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DELA CRUZ V.

MOYA

RODOLFO DELA CRUZ, petitioner, vs. Hon. FELIX L. MOYA, in his capacity as Presiding Judge of Branch II of the Court of First Instance of Davao, and PEOPLE OF THE PHILIPPINES, respondents. Rolando C. Rama for petitioner. The Solicitor General for respondents. SYLLABUS 1. REMEDIAL LAW; JURISDICTION; ONE OF THE ESSENTIAL REQUISITES OF A VALID COURT PROCEEDING. For a court proceeding to be valid, it is essential that the court hearing the case must have jurisdiction over the subject matter of the case, otherwise the entire proceedings are null and void. 2. ID.; JURISDICTION OVER THE SUBJECT MATTER, DETERMINED BY STATUTE IN FORCE AT COMMENCEMENT OF ACTION. Jurisdiction over the subject matter is determined by the statute in force at the time of the commencement of the action. 3. ID.; JURISDICTION; RETAINED UP TO TERMINATION OF LITIGATION. Once jurisdiction is vested in the court, it is retained up to the end of the litigation. 4. ID.; GENERAL ORDER NO. 59; VESTED IN MILITARY TRIBUNALS JURISDICTION OVER ALL OFFENSES COMMITTED BY MILITARY PERSONNEL. General Order No. 59, dated June 24, 1977, published in 73 Official Gazette (Supplement) #28, pages 6373-1 to 6378-3. (July 11, 1977), military tribunals created under General Order No. 8 exercised exclusive jurisdiction over "(a)ll offenses committed by military personnel of the Armed Forces of the Philippines while in the performance of their official duty or which arose out of any act or omission done in the performance of their official duty; Provided, that for the purpose of determining whether an offense was committed while in the performance of official duty or whether it arose out of an act or omission done in the performance of official duty, a certificate issued by the Secretary of National Defense to that effect shall be conclusive unless modified or revoked by the President . . . "(Section 1.) 5. ID.; ID.; ID.; CERTIFICATE ISSUED BY THE SECRETARY OF FINANCE, NOT A CONDITION PRECEDENT FOR THE EXERCISE OF JURISDICTION BY EITHER CIVIL COURT OR MILITARY TRIBUNALS. The proviso in General Order No. 59 merely states that the certificate issued by the Secretary of National Defense is conclusive for the purpose of determining whether an offense was committed while in the performance of official duty, or arose out of an act or omission done in the performance of official duty. It does not in any way preclude the courts from making any finding as to whether an offense is duty-connected. Nor does it make the certificate a condition precedent for the exercise by either civilian courts or military tribunals of their jurisdiction over offenses committed by members of the AFP.

6. ID.; ID.; ID.; CASE AT BAR. The CFI has no jurisdiction over the case where evidence of the prosecution presented in court likewise shows that the victim was shot while petitioner was executing the mission order. DECISION CORTES, J p: Involving as it does a purely legal question, the present petition for certiorari and mandamus was certified to this Court by the then Intermediate Appellate Court in its resolution dated August 30, 1983. On February 23, 1979, Rodolfo Dela Cruz, a member of the Armed Forces of the Philippines assigned to the Intelligence and Operations Section of the 432nd PC Company, together with other PC men, received a mission order to proceed to Barangay Pangi, Maco, Sto. Tomas, Davao for the purpose of verifying and apprehending persons who were allegedly engaged in illegal cockfighting. In compliance with said mission order, Dela Cruz and company proceeded to Maco, Davao del Norte and caught in flagrante the operators of said illegal cockfighting, but said operators resisted arrest. The soldiers left the place but they brought with them to the PC Headquarters the evidence of the crime, such as gaffs and fighting cocks. The operators of the illegal cockfights, including the deceased Eusebio Cabilto, followed the soldiers on their way back to the PC Headquarters, catching up with them on the TagumMati National Highway. Fighting ensued and in the scuffle, Dela Cruz shot Cabilto. On August 2, 1979, Dela Cruz was charged with homicide in the Court of First Instance of Davao, in an information filed by the Provincial Fiscal. The case was docketed as Criminal Case No. 40080. While the case was pending trial, Presidential Decree Nos. 1822 and 1822-A were promulgated by the President of the Philippines on January 16, 1981, vesting in courts-martial jurisdiction over crimes committed by members of the Armed Forces or of the Philippine Constabulary in performance of their duties. LLphil Claiming that the crime for which he was charged was committed in relation to the performance of his duties, Dela Cruz filed with the Court of First Instance of Davao a motion to transfer the case to the military authorities so he could be tried by court martial. The motion was denied. Hence, the present petition. At issue is whether the civil courts have jurisdiction over the subject matter of Criminal Case No. 40080. One of the essential requisites of a valid court proceeding is that the court hearing the case must have jurisdiction over the subject matter of the case. If the court is acting without jurisdiction, then the entire proceedings are null and void. Jurisdiction over the subject matter is determined by the statute in force at the time of the commencement of the action. [Silvestre v. Military Commission, L-48366, March 8, 1978, 82 SCRA 10; People v. Romualdo, 90 Phil. 739 (1952); Rilloraza v. Arciaga, 128 Phil. 799 (1967), 21 SCRA 717.] And once jurisdiction is vested in the court, it is retained up to the end of the litigation. [Pamintuan v. Tiglao,

