G.R. Nos.
L-41213-14 October 5, 1976 connection therewith, a temporary restraining order was issued to enjoin the
JORGE P. TAN, JR., CESAR TAN, LIBRADO SODE TEOFANIS BONJOC,
OSMUNDO TOLENTINO and MARIANO BARTIDO, petitioners,
vs.
JUDGE PEDRO GALLARDO, in his capacity as Presiding Judge of
Circuit Criminal Court, 13th Judicial District, Tacloban City, and
PEOPLE OF THE PHILIPPINES, respondents.
Pelaez, Jalandoni & Adriano for petitioner Jorge P. Tan, Jr.
K.V. Faylona & Associates for petitioner Cesar Tan.
Ruperto Kapunan, Jr. for petitioner Teofanis Bondoc.
Amadeo Seno, Artemio Derecho & Manuel Quimbo for petitioners Librado
Isode, Osmundo, Tolentino and Mariano Bartido.
Solicitor General Estilito P. Mendoza, Assistant Solicitor General Alicia
Simpio-Diy and Solicitor Eduardo L. Kilayko for respondents.
Estanislao A. Fernandez and Dakila F. Castro & Associate as private
prosecutors.
ANTONIO, J.:
In this Special Civil Action for certiorari with Prohibition, petitioners seek the
annulment of respondent Judge's Orders in Criminal Cases Nos. CCC—XIII-
50-L-S'72 and CCC-XIII-51-L-S'72, 1 to wit: (a) Order of July 21, 1975,
denying petitioners' motion for respondent Judge to disqualify or to inhibit
himself from hearing and acting upon their Motion for New Trial and/or
Reconsideration and Supplemental Motion for New Trial; (b) Order of July
23, 1975, denying petitioners' Motion for New Trial and/or Reconsidertion
and Supplemental Motion for New Trial; and (c) Order of July 25, 1975,
ordering the transfer of the accused (petitioners herein) from Camp Bumpus
PC headquarters, Tacloban city, to the Nationial Penitentiary, New Bilibid
Prisons, Muntinlupa, Rizal. It is likewise sought, by way of prohibition, to
compel respondent Judge to desist from further proceeding with the afore-
mentioned criminal cases.
By Resolution of this Court dated August 27, 1975, the respondent Judge
was required to file his answer within ten (10) days from notice, and in
respondent from further proceeding with the afore-mentioned criminal cases.
The petition was subsequently amended to include the People of the
Philippines and thereafter, on January 14, 1976, the Solicitor General, on
behalf of the People of the Philippines, submitted his Comment to the
petition. The Solicitor General informed this Court, thus: that they are
"persuaded that there are bases for stating that the rendition of respondent
Judge's decision and his resolution on the motion for new trial were not free
from suspicion of bias and prejudice ... . Considering the circumstances of
the instant case, the seriousness of the charges and counter-charges and
the nature of the evidence on hand to support them, we feel that respondent
Judge "appeared to have been heedless of the oft-reiterated admonition
addressed to trial judges to avoid even the impression of the guilt or
innocence of the accused being dependent on prejudice or prejudgment"
and, therefore, it was the submission of said official "that the case should he
remanded to the trial court for the rendition of a new decision and with
instruction to receive additional evidence proferred by the accused with the
right of the prosecution to present rebuttal evidence as inay be warranted"
and, therefore, they interpose no objection to the remand of the
aforementioned criminal cases "for the rendition of a new decision by another
trial judge, after the parties shall have adduced such additional evidence as
they may wish to make, under such terms and conditions as this Honorable
Court may deem fit to impose. 2
On January 30, 1976, private prosecutors submitted their Comment in
justification of the challenged Orders of the respondent Judge and objected
to the remand of this case.
On February 12, 1976, the petitioners moved to strike out the "Motion to
Admit Attacked Comment" and the "Comment" of the private prosecutor on
the ground that the latter has "absolutely no standing in the instant
proceedings before this Honorable Court and, hence, without any personality
to have any paper of his entertained by this Tribunal.
The private prosecutors now contend that they are entitled to appear before
this Court, to take part in the proceedings, and to adopt a position in
contravention to that of the Solicitor General.
The issue before Us is whether or not the private prosecutors have the right
to intervene independently of the Solicitor General and to adopt a stand
inconsistent with that of the latter in the present proceedings.
There are important reasons which support the view that in the present
proceedings, the private prosecutors cannot intervene independently of and
take a position inconsistent with that of the Solicitor General.
To begin with, it will be noted that the participation of the private prosecution
in the instant case was delimited by this Court in its Resolution of October 1,
1975, thus: "to collaborate with the Solicitor General in the preparation of the
Answer and pleadings that may be required by this Court." To collaborate
means to cooperate with and to assist the Solicitor General. It was never
intended that the private prosecutors could adopt a stand independent of or
in contravention of the position taken by the Solicitor General.
There is no question that since a criminal offense is an outrage to the
sovereignty of the State, it is but natural that the representatives of the State
should direct and control the prosecution. As stressed in Suarez v. Platon, et
al., 3 the prosecuting officer "is the representative not of. an ordinary party to
a controversy, but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest, therefore,
in a criminal prosecution is not that it shall win a case, but that justice shall
be done. As such, he is in a peculiar and very definite sense the servant of
the law, the twofold aim of which is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness and vigor—indeed, he should do
so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate means to bring about a
just one." Thus, it was stressed in People v. Esquivel, et al., 4 that there is an
absolute necessity for prosecuting attorneys to lay "before the court the
pertinent facts at their disposal with methodical and meticulous attention,
clarifying contradictions and filling up gaps and loopholes in their evidence, to
the end that the court's mind may not be tortured by doubts, that the innocent
may not suffer and the guilty not escape unpunished. Obvious to all, this is
the prosecution's prime duty to the court, to the accused, and to the state." It
is for the purpose of realizing the afore-mentioned objectives that the
prosecution of offenses is placed under the direction, control, and
responsibility of the prosecuting officer.
The role of the private prosecutors, upon the other hand, is to represent the
offended parts, with respect to the civil action for the recovery of the civil
liability arising from the offense. 'This civil action is deemed instituted with the
criminal action, unless the offended party either expressly waives the civil
action or reserves to institute it separately.5 Thus, "an offended party may
intervene in the proceedings, personally or by attorney, specially in case of
offenses which can not be prosecuted except at the instance of the offended
party. 6 The only exception to this is when the offended party waives his right
to civil action or expressly reserves his right to institute it after the termination
of the case, in which case he lost his right to intervene upon the theory that
he is deemed to have lost his interest in its prosecution. 7 And in any event,
whether an offended party intervenes in the prosecution of a criminal
action, his intervention must always be subject to the direction and control of
the prosecuting official. " 8 As explained in Herrero v. Diaz, supra, the
"intervention of the offended party or his attorney is authorized by section 15
of Rule 106 of the Rules of Court, subject to the provisions of section 4 of the
same Rule that all criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control of the Fiscal."
(Emphasis supplied)
Therefore, although the private prosecutors may be permitted to intervene,
they are not in control of the case, and their interests are subordinate to
those of the People of the Philippines represented by the fiscal. 9 The right
which the procedural law reserves to the injured party is that of intervening in
the prosecution for the sole purpose of enforcing the civil liability for the
criminal action and not of demanding punishment of the accused. 10 As
explained in People v. Orais: 11
... the position occupied by the offended
party is subordinate to that of the promotor
fiscal because, as promotor fiscal alone is
authorized to represent the public
prosecution, or the People of the Philippine
Islands, in the prosecution of offenders, and
to control the proceeding, and as it is
discretionary with him to institute and
prosecute a criminal proceeding, being at
liberty to commence it or not, depending
upon whether or not there is, in his opinion,
sufficient evidence to establish the guilt of
the accused beyond reasonable doubt,
except when the case is pending in the
Court of First Instance, the continuation of
the offended party's intervention depends
upon the continuation of the proceeding.
Consequently, if the promotor fiscal desists
from pressing the charge or asks the
competent Court of first Instance in which
the case is pending for the dismissal thereof,
and said court grants the petition, the
intervention of the person injured by the
commission of the offense ceases by virtue
of the principle that the accessory follows
the principal. Consequently, as the offended
party is not entitled to represent the People
of the Philippine Islands in the prosecution
of a public offense, or to control the
proceeding once it is commenced, and as
his right to intervene therein is subject to the
promotor fiscal's right of control, it cannot be
 stated that an order of dismissal decreed
upon petiton of the promotor fiscal himself
deprives the offended party of his right to
appeal from an order overruling a complaint
or information, which right belongs
exclusively to the promotor fiscal by virtue of
the provisions of section 44 of General
Orders, No. 58. To permit a person injured
by the commission of an offense to appeal
from an order dismissing a criminal case
issued by a Court of First Instance upon
petition of the promotor fiscal, would be
tantamount to giving said offended party of
the direction and control of a criminal
proceeding in violation of the provisions of
the above-cited section 107 of General
Orders, No. 58.
Consequently, where from the nature of the offense, or where the law
defining and punishing the offense charged does not provide for an
indemnity, the offended party may not intervene in the prosecution of the
offense. 12
There is no question that the Solicitor General represents the People of the
Philippines or the State in criminal proceedings pending either in the Court of
Appeals or in this Court. Thus, Section 1 of Presidential Decree No. 478,
"Defining the Powers and Functions of the Office of the Solicitor General",
provides:
SECTION 1. Function and Organization. (1) The Office of the
Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials
and agents in any litigation, proceeding, investigation or
matter requiring the services of a lawyer. ... The office of the
Solicitor General shall constitute the law office of the
Government, and such, shall discharge duties requiring the
services of a lawyer. It shall have the following specific
powers and functions:
(a) Represent the Governemnt in the Supreme Court and the
Court of Appeals in all criminal proceedings; represent the
Government and its officers in the Supreme Court, the Court
of Appeals, and all other courts or tribunals in all civil actions
and special proceedings in which the Government or any
officer thereof in his official capacity is the party.
xxx xxx xxx
(k) Act and represent the Republic and/or the people before
any court, tribunal, body or commission in any matter, action
or proceeding which in his opinion, affects the welfare of the
people as the ends of justice may require.
xxx xxx xxx
It is evident, therefore, that since the Solicitor General alone is authorized to
represent the State or the People of the Philippines the interest of the private
prosecutors is subordinate to that of the State and they cannot be allowed to
take a stand inconsistent with that of the Solicitor General, for that would be
tantamount to giving the latter the direction and control of the criminal
proceedings, contrary to the provisions of law and the settled rules on the
matter.
Moreover, the position taken by the Solicitor General in recommending the
remand of the case to the trial court is not without any plausible justification.
Thus, in support of his contention that the rendition of the decision and the
resolution on the subsequent motions by the respondent Judge were not free
from suspicion of bias and prejudice, the Solicitor General stated:
In alleging bias and manifest partiality on the part of
respondent judge, petitioners assert that:
(a) Respondent judge kept improper contact with and was
illegally influenced by the Larrazabals in connection with the
decision of the two cases against petitioners herein;
(b) In the latter part of 1973, with the trial of the Tan cases
still in progress, respondent judge received, through one of
his court stenographers, two bottles of whisky from Mayor
Inaki Larrazabal, brother and uncle of the deceased victims
Feliciano and Francisco Larrazabal;
(c) On one occasion, Mayor Larrazabal had a short talk with
respondent judge, after which the latter received from one of
the private prosecutors a bottle of wine wrapped in a
newspaper which was "thick" and "bulky" and which
allegedly contained "something else inside";
(d) Respondent judge prepared the decision in the Tan
cases based on the memorandum of the prosecution which
was literally copied in said decision although with some
corrections; and
(e) After an alleged meeting with Mayor Inaki Larrazabal,
respondent judge amended his already prepared decision in
the two criminal cases involved herein by changing the
penalty of double life sentence for the double murder charge
against the petitioners to the death penalty.
The foregoing alleged irregularities are mainly supported by
an affidavit executed on June 26, 1975 by Gerardo A.
Makinano Jr., court stenographer of the Circuit Criminal
Court, Tacloban City (Annex "E", Petition). The truth of the
charges made in such affidavit are denied by respondent
judge (in his answer to the instant petition dated October 11,
1975), who in turn claims that it was petitioners who tried to
bribe him into acquitting them in the aforesaid criminal
cases, after they were illegally furnished a copy of the draft
of his decision of conviction by the same court stenographer
Gerardo A. Makinano Jr. (please see Answer of respondent
judge, pp. 12-13). Unlike in the cases of Mateo vs. Villaluz,
50 SCRA 191 (1973), and Castillo vs. Juan, 62 SCRA 124
(1974) relied upon mainly by herein petitioners, the facts
alleged as constituting the grounds for disqualifying the
respondent judge in the instant petition are disputed.
Apart from the sworn statements submitted before this Court
in support or in denial of the alleged bribery of respondent
judge, we have been informed of evidence obtained by the
National Bureau of Investigation when it cannot appropriate
for us at this time, however, and we are unable to do so, to
submit to this Court definite conclusions on the charges and
counter-charges. An exhaustive inquiry and open hearing
should perhaps precede the making of categorical
conclusions. But we are persuaded that there are bases for
stating that the rendition of respondent Judge's decision and
his resolutions on the motions for new trial were not free
from suspicion of bias and prejudice (See Martinez Gironella,
65 SCRA 245 [July 22, 1975]).
Considering the circumstances of the instant case, the
seriousness of the charges and counter-charges and the
nature of the evidence on hand to support them, we feel that
respondent Judge appeared to have been heedless to the
oft-reiterated admonition addressed to trial judges to avoid
even the impression of the guilt or innocence of the accused
being dependent on prejudice or prejudgment (Fernando, J.,
Concurring opinion, Martinez Gironella, supra, at 252). ...
It is undisputed that the sole purpose of courts of justice is to enforce the
laws uniformly and impartially without regard to persons or their
circumstances or the opinions of men. A judge, according to Justice Castro,
now Chief Justice of this Court, should strive to be at all times "wholly free,
disinterested, impartial and independent. Elementary due process requires a
hearing before an impartial and disinterested tribunal. A judge has both the
duty of rendering a just decision and the duty, of doing it in a manner
completely free from suspicion as to its fairness and as to his
integrity. 13 Thus, it has always been stressed that judges should not only be
impartial but should also appear impartial. For "impartiality is not a technical
conception, It is a state of mind" 14 and, consequently, the "appearance of
impartiality is an essential manifestation of its reality. 15 It must be obvious,
therefore, that while judges should possess proficiency in law in order that
they can competently construe and enforce the law, it is more important that
they should act and behave in such a manner that the parties before them
should have confidence in their impartiality.
It appears, however, that respondent Judge is no longer in the judicial
service, hence, the question as to whether or not he should be disqualified
from further proceeding with the aforementioned criminal cases has already
become moot.
WHEREFORE, this Court grants the petition and hereby demands the case
to the trial court in order that another Judge may hear anew petitioners'
motion for new trial and to resolve the issue accordingly on the basis of the
evidence. No Special pronouncement as to costs.
Fernando, (Chairman), Barredo, Aquino, and concepcion Jr. JJ., concur.
[G.R. NO. 152644 : February 10, 2006]
JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO B. HERNANDEZ,
Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case
This is a Petition for Review 1 of the Decision2 dated 5 November 2001 and
the Resolution dated 14 March 2002 of the Court of Appeals. The 5
November 2001 Decision affirmed the ruling of the Regional Trial Court,
Boac, Marinduque, Branch 94, in a suit to quash Informations filed against
petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez
("petitioners"). The 14 March 2002 Resolution denied petitioners' motion for
reconsideration.
The Facts
Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are
the President and Chief Executive Officer, Senior Manager, and Resident
Manager for Mining Operations, respectively, of Marcopper Mining
Corporation ("Marcopper"), a corporation engaged in mining in the province
of Marinduque.
Marcopper had been storing tailings3 from its operations in a pit in Mt.
Tapian, Marinduque. At the base of the pit ran a drainage tunnel leading to
the Boac and Makalupnit rivers. It appears that Marcopper had placed a
concrete plug at the tunnel's end. On 24 March 1994, tailings gushed out of
or near the tunnel's end. In a few days, the Mt. Tapian pit had discharged
millions of tons of tailings into the Boac and Makalupnit rivers.
In August 1996, the Department of Justice separately charged petitioners in
the Municipal Trial Court of Boac, Marinduque ("MTC") with violation of
Article 91(B),4 sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or
the Water Code of the Philippines ("PD 1067"),5 Section 86 of Presidential
Decree No. 984 or the National Pollution Control Decree of 1976 ("PD
984"),7 Section 1088 of Republic Act No. 7942 or the Philippine Mining Act of
1995 ("RA 7942"),9 and Article 36510 of the Revised Penal Code ("RPC") for
Reckless Imprudence Resulting in Damage to Property.11
Petitioners moved to quash the Informations on the following grounds: (1) the
Informations were "duplicitous" as the Department of Justice charged more
than one offense for a single act; (2) petitioners John Eric Loney and Steven
Paul Reid were not yet officers of Marcopper when the incident subject of the
Informations took place; and (3) the Informations contain allegations which
constitute legal excuse or justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 ("Joint Order"), the MTC12 initially
deferred ruling on petitioners' motion for lack of "indubitable ground for the
quashing of the [I]nformations x x x." The MTC scheduled petitioners'
arraignment in February 1997. However, on petitioners' motion, the MTC
issued a Consolidated Order on 28 April 1997 ("Consolidated Order"),
granting partial reconsideration to its Joint Order and quashing the
Informations for violation of PD 1067 and PD 984. The MTC maintained the
Informations for violation of RA 7942 and Article 365 of the RPC. The MTC
held:
[T]he 12 Informations have common allegations of pollutants pointing to
"mine tailings" which were precipitately discharged into the Makulapnit and
Boac Rivers due to breach caused on the Tapian drainage/tunnel due to
negligence or failure to institute adequate measures to prevent pollution and
siltation of the Makulapnit and Boac River systems, the very term and
condition required to be undertaken under the Environmental Compliance
Certificate issued on April 1, 1990.
The allegations in the informations point to same set [sic] of evidence
required to prove the single fact of pollution constituting violation of the Water
Code and the Pollution Law which are the same set of evidence necessary to
prove the same single fact of pollution, in proving the elements constituting
violation of the conditions of ECC, issued pursuant to the Philippine Mining
Act. In both instances, the terms and conditions of the Environmental
Compliance Certificate were allegedly violated. In other words, the same set
of evidence is required in proving violations of the three (3) special laws.
After carefully analyzing and weighing the contending arguments of the
parties and after taking into consideration the applicable laws and
jurisprudence, the Court is convinced that as far as the three (3) aforesaid
laws are concerned, only the Information for [v]iolation of Philippine Mining
Act should be maintained. In other words, the Informations for [v]iolation of
Anti-Pollution Law (PD 984) and the Water Code (PD 1067) should be
dismissed/quashed because the elements constituting the aforesaid
violations are absorbed by the same elements which constitute violation of
the Philippine Mining Act (RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of
the Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for
[v]iolation of the Anti-Pollution Law x x x are hereby DISMISSED or
QUASHED and Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of
the Philippine Mining Act are hereby retained to be tried on the merits.
The Information for [v]iolation of Article 365 of the Revised Penal Code
should also be maintained and heard in a full blown trial because the
common accusation therein is reckless imprudence resulting to [sic] damage
to property. It is the damage to property which the law punishes not the
negligent act of polluting the water system. The prosecution for the [v]iolation
of Philippine Mining Act is not a bar to the prosecution for reckless
imprudence resulting to [sic] damage to property.13
The MTC re-scheduled petitioners' arraignment on the remaining charges on
28 and 29 May 1997. In the hearing of 28 May 1997, petitioners manifested
that they were willing to be arraigned on the charge for violation of Article 365
of the RPC but not on the charge for violation of RA 7942 as they intended to
appeal the Consolidated Order in so far as it maintained the Informations for
that offense. After making of record petitioners' manifestation, the MTC
proceeded with the arraignment and ordered the entry of "not guilty" pleas on
the charges for violation of RA 7942 and Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the Regional Trial
Court, Boac, Marinduque, assailing that portion of the Consolidated Order
maintaining the Informations for violation of RA 7942. Petitioners' petition
was raffled to Branch 94. For its part, public respondent filed an ordinary
appeal with the same court assailing that portion of the Consolidated Order
quashing the Informations for violation of PD 1067 and PD 984. Public
respondent's appeal was raffled to Branch 38. On public respondent's
motion, Branch 38 ordered public respondent's appeal consolidated with
petitioners' petition in Branch 94.
The Ruling of Branch 94
In its Resolution14 of 20 March 1998, Branch 94 granted public respondent's
appeal but denied petitioners' petition. Branch 94 set aside the Consolidated
Order in so far as it quashed the Informations for violation of PD 1067 and
