due to insufficiency of evidence, and not because
she had paid the amount covered by the dishonored checks36 or
that the obligation was deemed paid.
WHEREFORE, the petition is GRANTED. The impugned Decision
of the Court of Appeals dated 17 August 2006 and its Resolution
dated 27 February 2007, in CA-G.R. CEB-SP No. 00397, are SET
ASIDE. The preliminary injunction issued by the Regional Trial
Court of Cebu City, Branch 19 in its Order dated 20 December
2004 in Civil Case No. CEB-30278 enjoining the proceedings in the
criminal cases for violation of B.P. Blg. 22 is LIFTED AND SET
ASIDE and the MTCC of Cebu City, Branches 2 and 5
are ORDERED to proceed with dispatch with the arraignment and
trial in the B.P. Blg. 22 cases pending before them.
SO ORDERED.
G.R. No. 159823 February 18, 2013
TEODORO A. REYES, Petitioner,
vs.
ETTORE ROSSI, Respondent.
DECISION
BERSAMIN, J.:
The rescission of a contract of sale is not a prejudicial question that
will warrant the suspension of the criminal proceedings
commenced to prosecute the buyer for violations of the Bouncing
Checks Law (Batas Pambansa Blg. 22) arising from the dishonor
of the checks the buyer issued in connection with the sale.
Antecedents
On October 31, 1997, petitioner Teodoro A. Reyes (Reyes) and
Advanced Foundation Construction Systems Corporation
(Advanced Foundation), represented by its Executive Project
Director, respondent Ettore Rossi (Rossi), executed a deed of
conditional sale involving the purchase by Reyes of equipment
consisting of a Warman Dredging Pump HY 300A worth
₱10,000,000.00. The parties agreed therein that Reyes would pay
the sum of ₱3,000,000.00 as downpayment, and the balance of
₱7,000,000.00 through four post-dated checks. Reyes complied,
but in January 1998, he requested the restructuring of his
obligation under the deed of conditional sale by replacing the four
post-dated checks with nine post-dated checks that would include
interest at the rate of ₱25,000.00/month accruing on the unpaid
portion of the obligation on April 30, 1998, June 30, 1998, July 31,
1998, September 30, 1998 and October 31, 1998.1
Advanced Foundation assented to Reyes’ request, and returned
the four checks. In turn, Reyes issued and delivered the following
nine postdated checks in the aggregate sum of ₱7,125,000.00
drawn against the United Coconut Planters Bank,2 to wit:
Check No. Date Amount
72807 April 30, 1998 P 25,000.00
53
 79125 May 1, 1998 1,000,000.00 in Quezon City (RTC). His complaint, docketed as Civil Case No.
Q98-35109 and entitled Teodoro A. Reyes v. Advanced
Foundation Construction Systems Corporation, sought judgment
72802 May 30, 1998 2,000,000.00 declaring the deed of conditional sale "rescinded and of no further
force and effect," and ordering Advanced Foundation to return the
₱3,000,000.00 downpayment with legal interest from June 4, 1998
72808 June 30, 1998 25,000.00
until fully paid; and to pay to him attorney’s fees, and various kinds
and amounts of damages.5
72809 July 31, 1998 25,000.00
On September 8, 1998, Rossi charged Reyes with five counts
of estafa and five counts of violation of Batas Pambansa Blg. 22 in
72801 August 31, 1998 2,000,000.00 the Office of the City Prosecutor of Makati for the dishonor of
Checks No. 72807, No. 72808, No. 72801, No. 72809 and No.
72810 September 30, 1998 25,000.00 79125. Another criminal charge for violation of Batas Pambansa
Blg. 22 was lodged against Reyes in the Office of the City
Prosecutor of Quezon City for the dishonor of Check No. 72802.6
72811 October 31, 1998 25,000.00
On September 29, 1998, Reyes submitted his counter-affidavit in
72903 November 30, 1998 2,000,000.00 the Office of the City Prosecutor of Makati,7claiming that the
checks had not been issued for any valuable consideration; that he
had discovered from the start of using the dredging pump involved
in the conditional sale that the Caterpillar diesel engine powering
Rossi deposited three of the post-dated checks (i.e., No. 72807, the pump had been rated at only 560 horsepower instead of the
No. 79125 and No. 72808) on their maturity dates in Advanced 1200 horsepower Advanced Foundation had represented to him;
Foundation’s bank account at the PCI Bank in Makati. Two of the that welding works on the pump had neatly concealed several
checks were denied payment ostensibly upon Reyes’ instructions cracks; that on May 6, 1998 he had written to Advanced
to stop their payment, while the third (i.e., No. 72802) was Foundation complaining about the misrepresentations on the
dishonored for insufficiency of funds.3 specifications of the pump and demanding documentary proof of
Advanced Foundation’s ownership of the pump; that he had
Rossi likewise deposited two more checks (i.e., No. 72809 and No. caused the order to stop the payment of three checks (i.e., No.
72801) in Advanced Foundation’s account at the PCI Bank in 72806, No. 72807 and No. 79125); that Advanced Foundation had
Makati, but the checks were returned with the notation Account replied to his letter on May 8, 1998 by saying that the pump had
Closed stamped on them. He did not anymore deposit the three been sold to him on an as is, where is basis; that he had then sent
remaining checks on the assumption that they would be similarly another letter to Advanced Foundation on May 18, 1998 to
dishonored.4 reiterate his complaints and the request for proper documentation
of ownership; that he had subsequently discovered other hidden
In the meanwhile, on July 29, 1998, Reyes commenced an action defects, prompting him to write another letter; and that instead of
for rescission of contract and damages in the Regional Trial Court

54
attending to his complaints and request, Advanced Foundation’s
lawyers had threatened him with legal action.
At the same time, Reyes assailed the jurisdiction of the Office of
the City Prosecutor of Makati over the criminal charges against him
on the ground that he had issued the checks in Quezon City; as
well as argued that the Office of the City Prosecutor of Makati
should suspend the proceedings because of the pendency in the
RTC of the civil action for rescission of contract that posed a
prejudicial question as to the criminal proceedings.8
On November 20, 1998, the Assistant City Prosecutor handling the
preliminary investigation recommended the dismissal of the
charges of estafa and the suspension of the proceedings relating
to the violation of Batas Pambansa Blg. 22 based on a prejudicial
question.9
On January 5, 1999, the City Prosecutor of Makati approved the
recommendation of the handling Assistant City
Prosecutor,10 stating:
WHEREFORE, premises considered, the complaint for Estafa is
respectfully recommended to be dismissed, as upon approval, it is
hereby dismissed.
Further, it is respectfully recommended that the proceedings in the
charge for Violation of Batas Pambansa Bilang 22 against the
respondent be suspended until the prejudicial question raised in
Civil Case Q-98-35109 for Rescission of Contract and Damages
which is now pending with the RTC of Quezon City, Branch 224,
has been duly resolved.
Rossi appealed the resolution of the City Prosecutor to the
Department of Justice, but the Secretary of Justice, by resolution of
July 24, 2001, denied Rossi’s petition for review.
After the denial of his motion for reconsideration on April 29, 2002,
Rossi challenged the resolutions of the Secretary of Justice by
petition for certiorari in the CA.
Ruling of the CA
In the petition for certiorari, Rossi insisted that the Secretary of
Justice had committed grave abuse of discretion amounting to lack
or excess of jurisdiction in upholding the suspension of the criminal
proceedings by the City Prosecutor of Makati on account of the
existence of a prejudicial question, and in sustaining the dismissal
of the complaints for estafa.
On May 30, 2003, the CA promulgated its assailed decision,11 to
wit:
WHEREFORE, the foregoing considered, the assailed resolution is
hereby MODIFIED and the instant petition is GRANTED in so far
as the issue of the existence of prejudicial question is concerned.
Accordingly, the order suspending the preliminary investigation in
I.S. No. 98-40024-29 is REVERSED and SET ASIDE, and the
dismissal of the complaint for estafa is AFFIRMED.
SO ORDERED.
Issues
Hence, this appeal by Reyes.
Reyes asserts that the CA erred in ruling that there was no
prejudicial question that warranted the suspension of the criminal
proceedings against him; that the petition suffered fatal defects that
merited its immediate dismissal; that the CA was wrong in relying
on the pronouncements in Balgos, Jr. v.
Sandiganbayan12 and Umali v. Intermediate Appellate
Court13 because the factual backgrounds thereat were not similar
to that obtaining here; and that the Secretary of Justice did not
55
commit any grave abuse of discretion amounting to lack or excess
of jurisdiction.
In his comment,14 Rossi counters that the petition for review should
be outrightly dismissed because of its fatal defect; that the CA did
not err in ruling that the action for rescission of contract did not
pose a prejudicial question that would suspend the criminal
proceedings.
Reyes submitted a reply,15 declaring that the defect in the affidavit
of service attached to his petition for review had been due to
oversight; that he had substantially complied with the rules; that
there existed a prejudicial question that could affect the extent of
his liability in light of Supreme Court Administrative Circular No. 12-
2000; and that the CA erred in finding that the Secretary of Justice
committed grave abuse of discretion.
To be resolved is whether or not the civil action for rescission of
the contract of sale raised a prejudicial question that required the
suspension of the criminal prosecution for violation of Batas
Pambansa Blg. 22.
Ruling
The petition for review is without merit.
A prejudicial question generally comes into play in a situation
where a civil action and a criminal action are both pending, and
there exists in the former an issue that must first be determined
before the latter may proceed, because howsoever the issue
raised in the civil action is resolved would be determinative juris et
de jure of the guilt or innocence of the accused in the criminal
case.16 The rationale for the suspension on the ground of a
prejudicial question is to avoid conflicting decisions.17
Two elements that must concur in order for a civil case to be
considered a prejudicial question are expressly stated in Section 7,
Rule 111 of the 2000 Rules of Criminal Procedure, to wit:
Section 7. Elements of prejudicial question. – The elements of a
prejudicial question are: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in
the subsequent criminal action, and (b) the resolution of such issue
determines whether or not the criminal action may proceed.
In Sabandal v. Tongco,18 the concept of prejudicial question is
explained in this wise:
For a civil action to be considered prejudicial to a criminal case as
to cause the suspension of the criminal proceedings until the final
resolution of the civil, the following requisites must be present: (1)
the civil case involves facts intimately related to those upon which
the criminal prosecution would be based; (2) in the resolution of the
issue or issues raised in the civil action, the guilt or innocence of
the accused would necessarily be determined; and (3) jurisdiction
to try said question must be lodged in another tribunal.
If both civil and criminal cases have similar issues or the issue in
one is intimately related to the issues raised in the other, then a
prejudicial question would likely exist, provided the other element
or characteristic is satisfied. It must appear not only that the civil
case involves the same facts upon which the criminal prosecution
would be based, but also that the resolution of the issues raised in
the civil action would be necessarily determinative of the guilt or
innocence of the accused. If the resolution of the issue in the civil
action will not determine the criminal responsibility of the accused
in the criminal action based on the same facts, or there is no
necessity "that the civil case be determined first before taking up
the criminal case," therefore, the civil case does not involve a
prejudicial question. Neither is there a prejudicial question if the
civil and the criminal action can, according to law, proceed
independently of each other.
Contending that the rescission of the contract of sale constitutes a
prejudicial question, Reyes posits that the resolution of the civil
action will be determinative of whether or not he was criminally
liable for the violations of Batas Pambansa Blg. 22. He states that
56
if the contract would be rescinded, his obligation to pay under the
conditional deed of sale would be extinguished, and such outcome
would necessarily result in the dismissal of the criminal
proceedings for the violations of Batas Pambansa Blg. 22.
The action for the rescission of the deed of sale on the ground that
Advanced Foundation did not comply with its obligation actually
seeks one of the alternative remedies available to a contracting
party under Article 1191 of the Civil Code, to wit:
Article 1191. The power to rescind obligations is implied in
reciprocal ones, in case one of the obligors should not comply with
what is incumbent upon him.
The injured party may choose between the fulfilment and the
rescission of the obligation, with the payment of damages in either
case. He may also seek rescission, even after he has chosen
fulfilment, if the latter should become impossible.
The court shall decree the rescission claimed, unless there be just
cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights of third
persons who have acquired the thing, in accordance with Articles
1385 and 1388 and the Mortgage Law.
Article 1191 of the Civil Code recognizes an implied or tacit
resolutory condition in reciprocal obligations. The condition is
imposed by law, and applies even if there is no corresponding
agreement thereon between the parties. The explanation for this is
that in reciprocal obligations a party incurs in delay once the other
party has performed his part of the contract; hence, the party who
has performed or is ready and willing to perform may rescind the
obligation if the other does not perform, or is not ready and willing
to perform.19
It is true that the rescission of a contract results in the
extinguishment of the obligatory relation as if it was never created,
the extinguishment having a retroactive effect. The rescission is
equivalent to invalidating and unmaking the juridical tie, leaving
things in their status before the celebration of the
contract.20 However, until the contract is rescinded, the juridical tie
and the concomitant obligations subsist.
To properly appreciate if there is a prejudicial question to warrant
the suspension of the criminal actions, reference is made to the
elements of the crimes charged. The violation of Batas Pambansa
Blg. 22 requires the concurrence of the following elements,
namely: (1) the making, drawing, and issuance of any check to
apply for account or for value; (2) the knowledge of the maker,
drawer, or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment of
the check in full upon its presentment; and (3) the subsequent
dishonor of the check by the drawee bank for insufficiency of funds
or credit or dishonor for the same reason had not the drawer,
without any valid cause, ordered the bank to stop payment. 21 The
issue in the criminal actions upon the violations of Batas
Pambansa Blg. 22 is, therefore, whether or not Reyes issued the
dishonoured checks knowing them to be without funds upon
presentment. On the other hand, the issue in the civil action for
rescission is whether or not the breach in the fulfilment of
Advanced Foundation’s obligation warranted the rescission of the
conditional sale. If, after trial on the merits in the civil action,
Advanced Foundation would be found to have committed material
breach as to warrant the rescission of the contract, such result
would not necessarily mean that Reyes would be absolved of the
criminal responsibility for issuing the dishonored checks because,
as the aforementioned elements show, he already committed the
violations upon the dishonor of the checks that he had issued at a
time when the conditional sale was still fully binding upon the
parties. His obligation to fund the checks or to make arrangements
for them with the drawee bank should not be tied up to the future
event of extinguishment of the obligation under the contract of sale
through rescission. Indeed, under Batas Pambansa Blg. 22, the
mere issuance of a worthless check was already the offense in
itself. Under such circumstances, the criminal proceedings for the
57
violation of Batas Pambansa Blg. 22 could proceed despite the
pendency of the civil action for rescission of the conditional sale.
Accordingly, we agree with the holding of the CA that the civil
action for the rescission of contract was not determinative of the
guilt or innocence of Reyes. We consider the exposition by the CA
of its reasons to be appropriate enough, to wit:
xxxx
We find merit in the petition.
A careful perusal of the complaint for rescission of contract and
damages reveals that the causes of action advanced by
respondent Reyes are the alleged misrepresentation committed by
the petitioner and AFCSC and their alleged failure to comply with
his demand for proofs of ownership. On one hand, he posits that
his consent to the contract was vitiated by the fraudulent act of the
company in misrepresenting the condition and quality of the
dredging pump. Alternatively, he claims that the company
committed a breach of contract which is a ground for the rescission
thereof. Either way, he in effect admits the validity and the binding
effect of the deed pending any adjudication which nullifies the
same.
Indeed, under the Jaw on contracts, vitiated consent does not
make a contract unenforceable but merely voidable, the remedy of
which would be to annul the contract since voidable contracts
produce legal effects until they are annulled. On the other hand,
rescission of contracts in case of breach pursuant to Article 1191 of
the Civil Code of the Philippines also presupposes a valid contract
unless rescinded or annulled.
As defined, a prejudicial question is one that arises in a case, the
resolution of which is a logical antecedent of the issue involved
therein, and the cognizance of which pertains to another tribunal.
The prejudicial question must be determinative of the case before
the court but the jurisdiction to try and resolve the question must be
lodged in another court or tribunal.
It is a question based on a fact distinct and separate from the crime
but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action,
it must appear not only that said case involves facts intimately
related to those upon which the criminal prosecution would be
based but also that in the resolution of the issue or issues raised in
the civil case, the guilt or innocence of the accused would
necessarily be determined. It comes into play generally in a
situation where a civil action and a criminal action are both pending
and there exists in the former an issue which must be preemptively
resolved before the criminal action may proceed, because
howsoever the issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of the
accused in the criminal case.
In this light, it is clear that the pendency of the civil case does not
bar the continuation of the proceedings in the preliminary
investigation on the ground that it poses a prejudicial question.
Considering that the contracts are deemed to be valid until
rescinded, the consideration and obligatory effect thereof are also
deemed to have been validly made, thus demandable.
Consequently, there was no failure of consideration at the time
when the subject checks were dishonored. (Emphasis supplied)
xxxx
WHEREFORE, the Court DENIES the petition for review;
AFFIRMS the decision the Court of Appeals promulgated on May
30, 2003; and DIRECTS the petitioner to pay the costs of suit.
SO ORDERED.
G.R. No. 108488 July 21, 1997
58
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODENCIO NARCA Y GAGARIN, BENJAMIN NARCA Y
GAGARIN, RODELIO NARCA Y GAGARIN, and JAIME
BALDELAMAR Y SELMO, defendants-appellants.
FRANCISCO, J.:
For the death of Mauro Reglos, Jr. (hereinafter victim), defendants-
appellants Rodencio @ "Rudy", Benjamin, Rogelio all surnamed
Narca and their brother-in-law Jaime @ Benjamin Baldelamar were
charged1 with the following information for murder:
That on or about the 10th day of March, 1990,
between 7:00 and 8:00 in the evening, at barangay
Cavite, municipality of Guimba, province of Nueva
Ecija, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, with intent to kill, with treachery and
evident premeditation, by conspiring, confederating
and helping one another, and taking advantage of
the darkness of the night, did then and there,
willfully, unlawfully and feloniously attack, assault
and hack with bolos one MAURO REGLOS, JR.,
inflicting upon said victim fatal hack wounds that
caused his instantaneous death.2
When appellants' failed in their motion to quash the above
information, they filed a motion for bail.3 During the bail hearings on
September 19, 1990, the victim's wife Elizabeth Reglos, who was
with him on that fateful night, testified on direct examination.
Defense counsel requested the court that his cross-examination of
Elizabeth be conducted on the next hearing, October 4,
1990.4 Such cross-examination on said date never took place
because Elizabeth and her son were bludgeoned to death on
September 28, 1990.5 After hearing, the lower court denied
bail.6 During arraignment, appellants pleaded "not guilty".7 Trial
ensued and the lower court thereafter rendered
judgment8convicting appellants, the dispositive portion of which
reads:
WHEREFORE, premises considered, judgment is
hereby rendered, finding the accused Benjamin
Narca y Gagarin, Rodencio "Rudy" Narca y Gagarin,
Rogelio Narca y Gagarin and Jaime "Benjamin"
Baldelamar y Selmo, guilty beyond reasonable doubt
of the crime of Murder, defined and penalized under
Article 248 of the Revised Penal Code, and hereby
sentences EACH of them to suffer the penalty of
LIFE IMPRISONMENT.