53 Phil. 1, (929); Phil. Land Air-Sea Labor Union (PLASLU), Inc. v. CIR, 93 Phil. 747 (1953), Tuvera v. De Guzman, 121 Phil. 706 (1965), 13 SCRA 729; Rilloraza v. Arciaga, supra: Rizal Surety and Insurance Co. v. Manila Railroad Co., et al., 123 Phil. 766 (1966), 16 SCRA 908). In the instant case, the information was filed on August 2, 1979. On such date, by virtue of General Order No. 59, dated June 24, 1977, published in 73 Official Gazette (Supplement) #28, pages 6373-1 to 6378-3. (July 11, 1977), military tribunals created under General Order No. 8 exercised exclusive jurisdiction over "(a)ll offenses committed by military personnel of the Armed Forces of the Philippines while in the performance of their official duty or which arose out of any act or omission done in the performance of their official duty; Provided, that for the purpose of determining whether an offense was committed while in the performance of official duty or whether it arose out of an act or omission done in the performance of official duty, a certificate issued by the Secretary of National Defense to that effect shall be conclusive unless modified or revoked by the President . . . "(Section 1.) As no amendatory law was ever published in the Official Gazette between the time G.O. No. 59 was published until the information in Criminal Case No. 40080 was filed on August 2, 1979, then said General Order No. 59 remained in force on said date. In the case at bar, it is not disputed that at the time of the commission of the alleged offense, petitioner dela Cruz was a member of the Philippine Constabulary, and that the shooting of the deceased Cabilto was committed while petitioner was executing the Mission Order. But what is the significance of the proviso regarding the certificate to be issued by the Secretary of National Defense? The proviso merely states that the certificate issued by the Secretary of National Defense is conclusive for the purpose of determining whether an offense was committed while in the performance of official duty, or arose out of an act or omission done in the performance of official duty. It does not in any way preclude the courts from making any finding as to whether an offense is duty-connected. Nor does it make the certificate a condition precedent for the exercise by either civilian courts or military tribunals of their jurisdiction over offenses committed by members of the AFP. In the instant case, even as no certificate issued by the Secretary of National Defense was presented in court, the record contains a copy of Mission Order No. 7, signed by a certain Lieutenant Huerta, directing Dela Cruz, among others, to proceed to Barangay Pangi, Maco, Sto. Tomas, Davao to verify and apprehend persons reportedly engaged in illegal cockfighting. The evidence of the prosecution presented in court likewise shows that Cabilto was shot while petitioner was executing the mission order. These undisputed facts compel this Court to declare that respondent court was without jurisdiction to try the case against petitioner Dela Cruz. prLL The Solicitor General points out that at the time the information was filed, Presidential Decrees Nos. 1822 and 1822-A which vest in the courts-martial jurisdiction over offenses committed by members of the AFP in the performance of their duties were not yet in effect, the same having been promulgated only in 1981.

Truly, PD 1822 and 1822-A are inapplicable to the case at bar. However, General Order No. 59 cited above applies. WHEREFORE, the petition is GRANTED. The proceedings in Criminal Case No. 4008 are declared null and void but without prejudice to the filing of another action in the proper forum. Let a copy of this decision be furnished the Judge Advocate of the Philippine Constabulary, Camp Crame, Quezon City, for appropriate action. Fernan, Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

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EN BANC [G.R. No. L-19568. March 31, 1964.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE L. CHUPECO, defendant-appellant. Solicitor General for plaintiff-appellee. J. Gonzales Orense for defendant-appellant. SYLLABUS 1. CRIMINAL PROCEDURE; JURISDICTION OF COURT ONCE VESTED IS NOT LOST BY SUBSEQUENT AMENDMENT OR STIPULATION. Where the original terms of the information averred the crime of repledging already encumbered property without the creditor's consent, and one of the essential ingredients of the offense (execution of the first mortgage having been alleged to have taken place in Manila, the court of first instance of that city acquired jurisdiction over the offense under the Rules of Court, and such jurisdiction is not tolled by subsequent amendment of the information or by stipulation between the parties, which in the case at bar amounted to no more than an avowal by the prosecution that it could not establish the other elements of the offense. 2. CRIMINAL LAW; REMOVING OR REPLEDGING ENCUMBERED PROPERTIES; NECESSITY OF EVIDENCE THAT PROPERTIES ARE THE SAME. In the case at bar, where the evidence fails to show that the properties mortgaged to the Bank are the same ones mortgaged to another person, it is held that the accused should be acquitted, because an essential element common to the two sets punished under Article 319 of the Revised Penal Code is that the property removed or repledged, as the case may be, should be the same or identical property that was mortgaged or pledged before such removal or repledging. DECISION REYES, J.B.L., J p: Appeal from a decision of the Court of First Instance of Manila (in its Crim. Case No. 14786) to the Court of Appeals, but which the latter court, pursuant to Section 17 of the Judiciary Act of 1948, as amended, had certified to the Supreme Court as a case in which the jurisdiction of an inferior court is in issue. The accused-appellant, Jose L. Chupeco, was charged on 2 February 1951 before the Court of First Instance of Manila under the following information: "That on or about the 28th day of November, 1947, in the City of Manila, Philippines, the said accused being the owner of, and, having previously on the 24th day of July, 1946, executed a Chattel Mortgage on the following properties: "An open shed under construction to be used as sawmill building, containing an area of 350 sq. m. more or less, located at Sitio Saguing, Dinalupihan, Bataan.