PD 984 and ordered those charges reinstated. Branch 94 affirmed the
Consolidated Order in all other respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of the opinion that
there can be no absorption by one offense of the three other offenses, as
[the] acts penalized by these laws are separate and distinct from each other.
The elements of proving each violation are not the same with each other.
Concededly, the single act of dumping mine tailings which resulted in the
pollution of the Makulapnit and Boac rivers was the basis for the
information[s] filed against the accused each charging a distinct offense. But
it is also a well-established rule in this jurisdiction that -
"A single act may offend against two or more entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional fact or
element which the other does not, an acquittal or conviction or a dismissal of
the information under one does not bar prosecution under the other. x x x."
xxxx
[T]he different laws involve cannot absorb one another as the elements of
each crime are different from one another. Each of these laws require [sic]
proof of an additional fact or element which the other does not although they
stemmed from a single act.15
Petitioners filed a petition for certiorari with the Court of Appeals alleging that
Branch 94 acted with grave abuse of discretion because (1) the Informations
for violation of PD 1067, PD 984, RA 7942 and the Article 365 of the RPC
"proceed from and are based on a single act or incident of polluting the Boac
and Makalupnit rivers thru dumping of mine tailings" and (2) the duplicitous
nature of the Informations contravenes the ruling in People v. Relova.16
Petitioners further contended that since the acts complained of in the
charges for violation of PD 1067, PD 984, and RA 7942 are "the very same
acts complained of" in the charge for violation of Article 365 of the RPC, the
latter absorbs the former. Hence, petitioners should only be prosecuted for
violation of Article 365 of the RPC.17
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals affirmed Branch
94's ruling. The appellate court held:
The records of the case disclose that petitioners filed a motion to quash the
aforementioned Informations for being duplicitous in nature. Section 3 of
Rule 117 of the Revised Rules of Court specifically provides the grounds
upon which an information may be quashed. x x x
xxx
[D]uplicity of Informations is not among those included in x x x [Section 3,
Rule 117].
xxx
We now go to petitioners' claim that the resolution of the public respondent
contravened the doctrine laid down in People v. Relova for being violative of
their right against multiple prosecutions.
In the said case, the Supreme Court found the People's argument with
respect to the variances in the mens rea of the two offenses being charged to
be correct. The Court, however, decided the case in the context of the
second sentence of Article IV (22) of the 1973 Constitution (now under
Section 21 of Article III of the 1987 Constitution), rather than the first
sentence of the same section. x x x
xxx
[T]he doctrine laid down in the Relova case does not squarely apply to the
case at Bench since the Informations filed against the petitioners are for
violation of four separate and distinct laws which are national in character.
xxx
This Court firmly agrees in the public respondent's understanding that the
laws by which the petitioners have been [charged] could not possibly absorb
one another as the elements of each crime are different. Each of these laws
require [sic] proof of an additional fact or element which the other does not,
although they stemmed from a single act. x x x
xxx
[T]his Court finds that there is not even the slightest indicia of evidence that
would give rise to any suspicion that public respondent acted with grave
abuse of discretion amounting to excess or lack of jurisdiction in reversing
the Municipal Trial Court's quashal of the Informations against the petitioners
for violation of P.D. 1067 and P.D. 984. This Court equally finds no error in
the trial court's denial of the petitioner's motion to quash R.A. 7942 and
Article 365 of the Revised Penal Code.18
Petitioners sought reconsideration but the Court of Appeals denied their
motion in its Resolution of 14 March 2002.
Petitioners raise the following alleged errors of the Court of Appeals:
I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN
MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE
MINING ACT (R.A. 7942) AND REINSTATING THE CHARGES FOR
VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION
CONTROL LAW (P.D. 984), CONSIDERING THAT:
A. THE INFORMATIONS FOR VIOLATION OF THE WATER CODE (P.D.
1067), THE POLLUTION CONTROL LAW (P.D. 984), THE PHILIPPINE
MINING ACT (R.A. 7942) AND ARTICLE 365 OF THE REVISED PENAL
CODE PROCEED FROM AND ARE BASED ON A SINGLE ACT OR
INCIDENT OF POLLUTING THE BOAC AND MAKULAPNIT RIVERS THRU
DUMPING OF MINE TAILINGS.
B. THE PROSECUTION OF PETITIONERS FOR DUPLICITOUS AND
MULTIPLE CHARGES CONTRAVENES THE DOCTRINE LAID DOWN IN
PEOPLE v. RELOVA, 148 SCRA 292 [1986 THAT "AN ACCUSED SHOULD
NOT BE HARASSED BY MULTIPLE PROSECUTIONS FOR OFFENSES
WHICH THOUGH DIFFERENT FROM ONE ANOTHER ARE
NONETHELESS EACH CONSTITUTED BY A COMMON SET OR
OVERLAPPING SETS OF TECHNICAL ELEMENTS."
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
RULING THAT THE ELEMENT OF LACK OF NECESSARY OR ADEQUATE
PRECAUTION, NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE
UNDER ARTICLE 356 [sic] OF THE REVISED PENAL CODE DOES NOT
FALL WITHIN THE AMBIT OF ANY OF THE ELEMENTS OF THE
PERTINENT PROVISIONS OF THE WATER CODE, POLLUTION
CONTROL LAW AND PHILIPPINE MINING ACT CHARGED AGAINST
PETITIONERS[.]19
The Issues
The petition raises these issues:
(1) Whether all the charges filed against petitioners except one should be
quashed for duplicity of charges and only the charge for Reckless
Imprudence Resulting in Damage to Property should stand; andcralawlibrary
(2) Whether Branch 94's ruling, as affirmed by the Court of Appeals,
contravenes People v. Relova.
The Ruling of the Court
The petition has no merit.
No Duplicity of Charges in the Present Case
Duplicity of charges simply means a single complaint or information charges
more than one offense, as Section 13 of Rule 11020 of the 1985 Rules of
Criminal Procedure clearly states:
Duplicity of offense. - A complaint or information must charge but one
offense, except only in those cases in which existing laws prescribe a single
punishment for various offenses.
In short, there is duplicity (or multiplicity) of charges when a single
Information charges more than one offense.21
Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal Procedure,
duplicity of offenses in a single information is a ground to quash the
Information. The Rules prohibit the filing of such Information to avoid
confusing the accused in preparing his defense.23 Here, however, the
prosecution charged each petitioner with four offenses, with each Information
charging only one offense. Thus, petitioners erroneously invoke duplicity of
charges as a ground to quash the Informations. On this score alone, the
petition deserves outright denial.
The Filing of Several Charges is Proper
Petitioners contend that they should be charged with one offense only -
Reckless Imprudence Resulting in Damage to Property - because (1) all the
charges filed against them "proceed from and are based on a single act or
incident of polluting the Boac and Makalupnit rivers thru dumping of mine
tailings" and (2) the charge for violation of Article 365 of the RPC "absorbs"
the other charges since the element of "lack of necessary or adequate
protection, negligence, recklessness and imprudence" is common among
them.
The contention has no merit.
As early as the start of the last century, this Court had ruled that a single act
or incident might offend against two or more entirely distinct and unrelated
provisions of law thus justifying the prosecution of the accused for more than
one offense.24 The only limit to this rule is the Constitutional prohibition that
no person shall be twice put in jeopardy of punishment for "the same
offense."25 In People v. Doriquez,26 we held that two (or more) offenses
arising from the same act are not "the same"'
x x x if one provision [of law] requires proof of an additional fact or element
which the other does not, x x x. Phrased elsewise, where two different laws
(or articles of the same code) define two crimes, prior jeopardy as to one of
them is no obstacle to a prosecution of the other, although both offenses
arise from the same facts, if each crime involves some important act which is
not an essential element of the other.27 (Emphasis supplied)cralawlibrary
Here, double jeopardy is not at issue because not all of its elements are
present.28 However, for the limited purpose of controverting petitioners'
claim that they should be charged with one offense only, we quote with
approval Branch 94's comparative analysis of PD 1067, PD 984, RA 7942,
and Article 365 of the RPC showing that in each of these laws on which
petitioners were charged, there is one essential element not required of the
others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be
established is the dumping of mine tailings into the Makulapnit River and the
entire Boac River System without prior permit from the authorities concerned.
The gravamen of the offense here is the absence of the proper permit to
dump said mine tailings. This element is not indispensable in the prosecution
for violation of PD 984 (Anti-Pollution Law), [RA] 7942 (Philippine Mining Act)
and Art. 365 of the Revised Penal Code. One can be validly prosecuted for
violating the Water Code even in the absence of actual pollution, or even [if]
it has complied with the terms of its Environmental Compliance Certificate, or
further, even [if] it did take the necessary precautions to prevent damage to
property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the
existence of actual pollution. The gravamen is the pollution itself. In the
absence of any pollution, the accused must be exonerated under this law
although there was unauthorized dumping of mine tailings or lack of
precaution on its part to prevent damage to property.
In R.A. 7942 (Philippine Mining Act), the additional fact that must be
established is the willful violation and gross neglect on the part of the
accused to abide by the terms and conditions of the Environmental
Compliance Certificate, particularly that the Marcopper should ensure the
containment of run-off and silt materials from reaching the Mogpog and Boac
Rivers. If there was no violation or neglect, and that the accused satisfactorily
proved [sic] that Marcopper had done everything to ensure containment of
the run-off and silt materials, they will not be liable. It does not follow,
however, that they cannot be prosecuted under the Water Code, Anti-
Pollution Law and the Revised Penal Code because violation of the
Environmental Compliance Certificate is not an essential element of these
laws.
On the other hand, the additional element that must be established in Art.
365 of the Revised Penal Code is the lack of necessary or adequate
precaution, negligence, recklessness and imprudence on the part of the
accused to prevent damage to property. This element is not required under
the previous laws. Unquestionably, it is different from dumping of mine
tailings without permit, or causing pollution to the Boac river system, much
more from violation or neglect to abide by the terms of the Environmental
Compliance Certificate. Moreover, the offenses punished by special law are
mal[a] prohibita in contrast with those punished by the Revised Penal Code
which are mala in se.29
Consequently, the filing of the multiple charges against petitioners, although
based on the same incident, is consistent with settled doctrine.
On petitioners' claim that the charge for violation of Article 365 of the RPC
"absorbs" the charges for violation of PD 1067, PD 984, and RA 7942, suffice
it to say that a mala in se felony (such as Reckless Imprudence Resulting in
Damage to Property) cannot absorb mala prohibita crimes (such as those
violating PD 1067, PD 984, and RA 7942). What makes the former a felony is
criminal intent (dolo) or negligence (culpa); what makes the latter crimes are
the special laws enacting them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals that their
prosecution contravenes this Court's ruling in People v. Relova. In particular,
petitioners cite the Court's statement in Relova that the law seeks to prevent
harassment of the accused by "multiple prosecutions for offenses which
though different from one another are nonetheless each constituted by a
common set or overlapping sets of technical elements."
This contention is also without merit.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The issue in Relova is whether the act of the Batangas Acting City Fiscal in
charging one Manuel Opulencia ("Opulencia") with theft of electric power
under the RPC, after the latter had been acquitted of violating a City
Ordinance penalizing the unauthorized installation of electrical wiring,
violated Opulencia's right against double jeopardy. We held that it did, not
because the offenses punished by those two laws were the same but
because the act giving rise to the charges was punished by an ordinance and
a national statute, thus falling within the proscription against multiple
prosecutions for the same act under the second sentence in Section 22,
Article IV of the 1973 Constitution, now Section 21, Article III of the 1987
Constitution. We held:
The petitioner concludes that:
"The unauthorized installation punished by the ordinance [of Batangas City]
is not the same as theft of electricity [under the Revised Penal Code]; that
the second offense is not an attempt to commit the first or a frustration
thereof and that the second offense is not necessarily included in the offense
charged in the first information."
The above argument[] made by the petitioner [is] of course correct. This is
clear both from the express terms of the constitutional provision involved -
which reads as follows:
"No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act." x x x
and from our case law on this point. The basic difficulty with the petitioner's
position is that it must be examined, not under the terms of the first sentence
of Article IV (22) of the 1973 Constitution, but rather under the second
sentence of the same section. The first sentence of Article IV (22) sets forth
the general rule: the constitutional protection against double jeopardy is not
available where the second prosecution is for an offense that is different from
the offense charged in the first or prior prosecution, although both the first
and second offenses may be based upon the same act or set of acts. The
second sentence of Article IV (22) embodies an exception to the general
proposition: the constitutional protection, against double jeopardy is available
although the prior offense charged under an ordinance be different from the
offense charged subsequently under a national statute such as the Revised
Penal Code, provided that both offenses spring from the same act or set of
acts. x x x30 (Italicization in the original; boldfacing supplied)
Thus, Relova is no authority for petitioners' claim against multiple
prosecutions based on a single act not only because the question of double
jeopardy is not at issue here, but also because, as the Court of Appeals held,
petitioners are being prosecuted for an act or incident punished by four
national statutes and not by an ordinance and a national statute. In short,
petitioners, if ever, fall under the first sentence of Section 21, Article III which
prohibits multiple prosecution for the same offense, and not, as in Relova, for
offenses arising from the same incident.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5
November 2001 and the Resolution dated 14 March 2002 of the Court of
Appeals.
SO ORDERED.
G.R. No. 202124
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
IRENEO JUGUETA, Accused-Appellant.
DECISION
PERALTA, J.:
This resolves the appeal from the Decision 1 of the Court of Appeals (CA)
dated January 30, 2012 in CA-G.R. CR HC No. 03252. The CA affirmed the
judgments of the Regional Trial Court (RTC), Branch 61, Gumaca, Quezon,
finding accused-appellant Ireneo Jugueta y Flores guilty beyond reasonable
doubt of Double Murder in Criminal Case No. 7698-G and Multiple Attempted
Murder in Criminal Case No. 7702-G.
In Criminal Case No. 7698-G, appellant was charged with Double Murder,
defined and penalized under Article 248 of the Revised Penal Code,
allegedly committed as follows:
That on or about the 6th day of June 2002, at about 9:00 o'clock in the
evening, at Barangay Caridad Ilaya, Municipality of Atimonan, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a caliber.22 firearm, with intent to kill,
qualified by treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with said firearm Mary
Grace Divina, a minor, 13 years old, who suffered the following:
"Gunshot wound -
Point of Entry – lower abdomen, right, 2 cm. from the midline and 6 cm. from
the level of the umbilicus, directed upward toward the left upper abdomen."
and Claudine Divina, a minor, 3 ½ years of age, who suffered the following:
"Gunshot wound -
Point of Entry - 9th ICS along the mid-axillary line, right, 1 cm. diameter
Point of Exit - 7th ICS mid-axillary line, left;"
which directly caused their instant death.
That the crime committed in the dwelling of the offended party who had not
given provocation for the attack and the accused took advantage of nighttime
to facilitate the commission of the offense.
Contrary to law.2
In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and
Roger San Miguel, was charged with Multiple Attempted Murder, allegedly
committed as follows:
That on or about 9:00 o’clock in the evening of 6th day of June, 2002, at
Barangay Caridad Ilaya, Municipality of Atimonan, Province of Quezon,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and mutually helping
one another, armed with short firearms of undetermined calibres, with intent
to kill, qualified by treachery, with evident premeditation and abuse of
superior strength, did then and there wilfully, unlawfully and feloniously
attack, assault, and shoot with the said firearms the house occupied by the
family of Norberto Divina, thereby commencing the commission of the crime
of Murder, directly by overt acts, but did not perform all the acts of execution
which would have produced it by reason of some cause or accident other
than the spontaneous desistance of the accused, that is, the occupants
Norberto Divina, his wife Maricel Divina and children Elizabeth Divina and
Judy Ann Divina, both elementary pupils and who are minors, were not hit.
CONTRARY TO LAW.3
Roger San Miguel, however, moved for reinvestigation of the case against
them. At said proceedings, one Danilo Fajarillo submitted his sworn
statement stating that on June 6, 2002, he saw appellant with a certain
"Hapon" and Gilbert Estores at the crime scene, but it was only appellant
who was carrying a firearm while the other two had no participation in the
shooting incident. Fajarillo further stated that Roger San Miguel was not
present at the crime scene. Based on the sworn statement of Fajarillo, the
Provincial Prosecutor found no prima facie case against Gilbert Estores and
Roger San Miguel.4 Thus, upon motion of the prosecution, the case for
Attempted Murder against Gilbert Estores and Roger San Miguel was
dismissed, and trial proceeded only as to appellant.5
At the trial, the prosecution presented the testimonies of Norberto Divina, the
victim, and Dr. Lourdes Taguinod who executed the Medico-Legal Certificate
and confirmed that the children of Norberto, namely, Mary Grace and
Claudine, died from gunshot wounds. Dr. Taguinod noted that the trajectory
of the bullet wounds showed that the victims were at a higher location than
the shooter, but she could not tell what kind of ammunitions were used. 6
Norberto testified that the appellant is his brother-in-law. He recounted that in
the evening of June 6, 2002, as his entire family lay down on the floor of their
one-room nipa hut to sleep, the "sack" walling of their hut was suddenly
stripped off, and only the supporting bamboo (fences) remained. With the
covering of the wall gone, the three (3) men responsible for the deed came
into view. Norberto clearly saw their faces which were illuminated by the light
of a gas lamp hanging in their small hut. Norberto identified the 3 men as
appellant, Gilbert Estores and Roger San Miguel.
The 3 men ordered Norberto to come down from his house, but he refused to
do so. The men then uttered, "Magdasal ka na at katapusan mo na ngayon."
Norberto pleaded with them, saying, "Maawa kayo sa amin, matanda na ako
at marami akong anak. Anong kasalanan ko sa inyo?" Despite such plea for
mercy, a gunshot was fired, and Norberto immediately threw his body over
his children and wife in an attempt to protect them from being hit. Thereafter,
he heard successive gunshots being fired in the direction where his family
huddled together in their hut.7
When the volley of shots ceased and the three (3) men left, Norberto saw
that his two (2) young daughters were wounded. His wife went out of their
house to ask for help from neighbors, while he and his older daughter carried
the two (2) wounded children out to the street. His daughter Mary Grace died
on the way to the hospital, while Claudine expired at the hospital despite the
doctors' attempts to revive her.8
In answer to questions of what could have prompted such an attack from
appellant, Norberto replied that he had a previous altercation with appellant
who was angered by the fact that he (Norberto) filed a case against
appellant's two other brothers for molesting his daughter.9
On the other hand, appellant was only able to proffer denial and alibi as his
defense. Appellant's testimony, along with those of Gilbert Estores, Roger
San Miguel, Isidro San Miguel and Ruben Alegre, was that he (appellant)
was just watching TV at the house of Isidro San Miguel, where he had been
living for several years, at the time the shooting incident occurred. However,
he and the other witnesses admitted that said house was a mere five-minute
walk away from the crime scene.10
Finding appellant’s defense to be weak, and ascribing more credence to the
testimony of Norberto, the trial court ruled that the evidence clearly
established that appellant, together with two other assailants, conspired to
shoot and kill the family of Norberto. Appellant was then convicted of Double
Murder in Criminal Case No. 7698-G and Multiple Attempted Murder in
Criminal Case No. 7702-G.
The dispositive portion of the trial court’s judgment in Criminal Case No.
7698-G reads:
WHEREFORE and in view of all the foregoing, the Court finds accused
Ireneo Jugueta guilty beyond reasonable doubt for Double Murder defined
and punished under Article 248 of the Revised Penal Code and is hereby
sentenced to suffer Reclusion Perpetua for the death of Mary Grace Divina
and to indemnify her heirs in the amount of Php50,000.00 and another to
suffer Reclusion Perpetua for the death of Claudine Divina and accused is
further ordered to indemnify the heirs of Claudine Divina in the sum of
Php50,000.00. In addition, he is hereby ordered to pay the heirs of the
victims actual damages in the amount of Php16,150.00 and to pay for the
costs.
SO ORDERED.11
On the other hand, the dispositive portion of the trial court’s judgment in
Criminal Case No. 7702-G, reads:
WHEREFORE and in view of all the foregoing, the Court finds accused
Ireneo Jugueta guilty beyond reasonable doubt for Multiple Attempted
Murder defined and penalized under Article 248 in relation to Article 51 of the
Revised Penal Code and is hereby sentenced to suffer the penalty of FOUR
(4) YEARS and TWO (2) MONTHS of Prision Correccional as minimum to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor as maximum for each
of the offended parties; Norberto Divina, Maricel Divina, Elizabeth Divina and
Judy Ann Divina. Further, accused is ordered to pay for the costs of the suit.
SO ORDERED.12
Aggrieved by the trial court's judgments, appellant appealed to the CA. On
January 30, 2012, the CA rendered a Decision affirming appellant's
conviction for the crimes charged.13
Dissatisfied with the CA Decision, appellant elevated the case to this Court.
On July 30, 2012, the Court issued a Resolution14 notifying the parties that
they may submit their respective Supplemental Briefs. Both parties
manifested that they will no longer submit supplemental briefs since they had
exhaustively discussed their positions before the CA.15
The main issue advanced in the Appellant's Brief deals with the
inconsistencies in Norberto's testimony, such as his failure to state from the
beginning that all three assailants had guns, and to categorically identify
appellant as the one holding the gun used to kill Norberto’s children.
The appeal is unmeritorious. xxxx