The said accused are likewise ordered to pay, jointly
and severally, the heirs of the deceased Mauro
Reglos, Jr., the sum of P50,000.00 as
indemnification fee, the sum of P29,000.00 as actual
damages and expenses, without subsidiary
imprisonment in case of insolvency, and to pay the
costs.
IT IS SO ORDERED.9
The facts given credence by the trial court are as
follows: 10
. . . (O)n March 10, 1990, between 7:00 to 8:00
o'clock in the evening, after spouses Mauro Reglos,
Jr. and Elizabeth Reglos have just come from the
house of the father of Mauro Reglos, Jr. at Barangay
Cavite Plum, Guimba, Nueva Ecija, who was then
sick, and on their way home to Sta. Ana, Guimba,
Nueva Ecija, accused Benjamin Narca suddenly
hacked Mauro Reglos, Jr. at the back portion of his
head with a long bolo known as "panabas". When
Mauro was about to fall at his back, Jaime
59
 Baldelamar, Rogelio Narca and Rodencio "Rudy"
Narca suddenly appeared, and they took turns in
hacking Mauro with bolos. When Mauro was being
hacked, his wife Elizabeth screamed for help, and
Arturo Reglos and Dante Reglos responded and
arrived at the scene of the incident. They saw
Benjamin, Rodencio "Rudy" and Rogelio, all
surnamed Narca, and Jaime Baldelamar, all armed
with bolos, guarding their brother Mauro Reglos, Jr.
who was lying face downward, soaked with blood,
but still alive. Arturo Reglos and Dante Reglos and
Elizabeth Reglos cannot approach Mauro Reglos, Jr.
because they were threatened by the Narca brothers
and Jaime Baldelamar. Two minutes after Arturo and
Dante Reglos arrived, all the accused left, but
accused Rogelio Narca returned and hacked Mauro
Reglos once more at his back.
On appeal to this court, appellants by way of defense (1) assail the
validity of the preliminary investigation because they were not
represented therein by counsel and was therefore deprived of due
process, (2) argue that the testimony of Elizabeth Reglos in the bail
hearings should not be given credence since she was not cross-
examined, and (3) claim that pending this appeal, appellant
Benjamin executed an affidavit assuming full and sole
responsibility for the victim's death but nonetheless invokes self-
defense while the other appellants in their respective affidavits
state that they were not in the scene of the crime. 11
All these defenses must fail.
On the first defense, there is nothing in the Rules which renders
invalid a preliminary investigation held without defendant's counsel.
Not being a part of the due process clause 12 but a right merely
created by law, preliminary investigation if held within the statutory
limitations cannot be voided. Appellant's argument, if sustained,
would make a mockery of criminal procedure, since all that a party
has to do to thwart the validity of the preliminary investigation is for
their counsel not to attend the investigation. It must be emphasized
that the preliminary investigation is not the venue for the full
exercise of the rights of the parties. This is why preliminary
investigation is not considered as a part of trial but merely
preparatory thereto 13 and that the records therein shall not form
part of the records of the case in court. 14 Parties may submit
affidavits but have no right to examine witnesses though they can
propound questions through the investigating officer. 15 In fact, a
preliminary investigation may even be conducted ex-parte in
certain cases. 16 Moreover, in Section 1 of Rule 112, the purpose of
a preliminary investigation is only to determine a well grounded
belief if a crime was "probably" committed by an accused. 17 In any
case, the invalidity or absence of a preliminary investigation does
not affect the jurisdiction of the court which may have taken
cognizance of the information nor impair the validity of the
information or otherwise render it defective. 18
On their second defense, it is to be noted that the defense's failure
to cross-examine Elizabeth Reglos was occasioned by her
supervening death. Lack of cross-examination due to the death of
the witness does not necessarily render the deceased's previous
testimony expungible. Thus, this Court in Republic
v. Sandiganbayan, 19citing Fulgado v. CA. 20 said that:
The wholesale exclusion of testimonies was too
inflexible a solution to the procedural impasse
because it prejudiced the party whose only fault was
to die before he could be cross-examined. The
prudent alternative should have been to admit the
direct examination so far as the loss of cross-
examination could have been shown to be not in that
instance a material loss. And more compelling so in
the instant case where it has become evident that
the adverse party was afforded a reasonable chance
for cross-examination but through his own fault failed
to cross-examine the witness.
60
 Where death prevents cross-examination under such
circumstances that no responsibility of any sort can
be ascribed to the plaintiff or the witness, it seems a
harsh measure to strike out all that has obtained in
the direct examination. (Emphasis supplied)
Besides, mere opportunity and not actual cross-examination
is the essence of the right to cross-examine. 21Appellants
lost such opportunity when they sought the deferment of
their cross-examination of Elizabeth, and they only have
themselves to blame in forever losing that right by reason of
Elizabeth's demise. This Court hold that the right to cross-
examination
is a personal one which may be waived expressly or
impliedly by conduct amounting to a renunciation of
the right of cross-examination. Thus, where a party
has had the opportunity to cross-examine a witness
but failed to avail himself of it, he necessarily forfeits
the right to cross-examine and the testimony given
on direct examination of the witness will be received
or allowed to remain in the record. . . . (W)aiver of
the right to cross-examine may take various forms.
But the common basic principle underlying the
application of the rule on implied waiver is that the
party was given the opportunity to confront and
cross-examine an opposing witness but failed to fake
advantage of if for reasons attributable to himself
alone. 22 (Emphasis supplied)
We also find unmeritorious appellants' argument that Elizabeth's
testimony, having been taken during the bail hearings, cannot be
used against them. Section 1(f) of Rule 115 provides that "either
party may utilize as part of its evidence the testimony of a witness
who is deceased . . . given in another case or proceeding", and
under Section 8 Rule 114 23 as amended by Circular 12-94 24,
"evidence presented during the bail hearings," like the testimony of
deceased witness Elizabeth, are "considered automatically
reproduced at the trial" subject only to the possible recall of the
"witness for additional examination unless the witness
is dead outside the Philippines or otherwise unable to testify."
On their third defense, appellant Benjamin admits that he killed the
victim but only in self-defense and that his co-appellants, who are
invoking alibi, had nothing to do with the crime.
One who claims self-defense must prove: (a) unlawful aggression,
(b) reasonable necessity of the means employed to prevent or
repel it and (c) lack of sufficient provocation on the part of the
person defending himself. 25 In the case at bench, the foremost
element of unlawful aggression is absent. Unlawful aggression
presupposes an actual or imminent danger on the life or limb of a
person. Mere shouting, intimidating or threatening attitude of the
victim, assuming that to be true, does not constitute unlawful
aggression. 26 If there be any such aggression, it obviously came
from appellants. Evidence on record shows that the victim was only
walking with his wife, when he was suddenly and without warning
attacked by appellants with "panabas" and bolos. He was hit at the
back of his head chopping off a part of his skull exposing his
brain. 27 Where the attack is perpetrated suddenly and without
warning, there is treachery. 28 Due to appellants' treacherous acts,
the outnumbered victim was caught by surprise and had no
whimper of a chance to defend himself. 29 This satisfies the two
conditions of treachery:
(a) employment of means of execution
that gives the person attacked no
opportunity to defend himself or to
retaliate, and
(b) that said means of execution be
deliberately and consciously
adopted. 30
61
Once the fact of alevosia was established and proven, any
claim of self defense cannot prosper for being inconsistent
with treachery.
In addition, the location and severity of the fatal wounds on
the head exposing the brain 31 and the numerous other
wounds suffered by the victim belie the claim of self-
defense but is indicative of a determined effort to
kill. 32 Absent unlawful aggression, there would be no
occasion for the second and third elements to be present.
Thus, appellant Benjamin failed to discharge his burden of
proving by clear and convincing evidence the exculpatory
cause he invokes. 33 He must rely on the strength of his own
evidence and not on the weakness of that for the
prosecution, for even if the latter's evidence is weak, it could
not be disbelieved after he himself admitted the
killing. 34 Accordingly, his conviction will follow from his
admission as author of the crime as well as his failure to
prove self defense by the required quantum of evidence. 35
With respect to the defense of alibi by the other appellants
— such defense, aside from being inherently weak and
easy to fabricate, crumbles in the face of their positive
identification 36 by prosecution witnesses as being present in
the scene of the crime as well as the victim's dying
declaration pointing to appellants as his assailants.
Appellants Rogelio and Rodencio's contention that they
were irrigating their farm up to the late hour of 9:00 P.M. on
that fatal night is unbelievable since farm workers do not
usually work up to that late hours. They had not strictly
complied with the requirements of time and place in their
alibi by failing to show that they were somewhere else when
the crime occurred and that it was physically impossible for
them to be at the scene at the covered time. 37 Worth noting
is that the distance of the houses of all appellants to the
crime scene ranges from as near as 3 meters to as far as
1,500 meters, and their field is about 800 meters away or a
mere 15 minute walk therefrom. 38 Although none among the
prosecution witnesses presented in the trial proper saw the
actual assault by appellants on the victim, yet one witness
(Arturo Reglos) testified that appellant Rogelio after leaving
the scene returned thereto and hacked the victim on his
back one more time. 39 Appellant Jaime's denial of his
participation in the killing cannot stand against his positive
identification in the scene holding a "panabas" together with
other appellants. The denial like alibi is weakened by the
overwhelming evidence on record supporting a judgment of
conviction.
The circumstantial evidence on record also points to
appellants' guilt. Pursuant to Section 3 of Rule 133
conviction may be had on circumstantial evidence
considering that the requisites thereof were satisfied herein,
to wit:
— there is more than one circumstance
— the facts from which the inference are derived are
proven; and
— the combination of all the circumstances is such
as to produce a conviction beyond reasonable
doubt. 40
The following undisputed facts when combined produce a
logical conclusion pointing to appellants' culpability: (a) their
presence in the scene of the crime at about 6:30 to 7:00
PM, (b) they were holding sharp instruments like bolos or
"panabas", (c) they were talking to each other after the
hacking of the victim with appellant Benjamin telling his co-
appellants that he will be the only one who will admit
responsibility, (d) they prevented and threatened the
rescuing wife and brothers of the victim to come near the
latter's prostrate body. 41 (e) they all left together, (f) they
were positively identified by prosecution witnesses, (g) the
62
medical examination showed that the victim's wounds were
caused by sharp or sharpened instruments 42 — like the
blood-stained "panabas" appellants were seen holding.
Further damaging appellants avowed innocence is the
testimony of Arturo Reglos that when he approached the
victim who was already lying on the ground soaked in his
own blood, the latter told the former that he was hacked and
attacked by appellants. The victim even told witness Arturo
why the appellants did this to him when he had no fault.
This is a clear case of a dying declaration the elements for
its admissibility are as follows:
(a) the declaration must concern the
crime and surrounding circumstances
of the declarant's death;
(b) it was made at a time when the
declarant was under a consciousness
of an impending death;
(c) the declarant would have been
competent to testify had he survived;
(d) the declaration is offered in any
case in which the decedent is the
victim. 43
All these elements are present in this case. The victim's
declaration pertains to the hacking incident particularly the
identity of his assailants. Such declaration was made when
the declarant is certain that his death is at hand, considering
the degree or the wounds in his opened skull and that death
supervened shortly afterwards. The rules does not require
that the declarant must first state explicitly his perception of
the inevitability of his death so long as the circumstances
would justify a conclusion that the is conscious of his
condition.44 Further, the declarant was not incompetent to
testify since he possess personal knowledge of the facts
and could make known such knowledge to others — just
what he did. Competency to testify means ability to
perceive, to retain what has been perceived and to express
what has been retained. Thus, the statement of the victim
has the vestiges of a dying declaration and even if not,
there can be no doubt about its admissibility as part of
the res gestae. 45
With respect to the qualifying circumstances of evident
premeditation and nighttime, the same were not proven and
are not supported by evidence on record. To appreciate
evident premeditation three elements must be established:
(1) the time when the offender
determined to commit the crime;
(2) an act manifestly indicating that the
offender had clung to his
determination; and
(3) a sufficient lapse of time between
the determination to commit the crime
and the execution thereof, to allow the
offender to reflect upon the
consequences of his act. 46
The records are bereft of direct evidence that appellants
concocted and deliberately executed any plan or
preparation to kill the victim. 47 The prosecution failed to
prove evident premeditation by evidence as clear as the
crime itself. 48 With respect to the circumstance of nighttime,
the mere fact that the crime was committed at about 6:30-
7:00 p.m. does not prove that appellants used the darkness
of the night to facilitate their evil design. 49 Again the record
is silent whether appellants took advantage of or purposely
sought 50 nocturnity or that it facilitated the perpetration of
63
 their felonious acts. 51 Be that as it may, nighttime is
absorbed in treachery. 52
As to the allegation of conspiracy, this is sustained by evidence on
record. The victim was first hacked on the back by appellant
Benjamin and then almost simultaneously by the other appellants.
After the victim fell to the ground with blood oozing from his
wounds, appellants were seen talking with each other and even left
the crime scene together. Although, conspiracy like the crime must
be proven beyond doubt, 53 it need not be established by direct
proof. 54 So long as the acts of the conspirators are characterize by
unity of purpose, intent and
design 55 in order to effect a common unlawful objective 56 —
conspiracy exists as such fact may be inferred from the
coordinated acts and movements of the co-
conspirators. 57 Appellants' action implicitly showed unity of purpose
among them — a concerted effort to bring about the death of the
victim. 58 Having established conspiracy, all the appellants are
answerable as co-principals regardless of their degree of
participation. 59 Thus, it becomes secondary 60 and unnecessary to
determine who inflicted the fatal wounds 61 — the act of one is the
act of all and that all must suffer for their acts. 62
At any rate, the appeal assails the factual findings of the trial court
which are generally accorded great weight and respect on appeal,
especially since in this case, such findings are supported by
substantial evidence on record. 63Likewise, the evaluation and
assessment of credibility of witness is best left to the trial court
judge because of his unique position of having observed that
elusive and incommunicable evidence of the witnesses deportment
on the stand, which opportunity is denied to the reviewing
court. 64 As aptly observed by the trial court:
[T]he testimonies of the accused and their
witnesses, aside from being self-serving,
improbable, hard to believe, and (sic) not in
accordance with common knowledge and
experience of mankind.
On the other hand, the testimonies of prosecution
witness Elizabeth Reglos and the other witnesses
Arturo Reglos and Dante Reglos are very revealing,
straight to the point, probable and consistent. 65
No cogent reasons or material circumstances were shown
to have been overlooked, misunderstood or disregarded by
the trial court, which if considered will vary the outcome of
the case. 66
Before we conclude, it is erroneous for the trial court to impose on
appellants "life imprisonment" as it is nowhere in the scheme of
penalties in the Revised Penal Code 67 nor is it a penalty similar to
"reclusion perpetua". 68 The appealed judgment is dated September
1992. As early as 1948, the Court had made it clear that reclusion
perpetuais not the same as life imprisonment, and that "no trial
judge should mistake one for the other". 69 This ruling was
reiterated in the case of People v. Baguio promulgated on April 30,
1991. 70 It is for this reason that Supreme Court Administrative
Circular 6-A-92 (dated June 21, 1993) which amended Circular 6-
92 (dated October 12, 1992) enjoins trial judges to strictly observe
the distinction between life imprisonment and reclusion perpetua in
order to curb the erroneous practice of using them interchangeably
in the imposition of penalty in serious offenses like murder.
Prior to the Heinous Crimes Law (R.A. 7659) the penalty for
murder was "reclusion temporal maximum to death". 71In
accordance with the graduation of penalties in Article 63, when
there is neither mitigating nor aggravating circumstance, as in this
case, the penalty is the medium period which is reclusion perpetua.
WHEREFORE, subject to the modification that each appellant shall
suffer the penalty of reclusion perpetua and not life imprisonment,
the appealed decision of the Regional Trial Court of Guimba,
Nueva Ecija convicting appellants Rodencio, Benjamin, Rogelio all
surnamed Narca and Jaime Baldelamar of murder and the
imposition of the monetary awards are AFFIRMED.
64
SO ORDERED.
G.R. No. L-108208 March 11, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. MAXIMIANO C. ASUNCION, as Presiding Judge of the
Regional Trial Court, Branch 104 of Quezon City, and
ALEXANDER DIONISIO Y MANIO, respondents. HON.
CONRADO M. VASQUEZ, Ombudsman, intervenor-respondent.
The Solicitor General for petitioner.
De Guzman, Florentino, Celis, Moncupa & Torio for private
respondent.
DAVIDE, JR., J.:
Section 46 of Republic Act No. 69751 provides that "criminal cases
involving PNP members shall be within the exclusive jurisdiction of
the regular courts." The principal issue in this case is whether the
term "regular courts" includes the Sandiganbayan. Petitioner
maintains that it does not while the respondent Judge and the
intervenor-respondent hold otherwise.
Section 46 reads as follows:
Sec. 46. Jurisdiction in Criminal Cases. — Any
provision of law to the contrary notwithstanding,
criminal cases involving PNP members shall be
within the exclusive jurisdiction of the regular
courts: Provided, That the courts-martial appointed
pursuant to Presidential Decree No. 1850 shall
continue to try PC-INP members who have already
been arraigned, to include appropriate actions
thereon by the reviewing authorities pursuant to
Commonwealth Act No. 408, otherwise known as the
Articles of War, as amended, and Executive Order
No. 178, otherwise known as the Manual for Courts-
Martial: Provided, further, That criminal cases
against PC-INP members who may have not yet
been arraigned upon the effectivity of this Act shall
be transferred to the proper city or provincial
prosecutor or municipal trial court judge.
The factual and procedural antecedents in this case are as follows:
On 31 July 1991, private respondent Alexander Dionisio y Manio, a
member of the Philippine National Police (PNP) assigned to the
Central Police District Command Station 2 in Novaliches, Quezon
City, was dispatched by his Commanding Officer to Dumalay
Street in Novaliches to respond to a complaint that a person was
creating trouble there. Dionisio proceeded to that place, where he
subsequently shot to death T/Sgt. Romeo Sadang.
On 7 August 1991, pursuant to Section 7, Rule 112 of the Rules of
Court, the Office of the City Prosecutor filed with the Regional Trial
Court (RTC) of Quezon City an Information2 charging Dionisio with
the crime of homicide committed as follows:
That on or about the 31st day of July, 1991, in
Quezon City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
with intent to kill, and without any justifiable motive,
did then and there, wilfully, unlawfully and feloniously
attack, assault and employ personal violence upon
the person of one T/SGT. ROMEO SADANG Y
MACABEO, by then and there shooting the latter
with the use of a gun, .45 caliber pistol, thereby
inflicting upon the latter gunshot wounds on his neck
and on his thorax, which were the direct and
immediate cause of his death, to the damage and
prejudice of the heirs of said T/SGT. ROMEO
SADANG Y MACABEO in such amount as may be
65
 awarded to them under the provisions of the Civil
Code.