SAWMILL MACHINERY & EQUIPMENT: One 'Wheland' Circular sawmill No. 3 complete with carriage and w/60" inserted circular saw (new); One Gray Marine Full Diesel Engine 225 H.P. Serial No. 13835, Engine No. C-17040; One RD-14 Tractor with Bulldozer, motor No. 6719028; One D-6 Caterpillar tractor motor 626-134; One Clitract International Caterpillar Motor No. 2398-D; One Air compressor (Aray type); One complete set of welding instruments (local made); One Lathe machine F.E. Reed Co. Length 8' swing 8"; One planer for iron and steel F.E. Reed & Co.; One tracing machine and one vise (local made); TRANSPORTATION UNITS: One Chevrolet truck Model 1941 Motor No. KR-214658 1946 Plate No. 9794; One International Baby truck Model 1938 Motor No. ND-13-6470; One G.M.C. Army truck 6 x 6 Motor No. 70485739 Plate No. 10239; One Willys jeep Motor No. DP 2977 Plate No. 1512"; located at sitio Saguing, Dinalupihan, Bataan, in favor of the Agricultural and Industrial Bank, whose capital, assets, accounts, contracts and choses in action were subsequently transferred to the herein complainant Rehabilitation Finance Corporation, an institution created and operating pursuant to the provisions of Republic Act No. 85, with principal office at the City of Manila, Philippines, to secure a loan of P20,000.00 from said Agricultural and Industrial Bank, did then and there willfully, unlawfully and feloniously (on the aforesaid date of 28th day of November, 1947, with intent to defraud the said Rehabilitation Finance Corporation, pledge and incumber, or cause to be pledged and incumbered the same personal properties to one Mateo B. Pinile without having fully satisfied the mortgage and during the term thereof and without the consent of the mortgagee bank written on the back of the mortgage, and, thereafter) knowingly transfer and remove, or cause to be transferred and removed the said properties to the municipality of Subic, Zambales, also without the written consent of the mortgagee bank, to the damage and prejudice of the said Rehabilitation Finance Corporation in the sum of P15,935.80, Philippine currency, representing the unpaid balance of the aforesaid mortgage." The accused moved to quash the foregoing information on the ground that more than one offense is charged and that the court had no jurisdiction. Upon denial of the motion, the accused was arraigned

and he entered a plea of not guilty. After the case was partly tried, the defense counsel and the fiscal entered into an agreement to have the information amended to the effect that the charge be only for removal of properties mortgaged, eliminating the portion referring to pledging already pledged property. The information, however, remained un-amended. The accused then filed a motion to dismiss invoking the agreement, but the court denied it, and ordered that the case be tried on the charge "of having pledged property which had been previously pledged or mortgaged". After trial, the court found the accused guilty of the said offense, and imposed a penalty of two months and one day of arresto mayor. Not satisfied, the accused interposed an appeal to the Court of Appeals, but the said court certified the case to the Supreme Court, as formerly stated. The accused attacks the jurisdiction of the trial court on the strength of the agreement with the fiscal to discard the charge of repledging or reincumbering the chattels already mortgaged to the Agricultural and Industrial Bank, thus leaving in force only the accusation of having transferred the encumbered property from Bataan to Zambales without the consent of the mortgagee. It is argued that since the place where the chattels were, as well as the site to which they were moved, are both outside of Manila, the courts of the latter acquired no jurisdiction to try the case, because the offense was not committed within the Manila territory. We find this stand without merit. The original terms of the charge averred (and it is not disputed) the crime of repledging already encumbered property without the creditor's consent, and one of the essential ingredients of the offense (the execution of the first mortgage) having been alleged to have taken place in Manila, the court of first instance of that city acquired jurisdiction over the offense under the Rules of Court (People vs. Mission, 48 O.G., 1331; Rule 110, section 9). It is well-established that once vested, the jurisdiction is not tolled by subsequent amendment or stipulation (McClain vs. Kansas City Bridge Co., 83 SW, 2d, 132; Shankle vs. Ingram, 45 S.E. 578; Walton vs. Mardeville Dowling & Co., 5 NW. 776), which in this case amounted to no more than an avowal by the prosecution that it could not establish the other elements of the offense. Furthermore, the court actually rejected the defense motion to dismiss, and directed that the case be tried on the original charge of repledging property already encumbered. The accused obeyed that directive, and by so doing it renounced the claim that the information had been so amended as to discard that particular averment. But the fatal error in the decision appealed from is its disregard of the fact that the evidence fails to show that the properties mortgaged to the Bank are the same ones encumbered afterwards to Mateo Pinili. In fact, the Office of the Solicitor General recommends the acquittal of the accused on this very ground (Brief, pp. 10-11). There is no question that the herein accused executed in the City of Manila a Chattel Mortgage, Exhibit "D", on the properties located in Bataan and listed in the information in favor of the Agricultural and Industrial Bank on 24 July 1946; and that the accused pledged or encumbered, in the City of Manila, on 28 November 1947 the properties listed in Exhibit "E", which are as follows:

"One (1) sawmill with gray marine engine 125 H.P. circular saw and all appurtenances, implements and parts, also building, camarin and housing improvements under Tax No. 1260-V for 1947, assessed at P8,000.00 paid under O.R. No. 59318, dated May 14, 1947, Dinalupihan, Bataan; "One (1) bulldozer H.D.-14, with dozer, Make: Allis-Chalmers, Eng. No. 3251541; "Two (2) cargo trucks (6 x 6), Eng. No. 220314218-Reg. No. 17094 and Eng. 220359225-Reg. No. 17093." However, there is nothing in the evidence to show that the properties listed in Exhibit "D" and in the information are the same properties listed in Exhibit "E". The descriptions are materially different. An essential element common to the two acts punished under Article 319 of the Revised Penal Code is that the property removed or repledged, as the case may be, should be the same or identical property that was mortgaged or pledged before such removal or repledging. Therefore, even if the Court of First Instance of Manila had jurisdiction over the case, the accused cannot be found guilty on the evidence on record of the crime for which he stands indicted. FOR THE FOREGOING REASONS, the appealed decisions is hereby reversed, and another one entered acquitting the accused Jose L. Chupeco. No pronouncement as to costs. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