At the outset, it must be stressed that factual findings of the trial court, its Q: After the first shot, was there any second shot?
assessment of the credibility of witnesses and the probative weight of their
testimonies, and the conclusions based on these factual findings are to be A: After that, successive fire shot (sic) followed and my youngest and eldest
given the highest respect. Thus, generally, the Court will not recalibrate and daughters were hit.
re-examine evidence that had been analyzed and ruled upon by the trial
court and affirmed by the CA.16 xxxx

The evidence on record fully supports the trial court's factual finding, as
Q: How many of the three were holding guns at that time?
affirmed by the CA, that appellant acted in concert with two other individuals,
all three of them carrying firearms and simultaneously firing at Norberto and
his family, killing his two young daughters. Norberto clearly saw all of the A: All of them.
three assailants with their firearms as there is illumination coming from a
lamp inside their house that had been laid bare after its walling was stripped Q: You mean to tell the honorable court that these three persons were
off, to wit:
having one firearm each?
Q: When the wall of your house was stripped off by these three persons at
the same time, do you have light in your house? A: Yes, sir.

A: Yes, sir. Q: And they fired shots at the same time?

Q: What kind of light was there? A: Yes, sir.

A: A gas lamp. Q: To what direction these three persons fired (sic) their firearms during that
night?
Q: Where was the gas lamp placed at that time?
A: To the place where we were.
A: In the middle of our house.
Q: When those three persons were firing their respective firearms, what was
xxxx your position then?

Q: when did they fire a shot? A: I ordered my children to lie down.