Contrary to law.
The case was docketed as Criminal Case No. Q-91-23224 and
was raffled off to Branch 104 of the RTC, prescribed over by the
respondent Judge.
On 4 September 1992, while trial was already in progress, the
respondent Judge issued, motu proprio, an order3requiring the
prosecution and the defense to comment on whether the Court
should still proceed with the trial of the case:
[i]n view of the decision of the Supreme Court in the
case of Deloso vs. Domingo (Vol. 191 SCRA, 545),
quoted as follows:
The Sandiganbayan has jurisdiction
over offenses committed by public
officials when penalty prescribed by
law for the offense is higher
than prision correccional (Sec. 4,
subpar. (c), P.D. 1606). The murder
charge against the petitioner carries
the penalty of reclusion temporal in its
maximum period of death (Art. 248,
Revised Penal Code), hence, it is
cognizable by the Sandiganbayan, and
the Ombudsman has primary
jurisdiction to investigate it.
In his Order of 24 September 1992,4 the respondent Judge
dismissed Criminal Case No. Q-91-23224 "for re-filing with the
Sandiganbayan" on the ground that the Sandiganbayan, and not
the Regional Trial Court, has jurisdiction over the case. The body
of the order reads:
Which Court has jurisdiction over police officers who
are charged with the crime of homicide or murder?
Accused Quezon City Patrolman Alexander Dionisio
y Manio is being tried for homicide for killing T/Sgt.
Romeo Sadang y Macabeo on July 31, 1991 in
Quezon City. Several witnesses were already
presented by the prosecution. Nobody raised the
issue of jurisdiction. On September 4, 1992, the
Court issued an order requiring the prosecution and
the defense to comment on whether the Court has
jurisdiction over the matter in view of the ruling of the
Supreme Court in the case of Deloso vs. Domingo,
191 SCRA 945 [sic] which rules as follows:
The Sandiganbayan has jurisdiction
over offenses committed by public
officials when the penalty prescribed
by law for the offense is higher
than prision correccional (Sec. 4,
subpar. (c), P.D. 1606). The murder
charge against the petitioner carries
the penalty of reclusion temporal in
maximum period to death
(Art. 248, Revised Penal Code),
hence, it is cognizable by the
Sandiganbayan, and the Ombudsman
has primary jurisdiction to investigate
it.
As a matter of fact, even if the act or crime is not
related to or connected with or arising from the
performance of official duty, it must be investigated
by the Ombudsman or any of its duly deputized
representative:
The clause "any (illegal) act or
omission of any public official" is broad
66
 enough to embrace any crime
committed by a public official. The law
does not qualify the nature of the
illegal act or omission of the public
official or employee that the
Ombudsman may investigate. It does
not require that the act or omission be
related to or be connected with or
arise from, the performance of official
duty. Since the law does not
distinguish, neither should we.
The Sandiganbayan, although trying only certain
special classes of crimes, still can be classified as a
regular court functioning within the framework of the
judicial department of the government. It is a "trial
court and bound by the rules governing trial courts. It
is one of the 'inferior courts' in Article X of the
Constitution whose jurisdiction may be questioned
before the Supreme Court and whose judgments are
subject to its review, revision, affirmance or setting
aside. The independence of the judiciary enshrined
in the Constitution calls for the unitary judicial system
with the Supreme Court at the top of the hierarchical
set-up" (Rules of Criminal Procedures by Dr.
Fortunato Gupit, Jr., 1986 Edition, p. 26).
Conformably therefore to the foregoing
consideration, the regular court referred to in Section
46 of Republic Act 6975 (An Act establishing the
Philippine National Police) is the Sandiganbayan.
Since the penalty for homicide, the charge against
the accused, carries the penalty
of reclusion temporal, said case is cognizable by the
Sandiganbayan and the Ombudsman has the
primary jurisdiction to investigate it. (Art. 249, RPC).
WHEREFORE, the above-entitled case is hereby
dismissed for refiling with the Sandiganbayan.
On 6 October 1992, the private prosecutor moved for a
reconsideration5 of the dismissal, citing the opinion of the Secretary
of Justice of 31 July 19916 that "crimes committed by PNP
members are not cognizable by the Sandiganbayan" because
"[t]hey fall within the exclusive jurisdiction of the regular courts" as
provided in Section 46 of R.A. No. 6975 and "[t]he Sandiganbayan
is not a regular court but a special court."
The respondent Judge denied the motion in the Order of 7 October
1992:7
The opinion of the Secretary of Justice dated July
31, 1992 [sic] . . . is not binding to this Court.
This Court still holds that the regular Courts referred
to in Sec. 46 of RA 6975 (An Act establishing the
Philippine National Police) includes the
Sandiganbayan which has exclusive original
jurisdiction to try offenses on felonies committed by
public officers in relation to their office, whether
simple or complex with other crimes where the
penalty prescribed by law is higher than prision
correccional (Sec. 4, par. c, PD 1606)
What is contemplated in the law is the regular civil
court to the exclusion of non-regular courts such as
military courts which had previous jurisdiction over
police officers. The police force being civilian in
character should be under the jurisdiction of the civil
court. What is meant by "regular courts" mentioned
in Sec. 46, RA 6975 are the "inferior courts" in Article
X of the constitution which calls for a unitary judicial
system with the Supreme Court at the top of the
hierarchical set-up (Rules in Crim. Procedure by Dr.
Fortunato Gupit, page 26, 1986 edition).
67
On 6 January 1993, petitioner filed the instant petition. We required
the respondents to comment thereon.
On 5 February 1993, the office of the Ombudsman filed a motion
for leave to intervene and to file comment8 alleging that its
constitutional duty to investigate criminal cases against public
officers, including PNP members, and to prosecute cases
cognizable by the Sandiganbayan are affected by the issue raised;
and that the office of the Ombudsman and the Department of
Justice (DOJ) had issued a joint circular on 14 October
19919 wherein (a) both agencies agreed that, subject to the final
determination by competent authorities, the term "regular courts" in
Section 46 of R.A. No. 6975 refers to "civilian courts" as
distinguished from military courts, and (b) certain guidelines were
adopted to govern the investigation and prosecution of PNP
members. Attached to the motion is the Ombudsman's
Comment10 on the petition. We granted this motion to intervene,
admitted the Comment, and required petitioner to reply thereto. 11
In their separate Comments, 12 the respondent Judge reiterates the
reasons stated in the assailed orders, and the private respondent
concurs with the position and amplifies the arguments of the
Ombudsman.
Petitioner filed its Reply 13 to the Comments of the respondents and
the intervenor.
On 6 July 1993, we resolved to consider the separate comments of
the respondents as answers, to give due course to the petition, and
to require the parties to file simultaneously their respective
memoranda within twenty days from notice, which they did, with
the petitioner submitting its memorandum only on 29 December
1993 after obtaining several extensions of time to do so.
In the main, petitioner insists that the dismissal of the criminal case
below, "for refiling with the Sandiganbayan" was erroneous
because Section 46 of R.A. No. 6975 vests the exclusive
jurisdiction in criminal cases involving PNP members only in the
"regular courts" which excludes the Sandiganbayan since it is,
constitutionally and statutorily, a "special court" and not a regular
court. To bolster this claim, petitioner points to Section 5, Article
XIII of the 1973 Constitution which described the Sandiganbayan
as "a special court" and Section 4, Article XI of the 1987
Constitution which provides that "[t]he present anti-graft court
known as the Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may be provided by
law."
It further asserts that (a) if it were the intention of R.A. No. 6975 to
grant to the Sandiganbayan jurisdiction over PNP members, then
Section 46 should have explicitly stated or used the term "civil
courts" considering that members of the Integrated National Police
(INP) were then integrated with and under the operational control
and administrative set-up of the Philippine Constabulary (PC) and,
under P.D. No. 1850, were subject to court-martial proceedings for
all crimes cognizable by the civil courts; (b) if it were the intention
of R.A.
No. 6975 to include the Sandiganbayan in the term "regular courts"
in
Section 46, then it should not have provided therein that "criminal
cases against PC-INP members who may have not yet been
arraigned upon the effectivity of this Act shall be transferred to the
proper city or provincial prosecutor or municipal trial court judge";
instead, it should have directed such transfer to "the Ombudsman
or the Special Prosecutor since the Ombudsman or the Special
Prosecutor is mandated by law to entertain cases cognizable only
by the Sandiganbayan" under Section 15 of R.A. No. 6770; and (c)
there is an irreconcilable conflict between Section 46 of R.A. No.
6975 and Section 4 of P.D. No. 1606 (revising P.D. No. 1486 which
created the Sandiganbayan), as amended, which vests in the
Sandiganbayan exclusive original jurisdiction over "[o]ther offenses
or felonies committed by public officers and employees in relation
to their office . . . where the penalty prescribed by law is higher
than prision correccional . . . or a fine of P6,000.00"; the latter then
should be deemed impliedly repealed by the former, which is a
later law.
68
Petitioner finally contends that P.D. No. 1606, as amended, is a
general law of it applies to all public officers, while R.A. No. 6975 is
a special law for it sets out a special rule of jurisdiction for PNP
members. The latter should thus prevail.
Petitioner then prays that the assailed orders of respondent Judge
of
24 September 1992 and 7 October 1992 be reversed and set aside
and that the respondent Judge be directed to reinstate and
continue the trial of Criminal Case No. Q-91-23224.
On the other hand, the Ombudsman maintains the view that it is
the Sandiganbayan and not the Regional Trial Court which has
jurisdiction over the subject criminal case in view of Section 4 of
P.D. No. 1606 and the Joint Circular of 14 October 1991. It asserts
that the term "regular courts" in
Section 46 of R.A. No. 6975 includes the Sandiganbayan and that
R.A.
No. 6975 has not repealed Section 4 of P.D. No. 1606.
Amplifying its view, it opines that: (a) while the Sandiganbayan is a
special court, it is a regular court within the context of Section 46 of
R.A.
No. 6975 because it is a "court normally functioning with continuity
within the jurisdiction vested in it," and that the term "regular
courts" is used in Section 46 of R.A. No. 6975 to distinguish the
said courts from the court-martial for it seeks to divest the latter of
such jurisdiction and mandates its transfer to the former pursuant
to the policy of the law to establish a police force national in scope
and civilian in character; and (b) since the creation of the
Sandiganbayan is mandated by the Constitution 14 to take
cognizance of crimes committed by public officers in relation to
their office and P.D. No. 1606 created it pursuant to such mandate,
then the repeal of the latter, as suggested by petitioner, would
diminish and dilute the constitutional jurisdiction of the
Sandiganbayan and would operate to amend the Constitution,
which no statute can do. Moreover, there is no irreconcilable
inconsistency between the two laws to warrant an implied repeal.
Finally, the Ombudsman asserts that the proviso in Section 46 of
R.A. No. 6975 that "criminal cases against PC-INP members who
may have not yet been arraigned upon the effectivity of this Act
shall be transferred to the proper city or provincial prosecutor or
municipal trial court judge" only means a referral to the proper city
or provincial prosecutor or municipal trial court judge for
appropriate preliminary investigation and not the filing of the
criminal information with the proper court it being a fact that all city
and provincial prosecutors have been deputized by the
Ombudsman to conduct preliminary investigation of cases
cognizable by the Sandiganbayan.
As to which law is the special law, the Ombudsman maintains that
it is P.D. No. 1606 because it deals specifically with the jurisdiction
of the Sandiganbayan while Section 46 of R.A. No. 6975 does not
specifically mention any particular court.
The resolution of the principal issue hinges on the interpretation of
the term regular courts in Section 46 of R.A. No. 6975 which, in
turn, requires an inquiry into the legislative intent and purpose of
the law.
There can be no doubt that the provisions of R.A. No. 6975 on the
PNP are intended to implement Section 6, Article XVI (General
Provisions) of the 1987 Constitution which reads:
Sec. 6. The State shall establish and maintain one
police force, which shall be national in scope and
civilian in character, to be administered and
controlled by a national police commission. The
authority of local executives over the police units in
their jurisdiction shall be provided by law.
The sponsors of House Bill No. 23614, 15 which together with
Senate Bill No. 463 16 eventually became R.A. No. 6975 were
unequivocal on this. Representative Antonio Cerilles, after referring
to the aforementioned mandate, declared:
69
 Today is a date with history, Mr. Speaker, when this
august chamber will try its best to pursue what is
mandated by the Constitution. Today, we shall insist,
though legislative fiat, that the State should establish
and maintain one police force. Its civilian character
on a national scope shall be paramount. Today, we
should insist that no office in any element or unit of
the police force can be occupied or run by military
personnel and officer. We should also insist that the
only way to professionalize our police force is to
separate them from the Armed Forces of the
Philippines. 17
In this sponsorship speech, Representative Nereo Joaquin stated:
First and foremost among all these is, as already
mentioned earlier, the fact that the bill is undoubtedly
in harmony and in conformity not only with the letter
but more importantly with the spirit of the new
Constitution particularly Section 6 of Article XVI, the
General Provisions. . . . 18
Police forces have traditionally been under civilian authority.
However, the dictatorial regime of then President Ferdinand
Marcos, consistent with his own agenda to strengthen the
machinery of martial law rule, exploited to his advantage the
provision of the 1973 Constitution which mandated the
establishment and maintenance of "an integrated national police
force whose organization, administration, and operation shall be
provided by law." 19 First, he issued a series of decrees
consolidating and integrating various local police forces and
placing them under the operational control, direction, and
supervision of the Philippine Constabulary (PC); 20 then on 8
August 1975, he promulgated P.D. No. 765 which "established and
constituted the Integrated National Police which shall be composed
of the Philippine Constabulary as the nucleus, and the integrated
police forces as established by Presidential Decrees Nos. 421,
482, 531, 585 and 641, as components, under the Department of
National Defense." By this decree, Mr. Marcos succeeded in
militarizing the police forces by making them mere components of
the PC which was then one of the four major commands of the
Armed Forces of the Philippines (AFP). He did not stop there. For,
even after the farcical lifting of Martial Law in 1981 through
Proclamation No. 2045, and pursuant to the infamous Amendment
No. 6 of the 1973 Constitution, 21 he promulgated on 4 October
1982 P.D. 1850 which provided for court-martial jurisdiction over
police officers, policemen, firemen, and jail guards. Section 1
thereof reads:
Sec. 1. Court-Martial Jurisdiction over Integrated
National Police and Members of the Armed Forces.
— Any provision of the law to the contrary
notwithstanding — (a) uniformed members of the
Integrated National Police who commit any crime or
offense cognizable by the civil courts shall
henceforth be exclusively tried by courts-martial
pursuant to and in accordance with Commonwealth
Act No. 408, as amended, otherwise known as the
Articles of War; (b) all persons subject to military law
under Article 2 of the aforecited Articles of War who
commit any crime or offense shall be exclusively
tried by courts-martial or their case disposed of
under the said Articles of War; Provided, that, in
either of the aforementioned situations, the case
shall be disposed of or tried by the proper civil or
judicial authorities when court-martial jurisdiction
over the offense has prescribed under Article 38 of
Commonwealth Act Numbered 408, as amended, or
court martial jurisdiction over the person of the
accused military or Integrated National Police
personnel can no longer be exercised by virtue of
their separation from the active service without
jurisdiction having duly attached beforehand unless
otherwise provided by law.
70
 As used herein, the term uniformed members of the
Integrated National Police shall refer to police
officers, policemen, firemen and jail guards.
In a manner of speaking, this decree completed the militarization of
the INP and consummated the aberration in the police
organization. Two years later, or on 5 September 1984, he issued
P.D. No. 1952 which amended
P.D. No. 1850 by inserting a proviso to the first paragraph of
Section 1 granting himself the authority "in the interest of justice,
[to] order or direct, at any time before arraignment, that a particular
case be tried by the appropriate civil court."
Before P.D. No. 1850, or specifically on 16 January 1981, Mr.
Marcos, through P.D. No. 1822, placed under court-martial
jurisdiction, pursuant to the Articles of War, all officers, soldiers,
and personnel in the active service of the AFP or of the PC,
charged with any crime or offense related to the performance of
their duties.
Needless to state, the overwhelming sentiment of the framers of
the 1987 Constitution against the martial law regime 22 and the
militarization of the police forces prompted them to explicitly direct
the establishment and maintenance of one police force, which shall
be national in scope and civilian in character. This civilian
character is unqualified and unconditional and is, therefore, all-
embracing. The Declaration of Policy (Section 2) of R.A. No. 6975
faithfully carried out this mandate when it declared therein that:
The police force shall be organized, trained and
equipped primarily for the performance of police
functions. Its national scope and civilian character
shall be paramount. No element of the police force
shall be military nor shall any position thereof be
occupied by active members of the Armed Forces of
the Philippines.
That civilian character refers to its orientation and structure. Thus,
during a bicameral conference committee meeting on House Bill
No. 23614 and Senate Bill No. 463, Senator Edgardo Angara
remarked:
SENATOR ANGARA:
That's what we're trying to interpret
nga eh. Civilian in character meaning,
were separating the police both in
orientation and structure from the
military discipline and structure, I think
that's essentially the mandate we're
trying to implement.
Civilian character necessarily includes, according to him:
SENATOR ANGARA:
Civilian system of justice na. 23
It is thus evident that the mandate of Section 46 of R.A. No. 6975
is to divest courts-martial of any jurisdiction over criminal cases
involving PNP members and to return or transfer that jurisdiction to
the civil courts. This return or transfer of jurisdiction to the civil
courts was explicitly provided for in the original Section 68 of
House Bill No. 23614 which reads as follows:
Sec. 68. Jurisdiction in criminal cases. — Any
provision of the law to the contrary notwithstanding,
criminal cases involving PNP members shall,
immediately upon effectivity of this Act, be
exclusively tried by the Civil Courts: Provided,
however, That in cases where a member of the PNP
is unable to post bail, he may be placed upon order
by the court under the custody of his supervisor
upon petition of the latter. 24
71
Upon motion of Representative Rodolfo Albano, accepted by the
Committee and approved in plenary session, this section was
amended, to read as follows:
ANY PROVISION OF LAW TO THE CONTRARY
NOTWITHSTANDING, CRIMINAL CASES
INVOLVING PNP MEMBERS SHALL BE WITHIN
THE EXCLUSIVE JURISDICTION OF THE CIVIL
COURTS. 25
In the course of the interpellation on his amendment, Mr. Albano
had the occasion to emphasize the purpose of the law and the
transfer of jurisdiction to civil courts of criminal cases involving
members of the PNP:
MR. ALBANO:
Considering that we are creating here
a purely civilian police force, he [the
PNP member] should, therefore, also
fall under our civil force, and there
should be no iota of military syndrome
[referring to the proviso in Sec. 68] so
to speak. 26
During the deliberation by the Bicameral Conference Committee on
National Defense on House Bill No. 23614 and Senate Bill No.
463, more specifically on Section 68 of the former, its Chairman,
Senator Ernesto Maceda, used the term "regular courts" in lieu
of civil courts. Thus:
THE CHAIRMAN (SEN. MACEDA):
Okay, Rey at saka iyong House, you
work on the flow chart.