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SECOND DIVISION [G.R. No. 75079. January 26, 1989.] SOLEMNIDAD M. BUAYA, petitioner, vs. THE HONORABLE WENCESLAO M. POLO, Presiding Judge, Branch XIX, Regional Trial Court of Manila and the COUNTRY BANKERS INSURANCE CORPORATION, respondents. Apolinario M. Buaya for petitioner. Romeo G. Velasquez for respondent Country Bankers Insurance Corporation. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; AVERMENTS IN THE COMPLAINT OR INFORMATION, DETERMINATIVE OF THE CRIME TO BE PROSECUTED AND PROPER COURT TO HEAR THE CASE. It is well-settled that the averments in the complaint or information characterize the crime to be prosecuted and the court before which it must be tried (Balite v. People, L-21475, Sept. 30, 1966 cited in People v. Masilang, 142 SCRA 680). The jurisdiction of courts in criminal cases is determined by the allegations of the complaint or information, and not by the findings the court may make after the trial (People v. Mission, 87 Phil. 641). 2. ID.; ID.; VENUE OF CRIMINAL PROSECUTION; GENERAL RULE. Section 14(a), Rule 110 of the Revised Rules of Court provides: 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 of the essential elements thereof took place. 3. ID.; ID.; ESTAFA BEING A TRANSITORY OFFENSE, PROSECUTION MAY BE TAKEN WHERE ANY OF THE ESSENTIAL ELEMENTS OF THE CRIME TOOK PLACE. The subject information charges petitioner with estafa committed "during the period 1980 to June 15, 1982 inclusive in the City of Manila, Philippines . . ." (p. 44, Rollo) Clearly then, from the very allegation of the information the Regional Trial Court of Manila has jurisdiction. Besides, the crime of estafa is a continuing or transitory offense which may be prosecuted at the place where any of the essential elements of the crime took place. One of the essential elements of estafa is damage or prejudice to the offended party. The private respondent has its principal place of business and office at Manila. The failure of the petitioner to remit the insurance premiums she collected allegedly caused damage and prejudice to private respondent in Manila. DECISION PARAS, J p: Petitioner, Solemnidad M. Buaya, in the instant petition for certiorari, seeks to annul and set aside the orders of denial issued by the respondent Judge of the Regional Trial Court of Manila, Branch XIX, on her Motion to Quash/Dismiss and Motion for Reconsideration in Criminal Case No. L-83-22252 entitled "People of the Philippines vs. Solemnidad M. Buaya." The Motion to Dismiss was anchored on the

following grounds (a) the court has no jurisdiction over the case and (b) the subject matter is purely civil in nature. It appears that petitioner was an insurance agent of the private respondent, who was authorized to transact and underwrite insurance business and collect the corresponding premiums for and in behalf of the private respondent. Under the terms of the agency agreement, the petitioner is required to make a periodic report and accounting of her transactions and remit premium collections to the principal office of private respondent located in the City of Manila. Allegedly, an audit was conducted on petitioner's account which showed a shortage in the amount of P358,850.72. As a result she was charged with estafa in Criminal Case No. 83-22252, before the Regional Trial Court of Manila, Branch XIX with the respondent Hon. Wenceslao Polo as the Presiding Judge. Petitioner filed a motion to dismiss which motion was denied by respondent Judge in his Order dated March 26, 1986. The subsequent motion for reconsideration of this order of denial was also denied. These two Orders of denial are now the subject of the present petition. It is the contention of petitioner that the Regional Trial Court of Manila has no jurisdiction because she is based in Cebu City and necessarily the funds she allegedly misappropriated were collected in Cebu City. Petitioner further contends that the subject matter of this case is purely civil in nature because the fact that private respondent separately filed Civil Case No. 83-14931 involving the same alleged misappropriated amount is an acceptance that the subject transaction complained of is not proper for a criminal action. The respondents on the other hand, call for adherence to the consistent rule that the denial of a motion to dismiss or to quash, being interlocutory in character, cannot be questioned by certiorari and it cannot be the subject of appeal until final judgment or order is rendered (Sec. 2, Rule 41, Rules of Court). The ordinary procedure to be followed in such a case is to enter a plea, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment (Newsweek Inc. v. IAC, 142 SCRA 171). prcd The general rule is correctly stated. But this is subject to certain exceptions. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense or it is not the court of proper venue. Here, petitioner questions the jurisdiction of the Regional Trial Court of Manila to take cognizance of this criminal case for estafa. It is well-settled that the averments in the complaint or information characterize the crime to be prosecuted and the court before which it must be tried (Balite v. People, L-21475, Sept. 30, 1966 cited in People v. Masilang, 142 SCRA 680). In Villanueva v. Ortiz, et al. (L-15344, May 30, 1960, 108 Phil, 493) this Court ruled that in order to determine the jurisdiction of the court in criminal cases, the complaint must be examined for the purpose of ascertaining whether or not the facts set out therein and the punishment provided for by law

fall within the jurisdiction of the court where the complaint is filed. The jurisdiction of courts in criminal cases is determined by the allegations of the complaint or information, and not by the findings the court may make after the trial (People v. Mission, 87 Phil. 641). The information in the case at bar reads as follows: "The undersigned accuses Solemnidad Buaya of the crime of estafa, committed as follows: "That during the period 1980 to June 15, 1982, inclusive, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud the Country Bankers Insurance Corporation represented by Elmer Baez duly organized and existing under the laws of the Philippines, with principal address at 9th floor, G.R. Antonio Bldg., T.M. Kalaw, Ermita, in said City, in the following manner, to wit: the said accused having been authorized to act as insurance agent of said corporation, among whose duties were to remit collections due from customers thereat and to account for and turn over the same to the said Country Bankers Insurance Corporation represented by Elmer Baez, as soon as possible or immediately upon demand, collected and received the amount of P358,850.00 representing payments of insurance premiums from customers, but herein accused, once in possession of said amount, far from complying with her aforesaid obligation, failed and refused to do so and with intent to defraud, absconded with the whole amount thereby misappropriated, misapplied and converted the said amount of P358,850.00 to her own personal use and benefit, to the damage and prejudice of said Country Bankers Insurance Corporation in the Amount of P358,850.00 Philippine Currency. "CONTRARY TO LAW." (p. 44, Rollo) Section 14(a), Rule 110 of the Revised Rules of Court provides: 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 of the essential elements thereof took place. The subject information charges petitioner with estafa committed "during the period 1980 to June 15, 1982 inclusive in the City of Manila, Philippines . . ." (p. 44, Rollo) Clearly then, from the very allegation of the information the Regional Trial Court of Manila has jurisdiction. Besides, the crime of estafa is a continuing or transitory offense which may be prosecuted at the place where any of the essential elements of the crime took place. One of the essential elements of estafa is damage or prejudice to the offended party. The private respondent has its principal place of business and office at Manila. The failure of the petitioner to remit the insurance premiums she collected allegedly caused damage and prejudice to private respondent in Manila. prcd Anent petitioner's other contention that the subject matter is purely civil in nature, suffice it to state that evidentiary facts on this point have still to be proved.