A: On the same night, when they had stripped off the wallings. Q: How about you, what was your position when you were ordering your
children to lie down?
Q: How many gunshots did you hear?
A: (witness demonstrated his position as if covering his children with his body
A: Only one. and ordering them to line (sic) down face down)

Q: Do you know the sound of a gunshot? A firearm? Q: Mr. Witness, for how long did these three persons fire shots at your
house?
A: Yes, sir, it is loud? (sic)
A: Less than five minutes, sir.
Q: After they fired their shots, they left your house?
A: Yes, sir.
Q: And when these persons left your house, you inspected your children to
see what happened to them?
A: Yes, sir, they were hit.
x x x17
Appellant and the two other malefactors are equally responsible for the death
of Norberto's daughters because, as ruled by the trial court, they clearly
conspired to kill Norberto's family. Conspiracy exists when two or more
persons come to an agreement regarding the commission of a crime and
decide to commit it. Proof of a prior meeting between the perpetrators to
discuss the commission of the crime is not necessary as long as their
concerted acts reveal a common design and unity of purpose. In such case,
the act of one is the act of all.18 Here, the three men undoubtedly acted in
concert as they went to the house of Norberto together, each with his own
firearm. It is, therefore, no longer necessary to identify and prove that it is the
bullet particularly fired from appellant's firearm that killed the children.
Murder is defined under Article 248 of the Revised Penal Code as the
unlawful killing of a person, which is not parricide or infanticide, attended by
circumstances such as treachery or evident premeditation.19 The presence of
any one of the circumstances enumerated in Article 248 of the Code is
sufficient to qualify a killing as murder.20 The trial court correctly ruled that
appellant is liable for murder because treachery attended the killing of
Norberto’s two children, thus:
x x x Evidence adduced show that the family of Norberto Divina, were all
lying down side by side about to sleep on June 6, 2002 at around 9:00
o’clock in the evening, when suddenly their wall made of sack was stripped
off by [appellant] Ireneo Jugueta, Roger San Miguel and Gilberto Alegre (sic)
[Gilbert Estores]. They ordered him to go out of their house and when he
refused despite his plea for mercy, they fired at them having hit and killed his
two (2) daughters. The family of Norberto Divina were unarmed and his
children were at very tender ages. Mary Grace Divina and Claudine who
were shot and killed were 13 years old and 3 ½ years old respectively. In this
case, the victims were defenseless and manifestly overpowered by armed
assailants when they were gunned down. There was clear showing that the
attack was made suddenly and unexpectedly as to render the victims
helpless and unable to defend themselves. Norberto and his wife and his
children could have already been asleep at that time of the night. x x x 21
Verily, the presence of treachery qualified the killing of the hapless children
to murder. As held in People v. Fallorina,22 the essence of treachery is the
sudden and unexpected attack on an unsuspecting victim without the
slightest provocation on his part. Minor children, who by reason of their
tender years, cannot be expected to put up a defense. When an adult person
illegally attacks a child, treachery exists.
As to the charge of multiple attempted murder, the last paragraph of Article 6
of the Revised Penal Code states that a felony is attempted when the
offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous
desistance. In Esqueda v. People,23 the Court held:
If one inflicts physical injuries on another but the latter survives, the crime
committed is either consummated physical injuries, if the offender had no
intention to kill the victim, or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim. Intent to
kill may be proved by evidence of: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and number of
wounds inflicted on the victim; (d) the manner the crime was committed; and
(e) the words uttered by the offender at the time the injuries are inflicted by
him on the victim.
In this case, the prosecution has clearly established the intent to kill on the
part of appellant as shown by the use of firearms, the words uttered24during,
as well as the manner of, the commission of the crime. The Court thus
quotes with approval the trial court’s finding that appellant is liable for
attempted murder, viz.:
In the case at bar, the perpetrators who acted in concert commenced the
felony of murder first by suddenly stripping off the wall of their house,
followed by successive firing at the intended victims when Norberto Divina
refused to go out of the house as ordered by them. If only there were good in
aiming their target, not only Mary Grace and Claudine had been killed but
surely all the rest of the family would surely have died. Hence, perpetrators
were liable for Murder of Mary Grace Divina and Claudine Divina but for
Multiple Attempted Murder for Norberto Divina, Maricel Divina, Elizabeth
Divina and Judy Ann Divina. But as [appellant] Ireneo Jugueta was the only
one charged in this case, he alone is liable for the crime committed.25
Meanwhile, the supposed inconsistencies in Norberto's testimony, i.e., that
he failed to state from the very beginning that all three assailants were
carrying firearms, and that it was the shots from appellant’s firearm that killed
the children, are too trivial and inconsequential to put a dent on said
witness's credibility. An examination of Norberto's testimony would show that
there are no real inconsistencies to speak of. As ruled in People v.
Cabtalan,26 "[m]inor inconsistencies and discrepancies pertaining to trivial
matters do not affect the credibility of witnesses, as well as their positive
identification of the accused as the perpetrators of the crime."27 Both the trial
court and the CA found Norberto's candid and straightforward testimony to
be worthy of belief and this Court sees no reason why it should not conform
to the principle reiterated in Medina, Jr. v. People28 that:
Time and again, this Court has deferred to the trial court's factual
findings and evaluation of the credibility of witnesses, especially
when affirmed by the CA, in the absence of any clear showing that
the trial court overlooked or misconstrued cogent facts and
circumstances that would justify altering or revising such findings and
evaluation. This is because the trial court's determination proceeds
from its first-hand opportunity to observe the demeanor of the
witnesses, their conduct and attitude under grilling examination,
thereby placing the trial court in unique position to assess the
witnesses' credibility and to appreciate their truthfulness, honesty
and candor x x x.29
The records of this case, particularly the testimonies of the witnesses, reveal
no outstanding or exceptional circumstance to justify a deviation from such
long-standing principle. There is no cogent reason to overturn the trial court's
ruling that the prosecution evidence, particularly the testimony of Norberto
Divina identifying appellant as one of the assailants, is worthy of belief. Thus,
the prosecution evidence established beyond any reasonable doubt that
appellant is one of the perpetrators of the crime.
However, the Court must make a clarification as to the nomenclature used by
the trial court to identify the crimes for which appellant was penalized. There
is some confusion caused by the trial court's use of the terms "Double
Murder" and "Multiple Attempted Murder" in convicting appellant, and yet
imposing penalties which nevertheless show that the trial court meant to
penalize appellant for two (2) separate counts of Murder and four (4) counts
of Attempted Murder.
The facts, as alleged in the Information in Criminal Case No. 7698-G, and as
proven during trial, show that appellant is guilty of 2 counts of the crime of
Murder and not Double Murder, as the killing of the victims was not the result
of a single act but of several acts of appellant and his cohorts. In the same
vein, appellant is also guilty of 4 counts of the crime of Attempted Murder and
not Multiple Attempted Murder in Criminal Case No. 7702-G. It bears
stressing that the Informations in this case failed to comply with the
requirement in Section 13, Rule 110 of the Revised Rules of Court that an
information must charge only one offense.
As a general rule, a complaint or information must charge only one offense,
otherwise, the same is defective. The reason for the rule is stated in People
of the Philippines and AAA v. Court of Appeals, 21st Division, Mindanao
Station, et al.,30 thus:
The rationale behind this rule prohibiting duplicitous complaints or
informations is to give the accused the necessary knowledge of the charge
against him and enable him to sufficiently prepare for his defense. The State
should not heap upon the accused two or more charges which might confuse
him in his defense. Non-compliance with this rule is a ground for quashing
the duplicitous complaint or information under Rule 117 of the Rules on
Criminal Procedure and the accused may raise the same in a motion to
quash before he enters his plea, otherwise, the defect is deemed waived.
However, since appellant entered a plea of not guilty during arraignment and
failed to move for the quashal of the Informations, he is deemed to have
waived his right to question the same. Section 9 of Rule 117 provides that
"[t]he failure of the accused to assert any ground of a motion to quash before
he pleads to the complaint or information, either because he did not file a
motion to quash or failed to allege the same in said motion, shall be deemed
a waiver of any objections except those based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of Section 3 of this Rule."
It is also well-settled that when two or more offenses are charged in a single
complaint or information but the accused fails to object to it before trial, the
court may convict him of as many offenses as are charged and proved, and
impose upon him the proper penalty for each offense.31
Appellant can therefore be held liable for all the crimes alleged in the
Informations in Criminal Case Nos. 7698-G and 7702-G, i.e., 2 counts of
murder and 4 counts of attempted murder, respectively, and proven during
trial.
Meanwhile, in People v. Nelmida,32 the Court explained the concept of a
complex crime as defined in Article 4833 of the Revised Penal Code, thus:
In a complex crime, two or more crimes are actually committed, however, in
the eyes of the law and in the conscience of the offender they constitute only
one crime, thus, only one penalty is imposed. There are two kinds of complex
crime. The first is known as a compound crime, or when a single act
constitutes two or more grave or less grave felonies while the other is known
as a complex crime proper, or when an offense is a necessary means for
committing the other. The classic example of the first kind is when a single
bullet results in the death of two or more persons. A different rule governs
where separate and distinct acts result in a number killed. Deeply rooted is
the doctrine that when various victims expire from separate shot, such acts
constitute separate and distinct crimes.34
Here, the facts surrounding the shooting incident clearly show that appellant
and the two others, in firing successive and indiscriminate shots at the family
of Norberto from their respective firearms, intended to kill not only Norberto,
but his entire family. When several gunmen, as in this case, indiscriminately
fire a series of shots at a group of people, it shows their intention to kill
several individuals. Hence, they are committing not only one crime. What
appellant and his cohorts committed cannot be classified as a complex crime
because as held in People v. Nelmida,35 "each act by each gunman pulling
the trigger of their respective firearms, aiming each particular moment at
different persons constitute distinct and individual acts which cannot give rise
to a complex crime."36
Furthermore, the Court notes that both the trial court and the CA failed to
take into account dwelling as an ordinary, aggravating circumstance, despite
the fact that the Informations in Criminal Case Nos. 7698-G and 7702-G
contain sufficient allegations to that effect, to wit:
Criminal Case No. 7698-G for Double Murder:
That the crime was committed in the dwelling of the offended party who had
not given provocation for the attack and the accused took advantage of
nighttime to facilitate the commission of the offense.37
Criminal Case No. 7702-G for Multiple Attempted Murder:
x x x the above-named accused, conspiring and confederating together and
mutually helping one another, armed with short firearms of undetermined
calibres, with intent to kill, qualified by treachery, with evident premeditation
and abuse of superior strength, did then and there wilfully, unlawfully and
feloniously attack, assault, and shoot with the said firearms the house
occupied by the family of Norberto Divina, thereby commencing the
commission of the crime of Murder, directly by overt acts, but did not perform
all the acts of execution which would have produced it by reason of some
cause or accident other than the spontaneous desistance of the accused x x
x38
In People v. Agcanas,39 the Court stressed that "[i]t has been held in a long
line of cases that dwelling is aggravating because of the sanctity of privacy
which the law accords to human abode. He who goes to another's house to
hurt him or do him wrong is more guilty than he who offends him elsewhere."
Dwelling aggravates a felony where the crime is committed in the dwelling of
the offended party provided that the latter has not given provocation
therefor.40 The testimony of Norberto established the fact that the group of
appellant violated the victims' home by destroying the same and attacking his
entire family therein, without provocation on the part of the latter. Hence, the
trial court should have appreciated dwelling as an ordinary aggravating
circumstance.
In view of the attendant ordinary aggravating circumstance, the Court must
modify the penalties imposed on appellant. Murder is punishable by reclusion
perpetua to death, thus, with an ordinary aggravating circumstance of
dwelling, the imposable penalty is death for each of two (2) counts of
murder.41 However, pursuant to Republic Act (RA) No. 9346, proscribing the
imposition of the death penalty, the penalty to be imposed on appellant
should be reclusion perpetua for each of the two (2) counts of murder without
eligibility for parole. With regard to the four (4) counts of attempted murder,
the penalty prescribed for each count is prision mayor. With one ordinary
aggravating circumstance, the penalty should be imposed in its maximum
period. Applying the Indeterminate Sentence Law, the maximum penalty
should be from ten (10) years and one (1) day to twelve (12) years of prision
mayor, while the minimum shall be taken from the penalty next lower in
degree, i.e., prision correccional, in any of its periods, or anywhere from six
(6) months and one (1) day to six (6) years. This Court finds it apt to impose
on appellant the indeterminate penalty of four (4) years, two (2) months and
one (1) day of prision correccional, as minimum, to ten (10) years and one
(1) day of prision mayor, as minimum, for each of the four (4) counts of
attempted murder.
Anent the award of damages, the Court deems it proper to address the
matter in detail as regards criminal cases where the imposable penalty
is reclusion perpetua to death. Generally, in these types of criminal cases,
there are three kinds of damages awarded by the Court; namely: civil
indemnity, moral, and exemplary damages. Likewise, actual damages may
be awarded or temperate damages in some instances.
First, civil indemnity ex delicto is the indemnity authorized in our criminal law
for the offended party, in the amount authorized by the prevailing judicial
policy and apart from other proven actual damages, which itself is equivalent
to actual or compensatory damages in civil law.42 This award stems from
Article 100 of the RPC which states, "Every person criminally liable for a
felony is also civilly liable."
It is to be noted that civil indemnity is, technically, not a penalty or a fine;
hence, it can be increased by the Court when appropriate.43 Article 2206 of
the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-
delict shall be at least three thousand pesos, even though there may have
been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to
the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on
account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to
the provisions of Article 291, the recipient who is not an heir
called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person
causing the death, for a period not exceeding five years, the
exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages
for mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind
of monetary restitution or compensation to the victim for the damage or
infraction that was done to the latter by the accused, which in a sense only
covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where
a person dies, in addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a sum of money as
restitution. Also, it is apparent from Article 2206 that the law only imposes a
minimum amount for awards of civil indemnity, which is ₱3,000.00. The law
did not provide for a ceiling. Thus, although the minimum amount for the
award cannot be changed, increasing the amount awarded as civil indemnity
can be validly modified and increased when the present circumstance
warrants it.44
The second type of damages the Court awards are moral damages, which
are also compensatory in nature. Del Mundo v. Court of
Appeals45 expounded on the nature and purpose of moral damages, viz.:
Moral damages, upon the other hand, may be awarded to compensate one
for manifold injuries such as physical suffering, mental anguish, serious
anxiety, besmirched reputation, wounded feelings and social humiliation.
These damages must be understood to be in the concept of grants, not
punitive or corrective in nature, calculated to compensate the claimant for the
injury suffered. Although incapable of exactness and no proof of pecuniary
loss is necessary in order that moral damages may be awarded, the amount
of indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant, and (2)
such injury must have sprung from any of the cases expressed in Article
221946 and Article 222047 of the Civil Code. x x x.
Similarly, in American jurisprudence, moral damages are treated as
"compensatory damages awarded for mental pain and suffering or mental
anguish resulting from a wrong."48 They may also be considered and allowed
"for resulting pain and suffering, and for humiliation, indignity, and vexation
suffered by the plaintiff as result of his or her assailant's conduct, as well as
the factors of provocation, the reasonableness of the force used, the
attendant humiliating circumstances, the sex of the victim, [and] mental
distress."49
The rationale for awarding moral damages has been explained in Lambert v.
Heirs of Rey Castillon: "[T]he award of moral damages is aimed at a
restoration, within the limits possible, of the spiritual status quo ante; and
therefore, it must be proportionate to the suffering inflicted."50
Corollarily, moral damages under Article 222051 of the Civil Code also does
not fix the amount of damages that can be awarded. It is discretionary upon
the court, depending on the mental anguish or the suffering of the private
offended party. The amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the award of civil
indemnity.52
Finally, the Civil Code of the Philippines provides, in respect to exemplary
damages, thus:
ART. 2229. Exemplary or corrective damages are imposed, by way of
example or correction for the public good, in addition to the moral, temperate,
liquidated or compensatory damages.
ART. 2230. In criminal offenses, exemplary damages as a part of the civil
liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from
fines and shall be paid to the offended party.
Also known as "punitive" or "vindictive" damages, exemplary or corrective
damages are intended to serve as a deterrent to serious wrong doings, and
as a vindication of undue sufferings and wanton invasion of the rights of an
injured or a punishment for those guilty of outrageous conduct. These terms
are generally, but not always, used interchangeably. In common law, there is
preference in the use of exemplary damages when the award is to account
for injury to feelings and for the sense of indignity and humiliation suffered by
a person as a result of an injury that has been maliciously and wantonly
inflicted,53 the theory being that there should be compensation for the hurt
caused by the highly reprehensible conduct of the defendant – associated
with such circumstances as willfulness, wantonness, malice, gross
negligence or recklessness, oppression, insult or fraud or gross fraud 54 – that
intensifies the injury. The terms punitive or vindictive damages are often used
to refer to those species of damages that may be awarded against a person
to punish him for his outrageous conduct. In either case, these damages are
intended in good measure to deter the wrongdoer and others like him from
similar conduct in the future.55
The term aggravating circumstances used by the Civil Code, the law not
having specified otherwise, is to be understood in its broad or generic sense.
The commission of an offense has a two-pronged effect, one on the public as
it breaches the social order and the other upon the private victim as it causes
personal sufferings, each of which is addressed by, respectively, the
prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a
graver felony underscores the exacerbation of the offense by the attendance
of aggravating circumstances, whether ordinary or qualifying, in its
commission. Unlike the criminal liability which is basically a State concern,
the award of damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for an award of
exemplary damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it is qualifying.
Withal, the ordinary or qualifying nature of an aggravating circumstance is a
distinction that should only be of consequence to the criminal, rather than to
the civil, liability of the offender. In fine, relative to the civil aspect of the case,
an aggravating circumstance, whether ordinary or qualifying, should entitle
the offended party to an award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code. 56
The reason is fairly obvious as to why the Revised Rules of Criminal
Procedure57 requires aggravating circumstances, whether ordinary or
qualifying, to be stated in the complaint or information. It is in order not to
trample on the constitutional right of an accused to be informed of the nature
of the alleged offense that he or she has committed. A criminal complaint or
information should basically contain the elements of the crime, as well as its
qualifying and ordinary aggravating circumstances, for the court to effectively
determine the proper penalty it should impose. This, however, is not similar
in the recovery of civil liability. In the civil aspect, the presence of an
aggravating circumstance, even if not alleged in the information but proven
during trial would entitle the victim to an award of exemplary damages.
Being corrective in nature, exemplary damages, therefore, can be awarded,
not only due to the presence of an aggravating circumstance, but also where
the circumstances of the case show the highly reprehensible or outrageous
conduct of the offender. In much the same way as Article 2230 prescribes an
instance when exemplary damages may be awarded, Article 2229, the main
provision, lays down the very basis of the award. Thus, in People v.
Matrimonio,58 the Court imposed exemplary damages to deter other fathers
with perverse tendencies or aberrant sexual behavior from sexually abusing
their own daughters. Also, in People v. Cristobal,59 the Court awarded
exemplary damages on account of the moral corruption, perversity and
wickedness of the accused in sexually assaulting a pregnant married woman.
In People v. Cañada,60 People v. Neverio61 and People v. Layco, Sr.,62 the
Court awarded exemplary damages to set a public example, to serve as
deterrent to elders who abuse and corrupt the youth, and to protect the latter
from sexual abuse.
Existing jurisprudence pegs the award of exemplary damages at
₱30,000.00,63 despite the lack of any aggravating circumstance. The Court
finds it proper to increase the amount to ₱50,000.00 in order to deter similar
conduct.
If, however, the penalty for the crime committed is death, which cannot be
imposed because of the provisions of R.A. No. 9346, prevailing
jurisprudence64 sets the amount of ₱100,000.00 as exemplary damages.
Before awarding any of the above mentioned damages, the Court, however,
must first consider the penalty imposed by law. Under RA 7659 or An Act to
Impose the Death Penalty on Certain Heinous Crimes, Amending for that
Purpose the Revised Penal Laws, and for Other Purposes, certain crimes
under the RPC and special penal laws were amended to impose the death
penalty under certain circumstances.65 Under the same law, the following
crimes are punishable by reclusion perpetua: piracy in general,66 mutiny on
the high seas,67 and simple rape.68 For the following crimes, RA 7659 has
imposed the penalty of reclusion perpetua to death: qualified
piracy;69 qualified bribery under certain
circumstances;70 parricide;71 murder;72 infanticide, except when committed by
the mother of the child for the purpose of concealing her dishonor or either of
the maternal grandparents for the same purpose;73 kidnapping and serious
illegal detention under certain circumstances;74 robbery with violence against
or intimidation of persons under certain circumstances;75 destructive arson,
except when death results as a consequence of the commission of any of the
acts penalized under the article;76 attempted or frustrated rape, when a
homicide is committed by reason or on occasion thereof; plunder;77 and
carnapping, when the driver or occupant of the carnapped motor vehicle is
killed or raped in the course of the commission of the carnapping or on the
occasion thereof.78 Finally, RA 7659 imposes the death penalty on the
following crimes:
(a) In qualified bribery, when it is the public officer who asks or
demands the gift or present.
(b) In kidnapping and serious illegal detention: (i) when the
kidnapping or detention was committed for the purpose of extorting
ransom from the victim or any other person; (ii) when the victim is
killed or dies as a consequence of the detention; (iii) when the victim
is raped, subjected to torture or dehumanizing acts.
(c) In destructive arson, when as a consequence of the commission
of any of the acts penalized under Article 320, death results.
(d) In rape: (i) when by reason or on occasion of the rape, the victim
becomes insane or homicide is committed; (ii) when 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-law-spouse of the parent
of the victim; (2) when the victim is under the custody of the police or
military authorities; (3) when the rape is committed in full view of the
husband, parent, any of the children or other relatives within the third
degree of consanguinity; (4) when the victim is a religious or a child
below seven years old; (5) when the offender knows that he is
afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease;
(6) when committed by any member of the Armed Forces of the
Philippines or the Philippine National Police or any law enforcement
agency; and (7) when by reason or on the occasion of the rape, the
victim has suffered permanent physical mutilation.
From these heinous crimes, where the imposable penalties consist of two (2)
indivisible penalties or single indivisible penalty, all of them must be taken in
relation to Article 63 of the RPC, which provides:
Article 63. Rules for the application of indivisible penalties. - In all cases in
which the law prescribes a single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may
have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
1. when in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied.
2. when there are neither mitigating nor aggravating circumstances in
the commission of the deed, the lesser penalty shall be applied.
3. when the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser
penalty shall be applied.
4. when both mitigating and aggravating circumstances attended the
commission of the act, the courts shall reasonably allow them to
offset one another in consideration of their number and importance,
for the purpose of applying the penalty in accordance with the
preceding rules, according to the result of such compensation.
(Revised Penal Code, Art. 63)
Thus, in order to impose the proper penalty, especially in cases of indivisible
penalties, the court has the duty to ascertain the presence of any mitigating
or aggravating circumstances. Accordingly, in crimes where the imposable
penalty is reclusion perpetua to death, the court can impose either reclusion
perpetua or death, depending on the mitigating or aggravating circumstances
present.
But with the enactment of RA 9346 or An Act Prohibiting the Imposition of
Death Penalty in the Philippines, the imposition of death penalty is now
prohibited. It provides that in lieu of the death penalty, the penalty
of reclusion perpetua shall be imposed when the law violated makes use of
the nomenclature of the penalties of the RPC.79
As a result, the death penalty can no longer be imposed. Instead, they have
to impose reclusion perpetua. Despite this, the principal consideration for the
award of damages, following the ruling in People v. Salome80 and People v.
Quiachon,81 is "the penalty provided by law or imposable for the offense
because of its heinousness, not the public penalty actually imposed on the
offender."82
When the circumstances surrounding the crime would justify the imposition of
the death penalty were it not for RA 9346, the Court has ruled, as early as
July 9, 1998 in People v. Victor,83 that the award of civil indemnity for the
crime of rape when punishable by death should be ₱75,000.00 We reasoned
that "[t]his is not only a reaction to the apathetic societal perception of the
penal law and the financial fluctuations over time, but also an expression of
the displeasure of the Court over the incidence of heinous crimes against
chastity."84 Such reasoning also applies to all heinous crimes found in RA
7659. The amount was later increased to ₱100,000.00.85
In addition to this, the Court likewise awards moral damages. In People v.
Arizapa,86 ₱50,000.00 was awarded as moral damages without need of
pleading or proving them, for in rape cases, it is recognized that the victim's
injury is concomitant with and necessarily results from the odious crime of
rape to warrant per se the award of moral damages.87 Subsequently, the
amount was increased to ₱75,000.00 in People v. Soriano88 and
P100,000.00 in People v. Gambao.89
Essentially, despite the fact that the death penalty cannot be imposed
because of RA 9346, the imposable penalty as provided by the law for the
crime, such as those found in RA 7569, must be used as the basis for
awarding damages and not the actual penalty imposed.1avvphi1
Again, for crimes where the imposable penalty is death in view of the
attendance of an ordinary aggravating circumstance but due to the
prohibition to impose the death penalty, the actual penalty imposed
is reclusion perpetua, the latest jurisprudence90 pegs the amount of
₱100,000.00 as civil indemnity and ₱100,0000.00 as moral damages. For the
qualifying aggravating circumstance and/or the ordinary aggravating
circumstances present, the amount of ₱100,000.00 is awarded as exemplary
damages aside from civil indemnity and moral damages. Regardless of the
attendance of qualifying aggravating circumstance, the exemplary damages
shall be fixed at ₱100,000.00. "[T]his is not only a reaction to the apathetic
societal perception of the penal law and the financial fluctuation over time,
but also an expression of the displeasure of the Court over the incidence of
heinous crimes x x x."91
When the circumstances surrounding the crime call for the imposition
of reclusion perpetua only, there being no ordinary aggravating
circumstance, the Court rules that the proper amounts should be ₱75,000.00
as civil indemnity, ₱75,000.00 as moral damages and ₱75,000.00 exemplary
damages, regardless of the number of qualifying aggravating circumstances
present.
When it comes to compound and complex crimes, although the single act
done by the offender caused several crimes, the fact that those were the
result of a single design, the amount of civil indemnity and moral damages
will depend on the penalty and the number of victims. For each of the victims,
the heirs should be properly compensated. If it is multiple murder without any
ordinary aggravating circumstance but merely a qualifying aggravating
circumstance, but the penalty imposed is death because of Art. 48 of the
RPC wherein the maximum penalty shall be imposed,92 then, for every victim
who dies, the heirs shall be indemnified with ₱100,000.00 as civil indemnity,
₱100,000.00 as moral damages and ₱100,000.00 as exemplary damages.
In case of a special complex crime, which is different from a complex crime
under Article 48 of the RPC, the following doctrines are noteworthy:
In People of the Philippines v. Conrado Laog,93 this Court ruled that special
complex crime, or more properly, a composite crime, has its own definition
and special penalty in the Revised Penal Code, as amended. Justice
Regalado, in his Separate Opinion in the case of People v.
Barros,94 explained that composite crimes are "neither of the same legal
basis as nor subject to the rules on complex crimes in Article 48 [of the
Revised Penal Code], since they do not consist of a single act giving rise to
two or more grave or less grave felonies [compound crimes] nor do they
involve an offense being a necessary means to commit another [complex
crime proper]. However, just like the regular complex crimes and the present
case of aggravated illegal possession of firearms, only a single penalty is
imposed for each of such composite crimes although composed of two or
more offenses."95
In People v. De Leon,96 we expounded on the special complex crime of
robbery with homicide, as follows:
In robbery with homicide, the original criminal design of the malefactor is to
commit robbery, with homicide perpetrated on the occasion or by reason of
the robbery. The intent to commit robbery must precede the taking of human
life. The homicide may take place before, during or after the robbery. It is
only the result obtained, without reference or distinction as to the
circumstances, causes or modes or persons intervening in the commission of
the crime that has to be taken into consideration. There is no such felony of
robbery with homicide through reckless imprudence or simple negligence.
The constitutive elements of the crime, namely, robbery with homicide, must
be consummated.
It is immaterial that the death would supervene by mere accident; or that the
victim of homicide is other than the victim of robbery, or that two or more
persons are killed, or that aside from the homicide, rape, intentional
mutilation, or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the victim of
homicide is one of the robbers; the felony would still be robbery with
homicide. Once a homicide is committed by or on the occasion of the
robbery, the felony committed is robbery with homicide. All the felonies
committed by reason of or on the occasion of the robbery are integrated into
one and indivisible felony of robbery with homicide. The word "homicide" is
used in its generic sense. Homicide, thus, includes murder, parricide, and
infanticide.97
In the special complex crime of rape with homicide, the term "homicide" is to
be understood in its generic sense, and includes murder and slight physical
injuries committed by reason or on occasion of the rape.98 Hence, even if any
or all of the circumstances (treachery, abuse of superior strength and evident
premeditation) alleged in the information have been duly established by the
prosecution, the same would not qualify the killing to murder and the crime
committed by appellant is still rape with homicide. As in the case of robbery
with homicide, the aggravating circumstance of treachery is to be considered
as a generic aggravating circumstance only. Thus we ruled in People v.
Macabales:99
Finally, appellants contend that the trial court erred in concluding that the
aggravating circumstance of treachery is present. They aver that treachery
applies to crimes against persons and not to crimes against property.
However, we find that the trial court in this case correctly characterized
treachery as a generic aggravating, rather than qualifying, circumstance.
Miguel was rendered helpless by appellants in defending himself when his
arms were held by two of the attackers before he was stabbed with a knife by
appellant Macabales, as their other companions surrounded them. In People
v. Salvatierra, we ruled that when alevosia (treachery) obtains in the special
complex crime of robbery with homicide, such treachery is to be regarded as
a generic aggravating circumstance.
Robbery with homicide is a composite crime with its own definition and
special penalty in the Revised Penal Code. There is no special complex
crime of robbery with murder under the Revised Penal Code. Here, treachery
forms part of the circumstances proven concerning the actual commission of
the complex crime. Logically it could not qualify the homicide to murder but,
as generic aggravating circumstance, it helps determine the penalty to be
imposed.100
Applying the above discussion on special complex crimes, if the penalty is
death but it cannot be imposed due to RA 9346 and what is actually imposed
is the penalty of reclusion perpetua, the civil indemnity and moral damages
will be ₱100,000.00 each, and another ₱100,000.00 as exemplary damages
in view of the heinousness of the crime and to set an example. If there is
another composite crime included in a special complex crime and the penalty
imposed is death, an additional ₱100,000.00 as civil indemnity, ₱100,000.00
moral damages and ₱100,000.00 exemplary damages shall be awarded for
each composite crime committed.
For example, in case of Robbery with Homicide101 wherein three (3) people
died as a consequence of the crime, the heirs of the victims shall be entitled
to the award of damages as discussed earlier. This is true, however, only if
those who were killed were the victims of the robbery or mere bystanders
and not when those who died were the perpetrators or robbers themselves
because the crime of robbery with homicide may still be committed even if
one of the robbers dies.102 This is also applicable in robbery with rape where
there is more than one victim of rape.
In awarding civil indemnity and moral damages, it is also important to
determine the stage in which the crime was committed and proven during the
trial. Article 6 of the RPC provides:
Art. 6. Consummated, frustrated, and attempted felonies. - Consummated
felonies, as well as those which are frustrated and attempted, are
punishable.
A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when an offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.
As discussed earlier, when the crime proven is consummated and the
penalty imposed is death but reduced to reclusion perpetua because of R.A.
9346, the civil indemnity and moral damages that should be awarded will
each be ₱100,000.00 and another ₱100,000.00 for exemplary damages or
when the circumstances of the crime call for the imposition of reclusion
perpetua only, the civil indemnity and moral damages should be ₱75,000.00
each, as well as exemplary damages in the amount of ₱75,000.00. If,
however, the crime proven is in its frustrated stage, the civil indemnity and
moral damages that should be awarded will each be ₱50,000.00, and an
award of ₱25,000.00 civil indemnity and ₱25,000.00 moral damages when
the crime proven is in its attempted stage. The difference in the amounts
awarded for the stages is mainly due to the disparity in the outcome of the
crime committed, in the same way that the imposable penalty varies for each
stage of the crime. The said amounts of civil indemnity and moral damages
awarded in cases of felonies in their frustrated or attempted stages shall be
the bases when the crimes committed constitute complex crime under Article
48 of the RPC. For example, in a crime of murder with attempted murder, the
amount of civil indemnity, moral damages and exemplary damages is innocent, defenseless minors – one is a mere 3½-year-old toddler, and the
₱100,000.00 each, while in the attempted murder, the civil indemnity, moral other a 13-year-old girl. The increase in the amount of awards for damages is
damages and exemplary damages is ₱25,000.00 each. befitting to show not only the Court's, but all of society's outrage over such
crimes and wastage of lives.
In a special complex crime, like robbery with homicide, if, aside from
homicide, several victims (except the robbers) sustained injuries, they shall In summary:
likewise be indemnified. It must be remembered that in a special complex
crime, unlike in a complex crime, the component crimes have no attempted I. For those crimes106 like, Murder,107 Parricide,108 Serious Intentional
or frustrated stages because the intention of the offender/s is to commit the Mutilation,109 Infanticide,110 and other crimes involving death of a
principal crime which is to rob but in the process of committing the said victim where the penalty consists of indivisible penalties:
crime, another crime is committed. For example, if on the occasion of a
robbery with homicide, other victims sustained injuries, regardless of the
1.1 Where the penalty imposed is death but reduced
severity, the crime committed is still robbery with homicide as the injuries to reclusion perpetua because of RA 9346:
become part of the crime, "Homicide", in the special complex crime of
robbery with homicide, is understood in its generic sense and now forms part
of the essential element of robbery,103 which is the use of violence or the use a. Civil indemnity – ₱100,000.00
of force upon anything. Hence, the nature and severity of the injuries
sustained by the victims must still be determined for the purpose of awarding b. Moral damages – ₱100,000.00
civil indemnity and damages. If a victim suffered mortal wounds and could
have died if not for a timely medical intervention, the victim should be c. Exemplary damages – ₱100,000.00
awarded civil indemnity, moral damages, and exemplary damages equivalent
to the damages awarded in a frustrated stage, and if a victim suffered injuries 1.2 Where the crime committed was not consummated:
that are not fatal, an award of civil indemnity, moral damages and exemplary
damages should likewise be awarded equivalent to the damages awarded in
a. Frustrated:
an attempted stage.