So other than that in that particular
section, ano ba itong "Jurisdiction in
criminal cases?" What is this all
about?
REP. ZAMORA:
In case they are charged with crimes.
THE CHAIRMAN (SEN. MACEDA):
Ah, the previous one is administrative,
'no. Now, if it is charged with a
crime, regular courts. 27
The term regular courts was finally carried into the reconciled
bill, 28 entitled "An Act Establishing the Philippine National Police
Under a Reorganization Department of the Interior and Local
Government, and for Other Purposes," and incorporated in the
Conference Committee Report received by the Office of the
Secretary of the Senate on 19 November 1990. Section 46 of the
proposed reconciled bill is Section 68 of House Bill No. 23614, with
further modifications and amendments. The reconciled bill was
approved by such both House of Congress and became R.A. No.
6975.
The foregoing considered, we have no doubt that the terms civil
courts and regular courts were used interchangeably or were
considered as synonymous by the Bicameral Conference
Committee and then by the Senate and the House of
Representatives. Accordingly, the term regular courts in Section 46
of R.A. No. 6975 means civil courts. There could have been no
other meaning intended since the primary purpose of the law is to
remove from courts-martial the jurisdiction over criminal cases
involving members of the PNP and to vest it in the courts within our
judicial system, i.e., the civil courts which, as contradistinguished
from courts-martial, are the regular courts. Courts-martial are not
courts within the Philippine judicial system; they pertain to the
executive department of the government and are simply
72
instrumentalities of the executive power. 29 Otherwise stated, the amendments introduced by P.D. No. 1861, the Sandiganbayan
courts-martial are not regular courts. has jurisdiction over the following cases:

Parenthetically, in Quiloña vs. The General Court Martial, 30 this Sec. 4. Jurisdiction. — The Sandiganbayan shall
Court found correct and impliedly adopted as its own a statement exercise:
of the Office of the Solicitor General in its Comment that Section 46
of R.A. No. 6975 mandates the transfer of criminal cases against (a) Exclusive original jurisdiction in all cases
members of the PNP to the civilian courts. Thus: involving:

Moreover, as correctly pointed out by the Solicitor (1) Violations of Republic Act No.
General in his comment — 3019, as amended, otherwise known
as the Anti-Graft and Corrupt Practices
xxx xxx xxx Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the
The civilian character with which the PNP is Revised Penal Code;
expressly invested is declared by RA 6975 as
paramount, and, in line therewith, the law mandates (2) Other offenses or felonies
the transfer of criminal cases against its members committed by public officers and
to civilian courts. 31 employees in relation to their office,
including those employed in
Having thus ruled that the term "regular courts" in Section 46 of government-owned or controlled
R.A. corporations, whether simple or
No. 6975 refers to the civil courts, we must now determine if complexed with other crimes, where
the Sandiganbayan is included in that term. the penalty prescribed by law is higher
than prision correccional or
Regular courts are those within the judicial department of the imprisonment for six (6) years, or a
government, namely, the Supreme Court and such lower courts as fine of P6,000.00: PROVIDED,
may be established by law. 32 Per Section 16, Chapter 4, Book II of HOWEVER, that offenses or felonies
the Administrative Code of 1987, 33 such lower courts "include the mentioned in this paragraph where the
Court of Appeals, Sandiganbayan, Court of Tax Appeals, Regional penalty prescribed by law does not
Trial Courts, Shari'a District Courts, Metropolitan Trial Courts, exceed prision correccional or
Municipal Trial Court, Municipal Circuit Trial Courts, and Shari'a imprisonment for six (6) years or a fine
Circuit Courts." of P6,000.00 shall be tried by the
proper Regional Trial Court,
The Sandiganbayan was created by P.D. No. 1486 34 pursuant to Metropolitan Trial Court, Municipal
the mandate of Section 5, Article XIII of the 1973 Trial Court and Municipal Circuit Trial
Constitution. 35 This was revised by P.D. No. 1606. 36 The latter was Court.
amended by P.D. No. 1860 37 and lastly by P.D. No. 1861. 38 Under
73
 (b) Exclusive appellate jurisdiction:
(1) On appeal, from the final
judgments, resolutions or orders of the
Regional Trial Courts in cases
originally decided by them in their
respective territorial jurisdiction.
(2) By petition for review, from the final
judgments, resolution or orders of the
Regional Trial Courts in the exercise of
their appellate jurisdiction over cases
originally decided by the Metropolitan
Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts, in
their respective jurisdiction. . . .
Undoubtedly then, the Sandiganbayan is a regular court and is
thus included in the term regular courts in Section 46 of R.A. No.
6975.
Petitioner's insistence that it is not because, by the Constitution
and by the statutes, the Sandiganbayan is a special court and,
therefore, not a regular court is untenable. In the first place, a
comparison between the words regular and special is inappropriate
since the opposite of the latter is not the former and vice
versa. Special means "designed for a particular purpose; confined
to a particular purpose, object, person, or class," 39 and is,
therefore, the antonym of general. 40 On the other
hand, regular means "steady or uniform in course, practice, or
occurrence," as opposed to casual or occasional. 41 In other
words, special and general are categories in the distributive
order. 42 With reference then to the courts, they principally relate to
jurisdiction. Thus, there are courts of general jurisdiction and courts
of special jurisdiction. It is, of course, incorrect to say that only
courts of general jurisdiction are regular courts. Courts of special
jurisdiction, which are permanent in character, are also regular
courts. The Sandiganbayan is a court with special jurisdiction
because its creation as a permanent anti-graft court is
constitutionally mandated and its jurisdiction is limited to certain
classes of offenses.
That the Sandiganbayan is among the regular courts is further
strongly indicated by Section 1 of P.D. No. 1606 which vests upon
it "all the inherent powers of a court of justice" and places it on "the
same level as the Court of Appeals," and by Section 4 thereof, as
amended by P.D. No. 1861, which grants it appellate
jurisdiction over certain cases decided by the Regional Trial
Courts, Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts.
There is, as well, no merit in the theory of petitioner that Section 46
of R.A. No. 6975 impliedly repealed Section 4 of P.D. No. 1606, as
amended by P.D. No. 1861, as regards the jurisdiction of the
Sandiganbayan over members of the PNP. First, the argument is
based on the faulty assumption that the Sandiganbayan, being a
special court, is not a regular court within the contemplation of
Section 46. Second, both provisions are not irreconcilable and the
presumption against an implied repeal has not been overcome.
Implied repeal may be indulged in only if the two laws are
inconsistent, or the former law must be repugnant as to be
irreconcilable with the latter law. Necessarily then, an attempt must
be made to harmonize the two laws. In Valera vs.
Tuason, 43 this Court stated:
One of the well-established rules of statutory
construction enjoins that endeavor should be made
to harmonize the provisions of a law or of two laws
so that each shall be effective. In order that one law
may operate to repeal another law, the two laws
must actually be inconsistent. The former must be so
repugnant as to be irreconciliable [sic] with the latter
act. (U.S. vs. Palacios, 33 Phil., 208). Merely
because a later enactment may relate to the same
subject matter as that of an earlier statute is not of
itself sufficient to cause an implied repeal of the
74
 latter, since the new law may be cumulative or a
continuation of the old one. (Statutory Construction,
Crawford, p. 634).
In Gordon vs. Veridiano, 44 this Court, speaking through Mr. Justice
Isagani A. Cruz, emphasized the task of courts to reconcile and
harmonize laws:
Courts of justice, when confronted with apparently
conflicting statutes, should endeavor to reconcile the
same instead of declaring outright the invalidity of
one as against the other. Such alacrity should be
avoided. The wise policy is for the judge to
harmonize them if this is possible, bearing in mind
that they are equally the handiwork of the same
legislature, and so give effect to both while at the
same time also according due respect to a
coordinate department of the government.
Indeed, it has been appropriately said:
The presumption against implied repeals is
classically founded upon the doctrine that the
legislature is presumed to envision the whole body of
the law when it enacts new legislation, and,
therefore, if a repeal of the prior law is intended,
expressly to designate the offending provisions
rather than to leave the repeal to arise by necessary
implication from the later enactment. Still more basic,
however, is the assumption that existing statutory
and common law, as well as ancient law, is
representative of popular will. As traditional and
customary rules, the presumption is against their
alteration of repeal. The presumption has been said
to have special application to important public
statutes of long standing. 45
It can thus be reasonably presumed that in the enactment of R.A.
No. 6975, Congress had the whole body of the law in mind and, for
consistency, coherence, and harmony, took into account the
provisions of the Constitution regarding the Sandiganbayan, the
law creating it, and the amendments thereto relative to its
jurisdiction. Since under the law, the Sandiganbayan is a special
anti-graft court with exclusive original jurisdiction over (a) violations
of R.A. No. 3019, R.A. No. 1379, and Chapter II, Section 2, Title
VII of the Revised Penal Code; and (b) other offenses or felonies
committed by public officers and employees (including those in
government-owned or controlled corporations) in relation to their
office where the penalty prescribed by law is higher than prision
correccional or imprisonment for six years, or a fine of P6,000.00,
and since members of the PNP are public officers or
employees, 46 Congress can be logically presumed to have read
into Section 46 of R.A. No. 6975 the constitutional and statutory
provisions regarding the Sandiganbayan. The alleged
inconsistency seen by petitioner is non-existent for, on the
contrary, the two provisions can well go together with full and
unhampered effect to both and without doing violence to either,
thereby giving spirit to the maxim, interpretare et concordare
legibus est optimus interpretandi or every statute must be so
construed and harmonized with other statutes as to form a uniform
system of jurisprudence. 47 As harmonized, the conclusion is
inevitable that members of the PNP, as public officers and
employees, are subject to the jurisdiction of the Sandiganbayan
with respect to (a) violations of R.A. No. 3019, as amended,
Republic Act No. 1379, and Chapter II, Section 2, Title VII of the
Revised Penal Code, and (b) other offenses or felonies committed
by them in relation to their office where the penalty prescribed by
law is higher than prision correccional or imprisonment of six years,
or a fine of P6,000.00. All other offenses committed by them are
cognizable by the appropriate courts within the judicial system
such as the Regional Trial Courts, Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts.
That the public officers or employees committed the crime in
relation to their office must, however, be alleged in the information
75
for the Sandiganbayan to have jurisdiction over a case under
Section 4(a) (2). 48 This allegation is necessary because of the
unbending rule that jurisdiction is determined by the allegations of
the information. 49
In the instant case, the trial court dismissed Criminal Case No. Q-
91-23224 on the ground that since the penalty prescribed for the
crime charged — which is homicide — is higher than prision
correccional, 50 then pursuant to Deloso vs. Domingo, 51 it is the
Sandiganbayan which has jurisdiction over the case. In order to
avoid a misapprehension of the ruling in Deloso, which was based
on P.D. No. 1606 alone, it must be stressed that we had
unequivocally ruled in Aguinaldo vs. Domagas 52 that for the
Sandiganbayan to have exclusive original jurisdiction over offenses
or felonies committed by public officers or employees, under
Section 4(a) (2) of P.D. No. 1606, as amended by P.D.
No. 1861, it is not enough that the penalty prescribed therefor is
higher than prision correccional or imprisonment for six years, or a
fine of P6,000.00; it is also necessary that such offenses or
felonies were committed in relation to their office. We then
concluded:
Even before considering the penalty prescribed by
law for the offense charged, it is thus essential to
determine whether that offense was committed or
alleged to have been committed by the public
officers and employees in relation to their offices.
In the recent case of Sanchez vs. Demetriou, 53 we reiterated our
ruling on the requirement that the offenses or felonies covered by
Section 4(a) (2) of P.D. No. 1606, as amended by P.D. No. 1861,
have to be committed by public officers and employees in relation
to their office and likewise elucidated on the meaning of offenses
committed in relation to their office by reiterating the principle
in Montilla vs. Hilario 54 that an offense may be considered as
committed in relation to the office if "the offense cannot exist
without the office," or that "the office must be a constituent element
of the crimes as . . . defined and punished in Chapter Two to Six,
Title Seven, of the Revised Penal Code," and the principle
in People vs. Montejo 55 that the offense must be intimately
connected with the office of the offender and perpetuated while he
was in the performance, though improper or irregular, of his official
functions. Further, we intimated that the fact that the offense was
committed in relation to the office must be alleged in the
information.
Just recently, in Natividad vs. Felix, 56 we explicitly declared that we
had re-examined the Deloso case in Aguinaldo and
in Sanchez and reiterated the requisites for an offense under
Section 4(a) (2) of P.D. No. 1606, as amended by P.D. No. 1861,
to fall under the jurisdiction of the Sandiganbayan.
In the light then of the foregoing, the Regional Trial Court of
Quezon City would be without jurisdiction over Criminal Case No.
Q-91-23224 if the information therein would show that the offense
of homicide charged was committed by the accused (private
respondent) in relation to his office. The information has failed to
do so. The pleadings of the parties are of little help. We can only
speculate therefrom that the crime charged might have been
committed while the private respondent was in the pursuit of his
mission. Under the sub-heading in the petition entitled "Relevant
Antecedents," the petitioner merely states:
1. On July 31, 1991, private respondent . . . then a
member of the PNP-NCR assigned to the Central
Police District Command Station 2, based in
Novaliches, Quezon City, was dispatched by his
Commanding Officer to Dumalay Street in
Novaliches to check on a complaint regarding a
person creating trouble in the place. While in
Novaliches, private respondent shot Romeo Sadang
to death.
There is no indication at all that the trouble-maker was the victim
and that he was shot by the private respondent in the course of the
latter's mission. On the other hand, the private respondent asserts
76
in his Comment that he "shot Romeo Sadang in the performance of
a lawful duty and in lawful defense of his life." 57 Petitioner ignored
this claim in its Reply to the Comment. This claim is an anticipatory
defense yet to be proved and its assertion in the Comment does
not cure the deficiency, pointed out earlier, of the information. It
would appear to us that with respect to the issue of jurisdiction, the
parties only took into account the prescribed penalty, relying
upon Deloso vs. Domingo, for which reason they did not consider
important and relevant the issue of whether the offense charged
was committed by the private respondent in relation to his office.
But as stated earlier, Deloso vs. Domingo was modified
by Aguinaldo vs. Domagas.
The dismissal then of Criminal Case No. Q-91-23224 solely on the
basis of Deloso vs. Domingo was erroneous. In the light
of Aguinaldo and Sanchez, and considering the absence of any
allegation in the information that the offense was committed by
private respondent in relation to his office, it would even appear
that the RTC has exclusive jurisdiction over the case. However, it
may yet be true that the crime of homicide charged therein was
committed by the private respondent in relation to his office, which
fact, however, was not alleged in the information probably
because Deloso vs. Domingo did not require such an allegation. In
view of this eventuality and the special circumstances of this case,
and to avoid further delay, if not confusion, we shall direct the
court a quo to conduct a preliminary hearing in this case to
determine whether the crime charged in Criminal Case No. Q-91-
23224 was committed by the private respondent in relation to his
office. If it be determined in the affirmative, then it shall order the
transfer of the case to the Sandiganbayan which shall forthwith
docket and proceed with the case as if the same were originally
filed with it. Otherwise, the court a quo shall set aside the
challenged orders, proceed with the trial of the case, and render
judgment thereon.
Henceforth, any officer authorized to conduct a preliminary
investigation 58 who is investigating an offense or felony committed
by a public officer or employee (including a member of the PNP)
where the penalty prescribed by law is higher than prision
correccional or imprisonment for six years, or a fine of P6,000.00,
must determine if the crime was committed by the respondent in
relation to his office. If it was, the investigating officer shall forthwith
inform the Office of the Ombudsman which may either (a) take
over the investigation of the case pursuant to Section 15(1) of R.A.
No. 6770, 59 or (b) deputize a prosecutor to act as special
investigator or prosecutor to assist in the investigation and
prosecution of the case pursuant to Section 31 thereof. 60 If the
investigating officer determines that the crime was not committed
by the respondent in relation to his office, he shall then file the
information with the proper court.
In the light of the foregoing, further discussion on the other
collateral issues raised has become unnecessary.
WHEREFORE, judgment is hereby rendered ORDERING the
respondent Judge to conduct, within fifteen (15) days from receipt
of a copy of this Decision, a preliminary hearing in Criminal Case
No. Q-91-23224 to determine whether the crime charged was
committed by the private respondent in relation to his office, and
(1) If he determines that the crime charged was
committed by the private respondent in relation to his
office, DIRECTING the respondent Judge to
forthwith transmit the records of the case to the
Sandiganbayan which shall docket and proceed with
the case as if the same were originally filed with it; or
(2) If he determines otherwise, DIRECTING him to
set aside the challenged Orders of 24 September
1992 and 7 October 1992, to proceed with the
hearing of Criminal Case No. Q-91-23224, and to
render judgment thereon.
No pronouncement as to costs.
So ordered.
77
G.R. Nos. 92362-67 October 15, 1991
CIRILO A. CINCO, DOMINGO AMARO, ANTONIO ABALOS
AND ANDRES SABALZA, petitioners,
vs.
SANDIGANGBAYAN (Second Division) and THE PEOPLE OF
THE PHILIPPINES, respondents.
Emerito M. Salva & Associates for petitioners.
MEDIALDEA, J.:
This petition for review on certiorari seeks the reversal of a
resolution issued by respondent Sandiganbayan dated February
23, 1990, which denied the petitioners' motion to quash Criminal
Cases Nos. 13827 to 13832.
The antecedent facts as summarized by the respondent court are
as follows:
1. On April 20, 1981, Fredeswinda P. Balana lodge a letter-
complaint with the Office of the Tanodbayan (now of the
Special Prosecutor) against Cirilo A. Cinco, Jose Bantigue,
Domingo Amaro, Antonio Abalos, Andres Sabalza, and
others. She swore to her letter-complaint before Prosecutor
Perfecto Llacar, Jr., who certified at the bottom thereof that
he personally examined the affiant and that he was satisfied
she executed and understood it (Annex A of Rejoinder,
Record, pp. 125-132). The charge was docketed as TBP
Case No. 81-042401.
Cinco submitted his counter-affidavit on June 16, 1981, and
supplemental counter-affidavit on July 16, 1981. Amaro
executed his counter-affidavit in June 1981 and
supplemental counter-affidavit on July 16, 1981; Abalos
filed his counter-affidavit on June 18, 1981; Bantigue, on
June 25, 1981; and the others, on various dates in the same
year; Sabalza, however, did not.
2. On June 11, 1982, Balana filed another letter-complaint
against Cinco and Amaro, which she put under oath before
Prosecutor Ricardo A. Buenviaje who also certified in
writing that he personally examined the affiant and that he
was satisfied she voluntarily executed and understood the
letter-complaint (Annex B of Rejoinder, Record, pp. 133-
134). The additional charge was given the number TBP
Case No. 82-061408.
Cinco submitted his counter-affidavit on August 11, 1982,
and Amaro, on a date which does not appear on record, but
in or before 1986.
3. After the submission of the countervailing affidavits which
the defense impliedly admitted, Balana presented her reply
affidavits.