WHEREFORE, the petition is DISMISSED for lack of merit. The case is remanded to the Regional Trial Court of Manila, Branch XIX for further proceedings. SO ORDERED. Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

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REPUBLIC OF THE PHIL. vs. DELFIN VIR. SUNGA, ET AL. SECOND DIVISION [G.R. No. L-38634. June 20, 1988.] REPUBLIC OF THE PHILIPPINES, (PEOPLE OF THE PHILIPPINES), petitioner, vs. HON. DELFIN VIR. SUNGA, as Presiding Judge, CFI Branch I, Camarines Sur, ARISTON ANADILLA, RAFAEL ANADILLA and JOSE ANADILLA, respondents. DECISION PADILLA, J p: This is a petition for review on certiorari of the order * of the Court of First Instance of Camarines Sur, 10th Judicial District, Branch I, dated 20 March 1974, dismissing motu proprio Criminal Case No. L-244, entitled "People of the Philippines, Complainant versus Ariston Anadilla, Rafael Anadilla and Jose Anadilla, Accused," as well as of the order dated 22 April 1974 of the same court denying the motion for reconsideration of said earlier order. The facts are not disputed. On 10 August 1964, an information for Attempted Homicide was filed by the Provincial Fiscal of Camarines Sur against accused-private respondents Rafael Anadilla, Ariston Anadilla and Jose Anadilla. Trial of the case was set on 11 and 12 March 1974. The hearing set on 11 March 1974 was, however, postponed in view of the absence of one of the accused, respondent Rafael Anadilla who had not yet been arrested by the police authorities. On the same date, the court a quo issued an order for the arrest of said accused, and at the same time set the trial of the case for 29 and 30 July 1974. On 20 March 1974, the court a quo issued the now assailed order which reads: cdll "Considering that the offended party, Jose Dadis is no longer interested in the further prosecution of this case and there being no objection on the part of the accused Ariston Anadilla, Rafael Anadilla and Jose Anadilla, this case is hereby DISMISSED with costs de oficio. "Consequently, the order of arrest issued by this Court against the accused Rafael Anadilla dated March 11, 1974, is hereby ordered lifted and has no force and effect. "The bail bond posted for the provisional liberty of the accused is hereby ordered cancelled. "In the case of Ariston Anadilla and Jose Anadilla, the Provincial Warden is hereby ordered to release said accused from their detention immediately upon receipt of this order. "SO ORDERED." 1

The affidavit of desistance, relied upon by the aforequoted order, was executed by the offended party on 20 March 1974 and subscribed and sworn to before the branch clerk of court Atty. R.B. Torrecampo. It alleged, among others, that: "That he was the complainant in Criminal Case No. L-244, entitled, People vs. Ariston Anadilla, et al., for Attempted Homicide, which case is pending before the first branch of this Court; that he is no longer interested in the further prosecution of this case and that he has already forgiven the accused for their acts; that his material witnesses could no longer be contacted and that without their testimonies the guilt of the accused cannot be proven beyond reasonable doubt, and that in view of these circumstances, he requests the Prosecuting Fiscal for the dismissal of the said case." 2 The Provincial Fiscal moved to reconsider the order of dismissal. This was denied by the court a quo in an order dated 22 April 1974. 3 This petition was thereupon filed before this Court. The issue in this petition is whether the court a quo may dismiss a criminal case on the basis of an affidavit of desistance executed by the offended party, but without a motion to dismiss filed by the prosecuting fiscal. Cdpr The issue presented is not novel. In Crespo v. Mogul, 4 promulgated on 30 June 1987, the Court had occasion to state the rule in regard to the respective powers of the prosecuting fiscal and the court, after the complaint or information has been filed in court. In said case, the issue raised was whether the trial court, acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial of the case on the merits. In the Crespo case, an information for Estafa had already been filed by the Assistant Fiscal before the Circuit Criminal Court of Lucena City. Arraignment of the accused and trial of the case were, however, deferred because of a pending appeal by the accused/respondent to the Secretary of Justice. Reversing the resolution of the Office of the Provincial Fiscal, the Undersecretary of Justice directed the fiscal to move for immediate dismissal of the information filed against the accused. Upon such instructions, the Provincial Fiscal filed a motion to dismiss for insufficiency of evidence. The Judge denied the motion and set the arraignment. On a certiorari recourse to the Court of Appeals, the petition was dismissed. Review of the Court of Appeals decision was then sought by the accused with this Court, raising the issue previously stated herein. Resolving, the Court held: xxx xxx xxx

"The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.