i. Civil indemnity – ₱75,000.00

In other crimes that resulted in the death of a victim and the penalty consists
of divisible penalties, like homicide, death under tumultuous affray, reckless
imprudence resulting to homicide, the civil indemnity awarded to the heirs of ii. Moral damages – ₱75,000.00
the victim shall be ₱50,000.00 and ₱50,000.00 moral damages without
exemplary damages being awarded. However, an award of ₱50,000.00 iii. Exemplary damages – ₱75,000.00
exemplary damages in a crime of homicide shall be added if there is an
aggravating circumstance present that has been proven but not alleged in b. Attempted:
the information.
i. Civil indemnity – ₱50,000.00
Aside from those discussed earlier, the Court also awards temperate
damages in certain cases. The award of ₱25,000.00 as temperate damages ii. Exemplary damages – ₱50,000.00
in homicide or murder cases is proper when no evidence of burial and funeral
expenses is presented in the trial court. 104 Under Article 2224 of the Civil
Code, temperate damages may be recovered, as it cannot be denied that the iii. Exemplary damages – ₱50,000.00
heirs of the victims suffered pecuniary loss although the exact amount was
not proved.105 In this case, the Court now increases the amount to be 2.1 Where the penalty imposed is reclusion
awarded as temperate damages to ₱50,000.00. perpetua, other than the above-mentioned:

In the case at bar, the crimes were aggravated by dwelling, and the murders a. Civil indemnity – ₱75,000.00
committed were further made atrocious by the fact that the victims are
 b. Moral damages – ₱75,000.00
c. Exemplary damages – ₱75,000.00
2.2 Where the crime committed was not consummated:
a. Frustrated:
i. Civil indemnity – ₱50,000.00
ii. Moral damages – ₱50,000.00
iii. Exemplary damages – ₱50,000.00
b. Attempted:
i. Civil indemnity – ₱25,000.00
ii. Moral damages – ₱25,000.00
iii. Exemplary damages – ₱25,000.00
II. For Simple Rape/Qualified Rape:
1.1 Where the penalty imposed is Death but reduced
to reclusion perpetua because of RA 9346:
a. Civil indemnity – ₱100,000.00
b. Moral damages – ₱100,000.00
c. Exemplary damages111 – ₱100,000.00
1.2 Where the crime committed was not consummated but
merely attempted:112
a. Civil indemnity – ₱50,000.00
b. Moral damages – ₱50,000.00
c. Exemplary damages – ₱50,000.00
2.1 Where the penalty imposed is reclusion perpetua, other
than the above-mentioned:
a. Civil indemnity – ₱75,000.00
b. Moral damages – ₱75,000.00
c. Exemplary damages – ₱75,000.00
2.2 Where the crime committed was not consummated, but
merely attempted:
a. Civil indemnity – ₱25,000.00
b. Moral damages – ₱25,000.00
c. Exemplary damages – ₱25,000.00
III. For Complex crimes under Article 48 of the Revised Penal Code
where death, injuries, or sexual abuse results, the civil indemnity,
moral damages and exemplary damages will depend on the penalty,
extent of violence and sexual abuse; and the number of victims
where the penalty consists of indivisible penalties:
1.1 Where the penalty imposed is Death but reduced
to reclusion perpetua because of RA 9346:
a. Civil indemnity – ₱100,000.00
b. Moral damages – ₱100,000.00
c. Exemplary damages – ₱100,000.00
1.2 Where the penalty imposed is reclusion perpetua, other
than the above-mentioned:
a. Civil indemnity – ₱75,000.00
b. Moral damages – ₱75,000.00
c. Exemplary damages – ₱75,000.00
 The above Rules apply to every victim who dies as a result 1.3 For the victims who suffered non-mortal/non-fatal
of the crime committed. In other complex crimes where injuries:
death does not result, like in Forcible Abduction with Rape,
the civil indemnity, moral and exemplary damages depend a. Civil indemnity – ₱50,000.00
on the prescribed penalty and the penalty imposed, as the
case may be.
b. Moral damages – ₱50,000.00

IV. For Special Complex Crimes like Robbery with c. Exemplary damages – ₱50,000.00
Homicide,113 Robbery with Rape,114 Robbery with Intentional
Mutilation,115 Robbery with
2.1 Where the penalty imposed is reclusion perpetua, other
than the above-mentioned:
Arson,116 Rape with Homicide,117 Kidnapping with
Murder,118 Carnapping with Homicide119 or Carnapping with
Rape,120 Highway Robbery with Homicide,121 Qualified a. Civil indemnity – ₱75,000.00
Piracy,122 Arson with Homicide,123 Hazing with Death, Rape, Sodomy
or Mutilation124 and other crimes with death, injuries, and sexual b. Moral damages – ₱75,000.00
abuse as the composite crimes, where the penalty consists of
indivisible penalties: c. Exemplary damages – ₱75,000.00

1.1 Where the penalty imposed is Death but reduced
to reclusion perpetua because of RA 9346:
a. Civil indemnity – ₱100,000.00
b. Moral damages – ₱100,000.00
c. Exemplary damages – ₱100,000.00
In Robbery with Intentional Mutilation, the amount of
damages is the same as the above if the penalty imposed is
Death but reduced to reclusion perpetua although death did
not occur.
In Robbery with Intentional Mutilation, the amount of
damages is the same as the above if the penalty imposed
is reclusion perpetua.
2.2 For the victims who suffered mortal/fatal wounds and
could have died if not for a timely medical intervention, the
following shall be awarded:
a. Civil indemnity – ₱50,000.00
b. Moral damages – ₱50,000.00
c. Exemplary damages – ₱50,000.00