4. The preliminary investigation of the charges was
assigned to Prosecutor Ricardo A. Buenviaje, and it was up
for resolution when he was appointed to the judiciary in
1986. It was then re-assigned to Prosecutor Gregorio G.
Pimentel Jr., who, on July 23, 1987, issued a resolution
recommending the prosecution of the accused for alleged
violations of Section 3(e) of Republic Act No. 3019 (Annex
C of Rejoinder, Record, pp. 131-143). The resolution having
been approved by Raul M. Gonzales, the then Tanodbayan,
the corresponding informations for the said violations were
filed with the Sandiganbayan on September 7, 1987, and
docketed as Criminal Cases Nos. 12420 and 12421 against
Cinco; 12422 against Bantigue, Amaro, Cinco, and Abalos;
12423 against Cinco; 12424 against Bantigue, Amaro, and
Sabalza; and 12426 against Cinco.
78
5. The accused filed a motion to quash on May 17, 1988,
praying that the said informations be dismissed for lack of
authority on the part of Tanodbayan Gonzales or his
prosecutor to file them and invoking Zaldivar vs.
Sandiganbayan, 160 SCRA 843, which had held that the
Tanodbayan, now called Special Prosecutor, was
... clearly without authority to conduct preliminary
investigations and to direct the filing of criminal
cases with the Sandiganbayan, except upon orders
of the Ombudsman. This right to do so
was lost effective February 2, 1987. From that time,
he has been divested of such authority.
After hearing the prosecution, this Court promulgated a
resolution on July 5, 1988, granting the motion to quash. In
that resolution, it observed
... (T)he dismissal of these cases will be without
prejudice to the right of the State, acting through the
Hon. Ombudsman, to conduct a new preliminary
investigation and refile the cases if the evidence
warrants the same.
6. On August 4, 1988, Balana requested the re-filing of the
cases, and in view thereof, the accused, through counsel, in
turn requested on December 26, 1988, that she did so
'under separate and distinct charges in accordance with the
new rules of preliminary investigation' (Secs. 3 and 4, Rule
112 of the Rules of Court effective October 1, 1988) so that
the respondents can refute her charges and specific
evidences she may present in support of each separate
charge (Annex A of Motion to Quash, Record, pp. 61-61).
7. In his order of February 16, 1990, Prosecutor Eleuterio F.
Guerrero, to whom the charges of Balana were re-assigned
for preliminary investigation, denied the request of the
accused and noting that the parties had already adduced
their respective evidence in the preliminary investigation
conducted by the previous prosecutor, gave her 10 days
from receipt to manifest if she elected to adopt the same
charges and evidence already submitted. In the same order,
he also granted the accused an equal period to adduce their
controverting evidence.
Balana opted on March 8, 1989, to adopt her said charges
and evidence, and the accused having failed to submit
countervailing evidence or any pleading, Prosecutor
Guerrero construed their omission as waiver.
8. On June 27, 1989, he issued a resolution finding prima
facie cases for alleged violations of Section 3 (e) of
Republic Act No. 3019 and recommending the filing of the
corresponding informations. The Hon. Ombudsman
approved the resolution. Accordingly, (Criminal Cases Nos.
13827 to 13832 against the petitioners) were instituted on
August 28, 1989. Each information carries with it the
certification of Prosecutor Guerrero
that a preliminary investigation has been conducted
in this case; that there is a sufficient ground to
engender a well-founded belief that the crime
charged herein has been committed and that the
accused are probably guilty thereof. (Rollo, pp. 136-
140).
On December 4, 1989, petitioners filed a Motion to Quash
the informations filed in the aforementioned criminal cases
on the following grounds:
I. THE INFORMATIONS ARE NULL AND VOID
BECAUSE SAME WERE FILED IN VIOLATION OF
SECTION 3 OF RULE 112 OF THE RULES OF
COURT AS AMENDED;
79
 II. THAT THE OFFICER WHO FILED THE
INFORMATIONS HAD NO AUTHORITY TO DO SO;
AND
III. THAT THE INFORMATIONS DO NOT
CONFORM SUBSTANTIALLY TO THE
PRESCRIBED FORM. (Rollo, pp. 46-47)
After the filing of appropriate pleadings by the Ombudsman
in opposition to and by the petitioners in support of the
foregoing motion, the respondent court, on December 20,
1989, issued a resolution, the dispositive portion of which
states:
WHEREFORE, finding the Motion to Quash dated
November 24, 1989, and submitted for resolution on
January 29, 1990, to be without merit, the same is
DENIED.
SO ORDERED. (Rollo, p. 151)
Hence, this petition.
Petitioners submit the following assignment of errors:
1. THE RESPONDENT SANDIGANBAYAN
COMMITTED GRAVE AND SERIOUS ERROR IN
NOT RULING THAT THE INFORMATIONS FILED
IN CRIMINAL CASES NOS. 13827-32 IN
QUESTION, ARE NULL AND VOID BECAUSE
SAME WERE FILED IN VIOLATION OF SECTION 3
AND 4 OF RULE 112 OF THE NEW RULES OF
COURT AS AMENDED;
2. THAT RESPONDENT SANDIGANBAYAN
COMMITTED SERIOUS AND GRAVE ERROR IN
NOT RULING THAT THE PROSECUTOR WHO
FILED THE INFORMATIONS HAD NO AUTHORITY
TO DO SO; AND
3. THAT THE RESPONDENT SANDIGANBAYAN
COMMITTED SERIOUS AND GRAVE ERROR IN
NOT FINDING THAT INFORMATIONS FILED IN
CRIMINAL CASES NOS. 13827-32 DO NOT
CONFORM SUBSTANTIALLY TO THE FORM
PRESCRIBED IN SECTION 4 OF RULE 112 OF
THE NEW RULES OF COURT. (Rollo, p. 19)
We affirm.
The peculiar circumstances of this case do not support
petitioners' plea for a new preliminary investigation. It is true
that the first informations filed against the petitioners were
nullified because the then Special Prosecutor had no
authority to do so in line with Our ruling in the Zaldivar case.
Yet, a careful analysis of the facts shows that the nullity did
not extend to the entire preliminary investigation
proceedings undertaken by that office. We note that the
preliminary investigation on Balana's charges started
wayback in 1981. Between the years 1981 and 1983, the
contending parties already submitted the counter and
supplementale affidavits as well as a reply affidavit. All the
requisite papers having been submitted, the preliminary
investigation was up for resolution in 1986 when the
Prosecutor who handled the case was promoted to the
Judiciary in that same year. It was just unfortunate that the
said resolution was issued in July 1987 and the informations
filed in September of that year. Under such facts, it cannot
be said that the proceedings before February 2, 1987 were
null and void inasmuch as the then Tanodbayan was
clothed with authority to conduct the same. Consequently,
the portion of the investigation proceedings which consists
in the oath of Balana to her letters-complaint, the
certifications of the Prosecutors Llacer and Buenviaje,
Balana's evidence, and petitioner's counter and
80
supplemental affidavits with their evidence are still effective
and valid. To countenance the plea of petitioners who have
already been afforded the right to a preliminary investigation
conformably with PD 911 would be fait accompli. A new
pleriminary investigation will be useless and repetitious
because the same facts and evidence will be elicited. The
investigation proceedings in 1981 and 1983 being valid and
proper, the Ombudsman through the Special Prosecutor III
Eleuterio Guerrero could simply take over and continue
from that point. This move will be more conducive to an
orderly and speedy administration of justice.
Even granting arguendo that a new preliminary investigation
is proper in this case, the same in effect had already been
given to the petitioners. It is noteworthy that before his
evaluation of the records of the first preliminary
investigation, Special Prosecutor Officer III, Eleuterio F.
Guerrero, required (1) Balana to manifest if she elected to
adopt the same charges and evidence already submitted;
and (2) petitioners to submit their controvering evidence if
Balana decided to adopt the same charges. This directive
partakes of the nature of a preliminary investigation which is
noting more than the submission of the parties' respective
affidavits, counter-affidavits and evidence to buttress their
separate allegations. Balana opted to adopt her charges
and evidence. Petitioners did not submit any countervailing
evidence and consequently, lost the opportunity to submit
additional arguments and supporting evidence in their favor.
Their failure, therefore, should not work against the right of
the complainant to an expenditious determination of her
complaints.
Petitioners argue that the letters-complaint cannot serve as
affidavits or evidence in support of the charge against
petitioners allegedly constituting violations of Section 3,
sub-par. (e) of RA No. 3019 as amended; that complainant
never positively Identified the other respondents and the
offenses for which they are charged; and that she never
presented affidavits of witnesses in support of the charge or
charges against them.
We are not convinced. The Special Prosecutor has full
discretion and control of the prosecution of criminal actions.
He alone has the power to decide which as between
conflicting testimonies or evidence should be believed (see
People v. Liggayu, 97 Phil. 865). While indeed he has this
full power, it does not follow, however, that the designation
of the offense by the Fiscal is binding upon the court.
Settled is the rule that it is crime after the trial and following
its own ascertainment of the facts needed to constitute the
elements of the crime attributed to the accused (People v.
Eleuterio, G.R. No. 63971, May 9, 1989, 173 SCRA 243,
251). In his study of the entire records of the preliminary
investigation of Balana's charges, Special Prosecutor
Guerrero believed that he has at least a prima
facie evidence to establish the guilt of the petitioners and
hence, refiled the cases. This is enough. It must be
emphasized that the Fiscal is not required to prove the guilt
of the accused beyond reasonable doubt. Our statement
in Trocio v. Manta (L-34834, November 15, 1982, 118
SCRA 241, 246), bears repeating, to wit:
... When a fiscal investigates a complaint in order to
determine whether he should file charges with the
court against the person complained of, the scope of
the investigation is far short of a trial of an accused
before the court. It is not required that all reasonable
doubt of the guilt of the accused must be removed; it
is only required that the evidence be sufficient to
established probable cause that the accused
committed the crime charged. ... . (emphasis ours)
We also see no need for the Ombudsman to act favorably
on petitioner's bill of particulars seeking to segregate the
particulars of each of the six cases to support the re-filing of
the six dismissed cases. The reason being that such
81
procedure has no place in preliminary investigation where
no finding of guilt is made. In Bernabe, Jr., et al. v.
Rosario (G.R. No. 83095, July 19, 1988, En Banc Minute
resolution), We held:
... The investigating fiscal, to be sure, has discretion
to determine the specify and adequacy of averments
of the offense charged. He may dismiss the
complaint forthwith if he finds it to be insufficient in
form or substance or if he otherwise finds no ground
to continue with the inquiry, or proceed with the
investigation if the complaint is, in his view, in due
and proper form. It certainly is not his duty to require
a more particular statement of the allegations of the
complaint merely upon the respondent's motion, and
specially where after an analysis of the complaint
and its supporting statements he finds it sufficiently
definite to apprise the respondents of the offenses
with which they are charged .... Moreover, the
procedural device of bill of particulars, as the
Solicitor General points out, appears to have
reference to informations or criminal complaints filed
in a competent court upon which the accused are
arraigned and required to plead, and strictly
speaking has not application to complaints initiating
a preliminary investigation which cannot result in any
finding of guilt, but only of probable cause. ....
(Emphasis supplied)
It appears too that the respondent court found the
petitioners' request for particulars of their respective
offenses under Sec. 3 of RA No. 3019, unmeritorious. Such
findings, being unrebutted, are binding on Us. Thus,
2. The accused cannot plausibly claim that they were
misled by the designations of the offenses charged
against them and were at a loss as to what to
controvert.
(a) For if their claim were true they could not have
prepared, verified, and submitted their respective
counter-affidavits and supplemental counter-
affidavits.
(b) They are not ordinary government employees
with modicum education. They are professionals.
Amaro, Cinco, Abalos, and Sabalza are the School
Administrator, Collecting and Disbursing Officer,
College Instructor, and Secondary School Teacher,
respectively, in Sumoroy Agro-Industrial School, a
State College owned by the Government. Bantigue
is a lawyer and Hearing Officer in the Ministry (now
Department) of Education, Culture and Sports.
(c) In the dismissed Criminal Cases Nos. 12422,
12424, and 12426, the accused were also charged
with violations of Section 3 (e) of Republic Act No.
3019. They filed motion for reinvestigation wherein
they never complained that they were preliminary
investigated for alleged offenses other than for those
violations. Instead, they narrated in Criminal Cases
Nos. 12422 and 12426 their own versions of the
facts constituting their defenses. This means that
when entry requested for specification of the
accusations under Section 3 (e), on plaints of Balana
included charges under Section 3 (e) and knew
precisely what to controvert. So when Prosecutor
Guerrero denied on February 16, 1989, their request
and gave them 10 days to submit controverting
evidence, they could have presented those
defenses.
3. The 1988 request for specification of the charges
under Section 3 (e) came too late, as it was made
only long after the accused had presented their
controverting evidence in 1981 and 1982 and after
the preliminary investigation had been deemed
82
 submitted for resolution in or before 1986. To have
granted the request was to unnecessarily conduct a
new preliminary investigation and delay the
resolution of the letter complaint. (Rollo, pp. 146-
147)
Petitioners' apprehension that they might be put in jeopardy
of being charged with informations or crimes other than the
crime imputed in the dismissed cases is baseless. There
could be no double jeopardy for the simple reason that they
have not year pleaded to the offense (see Gaspar v.
Sandiganbayan, G. R. No. 68086, September 24, 1986, 144
SCRA 415, 420). Beside, a preliminary investigation is not a
trial for which double jeopardy attaches. We ruled in Tandoc
v. Resultan (G. R. Nos. 59241-44, July 5, 1989, 175 SCRA
37, 43) that:
Preliminary investigation is merely inquisitorial, and it
is often that only means of discovering the persons
who may be reasonably charged with a crime, to
enable the fiscal to prepare his complain or
information. It is not a trial of the case on the merits
and has no purpose except that of determining
whether a crime has been committed and whether
there is probable cause to believe that the accused
is guilty therefor, and it does not place the person
against whom it is taken in jeopardy.
Further, petitioners claim that the respondent court has
supported their plea for another preliminary investigation
when in the resolution of July 7, 1988, it directed that the
dismissal of the informations against them will be without
prejudice to the right of the Ombudsman to conduct a
preliminary investigation and to re-file the cases if the
evidence warrants the same.
Such contention is untenable. That portion of the
respondent court's resolution is orbiter dictum which lacks
the force of an adjudication and should not ordinarily be
regarded as such (see Morales v. Paredes, 55 Phil. 565,
567). We stated earlier that the fiscal or the Special
Prosecutor has full discretion and control of the prosecution.
The courts generally will not interfere with this power. As the
respondent court held:
Nowhere in the resolution of July 5, 1988, did this
Court direct the conduct of a new preliminary
investigation on the charges of Balana against the
accused. It merely observed in that resolution that
the dismissal of these cases will be without
prejudice to the right of the State, through the
Hon. Ombudsman, to conduct of a new
preliminary investigation and refile the cases
if the evidence warrants the same.
This certainly is not such an order by any stretch of
the imagination. (Rollo, pp. 140-141)
Lastly, petitioners protest against the certification issued by
Special Prosecutor Guerrero as highly irregular because it
did not comply with Section 4, Rule 112 of the Rules of
Court. They aver that he did not personally examine the
complainants and witnesses; that he did not inform the
petitioners of the complaint and of the evidence submitted
against them and he did not give them to the opportunity to
submit controverting evidence since there was none to
controvert. Hence, they conclude that the said irregularity
renders the present informations null and void.
We do not agree. The well-reasoned dissertation of the
respondent court in refutation of the aforesaid arguments
needs no amplification. We therefore cite it as Our own:
1. It has been held that if a preliminary investigation
was actually conducted, the absence of the
83
certification by the investigating fiscal that it was
conducted is not fatal. This is the ruling in Estrella,
vs. Ruiz, 58 SCRA 779, 784, which arose when
Presidential Decree No. 77 on preliminary
investigation was enforced.
It should be observed that Section 3 of Rule
110 [now Section 4] defines an information as
nothing more than an 'accusation in writing
charging a person with an offense subscribed
by the fiscal and filed with the court.' Thus, it
is obvious that such certification is not an
essential part of the information itself and its
absence cannot vitiate it as such. What is not
allowed is the filing of the information without
a preliminary investigation having been
previously conducted, and the injucntion that
there should be a certification is only a
consequence of the requirement that a
preliminary investigation should first be
conducted.
Since the absence of the certification does not
render null and void the information filed after a
preliminary investigation was conducted, with more
reasons the presence of a certification deficient in
any respect does not have that effect.
As already seen, in the instant cases, a preliminary
investigation was actually held, and the accused
were even afforded two opportunities to submit their
controverting evidence.
2. Prosecutor Guerrero expressly certified in each
information that a preliminary investigation has been
conducted in this case. Such preliminary
investigation which actually took place is presumed
to have been regularly held-that is, in accordance
with law. It can therefore be said that the quoted
certification impliedly includes the statement that the
accused were informed of the complaint and
evidence against them and that they were given the
chance to controvert the same. That they were in
fact so informed and given the chance cannot be
denied. They could not have submitted their counter-
affidavits and supplemental counter-affidavits in
1981 and 1982 had they not been aware of the
accusations and evidence against them. With
respect to Sabalza who did not submit counter-
affidavit, he did not avail of the opportunity given him
in the order of February 16, 1989, of Prosecutor
Guerrero. He waived his right to present evidence.
For the same reason, the same certification also
carries with it the implied statement that 'as shown
by the record.' Llacar and Buenviaje' 'personally
examined the complaint and his witnesses,' as in fact
these prosecutors so certified in the letter-complaints
of Balana.
3. Untenable is the further contention that "sufficient
ground to engender a well-founded belief is less
categorical than "reasonable ground to believe" and,
therefore, not enough compliance with law. The
quoted phrases are equivalent expressions
conveying the same thought. This is a mere perusal
of the pertinent provisions of law demonstrates:
Preliminary investigation is an inquiry or
proceeding for the purpose of determining
whether there is sufficient ground to engender
a well-founded belief that a crime cognizable
by the Regional Trial Court has been
committed and that the respondent is
probably guilty thereof, and should be held for
trial. (Sec. 1, Rule 112, 1985 Rules).
84
 He shall certify under oath ... that there is
reasonable ground to believe that a crime has
been committed and that the accused is
probably guilty thereof ... (Sec. 4, Rule 112,
1985 Rules). ' (Rollo, pp. 148-150)
ACCORDINGLY, the petition is hereby DENIED. The
resolution of the Sandiganbayan, Second Division
dated February 23, 1990 is AFFIRMED. Costs
against petitioners.
SO ORDERED.
COMPARE THESE TWO CASES:
G.R. Nos. 135554-56 June 21, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANILO DELA CRUZ y CARIZZA, accused-appellant.
KAPUNAN, J.:
Before the Court on automatic review is the Decision dated August
13, 1998 of the Regional Trial Court of Baguio City, Branch 6, in
Criminal Cases Nos. 15163-R, 15164-R and 15368-R finding
accused-appellant Danilo dela Cruz y Carizza guilty of two (2)
counts of rape and one (1) count of acts of lasciviousness.