"The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not [sic], once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law. xxx xxx xxx

"The rule therefore in this jurisdiction is that once a complaint or information is filed in Court and disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation." (emphasis supplied). 5 In the case at bar, the Court has taken note that before the case was set for trial, almost ten (10) years had elapsed from the date of filing of the information. It was not, therefore, unusual that the complainant-offended party, in his affidavit of desistance, manifested that his material witnesses could no longer be contacted, but, without their testimony, the guilt of the accused could not be proved beyond reasonable doubt. cdphil The prosecuting fiscal in his motion for reconsideration of the order dismissing the case, obviously believed that despite such manifestation of the complainant, he (fiscal) could prove the prosecution's case. To avoid similar situations, the Court takes the view that, while the Crespo doctrine has settled that the trial court is the sole judge on whether a criminal case should be dismissed (after the complaint or information has been filed in court), still, any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He is, after all, in control of the prosecution of the case and he may have his own reasons why the case should not be dismissed. It is only after hearing the prosecuting fiscal's view that the Court should exercise its exclusive authority to continue or dismiss the case.

WHEREFORE, the petition is hereby DISMISSED. Without costs. SO ORDERED.

EN BANC [G.R. No. 53373. June 30, 1987.] MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents. DECISION GANCAYCO, J p: The issue raised in this case is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCC-IX-52 (Quezon) 77. 1 When the case was set for arraignment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford time for petitioner to elevate the matter to the appellate court. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7 On March 22, 1978 then Undersecretary of Justice, Hon. Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraignment stating: "ORDER

For resolution is a motion to dismiss this case filed by the prosecuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the liability of the drawer can only be civil and not criminal. The motion's trust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the morning. SO ORDERED." 11 The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motion to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate comment to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information.

It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a prima facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an oppressive and vindictive manner. 30 However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case may be and it may be elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the case be filed in Court or otherwise, that an information be filed in Court. 31 The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 34 While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38 The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED.

THIRD DIVISION [G.R. No. 77365. April 7, 1992.] RITA CALEON, petitioner, vs. AGUS DEVELOPMENT CORPORATION and COURT OF APPEALS, respondents. Luis A. Cuevas for petitioner. Pablito M. Rojas for private respondent. SYLLABUS 1. CIVIL LAW; LEASE; LEASE OF BUILDING INCLUDES LEASE OF LOT AND RENTALS OF BUILDING INCLUDES THOSE OF LOT. The issue has already been laid to rest in the case of Duellome v. Gotico (7 SCRA 841 [1963]) where this Court ruled that the lease of a building naturally includes the lease of the lot, and the rentals of the building includes those of the lot. Thus: ". . . the lease of a building would naturally include the lease of the lot and that the rentals of the building include the rentals of the lot. . . . "Furthermore, under our Civil Code, the occupancy of a building or house not only suggests but implies the tenancy or possession in fact of the land on which they are constructed. This is not a new pronouncement. An extensive elaboration of this rule was discussed by this Court in the case of Baquiran, et al. v. Baquiran et al., 53 O.G. p. 1130. '. . . the Court of Appeals should have found the herein appellees lessees of the house, and for all legal purposes, of the lot on which it was built as well'." 2. ID.; ID.; BATAS PAMBANSA BLG. 25; GROUNDS FOR JUDICIAL EJECTMENT. Section 5 of Batas Pambansa Blg. 25 enumerates the grounds for judicial ejectment, among which is the subleasing of residential units without the written consent of the owner/lessor, to wit: "SEC. 5. Grounds for judicial ejectment. Ejectment shall be allowed on the following grounds: "a) Subleasing or assignment of lease of residential units in whole or in part, without the written consent of the owner/lessor: Provided that in the case of subleases or assignments executed prior to the approval of this Act, the sublessor/assignor shall have sixty days from the effectivity of this Act within which to obtain the written approval of the owner/lessor or terminate the sublease or assignment." 3. ID.; ID.; ID.; RESIDENTIAL UNIT, DEFINED. Section 2(b) of Batas Pambansa Blg. 25 defines the term residential unit as follows: "SEC. 2. Definition of Terms Unless otherwise indicated wherever in this Act, the following shall have the following meaning: "b. A residential unit refers to an apartment, house and/or land on which another's dwelling is located used for residential purposes and shall include not only buildings, parts or units thereof used solely as dwelling places, except motels, motel rooms, hotels, hotel rooms, boarding houses, dormitories, rooms and bedspaces for rent, but also those used for home industries, retail stores, or other business purposes if the owner thereof and his family actually live therein and use it principally for dwelling purposes: . . .." 4. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF STATUTES PRESUMED; REQUISITES FOR SUPREME COURT DECISION ON QUESTION OF CONSTITUTIONALITY. It is well settled that all presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging

unconstitutionality must prove its invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope Worker's Union, 59 SCRA 54 [1974]). In fact, this Court does not decide questions of a constitutional nature unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case, i.e., the issue of constitutionality must be the very lis mota presented (Tropical Homes, Inc. v. National Housing Authority, 152 SCRA 540 [1987]). 5. ID.; POLICE POWER; GUARANTY OF NON-IMPAIRMENT OF OBLIGATIONS OF CONTRACT LIMITED BY POLICE POWER. It is now beyond question that the constitutional guaranty of non-impairment of obligations of contract is limited by and subject to the exercise of police power of the State in the interest of public health, safety, morals and general welfare (Kabiling, et al. v. National Housing Authority, 156 SCRA 623 [1987]). In spite of the constitutional prohibition, the State continues to possess authority to safeguard the vital interests of its people. Legislation appropriate to safeguarding said interest may modify or abrogate contracts already in effect (Victoriano v. Elizalde Rope Worker's Union, et al., supra). In fact, every contract affecting public interest suffers a congenital infirmity in that it contains an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power (Villanueva v. Castaeda, 154 SCRA 142 [1987]). 6. ID.; ID.; ID.; BATAS PAMBANSA BLG. 25 APPLICABLE TO LEASES ENTERED INTO PRIOR TO ITS EFFECTIVITY. Batas Pambansa Blg. 25, "An Act Regulating Rentals of Dwelling Units or of Land On Which Another's Dwelling is Located and For Other Purposes" shows that the subject matter of the law is the regulation of rentals and is intended only for dwelling units with specified monthly rentals constructed before the law became effective (Baens v. Court of Appeals, 125 SCRA 634 [1983]). Batas Pambansa Blg. 25 is derived from P.D. No. 20 which has been declared by this Court as a police power legislation, applicable to leases entered into prior to July 14, 1971 (effectivity date of RA 6539), so that the applicability thereof to existing contracts cannot be denied (Gutierrez v. Cantada, 90 SCRA 1 [1979]). 7. ID.; SOCIAL JUSTICE; OBJECTIVE OF BATAS PAMBANSA BLG. 25 NOT SUBJECT TO EXPLOITATION BY LESSEES. The objective of Batas Pambansa Blg. 25 is to remedy the plight of lessees, but such objective is not subject to exploitation by the lessees for whose benefit the law was enacted. Thus, the prohibition provided for in the law against the sublease of the premises without the consent of the owner. As enunciated by this Court, it must be remembered that social justice cannot be invoked to trample on the rights of property owners, who under our Constitution and laws are also entitled to protection. The social justice consecrated in our Constitution was not intended to take away rights from a person and give them to another who is not entitled thereto (Salonga v. Farrales, 105 SCRA 360 [1981])

EN BANC [G.R. No. 102342. July 3, 1992.] LUZ M. ZALDIVIA, petitioner, vs. HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge of the Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, and PEOPLE OF THE PHILIPPINES, respondents. Hector B. Almeyda for petitioner. SYLLABUS 1. REMEDIAL LAW; PRESCRIPTION; 1985 RULES ON CRIMINAL PROCEDURE; PRESCRIPTIVE PERIOD DOES NOT APPLY TO OFFENSES SUBJECT TO SUMMARY PROCEDURE. Section 1, Rule 110 of the 1985 Rules on Criminal Procedure meaningfully begins with the phrase, "for offenses not subject to the rule on summary procedure in special cases," which plainly signifies that the section does not apply to offenses which are subject to summary procedure. The phrase "in all cases" appearing in the last paragraph obviously refers to the cases covered by the Section, that is, those offenses not governed by the Rule on Summary Procedure. This interpretation conforms to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure, to discover the true legislative intent. 2. ID.; ID.; ID.; ID.; SECTION (B) REFERS TO SECTION 32(2) OF BP NO. 129. Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting in such courts: Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof; Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. These offenses are not covered by the Rule on Summary Procedure. 3. ID.; ID.; RULE ON SUMMARY PROCEDURE; APPLIES TO VIOLATIONS OF MUNICIPAL OR CITY ORDINANCES. As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of municipal or city ordinances, it should follow that the charge against the petitioner, which is for violation of a municipal ordinance of Rodriguez, is governed by that rule and not Section 1 of Rule 110. 4. ID.; ID.; ID.; PRESCRIPTIVE PERIOD STARTS ONLY WHEN THE CASE IS ACTUALLY FILED IN COURT. Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation." Both parties agree that this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants to. However, the case shall be deemed commenced only when it is filed in

court, whether or not the prosecution decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that. 5. ID.; ID.; ID.; ID.; INTERPRETATION IN CONSONANCE WITH ACT NO. 3326. This interpretation is in consonance with Act No. 3326 which says that the period of prescription shall be suspended "when proceedings are instituted against the guilty party." The proceedings referred to in Section 2 thereof are "judicial proceedings," contrary to the submission of the Solicitor General that they include administrative proceedings. His contention is that we must not distinguish as the law does not distinguish. As a matter of fact, it does. 6. ID.; ID.; ID.; SPECIAL LAW PREVAILS OVER GENERAL LAW; PRESCRIPTION IN CRIMINAL CASES IS A SUBSTANTIVE RIGHT. The Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should prevail as the special law. And if there be a conflict between Act No. 3326 and Rule 110 of the Rules on Criminal Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not allowed to "diminish, increase or modify substantive rights" under Article VIII, Section 5(5) of the Constitution. Prescription in criminal cases is a substantive right. 7. ID.; ID.; CRIME PRESCRIBES IF THE PROSECUTOR DELAYS INTENTIONALLY OR NOT THE INSTITUTION OF NECESSARY JUDICIAL PROCEEDINGS. The Court realizes that under the above interpretation, a crime may prescribe even if the complaint is filed seasonably with the prosecutor's office if, intentionally or not, he delays the institution of the necessary judicial proceedings until it is too late. However, that possibility should not justify a misreading of the applicable rules beyond their obvious intent as reasonably deduced from their plain language. The remedy is not a distortion of the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected. DECISION CRUZ, J p: The Court is asked to determine the applicable law specifying the prescriptive period for violations of municipal ordinances. The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez, in the Province of Rizal. LibLex The offense was allegedly committed on May 11, 1990. 1 The referral-complaint of the police was received by the Office of the Provincial Prosecutor of Rizal on May 30, 1990. 2 The corresponding information was filed with the Municipal Trial Court of Rodriguez on October 2, 1990. 3 The petitioner moved to quash the information on the ground that the crime had prescribed, but the motion was denied. On appeal to the Regional Trial Court of Rizal, the denial was sustained by the responded judge. 4

In the present petition for review on certiorari, the petitioner first argues that the charge against her is governed by the following provisions of the Rule on Summary Procedure: SECTION 1. Scope. This rule shall govern the procedure in the Metropolitan Trial Courts, the Municipal Trial Courts, and the Municipal Circuit Trial Court in the following cases: xxx B. 1. 2. 3. xxx Criminal Cases: Violations of traffic laws, rules and regulations; Violations of rental law; Violations of municipal or city ordinances; prLL xxx