1.2 For the victims who suffered mortal/fatal wounds125 and 2.3 For the victims who suffered non-mortal/non-fatal
could have died if not for a timely medical intervention, the injuries:
following shall be awarded:
a. Civil indemnity – ₱25,000.00
a. Civil indemnity – ₱75,000.00
b. Moral damages – ₱25,000.00
b. Moral damages – ₱75,000.00
c. Exemplary damages – ₱25,000.00
c. Exemplary damages – ₱75,000.00
 In Robbery with Physical Injuries,126 the amount of damages
shall likewise be dependent on the nature/severity of the
wounds sustained, whether fatal or non-fatal.
The above Rules do not apply if in the crime of Robbery with
Homicide, the robber/s or perpetrator/s are themselves killed
or injured in the incident.1âwphi1
Where the component crime is rape, the above Rules shall
likewise apply, and that for every additional rape committed,
whether against the same victim or other victims, the victims
shall be entitled to the same damages unless the other
crimes of rape are treated as separate crimes, in which case,
the damages awarded to simple rape/qualified rape shall
apply.
V. In other crimes that result in the death of a victim and the penalty
consists of divisible penalties, i.e., Homicide, Death under
Tumultuous Affray, Infanticide to conceal the dishonour of the
offender,127 Reckless Imprudence Resulting to Homicide, Duel,
Intentional Abortion and Unintentional Abortion, etc.:
1.1 Where the crime was consummated:
a. Civil indemnity – ₱50,000.00
b. Moral damages – ₱50,000.00
1.2 Where the crime committed was not consummated,
except those crimes where there are no stages, i.e.,
Reckless Imprudence and Death under tumultuous affray:
a. Frustrated:
i. Civil indemnity – ₱30,000.00
ii. Moral damages – ₱30,000.00
b. Attempted:
i. Civil indemnity – ₱20,000.00
ii. Moral damages – ₱20,000.00
If an aggravating circumstance was proven during
the trial, even if not alleged in the Information,128 in
addition to the above mentioned amounts as civil
indemnity and moral damages, the amount of
₱50,000.00 exemplary damages for consummated;
₱30,000.00 for frustrated; and ₱20,000.00 for
attempted, shall be awarded.
VI. A. In the crime of Rebellion where the imposable penalty
is reclusion perpetua and death occurs in the course of the rebellion,
the heirs of those who died are entitled to the following: 129
a. Civil indemnity – ₱100,000.00
b. Moral damages – ₱100,000.00
c. Exemplary damages – ₱100,000.00130
B. For the victims who suffered mortal/fatal wounds in the
course of the rebellion and could have died if not for a timely
medical intervention, the following shall be awarded:
a. Civil indemnity – ₱75,000.00
b. Moral damages – ₱75,000.00
c. Exemplary damages – ₱75,000.00
C. For the victims who suffered non-mortal/non-fatal injuries:
a. Civil indemnity – ₱50,000.00
b. Moral damages – ₱50,000.00
c. Exemplary damages – ₱50,000.00
VII. In all of the above instances, when no documentary evidence of
burial or funeral expenses is presented in court, the amount of
₱50,000.00 as temperate damages shall be awarded.
To reiterate, Article 2206 of the Civil Code provides that the minimum amount
for awards of civil indemnity is P3,000.00, but does not provide for a ceiling.
Thus, although the minimum amount cannot be changed, increasing the
amount awarded as civil indemnity can be validly modified and increased
when the present circumstance warrants it.131
Prescinding from the foregoing, for the two (2) counts of murder, attended by
the ordinary aggravating circumstance of dwelling, appellant should be
ordered to pay the heirs of the victims the following damages: (1)
₱100,000.00 as civil indemnity for each of the two children who died; (2)
₱100,000.00 as moral damages for each of the two victims; (3) another
₱100,000.00 as exemplary damages for each of the two victims; and (4)
temperate damages in the amount of ₱50,000.00 for each of the two
deceased. For the four (4) counts of Attempted Murder, appellant should pay
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and
₱50,000.00 as exemplary damages for each of the four victims. In addition,
the civil indemnity, moral damages, exemplary damages and temperate
damages payable by the appellant are subject to interest at the rate of six
percent (6%) per annum from the finality of this decision until fully paid. 132
Lastly, this Court echoes the concern of the trial court regarding the dismissal
of the charges against Gilberto Estores and Roger San Miguel who had been
identified by Norberto Divina as the companions of appellant on the night the
shooting occurred. Norberto had been very straightforward and unwavering
in his identification of Estores and San Miguel as the two other people who
fired the gunshots at his family. More significantly, as noted by the
prosecutor, the testimonies of Estores and San Miguel, who insisted they
were not at the crime scene, tended to conflict with the sworn statement of
Danilo Fajarillo, which was the basis for the Provincial Prosecutor's ruling
that he finds no probable cause against the two. Danilo Fajarillo's sworn
statement said that on June 6, 2002, he saw appellant with a certain "Hapon"
and Gilbert Estores at the crime scene, but it was only appellant who was
carrying a firearm and the two other people with him had no participation in
the shooting incident. Said circumstances bolster the credibility of Norberto
Divina's testimony that Estores and San Miguel may have been involved in
the killing of his two young daughters.
After all, such reinvestigation would not subject Estores and San Miguel to
double jeopardy because the same only attaches if the following requisites
are present: (1) a first jeopardy has attached before the second; (2) the first
jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first. In turn, a first jeopardy attaches only (a) after a
valid indictment; (b) before a competent court; (c) after arraignment; (d) when
a valid plea has been entered; and (e) when the accused has been acquitted
or convicted, or the case dismissed or otherwise terminated without his
express consent.133 In this case, the case against Estores and San Miguel
was dismissed before they were arraigned. Thus, there can be no double
jeopardy to speak of. Let true justice be served by reinvestigating the real
participation, if any, of Estores and San Miguel in the killing of Mary Grace
and Claudine Divina.
WHEREFORE, the instant appeal is DISMISSED. The Decision of the Court
of Appeals dated January 30, 2012 in CA-G.R. CR HC No. 03252
is AFFIRMED with the following MODIFICATIONS:
(1) In Criminal Case No. 7698-G, the Court finds accused-appellant
Ireneo Jugueta GUILTY beyond reasonable doubt of two (2) counts
of the crime of murder defined under Article 248 of the Revised
Penal Code, attended by the aggravating circumstance of dwelling,
and hereby sentences him to suffer two (2) terms of reclusion
perpetua without eligibility for parole under R.A. 9346. He
is ORDERED to PAY the heirs of Mary Grace Divina and Claudine
Divina the following amounts for each of the two victims: (a)
₱100,000.00 as civil indemnity; (b) ₱100,000.00 as moral damages;
(c) ₱100,000.00 as exemplary damages; and (d) ₱50,000.00 as
temperate damages.
(2) In Criminal Case No. 7702-G, the Court finds accused-appellant
Ireneo Jugueta GUILTY beyond reasonable doubt of four (4) counts
of the crime of attempted murder defined and penalized under Article
248 in relation to Article 51 of the Revised Penal Code, attended by
the aggravating circumstance of dwelling, and sentences him to
suffer the indeterminate penalty of four (4) years, two (2) months and
one (1) day of prision correccional, as minimum, to ten (10) years
and one (1) day of prision mayor, as maximum, for each of the four
(4) counts of attempted murder. He is ORDERED to PAY moral
damages in the amount of P50,000.00, civil indemnity of P50,000.00
and exemplary damages of PS0,000.00 to each of the four victims,
namely, Norberto Divina, Maricel Divina, Elizabeth Divina and Judy
Ann Divina.
(3) Accused-appellant Ireneo Jugueta is also ORDERED to
PAY interest at the rate of six percent (6%) per annum from the time
of finality of this decision until fully paid, to be imposed on the civil
indemnity, moral damages, exemplary damages and temperate
damages.
(4) Let the Office of the Prosecutor General, through the Department
of Justice, be FURNISHED a copy of this Decision. The Prosecutor
General is DIRECTED to immediately conduct
a REINVESTIGATION on the possible criminal liability of Gilbert
Estores and Roger San Miguel regarding this case. Likewise, let a
 THIRD DIVISION
[G.R. NO. 157472 : September 28, 2007]
SSGT. JOSE M. PACOY, Petitioner, v. HON. AFABLE E. CAJIGAL,
PEOPLE OF THE PHILIPPINES and OLYMPIO L.
ESCUETA, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed
by SSGT. Jose M. Pacoy1 (petitioner) seeking to annul and set aside the
Orders dated October 25, 20022 and December 18, 20023 issued by
Presiding Judge Afable E. Cajigal (respondent judge) of the Regional Trial
Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.
On July 4, 2002, an Information for Homicide was filed in the RTC against
petitioner committed as follows:
That on or about the 18th day of March 2002, in the Municipality of
Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of this
Honorable Court, the said accused with intent to kill, did then and there
wilfully, unlawfully and feloniously shot his commanding officer 2Lt. Frederick
Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick
Esquita multiple gunshot wounds on his body which caused his
instantaneous death.
With the aggravating circumstance of killing, 2Lt. Frederick Esquita in
disregard of his rank.4
On September 12, 2002, upon arraignment, petitioner, duly assisted by
counsel de parte, pleaded not guilty to the charge of Homicide. Respondent
Judge set the pre-trial conference and trial on October 8, 2002.5
However, on the same day and after the arraignment, the respondent judge
issued another Order,6 likewise dated September 12, 2002, directing the trial
prosecutor to correct and amend the Information to Murder in view of the
aggravating circumstance of disregard of rank alleged in the Information
which public respondent registered as having qualified the crime to Murder.
Acting upon such Order, the prosecutor entered his amendment by crossing
out the word "Homicide" and instead wrote the word "Murder" in the caption
and in the opening paragraph of the Information. The accusatory portion
remained exactly the same as that of the original Information for Homicide,
with the correction of the spelling of the victim's name from "Escuita" to
"Escueta."7
On October 8, 2002, the date scheduled for pre-trial conference and trial,
petitioner was to be re-arraigned for the crime of Murder. Counsel for
petitioner objected on the ground that the latter would be placed in double
jeopardy, considering that his Homicide case had been terminated without
his express consent, resulting in the dismissal of the case. As petitioner
refused to enter his plea on the amended Information for Murder, the public
respondent entered for him a plea of not guilty.8
On October 28, 2002, petitioner filed a Motion to Quash with Motion to
Suspend Proceedings Pending the Resolution of the Instant Motion9 on the
ground of double jeopardy. Petitioner alleged that in the Information for
Homicide, he was validly indicted and arraigned before a competent court,
and the case was terminated without his express consent; that when the
case for Homicide was terminated without his express consent, the
subsequent filing of the Information for Murder in lieu of Homicide placed him
in double jeopardy.
In an Order10 dated October 25, 2002,11 the respondent judge denied the
Motion to Quash. He ruled that a claim of former acquittal or conviction does
not constitute double jeopardy and cannot be sustained unless judgment was
rendered acquitting or convicting the defendant in the former prosecution;
that petitioner was never acquitted or convicted of Homicide, since the
Information for Homicide was merely corrected/or amended before trial
commenced and did not terminate the same; that the Information for
Homicide was patently insufficient in substance, so no valid proceedings
could be taken thereon; and that with the allegation of aggravating
circumstance of "disregard of rank," the crime of Homicide is qualified to
Murder.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration.
In his Motion to Inhibit, he alleged that the respondent judge exercised
jurisdiction in an arbitrary, capricious and partial manner in mandating the
amendment of the charge from Homicide to Murder in disregard of the
provisions of the law and existing jurisprudence.
In his Motion for Reconsideration, petitioner reiterated that the case against
him was dismissed or otherwise terminated without his express consent,
which constitutes a ground to quash the information for murder; and that to
try him again for the same offense constitutes double jeopardy. Petitioner
stated that contrary to respondent judge's conclusion that disregard of rank
qualifies the killing to Murder, it is a generic aggravating circumstance which
only serves to affect the imposition of the period of the penalty. Petitioner
also argued that the amendment and/or correction ordered by the respondent
judge was substantial; and under Section 14, Rule 110 of the Revised Rules
of Criminal Procedure, this cannot be done, since petitioner had already
been arraigned and he would be placed in double jeopardy.
In his Order dated December 18, 2002,12 the respondent judge denied the
Motion to Inhibit and granted the Motion for Reconsideration, thus:
WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby
DENIED while the Motion for Reconsideration is hereby GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge shall
continue hearing this case. Further, the Order dated October 25, 2002 is
reconsidered and the original information charging the crime of homicide
stands.13
In granting the Motion for Reconsideration, respondent judge found that a
close scrutiny of Article 248 of the Revised Penal Code shows that "disregard
of rank" is merely a generic mitigating14 circumstance which should not
elevate the classification of the crime of homicide to murder.
On April 30, 2003, petitioner filed herein Petition for Certiorari on the
following grounds:
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND
EXCEEDED HIS JURISDICTION IN ORDERING THE AMENDMENT OF
THE INFORMATION FROM HOMICIDE TO MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND
VIOLATED THE LAW IN DENYING THE MOTION TO QUASH THE
INFORMATION FOR MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND
EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW IN ORDERING
THE REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH
WAS ALREADY TERMINATED.15
Petitioner alleges that despite having entered his plea of not guilty to the
charge of Homicide, the public respondent ordered the amendment of the
Information from Homicide to Murder because of the presence of the
aggravating circumstance of "disregard of rank," which is in violation of
Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the
public respondent's ruling that "disregard of rank" is a qualifying aggravating
circumstance which qualified the killing of 2Lt. Escueta to murder is
erroneous since, under paragraph 3, Article 14 of the Revised Penal Code,
disregard of rank is only a generic aggravating circumstance which serves to
affect the penalty to be imposed upon the accused and does not qualify the
offense into a more serious crime; that even assuming that disregard of rank
is a qualifying aggravating circumstance, such is a substantial amendment
which is not allowed after petitioner has entered his plea.
Petitioner next contends that the respondent judge gravely abused his
discretion when he denied the Motion to Quash the Information for Murder,
considering that the original Information for Homicide filed against him was
terminated without his express consent; thus, prosecuting him for the same
offense would place him in double jeopardy.
Petitioner further argues that although the respondent judge granted his
Motion for Reconsideration, he did not in fact grant the motion, since
petitioner's prayer was for the respondent judge to grant the Motion to Quash
the Information for Murder on the ground of double jeopardy; that his Motion
for Reconsideration did not seek the reinstatement of the Information for
Homicide upon the dismissal of the Information for Murder, as he would
again be placed in double jeopardy; thus, the respondent judge committed
grave abuse of discretion in reinstating the Homicide case.
In his Comment, the Solicitor General argues that the respondent judge's
Order reinstating the Information to Homicide after
initially motu proprio ordering its amendment to Murder renders herein
petition moot and academic; that petitioner failed to establish the fourth
element of double jeopardy, i.e., the defendant was acquitted or convicted, or
the case against him was dismissed or otherwise terminated without his
consent; that petitioner confuses amendment with substitution of Information;
that the respondent judge's Order dated September 12, 2002 mandated an
amendment of the Information as provided under Section 14, Rule 110 of the
Revised Rules of Criminal Procedure; and that amendments do not entail
dismissal or termination of the previous case.
Private respondent Col. Olimpio Escueta, father of the victim, filed his
Comment alleging that no grave abuse of discretion was committed by the
respondent judge when he denied petitioner's Motion to Quash the Amended
Information, as petitioner was not placed in double jeopardy; that the
proceedings under the first Information for homicide has not yet commenced,
and the case was not dismissed or terminated when the Information was
amended.
In his Reply, petitioner reiterates his contention that the amendment of the
charge of Homicide to Murder after his arraignment would place him in
double jeopardy, considering that said amendment was without his express
consent; and that such amendment was tantamount to a termination of the
charge of Homicide.
The parties filed their respective Memoranda.
Generally, a direct resort to us in a Petition for Certiorari is highly improper,
for it violates the established policy of strict observance of the judicial
hierarchy of courts. However, the judicial hierarchy of courts is not an iron-
clad rule.16 A strict application of the rule of hierarchy of courts is not
necessary when the cases brought before the appellate courts do not involve
factual but legal questions.17
In the present case, petitioner submits pure questions of law involving the
proper legal interpretation of the provisions on amendment and substitution
of information under the Rules of Court. It also involves the issue of double
jeopardy, one of the fundamental rights of the citizens under the Constitution
which protects the accused not against the peril of second punishment but
against being tried for the same offense. These important legal questions
and in order to prevent further delay in the trial of the case warrant our
relaxation of the policy of strict observance of the judicial hierarchy of courts.
The Court's Ruling
The petition is not meritorious.
We find no merit in petitioner's contention that the respondent judge
committed grave abuse of discretion in amending the Information after
petitioner had already pleaded not guilty to the charge in the Information for
Homicide. The argument of petitioner - -
Considering the fact that the case for Homicide against him was already
terminated without his express consent, he cannot anymore be charged and
arraigned for Murder which involve the same offense. The petitioner argued
that the termination of the information for Homicide without his express
consent is equivalent to his acquittal. Thus, to charge him again, this time for
Murder, is tantamount to placing the petitioner in Double Jeopardy. 18
is not plausible. Petitioner confuses the procedure and effects of amendment
or substitution under Section 14, Rule 110 of the Rules of Court, to wit - -
SEC. 14. Amendment or substitution. - A complaint or information may be
amended, in form or in substance, without leave of court, at any time before
the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.
xxx
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
placed thereby in double jeopardy, and may also require the witnesses to
give bail for their appearance at the trial.
with Section 19, Rule 119 of which provides:
SEC. 19. When mistake has been made in charging the proper offense. -
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the proper
information.
First, a distinction shall be made between amendment and substitution under
Section 14, Rule 110. For this purpose, Teehankee v. Madayag19 is
instructive, viz:
The first paragraph provides the rules for amendment of the information or
complaint, while the second paragraph refers to the substitution of the
information or complaint.
It may accordingly be posited that both amendment and substitution of the
information may be made before or after the defendant pleads, but they differ
in the following respects:
1. Amendment may involve either formal or substantial changes, while
substitution necessarily involves a substantial change from the original
charge;
2. Amendment before plea has been entered can be effected without leave of
court, but substitution of information must be with leave of court as the
original information has to be dismissed;
3. Where the amendment is only as to form, there is no need for another
preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed and
the accused has to plead anew to the new information; andcralawlibrary
4. An amended information refers to the same offense charged in the original
information or to an offense which necessarily includes or is necessarily
included in the original charge, hence substantial amendments to the
information after the plea has been taken cannot be made over the objection
of the accused, for if the original information would be withdrawn, the
accused could invoke double jeopardy. On the other hand, substitution
requires or presupposes that the new information involves a different offense
which does not include or is not necessarily included in the original charge,
hence the accused cannot claim double jeopardy.
In determining, therefore, whether there should be an amendment under the
first paragraph of Section 14, Rule 110, or a substitution of information under
the second paragraph thereof, the rule is that where the second information
involves the same offense, or an offense which necessarily includes or is
necessarily included in the first information, an amendment of the information
is sufficient; otherwise, where the new information charges an offense which
is distinct and different from that initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when
the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the
first information. In this connection, an offense may be said to necessarily
include another when some of the essential elements or ingredients of the
former, as this is alleged in the information, constitute the latter. And, vice-
versa, an offense may be said to be necessarily included in another when the
essential ingredients of the former constitute or form a part of those
constituting the latter.20
In the present case, the change of the offense charged from Homicide to
Murder is merely a formal amendment and not a substantial amendment or a
substitution as defined in Teehankee.
While the amended Information was for Murder, a reading of the Information
shows that the only change made was in the caption of the case; and in the
opening paragraph or preamble of the Information, with the crossing out of
word "Homicide" and its replacement by the word "Murder." There was no
change in the recital of facts constituting the offense charged or in the
determination of the jurisdiction of the court. The averments in the amended
Information for Murder are exactly the same as those already alleged in the
original Information for Homicide, as there was not at all any change in the
act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying
circumstance. Thus, we find that the amendment made in the caption and
preamble from "Homicide" to "Murder" as purely formal.21
Section 14, Rule 110 also provides that in allowing formal amendments in
cases in which the accused has already pleaded, it is necessary that the
amendments do not prejudice the rights of the accused. The test of whether
the rights of an accused are prejudiced by the amendment of a complaint or
information is whether a defense under the complaint or information, as it
originally stood, would no longer be available after the amendment is made;
and when any evidence the accused might have would be inapplicable to the
complaint or information.22 Since the facts alleged in the accusatory portion
of the amended Information are identical with those of the original
Information for Homicide, there could not be any effect on the prosecution's
theory of the case; neither would there be any possible prejudice to the rights
or defense of petitioner.
While the respondent judge erroneously thought that "disrespect on account
of rank" qualified the crime to murder, as the same was only a generic
aggravating circumstance,23 we do not find that he committed any grave
abuse of discretion in ordering the amendment of the Information after
petitioner had already pleaded not guilty to the charge of Homicide, since the
amendment made was only formal and did not adversely affect any
substantial right of petitioner.
Next, we determine whether petitioner was placed in double jeopardy by the
change of the charge from Homicide to Murder; and subsequently, from
Murder back to Homicide. Petitioner's claim that the respondent judge
committed grave abuse of discretion in denying his Motion to Quash the
Amended Information for Murder on the ground of double jeopardy is not
meritorious.
Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the
Rules of Court, which provides:
SEC. 3. Grounds. - The accused may move to quash the complaint or
information on any of the following grounds:
xxx
(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.
Section 7 of the same Rule lays down the requisites in order that the defense
of double jeopardy may prosper, to wit:
SEC. 7. Former conviction or acquittal; double jeopardy. - When an accused
has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.
Thus, there is double jeopardy when the following requisites are present: (1)
a first jeopardy attached prior to the second; (2) the first jeopardy has been
validly terminated; and (3) a second jeopardy is for the same offense as in
the first.24
As to the first requisite, the first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after arraignment; (d) when a
valid plea has been entered; and (e) when the accused was acquitted or
convicted, or the case was dismissed or otherwise terminated without his
express consent.25
It is the conviction or acquittal of the accused or the dismissal or termination
of the case that bars further prosecution for the same offense or any attempt
to commit the same or the frustration thereof; or prosecution for any offense
which necessarily includes or is necessarily included in the offense charged
in the former complaint or information.26
Petitioner's insistence that the respondent judge dismissed or terminated his
case for homicide without his express consent, which is tantamount to an
acquittal, is misplaced.
Dismissal of the first case contemplated by Section 7 presupposes a definite
or unconditional dismissal which terminates the case.27 And for the dismissal
to be a bar under the jeopardy clause, it must have the effect of
acquittal.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The respondent judge's Order dated September 12, 2002 was for the trial
prosecutor to correct and amend the Information but not to dismiss the same
upon the filing of a new Information charging the proper offense as
contemplated under the last paragraph of Section 14, Rule 110 of the Rules
of Court - - which, for convenience, we quote again - -
If it appears at anytime before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial.
and Section 19, Rule 119, which provides:
SEC. 19. - When mistake has been made in charging the proper offense -
When it becomes manifest at any time before judgment that a mistake has
been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the proper
information.
Evidently, the last paragraph of Section 14, Rule 110, applies only when the
offense charged is wholly different from the offense proved, i.e., the accused
cannot be convicted of a crime with which he was not charged in the
information even if it be proven, in which case, there must be a dismissal of
the charge and a substitution of a new information charging the proper
offense. Section 14 does not apply to a second information, which involves
the same offense or an offense which necessarily includes or is necessarily
included in the first information. In this connection, the offense charged
necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily
included in the offense proved when the essential ingredients of the former
constitute or form a part of those constituting the latter. 28
Homicide is necessarily included in the crime of murder; thus, the respondent
judge merely ordered the amendment of the Information and not the
dismissal of the original Information. To repeat, it was the same original
information that was amended by merely crossing out the word "Homicide"
and writing the word "Murder," instead, which showed that there was no
dismissal of the homicide case.
Anent the last issue, petitioner contends that respondent judge gravely
abused his discretion in ordering that the original Information for Homicide
stands after realizing that disregard of rank does not qualify the killing to
Murder. That ruling was again a violation of his right against double jeopardy,
as he will be prosecuted anew for a charge of Homicide, which has already
been terminated earlier.
We are not convinced. Respondent judge did not commit any grave abuse of
discretion.

A reading of the Order dated December 18, 2002 showed that the
respondent judge granted petitioner's motion for reconsideration, not on the
ground that double jeopardy exists, but on his realization that "disregard of
rank" is a generic aggravating circumstance which does not qualify the killing
of the victim to murder. Thus, he rightly corrected himself by reinstating the
original Information for Homicide. The requisite of double jeopardy that the
first jeopardy must have attached prior to the second is not present,
considering that petitioner was neither convicted nor acquitted; nor was the
case against him dismissed or otherwise terminated without his express
consent.29

WHEREFORE, the petition is DISMISSED, there being no grave abuse of

discretion committed by respondent Judge.