On August 29, 1997, two informations for rape were filed against
accused-appellant in the RTC of Baguio City. The informations
alleged:
Criminal Case No. 15163-R -
That sometime in the month of September, 1990, in the City
of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have carnal
knowledge of his daughter, JEANNIE ANN DELA CRUZ, a
minor, then 11 years of age, against her will and consent.
CONTRARY TO LAW.1
Criminal Case No. 15164-R -
That sometime in the month of July, 1995, in the City of
Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously and by means of
force and intimidation, have carnal knowledge of his
daughter, JEANNIE ANN DELA CRUZ, a minor, then 16
years of age, against her will and consent.
CONTRARY TO LAW.2
On December 11, 1997, another information was filed against
accused-appellant charging him with violation of Republic Act No.
7610 (The Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act). The information stated:
That on or about the 2nd day of August, 1997, in the City of
Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously commit sexual
abuse on his daughter either by raping her or committing
acts of lasciviousness on her, which has debased,
degraded and demeaned the intrinsic worth and dignity of
his daughter, JEANNIE ANN DELA CRUZ as a human
being.
CONTRARY TO LAW.3
85
This case was docketed as Criminal Case No. 15368-R.
Upon motion of the prosecution, the trial court ordered the
consolidation of the three cases. When arraigned, accused-
appellant entered a plea of not guilty to each of the charges.
Thereafter, a joint trial of the cases ensued.
The prosecution presented as its witnesses complainant Jeannie
Ann dela Cruz; Dr. Ronald R. Bandonill, the medico-legal officer of
the National Bureau of Investigation-Cordillera Administrative
Region (NBI-CAR); Mrs. Jean dela Cruz, mother of complainant
and spouse of accused-appellant; and SPO2 Melchor Ong of the
Baguio City Police.
The prosecution established that accused-appellant married Jean
dela Cruz in civil rites on 14 April 1977 and again in Catholic rites
on 27 December 1978. They begot four children, namely: Jeanie
Ann (the private complainant), Divine Grace, Daniel Jay and
Gerard Niño.4
Accused-appellant, a teacher, worked at the Don Bosco Technical
Institute in Tarlac from 1978 to 1986. He transferred to the Don
Bosco Elementary School in Baguio City sometime in 1986 and
taught there until the following year. In 1987, he worked at the
Saint Louis Center in Baguio City until his dismissal therefrom in
1993. Accused-appellant again taught at the Don Bosco Technical
Institute in Tarlac from 1993 until his arrest in August 1997.5 While
working there, he and his son Daniel stayed in Sto. Cristo, Tarlac
on weekdays and went home every 15 days or every payday. They
would go home to Baguio City, where the rest of their family
stayed, on Friday evening and return to Tarlac on Sunday
afternoon.6
Jeannie Ann dela Cruz ("Jeannie Ann") testified that she was born
to accused-appellant and Jean Aqui-dela Cruz on April 18, 1979 in
Tarlac, Tarlac. Not long after her birth, her family transferred to the
house of her maternal grandmother in No. 2 Sumulong Street,
Baguio City. Her family lived in an extension of her grandmother’s
house which had a basement, a second floor and an attic. The
second floor had four rooms and a stairs leading to the attic, which
served as a stockroom. Jeannie Ann’s parents and her two
brothers, Daniel and Niño, stayed in the basement while she and
her sister, Divine stayed in the second floor.7
Jeannie Ann revealed that accused-appellant started molesting her
when she was seven years old. While he helped do her homework
at night, accused-appellant would on occasion make her hold his
penis and masturbate him. There were also instances when he
would put his penis inside her mouth and withdraw the same when
a white liquid came out.8 Accused-appellant warned Jeannie Ann
not to tell her mother what he was doing to her and told her that it
was a normal thing between father and daughter. He further
warned Jeannie Ann that her mother might kill them should she
learn about the things that they did. Jeannie Ann believed
accused-appellant and did not tell anyone about the sexual acts he
performed on her. As she was growing up, accused-appellant
continued to engage in the aforementioned sexual activities with
her, and continuously threatened to hurt her, her siblings or her
mother if she did not give in to his desires. Jeannie Ann still
refrained from complaining because she was convinced by the
accused-appellant that the sexual activities which he performed on
her were proper.9 She recounted before the trial court three
particular occasions when accused-appellant molested her.
Jeannie Ann said that sometime in September 1990, she was
sexually abused by accused-appellant in their house in No. 37
Leonard Wood Road, Baguio City. She was only 11 years old then.
According to Jeannie Ann, their family had moved to said house
when her grandmother’s house in Sumulong St. was destroyed in
the July 16, 1990 earthquake that hit Baguio City.10 They occupied
the basement of the house in Leonard Wood Road. The basement
had two bedrooms, a comfort room and a living room. Nobody
stayed in the second floor thereof but during the day they stayed in
the main house.11 Sometime that month, Jeannie Ann, her three
year-old brother Niño and accused-appellant were left in the house
while her mother and her sister Divine went to market. She was in
86
the living room with Niño when her father undressed her. Her
father removed his pants and she was made to lie down on a
cushion. Her father played with her genitalia and rubbed his penis
against her private part until a white liquid came out of his penis.
Jeannie Ann said that after said incident, she felt pain in her vagina
whenever she would urinate (mahapdi). She did not resist because
she thought that what her father was doing to her was a normal
act.12
Jeannie Ann narrated that accused-appellant again abused her
one night in July 1995 when she was 16 years old. She was
watching television with her siblings in the living room. At that time,
their mother was attending a meeting in church. Accused-appellant
called her three times but she refused to respond to his call as she
was watching television. Exasperated, accused-appellant pulled
her inside one of the bedrooms and asked her to lie down on the
bed saying, "This is only for a while." Accused-appellant then
undressed her, removed his pants and underwear, inserted his
finger inside her vagina, mashed her breasts and licked her vagina.
Accused-appellant proceeded to rub his penis against her vagina
and thereafter inserted his penis therein and kept it there until his
semen started to come out. Accused-appellant placed his penis on
Jeannie Ann’s stomach where he made his semen flow. While all
this was happening, Jeannie Ann could only cry, as she was afraid
of accused-appellant, because he threatened her that he would kill
her or her mother and siblings.13
The third incident recounted by Jeannie Ann occurred in their
house in No. 2 Sumulong Street, Baguio City on August 2, 1997.
She was then 18 years old. When she came home at around 10:30
in the morning after her classes at Saint Louis University, she saw
accused-appellant at the door. He told her to proceed to the attic
shortly. She ignored him and went directly to her room and started
cleaning the same. While she was cleaning the outer portion of her
room, she saw accused-appellant go up the attic. While he was
there, he repeatedly called her and asked her to go there. When
Jeannie Ann remembered that her mother had earlier instructed
her to clean the attic, she went up when she was done cleaning
her room.14
Accused-appellant lay on the bed in the attic as Jeannie Ann swept
the floor. When she was done, accused-appellant asked her to join
him on the bed. He went near her and again asked her to sit on the
bed when she refused to heed his call. Accused-appellant
whispered to her that he was running out of time. He talked in
whispers so that the other people in the house at that time would
not be able to hear what he said. Sensing that accused-appellant
would again molest her, Jeannie Ann became nervous and started
to cry. He told her to stop crying and to relax, as what he was
about to do would only take a while. Accused-appellant then lifted
Jeannie Ann’s t-shirt and brassier, mashed her breasts with his left
hand and inserted his right hand inside her pants. Jeannie Ann
resisted, but accused-appellant proceeded to insert a finger of his
right hand inside her vagina. While he performed the
aforementioned acts on his daughter, accused-appellant told her, "I
love you very much. Promise me that I will be the only one who will
do this to you."15
Accused-appellant only stopped what he was doing when he heard
Aileen, a boarder in their house, calling Jeannie Ann. He
immediately fixed her clothes and hair, then moved away from her.
Accused-appellant instructed Jeannie Ann not to go down and to
keep quiet about the incident. When accused-appellant noticed
that Aileen had left because Jeannie Ann did not respond to her,
accused-appellant embraced Jeannie Ann and said: "Please
cooperate with me and trust me. I have given you my life. Promise
that I will be the only one who will touch you." Accused-appellant
began touching her again. He inserted his fingers inside her
vagina. As he touched her, he said, "Please cooperate with me and
trust me. This is for your own good and for the good of our family. If
you will not follow me, you might regret it. I want you to have a
bright future. And after you finish, I can already die and you will no
longer have any problem."16 Although Aileen, Divine, Niño and
Rogel, another boarder in their house were also there at the time of
the incident, Jeannie Ann did not have the courage to call for help
87
because she was very much afraid of accused-appellant, and she
saw anger in his eyes.17
When accused-appellant was done with her, Jeannie Ann insisted
on going down. She cried as she returned to her room to fix
herself. Thereafter, she went out of the house to deal with what
had just happened to her. While walking outside toward the bridge,
she saw a white L-300 van belonging to the police. She flagged
down the vehicle and narrated to the two police officers riding
therein, SPO2 Bravo and SPO2 Ong, what accused-appellant had
just done to her. The policemen accompanied her back to their
house where they met accused-appellant whom Jeannie Ann
identified as the person who had raped her. Accused-appellant
voluntarily went with the policemen to the Baguio City Police
Station.18
When they arrived at the Baguio City Police Station, Jeannie Ann
narrated her experience to the police officer stationed at the
Women’s Desk. In her statement, Jeannie Ann described what
accused-appellant did to her on August 2, 1997.19
Jeannie Ann also denied accused-appellant’s claim that she had
sexual relations with her boyfriend Charles, and that she accused
her father of rape to get back at him for causing her breakup with
Charles.20
Dr. Ronald R. Bandonill, the NBI-CAR medico-legal officer who
conducted a physical examination of Jeannie Ann on August 8,
1997, testified that he found two old healed lacerations at 5 o'clock
and 7 o'clock positions on Jeannie Ann’s hymen. He said that the
lacerations could have been inflicted more than three months prior
to the date of the examination and considering the proximity of
their location, could have been inflicted at the same time. A hard
rigid instrument like an erect male organ, a rigid wood or a finger
could have caused these lacerations. Dr. Bandonill also opined
that the positions of the lacerations did not rule out the possibility
that the victim had sexual intercourse less than three months prior
to his examination of her, since intercourse would not create
further lacerations when done in the same position. He likewise
noted that the vaginal walls were lax and the vaginal rugosities
were slightly flattened and smoothed. The victim's hymenal orifice
admitted a tube 2.4 cm. in diameter with ease. Dr. Bandonill said it
was possible that penetration happened several times. He further
testified that the frequent insertion of a finger or other rigid object,
with a diameter of more than an inch, could cause the lacerations
as well as the lax condition of vaginal walls.21
Jean dela Cruz ("Mrs. dela Cruz"), Jeannie Ann’s mother and wife
of accused-appellant, testified that she learned that accused-
appellant had sexually abused their daughter Jeannie Ann on
August 2, 1997 when she arrived at home after her marketing
chores. She was told by her daughter Divine that accused-
appellant was picked up by the police. Mrs. dela Cruz followed
accused-appellant to the police station and found Jeanie Ann
crying while the latter was reporting what had happened to her at
the Women's Desk. Upon seeing her daughter, Mrs. dela Cruz
hugged her and they cried together.22
Mrs. dela Cruz further stated that she was shocked upon hearing
Jeannie Ann’s statement before the police that accused-appellant
had been performing oral sex on their daughter Jeannie Ann since
the latter was seven years old, as it was the first time that she
learned about it. In her anger, she rushed to the other room where
the accused-appellant was being questioned and slapped him,
kicked him and scratched his face. She said accused-appellant
denied all the accusations against him. When accused-appellant
was already incarcerated, Mrs. dela Cruz received several
letters23 from him asking for forgiveness from her and from Jeannie
Ann.24 She also informed the trial court that after accused-
appellant’s incarceration, she went to Tarlac to get her husband's
things since he usually stayed there on weekdays while he taught
at Don Bosco.25 She discovered several love letters by a certain
Emily addressed to accused-appellant,26 Emily’s photograph27 and
accused-appellant’s draft love letters to Emily, dated March 21,
1995,28 September 4, 1995,29 and March 7, 1996.30 Mrs. dela Cruz
also found a letter from a certain Maureen telling accused-
88
appellant that he had a chance of winning her heart,31 and a
photograph of Maureen.32She said that the tenor of the letters
indicated that accused-appellant was having relations with other
women.33 Mrs. dela Cruz also denied accused-appellant’s claims
that she had a paramour and that she helped Jeannie Ann file the
complaints against him because she (Mrs. dela Cruz) wanted to
get back at him for being unfaithful to her.34
SPO2 Melchor Ong, the police officer assigned to the Baguio City
Mobile Group, also testified that on August 2, 1997, between 11:30
a.m. and 12:00 noon, while he and his companion inside an L-300
van of the Baguio City police were passing along Sumulong St.,
Baguio City, they saw Jeannie Ann walking towards them. The
latter stopped them and tearfully reported to them that her father
had just sexually molested her. They accompanied Jeannie Ann to
her house and there the latter pointed to accused-appellant as the
person who mashed her breasts and inserted his finger inside her
vagina. SPO2 Ong and his companion approached accused-
appellant, introduced themselves as policemen and invited him to
the police station. He said that accused-appellant readily agreed to
go with them to the police station.35
The defense presented as witnesses the accused-appellant,
Camilo Estepa, Barangay Chairman of Barangay Holy Ghost,
Baguio City, Fr. Exequiel Veloso, Principal of the Don Bosco
Technical Institute, and Fr. Jean Marie Tchang, Director of the Don
Bosco in Trancoville, Baguio City.
Accused-appellant testified that he was a teacher at the Don Bosco
Technical Institute in Tarlac, Tarlac from 1978 to 1986. In 1987, he
transferred to Don Bosco in Trancoville, Baguio City and worked
there for a year. From 1988 to 1993, he taught also in Saint Louis
School Center. In 1994, he went back to the Don Bosco Technical
Institute in Tarlac, Tarlac and had taught there until his
incarceration in August 1997.36 On weekdays, he and his son
Daniel stayed in Sto. Cristo, Tarlac, Tarlac and they would go
home to their family in Baguio City every 15th and 30th of each
month to give his salary to his wife. When these dates fell on a
weekday, they would go home to Baguio City the following Friday
and return to Tarlac on Sunday afternoon.37
He denied all the accusations hurled against him by his daughter
Jeannie Ann.38 According to him, he tried to provide for the needs
of his family, especially his wife whom he loved very much. He
maintained that even when he was already in jail, he asked his
mother and his sister to support his daughter's education.
He admitted to having gone home to Baguio City in the evening of
August 1, 1997, which he recalled was a Friday. That night, his
wife asked him to clean the attic the following day as there was a
dead rat therein.39
The following day, August 2, 1997, accused-appellant removed the
decomposing body of the rat from the attic as requested by his
wife. He called his daughter Jeannie Ann who was cleaning her
room on the second floor of the house to come to the attic and help
him. It took a while before Jeannie Ann heeded his call. When she
finally went up, she merely swept one third of the floor area of the
attic, away from where the dead rat was. When she was done
sweeping the floor, accused-appellant asked her to come near him,
as he wanted to apologize for having scolded her earlier and to
remind her that she should not have ignored him when he
commanded her to go up the attic, or to at least tell him that she
could not obey his command immediately. While he was talking to
her, they heard someone calling her name. Jeannie Ann told
accused-appellant that that person was her classmate. She then
went down while accused-appellant stayed on to fix the things in
the attic. Not long afterwards, his daughter Divine informed him
that they had some visitors downstairs. On his way down from the
attic, he looked out of the window and saw Jeannie Ann walking
beyond the bridge.40
Accused-appellant went down to meet the visitors who were
looking for Rogel, one of their boarders. After leading these visitors
to Rogel, two policemen arrived in their house with Jeannie Ann.
Accused-appellant identified the policemen as SPO2 Leonardo
89
Cruz Bravo and SPO2 Melchor Ong. The former asked for
accused-appellant’s name and thereafter invited him to the police
station. He freely went with them, without asking the purpose of the
invitation.41
At the station, SPO2 Leonardo Cruz Bravo interviewed accused-
appellant. The interview was reduced to writing and he was asked
to sign the same. He did not read the document, as he did not
have his eyeglasses with him at that time. At first, accused-
appellant refused to sign the document without the presence of his
counsel. SPO2 Leonardo Cruz Bravo, however, told him that his
refusal to sign the document may be interpreted as a sign of
resistance on his part. Accused-appellant thereafter decided to
sign the document.42
Accused-appellant admitted that he transferred to the Don Bosco
Technical Institute in Tarlac, Tarlac because he was dismissed
from the Saint Louis Center in Baguio City. He acknowledged that
while teaching in Saint Louis Center, a student named Freda
Miguel filed a case43 against him because accused-appellant
allegedly embraced her (Miguel) in the Science Laboratory Room
of the school, and that he signed an amicable settlement of the
complaint. However, he denied the truth of that complaint against
him and said that the filing thereof was not the cause of his
dismissal from Saint Louis Center.44
He also admitted that the letters from Emily and Maureen
addressed to him were his but insisted that they were only his
friends, and that Emily’s reference to him as her boyfriend in one of
her letters45 was only a joke.
Accused-appellant claimed that his wife and Jeannie Ann
conspired to file the cases against him because they had
resentments against him. He said Jeannie Ann blamed him for
having caused her breakup with her boyfriend Charles. His wife, on
the other hand, wanted him out of her life because she had a
paramour. According to him, his wife admitted to him that she had
an illicit relationship with a man named Alfredo dela Cruz, a
namesake of his brother. His wife had a second relationship with a
person named Alfredo Aquino against whom he filed a case before
the barangay.46
Camilo Estepa, Barangay Captain of Barangay Holy Ghost, Baguio
City, told the trial court that sometime in 1993, accused-appellant
filed a case for malicious mischief against a certain Alfredo or
Federico Aquino, a boarder in the house of Mrs. Aqui, the mother
of Mrs. dela Cruz. Accused-appellant alleged that Aquino was
courting his wife. However, the case was settled amicably when
Aquino agreed to leave the boarding house of Mrs. Aqui.47
Fr. Exequiel Veloso, Principal of the Don Bosco Technical Institute
in Tarlac from 1994 to 1998, testified that he had known accused-
appellant since 1994 and was not aware of any untoward incident
involving the latter. He said that accused-appellant and his son
Daniel would go home to his family in Baguio City every weekend
and returned to Tarlac either on Sunday evening or Monday
morning. He would come to school on time and attended the flag
ceremony regularly. Fr. Veloso said that none of the lady teachers
ever complained about accused-appellant.48
Fr. Jean Marie Tchang, Director of the Don Bosco Elementary
School in Trancoville, Baguio City, testified that accused-appellant
was a very competent teacher in Science and had a very good
relationship with the other teachers. He said he regretted that
accused-appellant left his teaching job at the Don Bosco
Elementary School after only one year.49
On August 13, 1998, the trial court promulgated its decision, the
dispositive portion of which reads:
WHEREFORE, Judgment is hereby rendered as follows:
1. In Criminal Case No. 15163-R, the Court finds the
accused Danilo dela Cruz y Carizza guilty beyond
reasonable doubt of the offense of Rape (committed in
September 1990) as charged in the Information defined and
90
penalized under paragraph No. 3 of Article 335 of the
Revised Penal Code (Statutory Rape) and hereby
sentences him to suffer the penalty of reclusion perpetua; to
indemnify the offended party, Jeannie Ann dela Cruz the
sum of P50,000.00 as Moral Damages without subsidiary
imprisonment in case of insolvency and to pay the costs.