SO ORDERED.
[G.R. NO. 179943 : June 26, 2009]
PEOPLE OF THE PHILIPPINES, Appellee, v. MARLON ALBERT DE LEON
y HOMO, Appellant.
DECISION
PERALTA, J.:
This is an appeal from the Decision1 of the Court of Appeals (CA), affirming
with modification the Decision2 of the Regional Trial Court (RTC), Branch 76,
San Mateo, Rizal, finding appellant Marlon Lambert De Leon y Homo guilty
beyond reasonable doubt of the crime of robbery with homicide.
The factual and procedural antecedents are as follows:
According to the prosecution, in the early morning, around 2 o'clock of
January 7, 2000, Eduardo Zulueta and Fortunato Lacambra III, both gasoline
boys; Julieta Amistoso, cashier; and Edralin Macahis, security guard; all
employees of Energex Gasoline Station, located at Barangay Guinayan, San
Mateo, Rizal, were on duty when a mint green-colored Tamaraw FX arrived
for service at the said gasoline station.3
Eduardo Zulueta was the one who attended to the said vehicle. He went to
the driver's side in order to take the key of the vehicle from the driver so that
he could open the gas tank. He saw through the lowered window shield that
there were about six to seven persons aboard the vehicle. He proceeded to
fill up P50.00 worth of diesel in the gas tank. After doing this, he returned the
key to the driver. While returning the key, the driver told him that the engine
of the vehicle would not start.4 Eduardo Zulueta offered to give the vehicle a
push. While Eduardo Zulueta and fellow gasoline boy Fortunato Lacambra III
were positioned at the back of the vehicle, ready to push the same, the six
male passengers of the same vehicle, except the driver, alighted and
announced a hold-up. They were armed with a shotgun and .38 caliber
pistol.5
Fortunato Lacambra III was ordered to lie down,6 while Eduardo Zulueta was
directed to go near the Car Wash Section.7 At that instance, guns were
poked at them.8
Appellant, who guarded Eduardo Zulueta, poked a gun at the latter and took
the latter's wallet containing a pawnshop ticket and P50.00, while the
companion of the former, hit the latter on his nape with a gun.9
Meanwhile, four members of the group went to the cashier's office and took
the money worth P3,000.00.10 Those four robbers were also the ones who
shot Edralin Macahis in the stomach.11 Thereafter, the same robbers took
Edralin Macahis' service firearm.12
After he heard successive gunshots, Eduardo Zulueta saw appellant and his
companions immediately leave the place.13 The robbers boarded the same
vehicle and proceeded toward San Mateo, Rizal.14 When the robbers left,
Eduardo Zulueta stood up and found Julieta Amistoso, who told him that the
robbers took her bag and jewelry. He also saw that Edralin Macahis had a
gunshot wound in the stomach. He immediately hailed a vehicle which
transported the injured Edralin Macahis to the hospital.15 Later on, Edralin
Macahis died at the hospital due to the gunshot wound.16
The following day, Eduardo Zulueta identified appellant as one of the robbers
who poked a gun at him.17
However, according to appellant, from January 4 to 6, 2000, he stayed at the
house of his Tita Emma at Pantok, Binangonan, Rizal, helping the latter in
her canteen. On the evening of January 6, at approximately 9 o'clock,
appellant asked permission from his Tita Emma to go to Antipolo. Catherine
Homo, appellant's cousin and the latter's younger brother, accompanied
appellant to the terminal. While waiting for a ride, the vehicle, a Tamaraw FX,
of a certain Christian Gersalia, a relative of appellant and Catherine Homo,
passed by. Catherine Homo asked Christian Gersalia if he would allow
appellant to hitch a ride on his vehicle. Christian Gersalia agreed. Aside from
Christian Gersalia, there were other passengers in the said vehicle.18
When the vehicle reached Masinag, where appellant was supposed to alight,
he was not allowed to do so; instead, he was asked by the other passengers
to join them in their destination. While on the road, appellant fell asleep.
When he woke up, they were in a gasoline station. He then saw Christian
Gersalia and the other passengers conducting a hold-up. He never left the
vehicle and was not able to do anything because he was overwhelmed with
fear. After he heard the gunshots, Christian Gersalia and the other
passengers went to the vehicle and proceeded towards Marikina. On their
way, they were followed by policemen who fired at them. The other
passengers fired back at the policemen. It was then that the vehicle hit a wall
prompting the other passengers to scamper in different directions leaving him
behind. When the policemen arrived, he was immediately arrested.19
As a result of the above incident, four Informations for Robbery with
Homicide were filed against appellant, Rudy Gersalia, Christian Gersalia,
Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, an alias "Rey,"
an alias "Jonard," an alias "Precie," and an alias "Renato," which read as:
Criminal Case No. 4747
That on or about the 7th day of January 2000, in the Municipality of San
Mateo, Province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "
Precie" and Alias "Renato" whose true names, identities and present
whereabouts are still unknown and still at-large, and conspiring and mutually
helping and assisting one another, while armed with unlicensed firearms and
acting as a band, with intent of gain with aggravating circumstances of
treachery, abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of motor vehicle and by means
of force, violence and intimidation, employed upon ENERGEX GASOLINE
STATION, owned by Regino C. Natividad, and represented by Macario C.
Natividad, did then and there willfully, unlawfully and feloniously rob, steal
and carry away its cash earnings worth P3,000.00, to the damage and
prejudice of said Energex Gasoline Station in the aforesaid amount of
P3,000.00 and on the occasion of the said robbery, the above-named
accused, while armed with unlicensed firearms with intent to kill, conspiring
and confederating together with Rudy Gersalia, Christian Gersalia, Dondon
Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias
"Jonard," Alias "Precie" and Alias "Renato," whose true names, identities and
present whereabouts are still unknown and still at-large, did then and there
willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN
MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting
upon him gunshot wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4748
That on or about the 7th day of January 2000 in the Municipality of San
Mateo, Province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating,
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "
Precie" and Alias "Renato," whose true names, identities and present
whereabouts are still unknown and still at-large and conspiring and mutually
helping and assisting one another, while armed with unlicensed firearms and
acting as a band, with intent of gain, with aggravating circumstances of
treachery, abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle and by
means of force, violence and intimidation, employed upon the person of
JULIETA A. AMISTOSO, the Cashier of Energex Gasoline Station, did then
and there willfully, unlawfully and feloniously rob, steal and carry away the
following, to wit:
a) One (1) ladies ring with sapphire stone valued at P1,500.00
b) One (1) Omac ladies wristwatch valued at P2,000.00
c) Guess black bag valued at P500.00
d) Leather wallet valued at P150.00
e) White T-Shirt valued at P175.00
to her damage and prejudice in the total amount of P4,325.00 and on the
occasion of the said robbery, the above-named accused while armed with
unlicensed firearms with intent to kill, conspiring and confederating together
with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "Precie" and
Alias "Renato," whose true names, identities and present whereabouts are
still unknown and still at-large, did then and there willfully, unlawfully and
feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security
Guard of Energex Gasoline Station, thereby inflicting upon him gunshot
wound on his trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4749
That on or about the 7th day of January 2000, in the Municipality of San
Mateo, Province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias
"Precie" and Alias "Renato," whose true names, identities and present
whereabouts are still unknown and still at-large, and conspiring and mutually
helping and assisting one another, while armed with unlicensed firearms and
acting as a band, with intent of gain, with aggravating circumstances of
treachery, abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle and by
means of force, violence and intimidation, employed upon EDRALIN
MACAHIS, a Security Guard of Energex Gasoline Station, did then and there
willfully, unlawfully and feloniously rob, steal, and carry away his service
firearm .12 gauge shotgun with serial number 13265 valued at P12,000.00
owned by Alert and Quick (A-Q) Security Services Incorporated represented
by its General Manager Alberto T. Quintos to the damage and prejudice of
said Alert and Quick (A-Q) Security Services Incorporated in the aforesaid
amount of P12,000.00 and on the occasion of the said robbery the above-
named accused, while armed with unlicensed firearms, with intent to kill
conspiring and confederating together with Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias
"Rey", Alias "Jonard", Alias " Precie" and Alias "Renato", whose true names,
identities and present whereabouts are still unknown and still at-large, did
then and there willfully, unlawfully and feloniously attack, assault and shoot
one EDRALIN MACAHIS, thereby inflicting upon him gunshot wound on his
trunk which directly caused his death.
Contrary to law.
Criminal Case No. 4750
That on or about the 7th day of January 2000, in the Municipality of San
Mateo, Province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias
"Precie" and Alias "Renato," whose true names, identities and present
whereabouts are still unknown and still at-large and conspiring and mutually
helping and assisting one another, while armed with unlicensed firearms and
acting as a band, with intent of gain, with aggravating circumstances of
treachery, abuse of superior strength and using disguise, fraud or craft and
taking advantage of nighttime, and by means of a motor vehicle and by
means of force, violence and intimidation, employed upon the person of
EDUARDO ZULUETA, a gasoline boy of Energex Gasoline Station, did then
and there willfully, unlawfully and feloniously rob, steal and carry away the
following to wit:
a) Pawnshop Ticket from M. Lhuiller Pawnshop for one (1) black Citizen
men's watch (automatic) valued at P2,000.00
b) Cash money worth P50.00
to his damage and prejudice in the total amount of P2,050.00 and on the
occasion of the said robbery, the above-named accused, while armed with
unlicensed firearms with intent to kill, conspiring and confederating together
with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias "Rey," Alias "Jonard," Alias "Precie" and
Alias "Renato," whose true names, identities and present whereabouts are
still unknown and still at-large, did then and there willfully, unlawfully and
feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security
Guard of Energex Gasoline Station, thereby inflicting upon him gunshot
wound on his trunk which directly caused his death.
Contrary to law.
Upon arraignment on March 23, 2000, appellant, with the assistance of
counsel de parte, entered a plea of not guilty on all the charges. Thereafter,
trial on the merits ensued.
The prosecution presented five witnesses, namely: Macario C. Natividad,20
then officer-in-charge of Energex Gasoline Station where the incident took
place; Edito Macahis,21 a cousin of the deceased security guard Edralin
Macahis; Fortunato Lacambra III,22 a gasoline boy of the same gas station;
Eduardo Zulueta,23 also a gasoline boy of the same gas station, and Alberto
Quintos,24 general manager of Alert and Quick Security Services, Inc.,
where the deceased security guard was employed.
The defense, on the other hand, presented two witnesses, namely: Catherine
Homo,25 a cousin of appellant and the appellant26 himself.
On December 20, 2001, the RTC rendered its Decision27 convicting
appellant beyond reasonable doubt of all the charges against him, the
dispositive portion of which reads:
1. In Criminal Case No. 4747, finding accused Marlon Albert de Leon y Homo
guilty beyond reasonable doubt of the crime of Robbery with Homicide, as
defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as
amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other
malefactors who have, to date, remained at-large, and sentencing the said
Marlon Albert de Leon y Homo to the penalty of Death, taking into
consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance; to pay Energex Gasoline Station
owned by Regino Natividad and represented by Macario C. Natividad the
amount of P3,000.00 as compensatory damages and to pay the costs;
2. In Crim. Case No. 4748, finding accused Marlon Albert de Leon y Homo
guilty beyond reasonable doubt of the crime of Robbery with Homicide, as
defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as
amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other
malefactors who have, to date, remained at-large, and sentencing the said
Marlon Albert de Leon y Homo to the penalty of Death, taking into
consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance, and to pay the costs;
3. In Crim. Case No. 4749, finding accused Marlon Albert de Leon y Homo
guilty beyond reasonable ground of the crime of Robbery with Homicide, as
defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as
amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other
malefactors who have, to date, remained at-large, and sentencing the said
Marlon Albert de Leon y Homo to the penalty of Death, taking into
consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance; to indemnify the heirs of Edralin
Macahis in the amount of P50,000.00 as death indemnity; to pay P12,000.00
as compensatory damages for the stolen service firearm if restitution is no
longer possible and P50,000.00 as moral damages, and to pay the costs;
4. In Crim. Case No. 4750, finding accused Marlon Albert de Leon y Homo
guilty beyond reasonable doubt of the crime of Robbery with Homicide, as
defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as
amended by Sec. 9 of R.A 7659, in relation to Sec. 1 of P.D. 1866, as further
amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other
malefactors who have, to date, remained at-large, and sentencing the said
Marlon Albert de Leon y Homo to the penalty of Death, taking into
consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance and to pay Eduardo Zulueta, victim of
the robbery, in the amount of P2,050.00 as compensatory damages for the
stolen properties if restitution is no longer possible and to pay the costs.
As against accused Rudy Gersalia and Christian Gersalia, who have, to date,
remained at-large, let a warrant of arrest be issued against them and let
these cases be, in the meantime, sent to the archives without prejudice to
their reinstatement upon apprehension of the said accused.
As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy
Servantes, Alias "Rey," Alias "Jonard," Alias "Precie and Alias "Renato,"
whose true names, identities and present whereabouts are still unknown and
are still at-large, let these cases be, in the meantime, sent to the archives
without prejudice to their reinstatement upon the identification and
apprehension of the said accused.
SO ORDERED.
The cases were appealed to this Court, however, on September, 21, 2004,28
in conformity with the Decision dated July 7, 2004 in G.R. NOS. 147678-87
entitled The People of the Philippines v. Efren Mateo y Garcia, modifying the
pertinent provisions of the Revised Rules of Criminal Procedure, more
particularly Sections 3 and 10 of Rule 125 and any other rule insofar as they
provide for direct appeals from the RTCs to this Court in cases where the
penalty imposed is death, reclusion perpetua or life imprisonment, as well as
the Resolution of this Court, en banc dated September 19, 1995, in "Internal
Rules of the Supreme Court" in cases similarly involving the death penalty,
pursuant to the Court's power to promulgate rules of procedure in all courts
under Article VII, Section 5 of the Constitution, and allowing an intermediate
review by the CA before such cases are elevated to this Court. This Court
transferred the cases to the CA for appropriate action and disposition.
The CA, on June 29, 2007,29 affirmed with modification, the Decision of the
RTC, with the dispositive portion reading:
WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION.
Accused Marlon Albert de Leon y Homo is hereby found guilty beyond
reasonable doubt of the crime of Robbery with Homicide of only one count.
Given the passage of Republic Act 9346 which took effect on 24 June 2006,
the penalty imposed upon Marlon de Leon y Homo is hereby reduced or
commuted to reclusion perpetua.
SO ORDERED.
On December 10, 2007, this Court accepted the appeal,30 the penalty
imposed being reclusion perpetua.
The Office of the Solicitor General (OSG), on February 8, 2008, filed its
Manifestation and Motion In Lieu of the Supplemental Brief31 dated February
4, 2008 stating that it will no longer file a supplemental brief, considering that
appellant has not raised any new issue that would require the filing of a
supplemental brief.
Appellant filed a Manifestation32 on February 22, 2008 stating that he re-
pleads and adopts his Appellant's Brief and Reply Brief as Supplemental
Brief.
Appellant, in his Brief,33 assigned the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-
APPELLANT A CO-CONSPIRATOR IN THE COMMISSION OF THE CRIME
CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE
THE SAME AND GUILT BEYOND REASONABLE DOUBT.
II
ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF
ROBBERY WITH HOMICIDE, THE TRIAL COURT GRAVELY ERRED IN
IMPOSING FOUR (4) DEATH PENALTIES DESPITE THAT THE CRIME
CHARGED WAS PRODUCED BY ONE SINGLE ACT WHICH SHOULD BE
METED WITH A SINGLE PENALTY.
The OSG, in its Appellee's Brief,34 insisted that all the elements of the crime
and the appellant's participation in the crime had been established.
Appellant, in his Reply Brief,35 argued that the penalty should not be death,
but only reclusion perpetua, because the aggravating circumstance of use of
unlicensed firearm, although alleged in the Information, was not alleged with
specificity.
Article 294, paragraph 1 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons - Penalties.
- Any person guilty of robbery with the use of violence against or any person
shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed, or
when the robbery shall have been accompanied by rape or intentional
mutilation or arson.
In People v. De Jesus,36 this Court had exhaustively discussed the crime of
robbery with homicide, thus:
For the accused to be convicted of the said crime, the prosecution is
burdened to prove the confluence of the following elements:
(1) the taking of personal property is committed with violence or intimidation
against persons;
(2) the property taken belongs to another;
(3) the taking is animo lucrandi; and
(4) by reason of the robbery or on the occasion thereof, homicide is
committed.37
In robbery with homicide, the original criminal design of the malefactor is to
commit robbery, with homicide perpetrated on the occasion or by reason of
the robbery.38 The intent to commit robbery must precede the taking of
human life.39 The homicide may take place before, during or after the
robbery. It is only the result obtained, without reference or distinction as to
the circumstances, causes or modes or persons intervening in the
commission of the crime that has to be taken into consideration.40 There is
no such felony of robbery with homicide through reckless imprudence or
simple negligence. The constitutive elements of the crime, namely, robbery
with homicide, must be consummated.
It is immaterial that the death would supervene by mere accident; or that the
victim of homicide is other than the victim of robbery, or that two or more
persons are killed, or that aside from the homicide, rape, intentional
mutilation, or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the victim of
homicide is one of the robbers; the felony would still be robbery with
homicide. Once a homicide is committed by or on the occasion of the
robbery, the felony committed is robbery with homicide. All the felonies
committed by reason of or on the occasion of the robbery are integrated into
one and indivisible felony of robbery with homicide. The word "homicide" is
used in its generic sense. Homicide, thus, includes murder, parricide, and
infanticide.
Intent to rob is an internal act, but may be inferred from proof of violent
unlawful taking of personal property. When the fact of asportation has been
established beyond reasonable doubt, conviction of the accused is justified
even if the property subject of the robbery is not presented in court. After all,
the property stolen may have been abandoned or thrown away and
destroyed by the robber or recovered by the owner.41 The prosecution is not
burdened to prove the actual value of the property stolen or amount stolen
from the victim. Whether the robber knew the actual amount in the
possession of the victim is of no moment, because the motive for robbery
can exist regardless of the exact amount or value involved.42
When homicide is committed by reason or on the occasion of robbery, all
those who took part as principals in the robbery would also be held liable as
principals of the single and indivisible felony of robbery with homicide,
although they did not actually take part in the killing, unless it clearly appears
that they endeavored to prevent the same.43
If a robber tries to prevent the commission of homicide after the commission
of the robbery, he is guilty only of robbery and not of robbery with homicide.
All those who conspire to commit robbery with homicide are guilty as
principals of such crime, although not all profited and gained from the
robbery. One who joins a criminal conspiracy adopts the criminal designs of
his co-conspirators and can no longer repudiate the conspiracy once it has
materialized.44
Homicide is said to have been committed by reason or on the occasion of
robbery if, for instance, it was committed (a) to facilitate the robbery or the
escape of the culprit; (b) to preserve the possession by the culprit of the loot;
(c) to prevent discovery of the commission of the robbery; or, (d) to eliminate
witnesses in the commission of the crime. As long as there is a nexus
between the robbery and the homicide, the latter crime may be committed in
a place other than the situs of the robbery.
From the above disquisition, the testimonies of the witnesses, and pieces of
evidence presented by the prosecution, the crime of robbery with homicide
was indeed committed. There was no mistaking from the actions of all the
accused that their main intention was to rob the gasoline station and that on
occasion of such robbery, a homicide was committed. The question now is
whether there was conspiracy in the commission of the crime. According to
appellant, the prosecution failed to prove that he was a co-conspirator.
However, this Court finds no merit to appellant's argument.
If it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their
combined acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a
concurrence of sentiment, a conspiracy may be inferred though no actual
meeting among them to concert means is proved. That would be termed an
implied conspiracy.45 The prosecution was able to prove the presence of an
implied conspiracy. The witnesses were able to narrate in a convincing
manner, the circumstances surrounding the commission of the robbery and
positively identified appellant as one of the robbers. Witness Eduardo
Zulueta testified that appellant was one of the robbers who poked a gun at
him, thus:
Q. Were you able to identify those two armed male persons who poked their
guns at you?cralawred
A: Yes, sir.
Q: Kindly look around inside this courtroom and inform the Hon. Court
whether those two (2) persons who poked their guns at you were (sic)
present now?cralawred
A: Only one, sir, and there he is.
(At this juncture, witness pointing to a certain person who answered by the
name of MARLON ALBERT DE LEON when asked.)
Q: This Marlon De Leon was he the one who guarded you in the carwash or
not?cralawred
A: Yes, sir.
Q: Now, what happened to you at the carwash where this Marlon De Leon
was guarding you?cralawred
A: His gun was poked at me, sir.
Q: What else transpired, Mr. Witness, or what else happened to you aside
from that?cralawred
A: He hit me with his gun on my nape, sir.
Q: What else, Mr. Witness?cralawred
A: He got my wallet from my pocket, sir.
Q: Who hit you with a gun?cralawred
A: His other companion, sir.46
Appellant was also identified by witness Fortunato Lacambra III, thus:
Q: What about that person who ordered Zulueta to go to the carwash section
and hit him, was he also armed?cralawred
A: Yes, sir.
Q: What kind of firearm was he carrying then?cralawred
A: Also .38 caliber, sir.
Q: Were you able to identify or recognize that person who approached and
ordered Zulueta to go to the carwash section?cralawred
A: Yes, sir.
Q: If that person is inside the courtroom, will you be able to identify
him?cralawred
A: Yes, sir.
Q: Kindly point to him?cralawred
A: That man, sir. (Witness pointed to a person who answered by the name of
Marlon Albert de Leon).47
Therefore, it can be inferred from the role appellant played in the commission
of the robbery, that a conspiracy existed and he was part of it. To be a
conspirator, one need not participate in every detail of the execution; he need
not even take part in every act or need not even know the exact part to be
performed by the others in the execution of the conspiracy. Each conspirator
may be assigned separate and different tasks which may appear unrelated to
one another but, in fact, constitute a whole collective effort to achieve their
common criminal objective.48 Once conspiracy is shown, the act of one is
the act of all the conspirators. The precise extent or modality of participation
of each of them becomes secondary,49 since all the conspirators are
principals.
As to the credibility of the witnesses, the RTC's findings must not be
disturbed. The well-settled rule in this jurisdiction is that the trial court's
findings on the credibility of witnesses are entitled to the highest degree of
respect and will not be disturbed on appeal without any clear showing that it
overlooked, misunderstood or misapplied some facts or circumstances of
weight or substance which could affect the result of the case.50
For his defense, appellant merely denied participating in the robbery.
However, his presence during the commission of the crime was well-
established as appellant himself testified as to the matter. Granting that he
was merely present during the robbery, his inaction does not exculpate him.
To exempt himself from criminal liability, a conspirator must have performed
an overt act to dissociate or detach himself from the conspiracy to commit
the felony and prevent the commission thereof.51 Appellant offered no
evidence that he performed an overt act neither to escape from the company
of the robbers nor to prevent the robbery from taking place. His denial,
therefore, is of no value. Courts generally view the defenses of denial and
alibi with disfavor on account of the facility with which an accused can
concoct them to suit his defense. As both evidence are negative and self-
serving, they cannot attain more credibility than the testimonies of
prosecution witnesses who testify clearly, providing thereby positive evidence
on the various aspects of the crime committed.52
Consequently, the CA was correct in ruling that appellant was guilty only of
one count of robbery with homicide. In the crime of robbery with homicide,
there are series of acts, borne from one criminal resolution, which is to rob.
As decided53 by the Court of Appeals:
A continued (continuous or continuing) crime is defined as a single crime,
consisting of a series of acts but all arising from one criminal resolution.54
Although there is a series of acts, there is only one crime committed; hence,
only one penalty shall be imposed.55
In the case before Us, [appellant] and his companions intended only to rob
one place; and that is the Energex gasoline station. That they did; and in the
process, also took away by force the money and valuables of the employees
working in said gasoline station. Clearly inferred from these circumstances
are the series of acts which were borne from one criminal resolution. A
continuing offense is a continuous, unlawful act or series of acts set on foot
by a single impulse and operated by an unintermittent force, however long a
time it may occupy.56 This can be said of the case at hand.
Akin to the extant case is that of People v. De la Cruz,57 wherein the robbery
that took place in several houses belonging to different persons, when not
absolutely unconnected, was held not to be taken as separate and distinct
offenses. They formed instead, component parts of the general plan to
despoil all those within the vicinity. In this case, the Solicitor General argued
that the [appellant] had committed eight different robberies, because the
evidence shows distinct and different acts of spoilation in different houses,
with several victimized persons.58 The Highest Tribunal, however, ruled that
the perpetrated acts were not entirely distinct and unconnected from one
another.59 Thus, the single offense or crime.
Now, this Court comes to the penalty imposed by the CA. The decision60
merely states that, in view of the enactment of R.A. 9346, the sentence of
Death Penalty, imposed upon appellant, is automatically commuted to
reclusion perpetua, but is silent as to how it had arrived into such a
conclusion.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659,
robbery with homicide is punishable by reclusion perpetua to death, which
are both indivisible penalties. Article 63 of the same Code provides that, in all
cases in which the law prescribes a penalty composed of two indivisible
penalties, the greater penalty shall be applied when the commission of the
deed is attended by one aggravating circumstance.61 It must be
remembered that the Informations filed with the RTC alleged the aggravating
circumstance of the use of unlicensed firearm. Pursuant to the third
paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294,
such use of an unlicensed firearm is a special and not a generic aggravating
circumstance in the homicide or murder committed. As explained by this
Court in Palaganas v. People:62
Generic aggravating circumstances are those that generally apply to all
crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6,
9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of
increasing the penalty for the crime to its maximum period, but it cannot
increase the same to the next higher degree. It must always be alleged and
charged in the information, and must be proven during the trial in order to be
appreciated.63 Moreover, it can be offset by an ordinary mitigating
circumstance.
On the other hand, special aggravating circumstances are those which arise
under special conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the penalty to the next
higher degree. Examples are quasi-recidivism under Article 160 and complex
crimes under Article 48 of the Revised Penal Code. It does not change the
character of the offense charged.64 It must always be alleged and charged in
the information, and must be proven during the trial in order to be
appreciated.65 Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning and effect of generic and
special aggravating circumstances are exactly the same except that in case
of generic aggravating, the same CAN be offset by an ordinary mitigating
circumstance whereas in the case of special aggravating circumstance, it
CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an
aggravating circumstance provided for under Presidential Decree No.
1866,66 as amended by Republic Act No. 8294,67 which is a special law. Its
pertinent provision states:
If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
In interpreting the same provision, the trial court reasoned that such provision
is "silent as to whether it is generic or qualifying."68 Thus, it ruled that "when
the law is silent, the same must be interpreted in favor of the accused."69
Since a generic aggravating circumstance is more favorable to petitioner
compared to a qualifying aggravating circumstance, as the latter changes the
nature of the crime and increase the penalty thereof by degrees, the trial
court proceeded to declare that the use of an unlicensed firearm by the
petitioner is to be considered only as a generic aggravating circumstance.70
This interpretation is erroneous, since we already held in several cases that
with the passage of Republic Act No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered as a SPECIAL
aggravating circumstance and not a generic aggravating circumstance.71
Republic Act No. 8294 applies to the instant case since it took effect before
the commission of the crimes in 21 April 1998. Therefore, the use of an
unlicensed firearm by the petitioner in the instant case should be designated
and appreciated as a SPECIAL aggravating circumstance and not merely a
generic aggravating circumstance.
In another case,72 this Court ruled that, the existence of the firearm can be
established by testimony, even without the presentation of the firearm.73 In
the said case, it was established that Elmer and Marcelina Hidalgo died of,
and Pedro Hidalgo sustained, gunshot wounds. The ballistic examination of
the slugs recovered from the place of the incident showed that they were
fired from a .30 carbine rifle and a .38 caliber firearm. The prosecution
witnesses positively identified appellant therein as one of those who were
holding a long firearm. It was also established that the same appellant was
not a licensed firearm holder. Hence, this Court ruled that the trial court and
the CA correctly appreciated the use of unlicensed firearm as an aggravating
circumstance.
After a careful study of the records of the present case, this Court found that
the use of unlicensed firearm was not duly proven by the prosecution.
Although jurisprudence dictates that the existence of the firearm can be
established by mere testimony, the fact that appellant was not a licensed
firearm holder must still be established. The prosecution failed to present
written or testimonial evidence to prove that appellant did not have a license
to carry or own a firearm, hence, the use of unlicensed firearm as an
aggravating circumstance cannot be appreciated.
Finally, it is worth noting that the RTC ordered appellant to indemnify the
heirs of Edralin Macahis the amount of P50,000.00 as death indemnity,
P12,000.00 as compensatory damages for the stolen service firearm if
restitution is no longer possible and P50,000.00 as moral damages. Actual
damages were never proven during the trial. Hence, this Court's rulings74 on
temperate damages apply, thus:
In People v. Abrazaldo,75 we laid down the doctrine that where the amount
of actual damages for funeral expenses cannot be determined because of
the absence of receipts to prove them, temperate damages may be awarded
in the amount of P25,00076 This doctrine specifically refers to a situation
where no evidence at all of funeral expenses was presented in the trial court.
However, in instances where actual expenses amounting to less than
P25,000 are proved during the trial, as in the case at bar, we apply the ruling
in the more recent case of People v. Villanueva77 which modified the
Abrazaldo doctrine. In Villanueva, we held that "when actual damages
proven by receipts during the trial amount to less than P25,000, the award of
temperate damages for P25,000 is justified in lieu of the actual damages of a
lesser amount." To rule otherwise would be anomalous and unfair because
the victim's heirs who tried but succeeded in proving actual damages of an
amount less than P25,000 would be in a worse situation than those who
might have presented no receipts at all but would now be entitled to P25,000
temperate damages.78
WHEREFORE, the Decision dated June 29, 2007 of the Court of Appeals is
hereby AFFIRMED with MODIFICATION. Appellant Marlon Albert de Leon y
Homo is hereby found guilty beyond reasonable doubt of the crime of
Robbery with Homicide, the penalty of which, is reclusion perpetua in view of
the absence of any mitigating or aggravating circumstance. Appellant is also
liable to pay the heirs of the victim, P25,000.00 as temperate damages, in
addition to the other civil indemnities and damages adjudged by the Regional
Trial Court, Branch 76, San Mateo, Rizal.