The accused Danilo dela Cruz being a detention prisoner is
entitled to be credited 4/5 of his preventive imprisonment in
the service of his sentence in accordance with Article 29 of
the Revised Penal Code.
2. In Criminal Case No. 15164-R, the Court finds the
accused Danilo dela Cruz y Carizza guilty beyond
reasonable doubt of the offense of incest rape (committed in
July 1995) as charged in the Information defined and
penalized under Section 11 of Republic Act 7659 (Heinous
Crime Law) which amended Article 335 of the Revised
Penal Code and hereby sentences him to suffer the
supreme penalty of Death to be implemented in accordance
with law; to indemnify the offended party Jeannie Ann dela
Cruz the sum of P50,000.00 as Moral Damages without
subsidiary imprisonment in case of insolvency and to pay
the costs.
3. In Criminal Case No. 15368-R, the Court finds the
accused Danilo dela Cruz y Carizza guilty beyond
reasonable doubt of the offense of Acts of Lasciviousness
defined and penalized under Article 336 of the Revised
Penal Code instead of violation of RA 7610 (Child Abuse
Law) as charged in the Information and hereby sentences
him, applying the indeterminate sentence law, to suffer the
penalty of imprisonment ranging from two (2) months and
one (1) day of Arresto Mayor as Minimum to two (2) years
four (4) months and one (1) day of prision correccional as
Maximum; to indemnify the offended party Jeannie Ann dela
Cruz the sum of P5,000 as Moral Damages without
subsidiary imprisonment in case of insolvency and to pay
the costs.
The accused Danilo dela Cruz being a detention prisoner is
entitled to be credited 4/5 of his preventive imprisonment in
the service of his sentence in accordance with Article 29 of
the Revised Penal Law.
SO ORDERED.50
In his brief, accused-appellant contends that the trial court erred in
giving credence to the testimony of Jeannie Ann and in finding him
guilty beyond reasonable doubt of the crimes of rape and acts of
lasciviousness. He alleges that Jeannie Ann’s testimony was
fabricated and inconsistent.51
Accused-appellant points out that Jeannie Ann failed to
immediately notify the authorities, or at least her mother, of her
harrowing experience. Notwithstanding the fact that he was often
away from their home because he stayed in Tarlac where he
worked on weekdays, and Jeannie Ann was with her mother in
Baguio City, it took her eleven years to disclose the sexual abuses
which accused-appellant allegedly committed against
her.52 Moreover, he claims that considering Jeannie Ann’s tender
age at the time he allegedly raped her, she must have suffered
great pain and should have complained about it to her mother or
told the latter what accused-appellant had been doing to her.
Accused-appellant argues that the delay in the reporting of the
sexual acts he performed on his daughter is not normal and is
indicative of the untruthfulness of complainant’s charges.53
The Court finds that the trial court did not err in finding accused-
appellant guilty beyond reasonable doubt of raping his daughter
Jeannie Ann in September 1990 and July 1995.
Article 335 of the Revised Penal Code, which defined the crime of
Rape prior to the enactment of Republic Act No. 8353 (the Anti-
91
Rape Law of 1997), and which is the applicable law for the rape
incidents of September 1990 and July 1995, states:
When and how rape is committed. – Rape is committed by
having carnal knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
xxx
In reviewing the cases at bar, the Court observed the following
guidelines it had previously formulated for the review of rape
cases: (1) an accusation of rape can be made with facility, but it is
difficult to prove, and even more difficult for the accused to
disprove; (2) in view of the intrinsic nature of the crime of rape
where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (3) the
evidence for the prosecution must stand or fall on its own merits
and cannot be allowed to draw strength from the weakness of the
evidence of the defense.54
In rape cases, the issue invariably boils down to the credibility of
the victim’s testimony. The trial court’s evaluation of the credibility
of the victim’s statements is accorded great weight because it has
the unique opportunity of hearing the witnesses testify and
observing their deportment and manner of testifying. The trial court
judge is indisputably in the best position to determine the
truthfulness of the complainant’s testimony. Thus, unless it is
shown that the trial court overlooked, misunderstood or misapplied
some facts or circumstances of weight or substance that would
otherwise affect the result of the case, its findings will not be
disturbed on appeal.55
The Court has adhered to the rule that when the testimony of a
woman who states under oath that she has been raped meets the
test of credibility, the accused may be convicted on the basis of
such testimony. A rape victim who testifies in a categorical,
straightforward, spontaneous and frank manner, and who remains
consistent, is a credible witness.56
In the cases at bar, the trial court found Jeannie Ann’s testimony to
be "natural, coherent and touching as she recounted her harrowing
experience in the hands of her father,"57 as follows:
xxx
q Now, sometime in the month of July, 1995, Madame
Witness, do you remember if there was anything unusual
which took place again in your house at Sumulong St.,
Baguio City?
a There was, sir.
q What was that incident?
[a] On that night I was watching TV with my brothers
and sisters. While I was watching TV my father was calling
me but I did not heed his call because I said I was watching
TV. So, three times he called me and I know that he was
already angry. Then he went near me and pulled me into
the other room. And in that other room, he did bad things
that I cannot imagine.
q Now, you said that you and your brothers and sisters
were watching TV on that night of July, 1995. Where was
your mother at that time?
92
a She was not in the house at that time because she
attended a meeting in our church.
COURT: (to witness)
q That is why we already excluded the public. Don’t let
the Court speculate. Will you tell us straight. What did your
father actually do which you said (sic) he did things which
you cannot imagine?
a When we were in the room he let me sit on the bed.
And he asked me to lie down. And he said, "This is only for
a while". And after that he put down my pants and my
underwear. Then he undressed, lowered his pants and
removed his brief. Then he started touching my vabina (sic).
COURT:
Continue from there. Make it of record that at this
point the witness is crying.
PROS. CENTENO:
q Now after your father had removed your pants and
your underwear as you said, and he also removed his pants
and his brief and started holding your vagina, what else
happened?
a He fingered my vagina and also mashed mybreasts
(sic). And with his tongue he licked my vagina. After that he
used his penis and rubbed it into my vagina. And he played
with my vagina.
q What did you do when your father was doing that to
you?
a I was just crying, sir.
q Did you not fight back?
a No sir, because I was afraid of my father.
q Why are you afraid of your father?
a Because when I was still young, one time he told me
that either I will be killed or our family will be killed.
q On what occasion was that when your father old (sic)
you that it is either you or the family that will be killed?
a I cannot remember, sir. But that was when I was still
young.
q Now, aside from rubbing his penis to your vagina,
what else did your father do?
a When he was rubbing his penis against my vagina
there was a white liquid that came out. And when that white
liquid came out he placed his penis on my stomach where
the white liquid was placed.
COURT: (to witness)
q Will you tell us what you mean by his rubbing his
penis to your vagina? What was being done actually?
a I felt that half of the head of his penis was inside my
vagina. That is what I felt. (At this point the witness again
broke into tears)
COURT:
Continue.
PROS. CENTENO:
93
q Now, when you felt that as you said half of the penis
of your father was inside your vagina, what did you do?
a None, sir.
q Why did you not do anything?
a Because I didn’t know what to do, sir.
q Did you not try to fight your father?
a No, sir, because I am really afraid of my father.
Because when he gets mad at my mother, my brothers and
sisters would be involved.
q Now, before July 1995, Madame Witness,
particularly in September of 1990, several months after the
earthquake of July 16, 1990, will you tell us where you were
residing?
a We were residing then at No. 37 Leonard Wood
Road, sir.
q How old were you?
a I was 11 years old.
xxx
q When you were staying at Leonard Wood Road,
Baguio City, together with your father, your mother, your
sister and your brothers in September of 1990, do you
remember if there was any unusual incident which
happened to you?
a Yes, sir.
q What was that incident?
a I was with my father and brother Niño at the sala.
And at the sala he undressed me and did the same. He
removed his pants. Then he took a cushion from the sala
and asked me to lie down. And there he played with my
vagina. Then he rubbed his penis against my vagina. Niño
was still a baby at that time.
q Where was your mother at that time?
a My mother was not in the house at that time. What I
know is that she went to the market.
q How about you sister Divine?
a She was with my mother, sir.
COURT: (to witness)
q Again, in this incident will you describe actually to us
the motions that took place with the rubbing of his penis into
your vagina?
a It is like this, sir. For example this is my vagina
(witness showing her left hand, palms up) and this is his
penis (witness demonstrating with her right forefinger), he
made a push and pull movement on my vagina.
PROS. CENTENO:
q What did you feel while your father was doing that to
you which you term as "rubbing his penis into your vagina"?
a I felt pain, sir.
PROS. CENTENO:
May we put the word "mahapdi" which was the term
used by the witness, in the record.
94
 (to witness)
q How long did your father rub his penis into your
vagina?
a It was for quite a long time until a white liquid came
out.
q Did you not fight back when your father did that to
you?
a No, sir.
q Why did you not fight back?
a Because I thought that what he was doing to me was
a normal act.
xxx58
The trial court judge saw "from the face of the victim the anguish
and the pain and the shame and the embarrassment as she broke
down and cried several times in the course of her testimony every
time she was asked [about] the despicable acts of her father."59
Moreover, no woman would fabricate charges of sexual abuse,
allow an examination of her private parts and endure the
humiliation of a public trial where she would be forced to recount
the details of her unfortunate experience had she not really been
raped. This is especially true in cases of incestuous rape, as in
these cases where Jeannie Ann accused her own father of abusing
her, since reverence and respect for one’s parents and other
elders is deeply ingrained in Filipino children.60
The delay in reporting a rape incident does not necessarily impair
the credibility of the victim where the delay can be attributed to the
pattern of fear instilled by the threats of bodily harm, especially
when made by a person who exercised moral ascendancy over the
victim. It is not uncommon for a young girl to conceal for sometime
the assault on her virtue because of the rapist’s threat on her life,
or on the life of the other members of her family.61
In the cases at bar, Jeannie Ann repeatedly explained that
accused-appellant threatened to hurt her, her mother or her
siblings if she did not give in to his desires.62 Her fear of what
accused-appellant would do to her, her mother and siblings if she
revealed his evil deeds was what compelled her to suffer in silence
for a long time. In People v. Nicolas,63 the Court stated:
The pattern of instilling fear, utilized by the perpetrator in
incestuous rape to intimidate his victim into submission, is
evident in virtually all cases that have reached this Court. It
is through this fear that the perpetrator hopes to create a
climax of extreme psychological terror which would, he
hopes, numb his victim into silence and force her to submit
to repeated acts of rape over a period of time. The
relationship of the victim and the perpetrator magnifies this
terror, because the perpetrator is a person normally
expected to give solace and protection to the victim. 64
On the other hand, the trial court found accused-appellant to be
evasive in his narration of his story. All that he offered in his
defense were his bare denials. Denial, like alibi, is an inherently
weak defense and cannot prevail over the positive and credible
testimony of the prosecution witness that the accused committed
the crime. A mere denial constitutes negative evidence which
cannot be accorded greater evidentiary weight than the declaration
of a credible witness who testifies on affirmative matters.65
Accused-appellant's assertion that his daughter made up the
charges against him to get back at him for causing her breakup
with her boyfriend Charles is likewise unbelievable. It is not likely
that a complainant in a rape case would fabricate a story of
defloration against her own father and put to shame not only
herself but her whole family as well, unless it was the plain truth
and her motive was purely to obtain justice.66 Neither does the
95
Court believe accused-appellant's claim that his wife urged their
daughter to file rape charges against him because she (his wife)
wanted to get him out of the way of her extra-marital relationship. It
is unnatural for a parent to use her offspring as an engine of
malice, especially if it will subject them to embarrassment and even
stigma.67 No mother would have the courage to expose an
ignominious act of her husband that could lead to a breakup of the
family unless she was prompted by a desire to obtain justice for
her daughter.68
The trial court committed no error in imposing upon accused-
appellant the penalty of reclusion perpetua for the rape he
committed in September 1990, since the offense was committed
prior to the effectivity of Republic Act No. 7659 (the Death Penalty
Law).69
However, the Court finds that the lower court erred in imposing the
supreme penalty of death upon him for the rape committed in July
1995. R.A. No. 7659, which was already in force at that time,
requires that the circumstances of the minority of the victim and her
relationship with the offender must concur for the death penalty to
be imposable. Article 335 of the Revised Penal Code, as amended
by R.A. No. 7659 provides:
xxx
The death penalty shall also be imposed if the crime of rape
is committed with any of the following attendant
circumstances.
1. When the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common degree, or the common-law spouse
of the parent of the victim.
xxx
The Court has previously explained that the circumstances of
minority and relationship are considered as special qualifying
circumstances because they alter the nature of the crime of rape
and thus warrant the imposition of the death penalty. These
circumstances must be alleged in the information and established
during trial for the court to be able to impose the death penalty.70 It
was, therefore, incumbent upon the prosecution to satisfactorily
prove both circumstances of minority and relationship.
In Criminal Case No. 15164-R, the father-daughter relationship
was alleged in the information and proven in the course of the trial.
However, Jeannie Ann’s minority, although likewise alleged in the
information, was not sufficiently proved. All that was offered to
establish her age was her bare testimony that she was born on
April 18, 1979. The prosecution failed to present her birth
certificate, or in lieu thereof, other documentary evidence such as
her baptismal certificate, school records which would have aided
the court in verifying her claim that she was a minor when she was
raped by accused-appellant in July 1995.
In the absence of adequate proof of Jeannie Ann’s minority, the
penalty imposable for the offense in Criminal Case No. 15164-R is
reclusion perpetua.71
The Court also finds that accused-appellant cannot be convicted of
rape or acts of lasciviousness under the information in Criminal
Case No. 15368-R, which charges accused-appellant of a violation
of R.A. No. 7610 (The Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act), "either by raping her
or committing acts of lasciviousness."72
It is readily apparent that the facts charged in said information do
not constitute an offense. The information does not cite which
among the numerous sections or subsections of R.A. No. 7610 has
been violated by accused-appellant.73 Moreover, it does not state
the acts and omissions constituting the offense, or any special or
aggravating circumstances attending the same, as required under
96
the rules of criminal procedure. Section 8, Rule 110 thereof
provides:
Designation of the offense. –The complaint or information
shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense,
and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.
The allegation in the information that accused-appellant "willfully,
unlawfully and feloniously commit sexual abuse on his daughter
[Jeannie Ann] either by raping her or committing acts of
lasciviousness on her" is not a sufficient averment of the acts
constituting the offense as required under Section 8, for these are
conclusions of law, not facts.74 The information in Criminal Case
No. 15368-R is therefore void for being violative of the accused-
appellant’s constitutionally-guaranteed right to be informed of the
nature and cause of the accusation against him.75
Although accused-appellant failed to call the attention of both the
trial court and this Court regarding the defects of the information in
Criminal Case No. 15368-R, the Court may motu proprio dismiss
said information at this stage, pursuant to its ruling in Suy Sui vs.
People,76 because the information is a patent violation of the right
of the accused to be informed of the nature and cause of the
accusation against him and of the basic principles of due process.
Moreover, an appeal in a criminal proceeding throws the whole
case open for review, and it is the duty of the appellate court to
correct such errors as might be found in the appealed decision,
whether these errors are assigned or not.
It is likewise necessary to increase the award of damages by the
trial court. The lower court in its decision ordered accused-
appellant to indemnify the complainant in the amount of Fifty
Thousand Pesos (P50,000.00) only in each of the cases,
representing moral damages. It failed to award the prescribed
amounts for civil indemnity, the award of which is mandatory upon
the finding of the fact of rape.77 This civil liability ex delicto is
equivalent to actual or compensatory damages in civil law.78 It is
not to be confused with moral damages, which is awarded upon a
showing that the victim endured physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury.79Under prevailing
jurisprudence, when the penalty imposed on the accused
is reclusion perpetua, the amount of Fifty Thousand Pesos
(P50,000.00) should be awarded as civil indemnity to the rape
victim.80 Thus, in Criminal Case Nos. 15163-R and 15164-R, an
award of Fifty Thousand Pesos (P50,000.00) as civil indemnity for
each count of rape is proper.
In addition to civil indemnity, moral damages are automatically
granted to the victim in rape cases without need of proof for it is
assumed that the private complainant has sustained mental,
physical and psychological suffering.81The Court affirms the award
by the trial court of Fifty Thousand Pesos (P50,000.00) as moral
damages in Criminal Cases Nos. 15163-R and 15164-R, since said
amounts are in accord with its current rulings.82
WHEREFORE, the Decision of the Regional Trial Court of Baguio
City, Branch 6 in Criminal Cases Nos. 15163-R and 15164-R is
hereby MODIFIED, as follows:
1. In Criminal Case No. 15163-R, the accused-appellant is
sentenced to suffer the penalty of reclusion perpetua and ordered
to pay the victim the amounts of Fifty Thousand Pesos
(P50,000.00) as civil indemnity and Fifty Thousand Pesos
(P50,000.00) as moral damages;
2. In Criminal Case No. 15164-R, the appellant is sentenced to
suffer the penalty of reclusion perpetua, and ordered to pay the
amounts of Fifty Thousand Pesos (P50,000.00) as civil indemnity
and Fifty Thousand Pesos (P50,000.00) as moral damages.
3. The Information in Criminal Case No. 15368-R is declared null
and void for being violative of the accused-appellant's
97
constitutionally-guaranteed right to be informed of the nature and
cause of the accusation against him. Hence, the case against him
is DISMISSED.
SO ORDERED.
G.R. No. 163866 July 29, 2005
ISIDRO OLIVAREZ, Petitioners,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
YNARES-SANTIAGO, J.:
For review is the Court of Appeals’ decision in CA-G.R. CR No.
228601 which affirmed the judgment2 rendered by the Regional
Trial Court of San Pedro, Laguna, Branch 93,3 in Crim. Case No.
0505-SPL finding petitioner Isidro Olivarez guilty of violating
Section 5, Republic Act No. 7610;4 and its resolution denying
reconsideration thereof.5
The case originated from a complaint filed by the offended party
with the Municipal Trial Court of San Pedro, Laguna which was the
basis upon which an information for violation of R.A. 7610 was filed
against Isidro Olivarez, to wit:
The undersigned 4th Assistant Provincial Prosecution (sic) of
Laguna upon a sworn complaint filed by the private complainant,
CRISTINA B. ELITIONG, hereby accuses ISIDRO OLIVAREZ of
the crime of "VIOLATION OF RA 7610", committed as follows:
That on or about July 20, 1997, in the Municipality of San Pedro,
Province of Laguna, within the jurisdiction of this Honorable Court,
said accused actuated by lewd design did then and there wilfully,
unlawfully and feloniously by means of force and intimidation
commit acts of lasciviousness on the person of one CRISTINA B.
ELITIONG, by touching her breasts and kissing her lips, against
her will, to her damage and prejudice.
CONTRARY TO LAW.6
The established facts of this case are as follows:
... The offended party Cristina Elitiong was a 16-year old high
school student who with her brothers were employed by the
accused, 64-year old Isidro Olivarez, in the making of sampaguita
garlands. For one year she had been reporting for work during
weekends at the residence of the accused. Within the compound
and at about three armslength from the main door of the house
was her workplace.
At about 11:30 o’clock in the morning of July 20, 1997, Cristina, her
two brothers Macoy and Dodong, and one named Liezel were at
their work when the accused who was near the main door called
for her. She dutifully approached him. The accused asked her if
she had told her mother that he gave her money, and when she
said that she did not, he embraced her and held her breast. The
workers were facing the street so that the two were not seen. He
pulled her to the kitchen and, closing the kitchen door, kissed her
on the lips. She pushed him away and went back to her station.
Her brother Macoy saw her crying when she came out of the
house. She did not say a word, but went to the faucet and washed
her face.
The offended party continued to finish the garlands she was
working on, and waited until the afternoon for her wages. When
she arrived at her home, she first told her mother that she no
longer wished to go back. When pressed for a reason, she
said basta po mama ayaw ko ng magtuhog. Finally, she told her
mother what happened.
Aurora Elitiong, the mother, accompanied the offended party to the
San Vicente Barangay Hall on July 26 to report the incident and
98
give a statement. Days later, Cristina gave another statement to
the local police.
In the defense version, the offended party and her brothers had
slept overnight in the house of the accused. When Isidro woke up
in the early morning to relieve himself, he saw the girl sleeping on
the sofa. He admonished her to join her brothers in the basement.
He went back to his room and slept until 8 A.M. Two hours later, at
10 A.M., he left for the Caltex Service Station which was only a five
minute ride from his home by tricycle. His daughter Analee
Olivarez was staying in another house in the compound and
attended a morning mass. When she returned at 10:30 A.M., she
no longer saw her father. Maritess Buen, the laundrywoman, who
was washing clothes outside the kitchen, saw the accused earlier.
By 10 A.M., when she entered the house, he already left. He
returned by noontime.
The accused testified that he was at the Caltex station for two and
a half hours waiting for the shipment of flowers from Pampanga.
The goods arrived at 12:15 P.M. He left shortly thereafter and
passed by the market before going home. He arrived at 12:30 P.M.
The next several days were uneventful for him until his
laundrywoman Maritess told him that there was a complaint
against him at the barangay office. A meeting took place between
him and the girl’s family in the presence of the barangay
authorities. The girl’s mother was demanding P30,000 for the
settlement of the case, but he refused to cave in and told a
barangay official Jaime Ramos that he would rather see his
accusers in court than give a centavo because he did not commit
the crime.7
The trial court found Olivarez guilty of violating Section 5 of R.A.
7610 and sentenced him to suffer an indeterminate penalty of
imprisonment from eight (8) years and one (1) day of prision
mayor as minimum to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal as maximum, to indemnify the
minor Cristina Elitiong in the amount of P15,000.00 as moral
damages and to pay the costs.
On appeal, the decision of the trial court8 was affirmed by the Court
of Appeals. The motion for reconsideration9filed by the accused
was denied.10 Hence, this petition for review11 on the following
grounds:
I. The Honorable Court of Appeals committed grave abuse of
discretion in not holding that the essential elements in Violation of
Section 5, Article III of Republic Act 7610, which are age of the
offended party and that she is an abused or exploited child as
defined in the law, not having been alleged in the Information,
petitioner/accused cannot be found guilty of said offense and must
be acquitted.
II. The Honorable Court of Appeals erred and committed grave
abuse of discretion in holding that the Information charging
petitioner/accused of Violation of Section 5, Republic Act 7610, but
failing to allege the essential elements of said offense, had
substantially complied with the requirements of due process for the
accused.
III. The Honorable Court of Appeals erred and gravely abused its
discretion in not reversing the judgment of the trial court convicting
the accused/petitioner and sentencing him to suffer the penalty of
imprisonment for alleged Violation of Section 5, Republic Act 7610,
which was not alleged in the Information.12
Petitioner alleges that his right to be informed of the nature and
cause of the accusation against him was violated for failure to
allege in the information the essential elements of the offense for
which he is being charged.
Section 5, Article III of R.A. 7610 states:
SEC. 5. Child Prostitution and Other Sexual Abuse. – Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
99
conduct, are deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
...
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other
sexual abuse: Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct,
as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; ..." (Italics supplied)
The elements of sexual abuse under Section 5, Article III of R.A.
7610 are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct.
2. The said act is performed with a child exploited in prostitution or
subjected to other sexual abuse.
3. The child, whether male or female, is below 18 years of age.13
Section 32, Article XIII, of the Implementing Rules and Regulations
of R.A. 7610 defines lascivious conduct as follows:
[T]he intentional touching, either directly or through clothing,
of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person.14 (Emphasis supplied)
The first element obtains in this case. It was established beyond
reasonable doubt that petitioner kissed Cristina and touched her
breasts with lewd designs as inferred from the nature of the acts
themselves and the environmental circumstances.15
The second element, i.e., that the act is performed with a child
exploited in prostitution or subjected to other sexual abuse, is
likewise present. As succinctly explained in People v. Larin:16
A child is deemed exploited in prostitution or subjected to other
sexual abuse, when the child indulges insexual intercourse
or lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any
adult, syndicate or group. ...
It must be noted that the law covers not only a situation in which a
child is abused for profit, but also one in which a child, through
coercion or intimidation, engages in lascivious conduct. (Emphasis
supplied)
We reiterated this ruling in Amployo v. People:17
... As we observed in People v. Larin, Section 5 of Rep. Act No.
7610 does not merely cover a situation of a child being abused for
profit, but also one in which a child engages in any lascivious
conduct through coercion or intimidation...
Thus, a child is deemed subjected to other sexual abuse when the
child indulges in lascivious conduct under the coercion or influence
of any adult. In this case, Cristina was sexually abused because
she was coerced or intimidated by petitioner to indulge in a
lascivious conduct. Furthermore, it is inconsequential that the
sexual abuse occurred only once. As expressly provided in Section
3 (b) of R.A. 7610, the abuse may be habitual or not. It must be
observed that Article III of R.A. 7610 is captioned as "Child
100
Prostitution and Other Sexual Abuse" because Congress really
intended to cover a situation where the minor may have been
coerced or intimidated into lascivious conduct, not necessarily for
money or profit. The law covers not only child prostitution but also
other forms of sexual abuse. This is clear from the deliberations of
the Senate:
Senator Angara. I refer to line 9, ‘who for money or profit.’ I would
like to amend this, Mr. President, to cover a situation where the
minor may have been coerced or intimidated into this lascivious
conduct, not necessarily for money or profit, so that we can cover
those situations and not leave loophole in this section.
The proposal I have is something like this: WHO FOR MONEY,
PROFIT, OR ANY OTHER CONSIDERATION OR DUE TO THE
COERCION OR INFLUENCE OF ANY ADULT, SYNDICATE OR
GROUP INDULGE, et cetera.
The President Pro Tempore. I see. That would mean also changing
the subtitle of Section 4. Will it no longer be child prostitution?
Senator Angara. No, no. Not necessarily, Mr. President, because
we are still talking of the child who is being misused for sexual
purposes either for money or for consideration. What I am trying to
cover is the other consideration. Because, here, it is limited only to
the child being abused or misused for sexual purposes, only for
money or profit.
I am contending, Mr. President, that there may be situations where
the child may not have been used for profit or ...
The President Pro Tempore. So, it is no longer prostitution.
Because the essence of prostitution is profit.
Senator Angara. Well, the Gentleman is right. Maybe the heading
ought to be expanded. But, still, the President will agree that that is
a form or manner of child abuse.
The President Pro Tempore. What does the Sponsor say? Will the
Gentleman kindly restate the amendment?
ANGARA AMENDMENT
Senator Angara. The new section will read something like this, Mr.
President: MINORS, WHETHER MALE OR FEMALE, WHO FOR
MONEY, PROFIT, OR ANY OTHER CONSIDERATION OR
INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP
INDULGE IN SEXUAL INTERCOURSE, et cetera.
Senator Lina. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence]
Hearing none, the amendment is approved.
How about the title, ‘Child Prostitution,’ shall we change that too?
Senator Angara. Yes, Mr. President, to cover the expanded scope.
The President Pro Tempore. Is that not what we would call
probable ‘child abuse’?
Senator Angara. Yes, Mr. President.
The President Pro Tempore. Subject to rewording. Is there any
objection? [Silence] Hearing none, the amendment is approved. x x
x. (Italicization supplied)18
Petitioner makes much of the failure to allege in the information
that Cristina was a child below 18 years of age at the time the
offense was committed. He insists that the Court of Appeals
mistakenly relied on the case of People v. Rosare19 because unlike
in Rosare, he had no personal knowledge of Cristina’s age, which
he claims was not proven beyond reasonable doubt.
In all criminal prosecutions, the accused is entitled to be informed
of the nature and cause of the accusation against him.20 A
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complaint is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of
the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.21
The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting
the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing
it.22 The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment.23
In the present case, the Court of Appeals found the information to
be sufficient. Relying on the principle laid down in People v.
Rosare, it held:
Before us is an information for violation of RA 7610 that, as
in Rosare, fails to mention an indispensable element of the
offense, the age of the offended party, but makes allusion to
another document, the sworn complaint of the offended party, and
declares it to be the basis upon which the information was filed.
This instrument is the complaint filed by the offended party with the
Municipal Trial Court of San Pedro, Laguna in which she stated
that she was 16 years old at the time of the offense. It forms part of
the initial records of the case and comes before the posting of bail
and entry of the plea of not guilty before the RTC. It appears that
after the charge was filed with the MTC, and as the preliminary
investigation went underway, the accused filed a manifestation
stating that he had filed a counter-affidavit to the charge and
reserved the right to file a motion to quash the information if it was
filed. The MTC found probable cause against him and elevated the
records to the provincial prosecutor for filing of the information.
A complaint is under the Rules one of the two charging instruments
for the offense of which the accused was tried and convicted here.
While the criminal action was instituted by the complaint of the
offended party, the information signed only by the fiscal ushered in
the formal trial process. But both are accusations in writing against
the accused and serve the purpose of enabling him to take the
necessary legal steps for his defense. What is important is that the
information states that the accused is being charged of an offense
under RA 7610 based on the complaint of the offended party, to
which the accused had adequately responded. Under these
conditions, the accused was fully apprised of the accusation
against him. The purpose and objective of the constitutional
mandate are discharged and satisfied. The accused may not be
said to be taken by surprise by the failure of the information to
state the age of the offended party, when he had received the
initiatory complaint where he was told how old the offended party
was.24
We agree with the ruling of the Court of Appeals. In People
v. Rosare, the information did not allege that the victim was a
mental retardate which is an essential element of the crime of
statutory rape. This Court however sustained the trial court’s
judgment of conviction holding that the resolution of the
investigating prosecutor which formed the basis of the information,
a copy of which is attached thereto, stated that the offended party
is suffering from mental retardation. It ruled that there was
substantial compliance with the mandate that an accused be
informed of the nature of the charge against him. Thus:
Appellant contends that he cannot be convicted of statutory rape
because the fact that the victim was a mental retardate was never
alleged in the information and, absent this element, the acts
charged negate the commission of the offense for which he was
convicted by the lower court.
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Pursuant to Section 8, Rule 112 of the Rules of Court, we have
decided to motu proprio take cognizance of the resolution issued
by the investigating prosecutor in I.S. No. 92-0197 dated June 2,
1992, which formed the basis of and a copy of which was attached
to the information for rape filed against herein appellant. Therein, it
is clearly stated that the offended party is suffering from mental
retardation. We hold, therefore, that this should be deemed a
substantial compliance with the constitutional mandate that an
accused be informed of the nature of the charge against him. ... 25
In People v. Villamor,26 the information failed to allege the age of
the offended party but since a copy of the order issued by the
investigating judge was attached in the record of the preliminary
investigation clearly stating that the complainant was nine years
old, it was held that there was substantial compliance with the
mandate to inform the accused of the nature of the accusation. It
was also declared that the defense cannot invoke the element of
surprise as to deprive it of the opportunity to suitably prepare for
the accused’s defense, thus:
... Furthermore, even if the information filed did not allege that the
complainant was nine years old, there was substantial compliance
with the constitutional mandate that an accused be informed of the
nature of the charge against him when the Order issued by the
investigating judge, a copy of which was attached in the record of
the preliminary investigation, clearly stated that the complainant
was nine years old. Consequently, the defense cannot invoke the
element of surprise as to deprive it of the opportunity to suitably
prepare for the accused’s defense.27
In People v. Galido,28 the information for rape failed to allege the
element of force or intimidation. The Court ruled that this omission
is not fatal since the complaint specifically charged the accused
with three counts of rape committed by means of force and
intimidation. Thus:
Appellant avers that because the Informations on which he was
arraigned and convicted did not allege the element of force or
intimidation, he was deprived of his constitutional right to be
informed of the nature and cause of the accusation against him. He
insists that such failure was a fatal defect that rendered the
Informations void.
As a rule, the accused cannot be convicted of an offense, unless it
is clearly charged in the complaint or information. Otherwise, their
constitutional right to be informed of the nature and cause of the
accusation against them would be violated.
In the present case, appellant correctly pointed out that the
element of "force or intimidation" should have been expressly
alleged in the Informations. This omission is not fatal, however,
because the Complaint specifically accused him of three counts of
rape committed by means of force and intimidation...29
The same ground was adopted in People v. Mendez30 which
involved an information for rape that failed to allege force or
intimidation. We ruled therein that it was not a fatal omission
because it was stated in the complaint that accused Rosendo
raped Virginita "by means of force."
In People v. Torellos,31 the Court treated the information for rape
which failed to allege force and intimidation as merely defective
and that the deficiency was cured by the failure of the accused to
assail the insufficiency of the allegations in the Information and by
competent evidence presented during trial.
Thus, while it is necessary to allege the essential elements of the
crime in the information, the failure to do so is not an irremediable
vice. When the complaint or the resolution by the public prosecutor
which contain the missing averments is attached to the information
and form part of the records, the defect in the latter is effectively
cured, and the accused cannot successfully invoke the defense
that his right to be informed is violated.
In the instant case, the missing averment in the information is
supplied by the Complaint which reads in full:
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 COMPLAINT
The undersigned complainant, accuses ISIDRO OLIVAREZ, of the
crime of VIOLATION OF RA 7610, committed as follows:
That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente,
San Pedro, Laguna, Philippines and within the jurisdiction of this
Honorable Court the said accused with lewd design did then and
there willfully, unlawfully and feloniously commit an act of
lasciviousness against one CRISTINA ELITIONG Y BALDONO, 16
years old, by kissing and touching her private parts and embracing
her against her will.
CONTRARY TO LAW.32
Petitioner was furnished a copy of the Complaint which was
mentioned in the information, hence he was adequately informed
of the age of the complainant. The prosecution has also
established the minority of the offended party through competent
evidence. Cristina testified that she was 16 years old and a
certification from the Office of the Local Registrar of San Pedro,
Laguna was presented showing that she was born on October 17,
1980.33 The third element of sexual abuse is therefore present.
The information merely states that petitioner was being charged for
the crime of "violation of R.A. 7610" without citing the specific
sections alleged to have been violated by petitioner. Nonetheless,
we do not find this omission sufficient to invalidate the information.
The character of the crime is not determined by the caption or
preamble of the information nor from the specification of the
provision of law alleged to have been violated, they may be
conclusions of law, but by the recital of the ultimate facts and
circumstances in the complaint or information.34 The sufficiency of
an information is not negated by an incomplete or defective
designation of the crime in the caption or other parts of the
information but by the narration of facts and circumstances which
adequately depicts a crime and sufficiently apprise the accused of
the nature and cause of the accusation against him.
True, the information herein may not refer to specific section/s of
R.A. 7610 alleged to have been violated by the petitioner, but it is
all to evident that the body of the information contains an averment
of the acts alleged to have been performed by petitioner which
unmistakably refers to acts punishable under Section 5 of R.A.
7610. As to which section of R.A. 7610 is being violated by
petitioner is inconsequential. What is determinative of the offense
is the recital of the ultimate facts and circumstances in the
complaint or information.
The prosecution has proved beyond reasonable doubt that
petitioner committed acts of sexual abuse against Cristina. The trial
court found Cristina’s testimony to be clear, candid, and
straightforward.35 Her testimony, given in a categorical,
straightforward, spontaneous and candid manner, is worthy of faith
and belief.36 In the face of the accusations against him, petitioner
could only interpose uncorroborated alibi and denial. Denial, like
alibi, is an inherently weak defense and cannot prevail over the
positive and categorical identification provided by
eyewitnesses.37 Not only did Cristina identify the petitioner as her
assailant but no ill-motive was adduced why she would impute
against him so grave a charge. This Court will not interfere with the
trial court’s assessment of the credibility of witnesses, absent any
indication that some material fact was overlooked or a grave abuse
of discretion committed. None of the exceptions obtain in the
instant case.38
In addition to moral damages, a fine in the amount of P15,000.00
should likewise be imposed pursuant to our ruling in Amployo v.
People:39
It does not end there. In People v. Abadies, and with respect
specifically to lascivious conduct amounting to child abuse under
Section 5(b) of Rep. Act No. 7610, we imposed a fine of P30,000
for each count of lascivious conduct in addition to the award of
moral damages on the justification that –
104
It will be noted that Section 5, Article II of Republic Act No. 7610
provides for the penalty of imprisonment. Nevertheless, Section
31(f), Article XII (Common Penal Provisions) thereof allows the
imposition of a fine subject to the discretion of the court, provided
that the same is to be administered as a cash fund by the
Department of Social Welfare and Development and disbursed for
the rehabilitation of each child victim, or any immediate member of
his family if the latter is the perpetrator of the offense. This
provision is in accord with Article 39 of the Convention on the
Rights of the Child, to which the Philippines became a party on
August 21, 1990, which stresses the duty of states parties to
ensure the physical and psychological recovery and social
reintegration of abused and exploited children in an environment
which fosters their self-respect and human dignity.

With the case of Abadies as guidepost, we impose a fine of Fifteen

Thousand Pesos (P15,000.00) on petitioner.

WHEREFORE, the petition is DENIED. The decision of the Court

of Appeals dated January 9, 2004 in CA-G.R. CR No. 22860 and
its resolution dated June 4, 2004, are AFFIRMED with
MODIFICATION. In addition to the award of P15,000.00 as moral
damages, petitioner Isidro Olivarez is also ordered to pay a fine in
the amount of P15,000.00.

SO ORDERED.

105