G.R. No. L-41054 November 28, 1975
JOSE L. GAMBOA and UNITS OPTICAL SUPPLY COMPANY, petitioners,
vs.
COURT OF APPEALS and BENJAMIN LU HAYCO, respondents.
Assistant City Fiscal Leonardo L. Arguelles for petitioner Jose L. Gamboa.
Koh Law Offices for petitioner Units Optical Supply Company.
Arturo M. Tolentino and Montesa, Manikan and Associates for private
respondent.
MARTIN, J.:
This is a petition to review on certiorari the judgment of the respondent Court
of Appeals in CA-G.R. No. SP-03877, promulgated on July 17, 1975, which
We treat as special civil action (SC Resolution of September 2, 1975),
involving the proper appreciation of the rule on plurality of crimes, otherwise
known as "concursus delictuorum", and the theory of "continuous crime".
The private respondent Benjamin Lu Hayco was a former employee of
petitioner company in its optical supply business at Sta. Cruz, Manila. On
January 5, 1973, one hundred twenty-four (124) complaints of estafa under
Article 315, para. 1-b of the Revised Penal Code were filed against him by
the petitioner company with the Office of the City Fiscal of Manila. After the
procedural preliminary investigation, the Office of the City Fiscal filed
seventy-five (75) cases of estafa against private respondent before the City
Court of Manila. Except as to the dates and amounts of conversions, the 75
informations commonly charge that "... the said accused, being then an
employee of the Units Optical Supply Company ..., and having collected and
received from customers of the said company the sum of ... in payment for
goods purchased from it, under the express obligation on the part of the said
accused to immediately account for and deliver the said collection so made
by him to the Units Optical Supply Company or the owners thereof ..., far
from complying with his said aforesaid obligation and despite repeated
demands made upon him ... did then and there ... misappropriate,
misapply and convert the said sum to his own personal use and benefit by
depositing the said amount in his own name and personal account with the
Associated Banking Corporation under Account No. 171 (or with the
Equitable Banking Corporation under Account No. 707), and thereafter
withdrawing the same ... ."
A civil action for accounting (docketed as Civil Case No. 89373 of the Court
of First Instance of Manila) was likewise filed by Lu Chiong Sun, the owner of
the Units Optical Supply Company, complaining that during his hospital
confinement from September 27, 1972 to October 30, 1972, private
respondent initiated discharging the business functions and prerogatives of
the company. And to paint a shade of validity to this exercise of powers,
private respondent, thru fraud, deceit and machinations duped Lu Chiong
Sun into affixing his signature and thumbprint on a general power of attorney
in his (private respondent's) favor. With the use of this deed, private
respondent closed the accounts of Lu Chiong Sun with the Equitable Banking
Corporation and, thereafter, opened accounts in his own name with the same
bank and with the Associated Banking Corporation.
While the criminal suits in particular were pending trial on the merits before
the twelve branches of the City Court of Manila,1 private respondent
commenced on May 15, 1974 a petition for prohibition with preliminary
injunction before the Court of First Instance of Manila (Branch XV) against
the petitioners herein and the City Court Judges of Manila, claiming that the
filing, prosecution and trial of the seventy-five (75) estafa cases against him
is not only oppressive, whimsical and capricious, but also without or in
excess of jurisdiction of the respondents City Fiscal and the City Court
Judges of Manila. Private respondent asserts that all the indictments
narrated in the seventy-five (75) informations were mere components of only
one crime, since the same were only impelled by a single criminal resolution
or intent. On October 31, 1974, the lower court dismissed the petition on the
ground that the series of deposits and the subsequent withdrawals thereof
involved in the criminal cases were not the result of only one criminal impulse
on the part of private respondent.
As a consequence, private respondent Benjamin Lu Hayco appealed to the
Court of Appeals. On July 17, 1975, the Appellate Court reversed the order
of the lower court and granted the petition for prohibition. It directed the
respondent City Fiscal "to cause the dismissal of the seventy-five (75)
criminal cases filed against petitioner-appellant, to consolidate in one
information all the charges contained in the seventy-five (75) informations
and to file the same with the proper court." The raison d'etre of the ruling of
the Court of Appeals is that:
Where the accused, with intent to defraud his employer, caused the latter to
sign a document by means of deceit and false representation, which
document turned out to be a general power of attorney, and with the use of
said document he closed the accounts of his employer in two banks and at
the same time opened in his name new accounts in the same banks, and
then made collections from the customers of his employer, depositing them
in the bank accounts in his name, the series of deposits made by him which
he later withdrew for his own use and benefit, constitutes but one crime of
estafa, there being only one criminal resolution and the different acts
performed being aimed at accomplishing the purpose of defrauding his
employer."
We thus readily recognize that the singular question in this present action is
whether or not the basic accusations contained in the seventy-five (75)
informations against private respondent constitute but a single crime of
estafa.
It is provided in Article 48 of our Revised Penal Code, as amended by Act
No. 4000, that "(w)hen a single act constitutes two or more grave or less
grave felonies or when an offense is a necessary means for committing the
other, the penalty for the most serious crime shall be imposed, the same to
be applied in its maximum period." The intention of the Code in installing this
particular provision is to regulate the two cases of concurrence or plurality of
crimes which in the field of legal doctrine are called "real plurality" and "ideal
plurality".2 There is plurality of crimes or "concurso de delitos" when the actor
commits various delictual acts of the same or different kind. "Ideal plurality"
or "concurso ideal" occurs when a single act gives rise to various infractions
of law. This is illustrated by the very article under consideration: (a) when a
single act constitutes two or more grave or less grave felonies (described as
"delito compuesto" or compound crime); and (b) when an offense is a
necessary means for committing another offense (described as "delito
complejo" or complex proper). "Real plurality" or "concurso real", on the other
hand, arises when the accused performs an act or different acts with distinct
purposes and resulting in different crimes which are juridically independent.
Unlike "ideal plurality", this "real plurality" is not governed by Article 48.3
Apart and isolated from this plurality of crimes (ideal or real) is what is known
as "delito continuado" or "continuous crime". This is a single crime consisting
of a series of acts arising from a single criminal resolution or intent not
susceptible of division. For Cuello Calon, when the actor, there being unity of
purpose and of right violated, commits diverse acts, each of which, although
of a delictual character, merely constitutes a partial execution of a single
particular delict, such concurrence or delictual acts is called a "delito
continuado". In order that it may exist, there should be "plurality of acts
performed separately during a period of time; unity of penal provision
infringed upon or violated and unity of criminal intent and purpose, which
means that two or more violations of the same penal provision are united in
one and the same intent leading to the perpetration of the same criminal
purpose or aim."4
It is not difficult to resolve whether a given set of facts constitutes a single act
which produces two or more grave or less grave offenses or a complex crime
under the definition of Article 48. So long as the act or acts complained of
resulted from a single criminal impulse it is usually held to constitute a single
offense to be punished with the penalty corresponding to the most serious
crime, imposed in its maximum period.5, The test is not whether one of the
two offenses is an essential element of the other.6 In People v. Pineda ,7 the
court even expressed that "to apply the first half of Article 48, ... there must
be singularity of criminal act; singularity of criminal impulse is not written into
the law." Prior jurisprudence holds that where the defendant took the thirteen
cows at the same time and in the same place where he found them grazing,
he performed but one act of theft.8 Or, the act of taking the two roosters, in
response to the unity of thought in the criminal purpose on one occasion,
constitutes a single crime of theft. There is no series of acts committed for
the accomplishment of different purposes, but only of one which
was consummated, and which determines the existence of only one crime.
The act of taking the roosters in the same place and on the same occasion
cannot give rise to two crimes having an independent existence of their own,
because there are not two distinct appropriations nor two intentions that
characterize two separate crimes. 9
In the case before Us, the daily abstractions from and diversions of private
respondent of the deposits made by the customers of the optical supply
company from October 2, 1972 to December 30, 1972, excluding Saturdays
and Sundays, which We assume ex hypothesi, cannot be considered as
proceeding from a single criminal act within the meaning of Article 48. The
abstractions were not made at the same time and on the same occasion, but
on variable dates. Each day of conversion constitutes a single act with an
independent existence and criminal intent of its own. All the conversions are
not the product of a consolidated or united criminal resolution, because each
conversion is a complete act by itself. Specifically, the abstractions and the
accompanying deposits thereof in the personal accounts of private
respondent cannot be similarly viewed as "continuous crime". In the above
formulation of Cuello Calon, We cannot consider a defalcation on a certain
day as merely constitutive of partial execution of estafa under Article 315,
para. 1-b of the Revised Penal Code. As earlier pointed out, an individual
abstraction or misappropriation results in a complete
execution or consummation of the delictual act of defalcation. Private
respondent cannot be held to have entertained continously the same criminal
intent in making the first abstraction on October 2, 1972 for the subsequent
abstractions on the following days and months until December 30, 1972, for
the simple reason that he was not possessed of any fore-knowledge of any
deposit by any customer on any day or occasion and which would pass on to
his possession and control. At most, his intent to misappropriate may arise
only when he comes in possession of the deposits on each business day but
not in futuro, since petitioner company operates only on a day-to-day
transaction. As a result, there could be as many acts of misappropriation as
there are times the private respondent abstracted and/or diverted the
deposits to his own personal use and benefit. Thus, it may be said that the
City Fiscal had acted properly when he filed only one information for every
single day of abstraction and bank deposit made by private
respondent. 10 The similarity of pattern resorted to by private respondent in
making the diversions does not affect the susceptibility of the acts committed
to divisible crimes.
Apropos is the case of People v. Cid, 11 where the Court ruled that the
malversations as well as the falsifications in the months of May, June, July
and August 1936 imputed to the accused "were not the result of only one
resolution to embezzle and falsify, but of four or as many abstractions or
misappropriations had of the funds entrusted to his care, and of as many
falsifications also committed to conceal each of said case. There is nothing of
record to justify the inference that the intention of the appellant when he
committed the malversation in May, 1936 was the same intention which
impelled him to commit the other malversations in June, July, and August."
The ruling holds true when the acts of misappropriation were committed on
two different occasions, the first in January, 1955 to December, 1955, and
the second in January, 1956 to July, 1956. It cannot be pretended that when
the accused disposed of the palay deposit in January, 1955 to December,
1955, he already had the criminal intent of disposing what was to be
deposited in January, 1956 to July, 1956. 12 There is no synonymy between
the present case and that of People, v. Sabbun, 13 where the Court held that
the illegal collections made on different dates, i.e., December, 1949; January
1950 to February 1956; March 1956 to September 1957 constitutes a
"continuing offense", because the said collections were "all part of the fees
agreed upon in compensation for the service" to be rendered by the accused
Sabbun in filing the claim of the spouses Dacquioag for U.S. Veterans benefit
and collecting the pensions received by the widow from time to time. "The
periodical collections form part of a single criminal offense of collecting a fee
which is more than the prescribed amount fixed by the law" and "were
impelled by the same motive, that of collecting fees for services rendered."
As We have said, the various acts of defalcation perpetrated by private
respondent in the present case from October 2, 1972 to December 30, 1972
are susceptible of division with separate criminal intents.
The respondent Court of Appeals harps upon the act of private respondent in
allegedly inducing, with intent to defraud, Lu Chiong Sun "to sign a
document by means of deceit and false representation, which document
turned out to be a general power of attorney" and with the use of which, he
closed the accounts of the latter in two banks, at the same time opening in
his name new accounts in the same banks, for its conclusion that the acts
complained of against private respondent constitute one continuous crime of
estafa. It is striking to note, however, that the accusatory pleadings against
private respondent are founded on Article 315, para. 1-b of the Revised
Penal Code, which defines and penalizes estafa by conversion or
misappropriation. In this form of estafa, fraud is not an essential
element. 14 According to Groizard "impudence, barefacedness covetousness,
and disloyalty employed in taking advantage of an opportunity take here the
place formerly occupied by deceit." 15 "Fraudulent intent" in committing the
conversion or diversion is "very evidently not a necessary element of the
form of estafa here discussed; the breach of confidence involved in the
conversion or diversion of trust funds takes the place of fraudulent intent and
is in itself sufficient. The reason for this is obvious: Grave as the offense is,
comparatively few men misappropriate trust funds with the intention of
defrauding the owner; in most cases the offender hopes to be able to restore
the funds before the defalcation is discovered. We may say in passing that
the view here expressed is further strengthened by the fact that of the nine
paragraphs of Article 535, the paragraph here under discussion is the only
one in which the words "fraud", or "defraud" do not occur." 16 In other words,
the alleged act of private respondent in causing, with intent to defraud, Lu
Chiong Sun to affix his signature and thumbprint on the general power of
attorney is immaterial and ineffective insofar as the charges of conversions
are concerned. If at all, the said document may serve only the purpose of
closing the accounts of Lu Chiong Sun with the banks and nothing more.
Definitely, there is no necessity for it before private respondent could commit
the acts of defalcation. As a matter of fact, private respondent resorted to this
document only on October 17, 1972, or 15 days after he had already
commenced the abstraction on October 2, 1972. 17
The characterization or description of estafa as a continuing offense cannot
be validly seized upon by private respondent as basis for its inference that
the acts of abstraction in question constitute but a single continuing crime of
estafa. The sole import of this characterization is that the necessary
elements of estafa may separately take place in different
territorial jurisdictions until the crime itself is consummated. The moment,
however, that the elements of the crime have completely concurred or
transpired, then an individual crime of estafa has occurred or has been
consummated. The term "continuing" here must be understood in the sense
similar to that of "transitory" and is only intended as a factor in determining
the proper venue or jurisdiction for that matter of the criminal action pursuant
to Section 14, Rule 110 of the Rules of Court. 18 This is so, because "a
person charged with a transitory offense may be tried in any jurisdiction
where the offense is part committed. In transitory or continuing offense in
which some acts material and essential to the crime and requisite to its
consummation occur in one province and some in another, the court of either
province has jurisdiction to try the case, it being understood that the first
court taking cognizance of the case will exclude the other." 19
ACCORDINGLY, the judgment of the Court of Appeals, subject matter of this
proceeding, is hereby reversed and set aside. The temporary restraining
order issued by this Court on August 7, 1975, enjoining the enforcement or
implementation of the said judgment is hereby made permanent. No costs.
SO ORDERED.
Castro (Chairman), Teehankee, Makasiar, Esguerra and Muñoz Palma, JJ.,
concur. G.R. Nos. L-74053-54 January 20, 1988
PEOPLE OF THE PHILIPPINES and SAN MIGUEL
CORPORATION, petitioners,
vs.
NATHANIEL M. GROSPE, Presiding Judge, Branch 44, Regional Trial
Court of Pampanga and MANUEL PARULAN, respondents.
MELENCIO-HERRERA, J.:
A special civil action for certiorari seeking to set aside the Decision of
respondent Presiding Judge of Branch 44, Regional Trial Court of
Pampanga, dismissing Criminal Case No. 2800 for Violation of B.P. Blg. 22,
and Criminal Case No. 2813 for Estafa, for being "bereft of jurisdiction to
pass judgment on the accused on the basis of the merits of these cases."
Respondent-accused, Manuel Parulan, is an authorized wholesale dealer of
petitioner San Miguel Corporation (SMC, for short) in Bulacan.
In Criminal Case No. 2800 of the Regional Trial Court of Pampanga, he was
charged with Violation of the Bouncing Checks Law (B.P. Blg. 22 for having
issued a check on 13 June 1983 for P86,071.20) in favor of SMC but which
was dishonored for having been drawn against 'insufficient funds and, in
spite of repeated demands, for having failed and refused to make good said
check to the damage and prejudice of SMC.
In Criminal Case No. 2813 of the same Court, Respondent-accused was
charged with Estafa under Article 315, paragraph 2(d) of the Revised Penal
Code for having made out a check on 18 June 1983 in the sum of
P11,918.80 in favor of SMC in payment of beer he had purchased, but which
check was refused payment for "insufficient funds" and, in spite of repeated
demands, for having failed and refused to redeem said check to the damage
and prejudice of SMC.
The two cases were tried jointly, the witnesses for both prosecution and
defense being the same for the two suits.
Based on the facts and the evidence, Respondent Judge arrived at the
following "Findings and Resolution:"
From the welter of evidence adduced in these two , this
Court is convinced that the two checks involved herein were
issued and signed by the accused in connection with the
beer purchases made by him on various occasions at the
Guiguinto, sales office of SMC at Guiguinto, Bulacan and
which checks he handed and delivered to the sales
Supervisor of SMC, Mr. Ruben Cornelio, who holds office in
that municipality. The Court finds it rather difficult to believe
the claim and testimony of the accused that these checks
which he admittedly signed and which he delivered to Mr.
Cornelio in blank were filled up without his knowledge
particularly the amounts appearing therein which in the case
of the check involved in Criminal Case No. 2800 amounted
to P86,071.20, and, in the case of the check involved in
Criminal Case No. 2813, amounted to Pl1,918.80. The
accused had been engaged in business for some time
involving amounts that are quite considerable, and it is hard
to believe that he will agree to this kind of arrangement
which placed or exposed him to too much risks and
uncertainties.
But even as this Court is convinced that the accused had
issued these checks to the representative of SMC on the
occasions testified to in these cases by the witnesses for the
prosecution which two checks were subsequently
dishonored due to lack of funds resulting in damage to SMC,
the offended party herein, this Court, after considering the
totality of the evidence and the circumstances that attended
the issuance of these two checks until they were both
dishonored by the drawee bank, the Planters Development
Bank, at Santa Maria, Bulacan, has come to the conclusion
that it is bereft of jurisdiction to pass judgment on the
accused on the basis of the merits of these cases.
which he reasoned out, thus:
Deceit and damage are the two essential elements that
make up the offenses involving dishonored checks. And in
order that this Court may have jurisdiction to try these cases,
 it must be established that both or any one of these elements
composing the offenses charged must occur or take place
within the area over which this Court has territorial
jurisdiction. Here, however, it is clear that none of these
elements took place or occurred within the jurisdictional area
of this Court.
As gleaned from the evidence, the two checks involved
herein were issued by the accused at Guiguinto, Bulacan.
They were delivered and handed to Supervisor Ruben
Cornelio of San Miguel Corporation in his capacity as the
representative of the company holding office in that
municipality where the transactions of the accused with SMC
took place. It was before Supervisor Cornelio at Guiguinto,
Bulacan that false assurances were made by the accused
that the checks issued by him were good and backed by
sufficient funds in his bank, the Planters Development Bank,
at Santa Maria, Bulacan, only to turn out later on that this
was not so.
The other element of damage pertaining to the offenses
charged in these cases was inflicted on the offended party,
the SMC, right at the moment the checks issued by the
accused were dishonored by the Planters Development
Bank, the drawee bank, at Santa Maria, Bulacan which
received them from the BPI, San Fernando, Pampanga
branch for clearing purposes. The argument advanced by
the prosecution in its memorandum filed herein that the two
checks were deposited by SMC at the BPI, San Fernando,
Branch, San Fernando, Pampanga, where it maintained its
accounts after receiving these checks from its Guiguinto
Sales Office which bank later on made the corresponding
deductions from the account of SMC in the amounts covered
by the dishonored checks upon receiving information that the
checks so issued by the accused had been dishonored by
the drawee bank at Santa Maria, Bulacan, is
inconsequential. As earlier stated, the element of damage
was inflicted on the offended party herein right at the
moment and at the place where the checks issued in its
favor were dishonored which is in Santa Maria, Bulacan.
Respondent Judge then decreed:
WHEREFORE, and in view of all the foregoing, judgment is
hereby rendered dismissing these cases for lack of
jurisdiction.
The bail bond posted by the accused in these cases are
ordered cancelled.
This Petition for certiorari challenges the dismissal of the two criminal cases
on the ground that they were issued with grave abuse of discretion
amounting to lack of jurisdiction.
Respondent-accused adopts the contrary proposition and argues that the
order of dismissal was, in effect, an acquittal not reviewable by certiorari, and
that to set the order aside after plea and trial on the merits, would subject
Respondent-accused to double jeopardy.
Upon the attendant facts and circumstances we uphold the Petition.
The principal ground relied upon by Respondent Judge in dismissing the
criminal cases is that deceit and damage, the two essential elements that
make up the offenses involving dishonored checks, did not occur within the
territorial jurisdiction of his Court in Pampanga, but rather in Bulacan where
false assurances were given by Respondent-accused and where the checks
he had issued were dishonored. The People maintain, on the other hand,
that jurisdiction is properly vested in the Regional Trial Court of Pampanga.
At the outset, it should be pointed out, as the Solicitor General has aptly
called attention to, that there are two dishonored checks involved, each the
subject of different penal laws and with different basic elements: (1) On June
13, 1983, Respondent-accused issued Planters Development Bank (Santa
Maria, Bulacan Branch) [PDB] Check No. 19040865 in the sum of
P86,071.20 in favor of SMC, which was received by the SMC Supervisor at
Guiguinto, Bulacan. The check was forwarded to the SMC Regional Office at
San Fernando, Pampanga, where it was delivered to and received by the
SMC Finance Officer, who then deposited the check with the Bank of the
Philippine Islands (BPI), San Fernando Branch, which is the SMC depository
bank. On July 8,1983, the SMC depository bank received a notice of
dishonor of the said check for "insufficiency of funds" from the PDB, the
drawee bank in Santa Maria, Bulacan. This dishonored check is the subject
of the charge of Violation of the Bouncing Checks Law (BP Blg. 22) in
Criminal Case No. 2800 of the lower Court (hereafter, the Bouncing Checks
Case).
(2) On June 18, 1983, Respondent-accused likewise issued PDB Check No.
19040872 in the amount of P11,918.80 in favor of SMC, which was received
also by the SMC Supervisor at Guiguinto, Bulacan, as direct payment for the
spot sale of beer. That check was similarly forwarded by the SMC Supervisor
to the SMC Regional Office in San Fernando, Pampanga, where it was
delivered to the Finance Officer thereat and who, in turn deposited the check
with the SMC depository bank in San Fernando, Pampanga. On July 8,1983,
the SMC depository bank received a notice of dishonor for "insufficiency of
funds" from the drawee bank, the PDB, in Santa Maria, Bulacan. This
dishonored check is the subject of the prosecution for Estafa by postdating or
issuing a bad check under Article 315, paragraph 2(d) of the Revised Penal
Code in Criminal Case No, 2813 of the lower Court (briefly, the Estafa Case).
In the crime of Estafa by postdating or issuing a bad check, deceit and
damage are essential elements of the offense (U.S. vs. Rivera, 23 Phil. 383-
390) and have to be established with satisfactory proof to warrant conviction.
For Violation of the Bouncing Checks Law, on the other hand, the elements
of deceit and damage are not essential nor required. An essential element of
that offense is knowledge on the part of the maker or drawer of the check of
the insufficiency of his funds (Lozano vs. Hon. Martinez, Nos. L-63419, etc.,
December 18, 1986; 146 SCRA 323; Dingle vs. IAC, G.R. No. 75243, March
16, 1987,148 SCRA 595). The Anti-Bouncing Checks Law makes the mere
act of issuing a worthless check a special offense punishable thereunder
(Cruz vs. IAC, No. I,66327, May 28,1984,129 SCRA 490. Malice and intent in
issuing the worthless check are immaterial, the offense being malum
prohibitum (Que vs. People of the Philippines, et. al., G.R. Nos. 75217-18,
September 21, 1987). The gravamen of the offense is the issuance of a
check, not the non-payment of an obligation (Lozano vs. Hon.
Martinez, supra).
A. With the distinction clarified, the threshold question is whether or not
venue was sufficiently conferred in the Regional Trial Court of Pampanga in
the two cases.
Section 14(a) of Rule 110 of the Revised Rules of Court, which has been
carried over in Section 15(a) of Rule 110 of the 1985 Rules of Criminal
Procedure, specifically provides:
SEC. 14. Place where action is to be instituted —
(a) In all criminal prosecutions the action shall be instituted
and tried in the court of the municipality or province wherein
the offense was committed or any one of the essential
ingredients thereof took place.
In other words, a person charged with a transitory crime may be validly tried
in any municipality or province where the offense was in part committed. In
transitory or continuing offenses in which some acts material and essential to
the crime and requisite to its consummation occur in one province and some
in another, the Court of either province has jurisdiction to try the case, it
being understood that the first Court taking cognizance of the Case will
exclude the others (Tuzon vs. Cruz. No. L-27410, August 28, 1975, 66 SCRA
235). However, if an the acts material and essential to the crime and
requisite of its consummation occurred in one municipality or territory, the
Court of that municipality or territory has the sole jurisdiction to try the case
(People vs. Yabut, L-42902, April 29, 1977, 76 SCRA 624).
Estafa by postdating or issuing a bad check, may be a transitory or
continuing offense. Its basic elements of deceit and damage may arise
independently in separate places (People vs. Yabut, supra). In this case,
deceit took place in San Fernando, Pampanga, while the damage was
inflicted in Bulacan where the cheek was dishonored by the drawee bank in
that place (See People vs. Yabut, supra). Jurisdiction may, therefore, be
entertained by either the Bulacan Court or the Pampanga Court.
For while the subject check was issued in Guiguinto, Bulacan, it was not
completely drawn thereat, but in San Fernando, Pampanga, where it was
uttered and delivered. "What is of decisive importance is the delivery thereat
The delivery of the instrument is the final act essential to its consummation
as an obligation" (People vs. Larue, 83 P. 2d 725, cited in People vs.
Yabut, supra). For although the check was received by the SMC Sales
Supervisor at Guiguinto, Bulacan, that was not the delivery in contemplation
of law to the payee, SMC. Said supervisor was not the person who could
take the check as a holder, that is, as a payee or indorsee thereof, with the
intent to transfer title thereto. The rule is that the issuance as well as the
delivery of the check must be to a person who takes it as a holder, which
means "the payee or indorsee of a bill or note, who is in possession of it, or
the bearer, thereof" (Sec. 190, Negotiable Instruments Law, cited in People
vs. Yabut, supra.) Thus, said representative had to forward the check to the
SMC Regional Office in San Fernando, Pampanga, which was delivered to
the Finance Officer thereat who, in turn, deposited it at the SMC depository
bank in San Fernando, Pampanga. The element of deceit, therefore, took
place in San Fernando, Pampanga, where the rubber check was legally
issued and delivered so that jurisdiction could properly be laid upon the Court
in that locality.
The estafa charged in the two informations involved in the
case before Us appears to be transitory or continuing in
nature. Deceit has taken place in Malolos, Bulacan, while the
damage in Caloocan City, where the checks were
dishonored by the drawee banks there. Jurisdiction can,
therefore, be entertained by either the Malolos court or the
Caloocan court. While the subject checks were written,
signed, or dated in Caloocan City, they were not completely
made or drawn there, but in Malolos, Bulacan, where they
were uttered and delivered. That is the place of business and
 residence of the payee. The place where the bills were
written, signed or dated does not necessarily fix or determine
the place where they were executed. What is of decisive
importance is the delivery thereof. The delivery of the
instrument is the final act essential to its consummation as
an obligation (People vs. Larue, 83 P. 2d 725). An
undelivered bill or note is inoperative. Until delivery, the
contract is revocable (Ogden, Negotiable Instruments, 5th
ed., at 107). And the issuance as well as the delivery of the
check must be to a person who takes it as a holder, which
means "(t)he payee or indorsee of a bill or note, who is in
possession of it, or the bearer thereof" (Sec. 190, Negotiable
Instruments Law). Delivery of the check signifies transfer of
possession, whether actual or constructive, from one person
to another with intent to transfer title thereto (Bailey, Brady
on Bank Checks, 3rd ed. at 57-59; Sec. 190, Negotiable
Instruments Law). Thus, the penalizing clause of the
provision of Art. 315, par. 2(d) states: "By postdating a
check, or issuing a check in payment of an obligation when
the offender had no funds in the bank, or his funds deposited
therein were not sufficient to cover the amount of the check,"
Clearly, therefore, the element of deceit thru the issuance
and delivery of the worthless checks to the complainant took
place in Malolos, Bulacan, conferring upon a court in that
locality jurisdiction to try the case.
In respect of the Bouncing Checks Case, the offense also appears to be
continuing in nature. It is true that the offense is committed by the very fact of
its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970, 33
SCRA 186); and that the Bouncing Checks Law penalizes not only the fact of
dishonor of a check but also the act of making or drawing and issuance of a
bouncing check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523).
The case, therefore, could have been filed also in Bulacan. As held in Que
vs. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the
determinative factor (in determining venue) is the place of the issuance of the
check". However, it is likewise true that knowledge on the part of the maker
or drawer of the check of the insufficiency of his funds, which is an essential
ingredient of the offense is by itself a continuing eventuality, whether the
accused be within one territory or another (People vs. Hon. Manzanilla, G.R.
Nos. 66003-04, December 11, 1987). Accordingly, jurisdiction to take
cognizance of the offense also lies in the Regional Trial Court of Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or venue is
determined by the allegations in the Information, which are controlling
(Arches vs. Bellosillo, 81 Phil. 190, 193, cited in Tuzon vs. Cruz, No. L-
27410, August 28, 1975, 66 SCRA 235). The Information filed herein
specifically alleges that the crime was committed in San Fernando,
Pampanga, and, therefore, within the jurisdiction of the Court below.
B. The dismissal of the subject criminal cases by Respondent Judge,
predicated on his lack of jurisdiction, is correctable by Certiorari. The error
committed is one of jurisdiction and not an error of judgment on the merits.
Well-settled is the rule that questions covering jurisdictional matters may be
averred in a petition for certiorari, inclusive of matters of grave abuse of
discretion, which are equivalent to lack of jurisdiction (City of Davao vs. Dept.
of Labor, No. L-19488, January 30, 1965, 13 SCRA 111, 115). An error of
jurisdiction renders whatever order of the Trial Court nun and void.
C. The present petition for certiorari seeking to set aside the void Decision of
Respondent Judge does not place Respondent-accused in double jeopardy
for the same offense. It will be recalled that the questioned judgment was not
an adjudication on the merits. It was a dismissal upon Respondent Judge's
erroneous conclusion that his Court had no "territorial jurisdiction" over the
cases. Where an order dismissing a criminal case is not a decision on the
merits, it cannot bar as res judicata a subsequent case based on the same
offense (People vs. Bellosillo, No. L-18512, December 27, 1963, 9 SCRA
835, 837).
The dismissal being null and void the proceedings before the Trial Court may
not be said to have been lawfully terminated. There is therefore, no second
proceeding which would subject the accused to double jeopardy.
Since the order of dismissal was without authority and,
therefore, null and void, the proceedings before the
Municipal Court have not been lawfully terminated.
Accordingly, there is no second proceeding to speak of and
no double jeopardy. A continuation of the proceedings
against the accused for serious physical injuries is in order.
(People vs. Mogol, 131 SCRA 306, 308).
In sum, Respondent Judge had jurisdiction to try and decide the subject
criminal case, venue having been properly laid.
WHEREFORE, the Decision of Respondent Judge of February 17, 1986 is
hereby set aside and he is hereby ordered to reassume jurisdiction over
Criminal Cases Nos. 2800 and 2813 of his Court and to render judgment of
either conviction or acquittal in accordance with the evidence already
adduced during the joint trial of said two cases.
SO ORDERED.
G.R. No. 106847 March 5, 1993
PATRICIO P. DIAZ, Petitioner, vs. JUDGE SANTOS B. ADIONG, RTC, Br. 8,
Marawi City, SULTAN MACORRO L. MACUMBAL, SULTAN LINOG M.
INDOL, MACABANGKIT LANTO and MOHAMADALI ABEDIN, Respondents.
Rex J.M.A. Fernandez for petitioner.chanrobles virtual law library
Manguran B. Batuampar for respondents.
BELLOSILLO, J.:
VENUE in the instant civil action for damages arising from libel was
improperly laid; nonetheless, the trial court refused to dismiss the complaint.
Hence, this Petition for Certiorari, with prayer for the issuance of a temporary
restraining order, assailing that order of denial 1 as well as the order denying
reconsideration. 2chanrobles virtual law library
The facts: On 16 July 1991, the Mindanao Kris, a newspaper of general
circulation in Cotabato City, published in its front page the news article
captioned "6-Point Complaint Filed vs. Macumbal," and in its Publisher's
Notes the editorial, "Toll of Corruption," which exposed alleged anomalies by
key officials in the Regional Office of the Department of Environment and
Natural Resources. 3chanrobles virtual law library
On 22 July 1991, the public officers alluded to, namely, private respondents
Sultan Macorro L. Macumbal, Sultan Linog M. Indol, Atty. Macabangkit M.
Lanto and Atty. Mohamadali Abedin, instituted separate criminal and civil
complaints arising from the libel before the City Prosecutor's Office and the
Regional Trial Court in Marawi City. The publisher-editor of the Mindanao
Kris, petitioner Patricio P. Diaz, and Mamala B. Pagandaman, who executed
a sworn statement attesting to the alleged corruption, were named
respondents in both complaints. 4chanrobles virtual law library
On 2 September 1991, the City Prosecutor's Office dismissed the criminal
case thus 5 -
WHEREFORE . . . this investigation in the light of Agbayani vs. Sayo case
finds that it has no jurisdiction to handle this case and that the same be filed
or instituted in Cotabato City where complainant is officially holding office at
the time respondents caused the publication of the complained news item in
the Mindanao Kris in Cotabato City, for which reason it is recommended that
this charge be dropped for lack of jurisdiction.
In the interim, the civil complaint for damages, docketed as Civil Case No.
385-91 and raffled to Branch 10 of the Regional Trial Court in Marawi City,
was set for Pre-Trial Conference. The defendants therein had already filed
their respective Answers with
Counterclaim.chanroblesvirtualawlibrarychanrobles virtual law library
On 18 November 1991, petitioner Diaz moved for the dismissal of the action
for damages on the ground that the trial court did not have jurisdiction over
the subject matter. He vehemently argued that the complaint should have
been filed in Cotabato City and not in Marawi City. 6chanrobles virtual law
library
Pending action on the motion, the presiding judge of Branch 10 inhibited
himself from the case which was thereafter reraffled to the sala of respondent
judge.chanroblesvirtualawlibrarychanrobles virtual law library
On 15 June 1991, respondent judge denied petitioner's Motion to Dismiss for
lack of merit. Diaz thereafter moved for reconsideration of the order of denial.
The motion was also denied in the Order of 27 August 1991, prompting
petitioner to seek relief therefrom.chanroblesvirtualawlibrarychanrobles
virtual law library
Petitioner Diaz contends that the civil action for damages could not be
rightfully filed in Marawi City as none of the private respondents, who are all
public officers, held office in Marawi City; neither were the alleged libelous
news items published in that city. Consequently, it is petitioner's view that the
Regional Trial court in Marawi City has no jurisdiction to entertain the civil
action for damages.chanroblesvirtualawlibrarychanrobles virtual law library
The petitioner is correct. Not one of the respondents then held office in
Marawi City: respondent Macumbal was the Regional Director for Region XII
of the DENR and held office in Cotabato City; respondent Indol was the
Provincial Environment and Natural Resources Officer of Lanao del Norte
and held office in that province; respondent Lanto was a consultant of the
Secretary of the DENR and, as averred in the complaint, was temporarily
residing in Quezon City; and, respondent Abedin was the Chief of the Legal
Division of the DENR Regional Office in Cotabato City. 7 Indeed, private
respondents do not deny that their main place of work was not in Marawi
City, although they had sub-offices
therein.chanroblesvirtualawlibrarychanrobles virtual law library
Apparently, the claim of private respondents that they maintained
sub-offices in Marawi City is a mere afterthought, considering that it was
made following the dismissal of their criminal complaint by the City
Prosecutor of Marawi City. Significantly, in their complaint in Civil Case No.
385-91 respondents simply alleged that they were residents of Marawi City,
except for respondent Lanto who was then temporarily residing in Quezon
City, and that they were public officers, nothing more. This averment is not
enough to vest jurisdiction upon the Regional Trial Court of Marawi City and
may be properly assailed in a motion to
dismiss.chanroblesvirtualawlibrarychanrobles virtual law library
The Comment of private respondents that Lanto was at the time of the
commission of the offense actually holding office in Marawi City as consultant
of LASURECO can neither be given credence because this is inconsistent
with their allegation in their complaint that respondent Lanto, as consultant of
the Secretary of the DENR, was temporarily residing in Quezon
City.chanroblesvirtualawlibrarychanrobles virtual law library
Moreover, it is admitted that the libelous articles were published and printed
in Cotabato City. Thus, respondents were limited in their choice of venue for
their action for damages only to Cotabato City where Macumbal, Lanto and
Abedin had their office and Lanao del Norte where Indol worked. Marawi City
is not among those where venue can be
laid.chanroblesvirtualawlibrarychanrobles virtual law library
The third paragraph of Art. 360 of the Revised Penal Code, as amended by
R.A. No. 4363, specifically requires that -
The criminal and civil action for damages in cases of written defamations as
provided for in this chapter, shall be filed simultaneously or separately with
the Court of First Instance (now Regional Trial Court) of the province or city
where the libelous article is printed and first published or where any of the
offended parties actually resides at the time of the commission of the
offense: Provided, however, That where one of the offended parties is a
public officer . . . (who) does not hold office in the City of Manila, the action
shall be filed in the Court of First Instance (Regional Trial Court) of the
province or city where he held office at the time of the commission of the
offense or where the libelous article is printed and first published and in case
one of the offended parties is a private individual, the action shall be filed in
the Court of First Instance of the province or city where he actually resides at
the time of the commission of the offense or where the libelous matter is
printed and first published . . . . (emphasis supplied).
From the foregoing provision, it is clear that an offended party who is at the
same time a public official can only institute an action arising from libel in two
(2) venues: the place where he holds office, and the place where the alleged
libelous articles were printed and first
published.chanroblesvirtualawlibrarychanrobles virtual law library
Private respondents thus appear to have misread the provisions of Art. 360
of the Revised Penal Code, as amended, when they filed their criminal and
civil complaints in Marawi City. They deemed as sufficient to vest jurisdiction
upon the Regional Trial Court of Marawi City the allegation that "plaintiffs are
all of legal age, all married, Government officials by occupation and residents
of Marawi City." 8 But they are wrong.chanroblesvirtualawlibrarychanrobles
virtual law library
Consequently, it is indubitable that venue was improperly laid. However,
unless and until the defendant objects to the venue in a motion to dismiss
prior to a responsive pleading, the venue cannot truly be said to have been
improperly laid since, for all practical intents and purposes, the venue though
technically wrong may yet be considered acceptable to the parties for whose
convenience the rules on venue had. been devised. 9chanrobles virtual law
library
Petitioner Diaz then, as defendant in the court below, should have timely
challenged the venue laid in Marawi City in a motion to dismiss, pursuant to
Sec. 4, Rule 4, of the Rules of Court. Unfortunately, petitioner had already
submitted himself to the jurisdiction of the trial court when he filed his Answer
to the Complaint with Counterclaim. 10chanrobles virtual law library
His motion to dismiss was therefore belatedly filed and could no longer
deprive the trial court of jurisdiction to hear and decide the instant civil action
for damages. Well-settled is the rule that improper venue may be waived and
such waiver may occur by laches. 11chanrobles virtual law library
Petitioner was obviously aware of this rule when he anchored his motion to
dismiss on lack of cause of action over the subject matter, relying on this
Court's ruling in Time, Inc. v. Reyes. 12 Therein, We declared that the Court
of First Instance of Rizal was without jurisdiction to take cognizance of Civil
Case No. 10403 because the complainants held office in Manila, not in Rizal,
while the alleged libelous articles were published
abroad.chanroblesvirtualawlibrarychanrobles virtual law library
It may be noted that in Time, Inc. v. Reyes, the defendant therein moved to
dismiss the case without first submitting to the jurisdiction of the lower court,
which is not the case before Us. More, venue in an action arising from libel is
only mandatory if it is not waived by defendant. Thus -
The rule is that where a statute creates a right and provides a remedy for its
enforcement, the remedy is exclusive; and where it confers jurisdiction upon
a particular court, that jurisdiction is likewise exclusive, unless otherwise
provided. Hence, the venue provisions of Republic Act No. 4363 should be
deemed mandatory for the party bringing the action, unless the question of
venue should be waived by the defendant . . . . 13chanrobles virtual law
library
Withal, objections to venue in civil actions arising from libel may be waived; it
does not, after all, involve a question of jurisdiction. Indeed, the laying of
venue is procedural rather than substantive, relating as it does to jurisdiction
of the court over the person rather than the subject matter. 14 Venue relates
to trial and not to jurisdiction.chanroblesvirtualawlibrarychanrobles virtual law
library

Finally, Sec. 1 of Rule 16 provides that objections to improper venue must be

made in a motion to dismiss before any responsive pleading is filed.
Responsive pleadings are those which seek affirmative relief and set up
defenses. Consequently, having already submitted his person to the
jurisdiction of the trial court, petitioner may no longer object to the venue
which, although mandatory in the instant case, is nevertheless waivable. As
such, improper venue must be seasonably raised, otherwise, it may be
deemed waived.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, for lack of merit, the Petition for Certiorari is DISMISSED and
the Temporary Restraining Order heretofore issued is
LIFTED.chanroblesvirtualawlibrarychanrobles virtual law library

This case is remanded to the court of origin for further

proceedings.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Cruz, Griño-Aquino and Quiason, JJ., concur.