4. All other criminal cases where the penalty prescribed by law for the offense charged does not exceed six months imprisonment, or a fine of one thousand pesos (P1,000.00), or both, irrespective of other impossible penalties, accessory or otherwise, or of the civil liability arising therefrom. . . ." (Emphasis supplied.) xxx xxx xxx

SECTION 9. How commenced. The prosecution of criminal cases falling within the scope of this Rule shall be either by complaint or by information filed directly in court without need of a prior preliminary examination or preliminary investigation: Provided, however, That in Metropolitan Manila and chartered cities, such cases shall be commenced only by information; Provided, further, That when the offense cannot be prosecuted de officio, the corresponding complaint shall be signed and sworn to before the fiscal by the offended party. She then invokes Act No. 3326, as amended, entitled "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run," reading as follows: SECTION 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: . . . Violations penalized by municipal ordinances shall prescribe after two months. SECTION 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. SECTION 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of law not included in the Penal Code." (Emphasis supplied)

Her conclusion is that as the information was filed way beyond the two-month statutory period from the date of the alleged commission of the offense, the charge against her should have been dismissed on the ground of prescription. For its part, the prosecution contends that the prescriptive period was suspended upon the filing of the complaint against her with the Office of the Provincial Prosecutor. Agreeing with the respondent judge, the Solicitor General also invokes Section 1, Rule 110 of the 1985 Rules on Criminal Procedure, providing as follows: LexLib SECTION 1. How Instituted. For offenses not subject to the rule on summary procedure in special cases, the institution of criminal action shall be as follows: a) For offenses falling under the jurisdiction of the Regional Trial Court, by filing the complaint with the appropriate officer for the purpose of conducting the requisite preliminary investigation therein; b) For offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts, by filing the complaint directly with the said courts, or a complaint with the fiscal's office. However, in Metropolitan Manila and other chartered cities, the complaint may be filed only with the office of the fiscal. In all cases, such institution interrupts the period of prescription of the offense charged. (Emphasis supplied.) Emphasis is laid on the last paragraph. The respondent maintains that the filing of the complaint with the Officer of the Provincial Prosecutor comes under the phrase "such institution" and that the phrase "in all cases" applies to all cases, without distinction, including those falling under the Rule on Summary Procedure. The said paragraph, according to the respondent, was an adoption of the following dictum in Francisco v. Court of Appeals: 5 In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has re-examined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain

vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint. It is important to note that this decision was promulgated on May 30, 1983, two months before the promulgation of the Rule on Summary Procedure on August 1, 1983. On the other hand, Section 1 of Rule 110 is new, having been incorporated therein with the revision of the Rules on Criminal Procedure on January 1, 1985, except for the last paragraph, which was added on October 1, 1988. That section meaningfully begins with the phrase, "for offenses not subject to the rule on summary procedure in special cases," which plainly signifies that the section does not apply to offenses which are subject to summary procedure. The phrase "in all cases" appearing in the last paragraph obviously refers to the cases covered by the Section, that is, those offenses not governed by the Rule on Summary Procedure. This interpretation conforms to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure, to discover the true legislative intent. cdphil As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of municipal or city ordinances, it should follow that the charge against the petitioner, which is for violation of a municipal ordinance of Rodriguez, is governed by that rule and not Section 1 of Rule 110. Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts," the obvious reference is to Section 32 (2) of B.P. No. 129, vesting in such courts: (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof; Provided, however, That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. These offenses are not covered by the Rules on Summary Procedure. Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation." 6 Both parties agree that this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants to. However, the case shall be deemed commenced only when it is filed in court, whether or not the prosecution decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be halted on the date the case is actual filed in court and not on any date before that. This interpretation is in consonance with the afore-quoted Act No. 3326 which says that the period of prescription shall be suspended "when proceedings are instituted against the guilty party." The proceedings referred to in Section 2 thereof are "judicial proceedings," contrary to the submission of the

Solicitor General that they include administrative proceedings. His contention is that we must not distinguish as the law does not distinguish. As a matter of fact, it does. At any rate, the Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should prevail as the special law. And if there be a conflict between Act No. 3326 and Rule 110 of the Rules on Criminal Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not allowed to "diminish, increase or modify substantive rights" under Article VIII, Section 5 (5) of the Constitution Prescription in criminal cases is a substantive right. 7 Going back to the Francisco case, we find it not irrelevant to observe that the decision would have been conformable to Section 1, Rule 110, as the offense involved was grave oral defamation punishable under the Revised Penal Code with arresto mayor in its maximum period to prision correccional in its minimum period. By contrast, the prosecution in the instant case is for violation of a municipal ordinance, for which the penalty cannot exceed six months, 8 and is thus covered by the Rule on Summary Procedure. The Court realizes that under the above interpretation, a crime may prescribe even if the complaint is filed seasonably with the prosecutor's office if, intentionally or not, he delays the institution of the necessary judicial proceedings until it is too late. However, that possibility should not justify a misreading of the applicable rules beyond their obvious intent as reasonably deduced from their plain language. The remedy is not a distortion of the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected. LexLib Our conclusion is that the prescriptive period for the crime imputed to the petitioner commenced from its alleged commission on May 11, 1990, and ended two months thereafter, on July 11, 1990, in accordance with Section 1 of Act No. 3326. It was not interrupted by the filing of the complaint with the Office of the Provincial Prosecutor on May 30, 1990, as this was not a judicial proceeding. The judicial proceeding that could have interrupted the period was the filing of the information with the Municipal Trial Court of Rodriguez, but this was done only on October 2, 1990, after the crime had already prescribed. WHEREFORE, the petition is GRANTED, and the challenged Order dated October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of prescription. It is so ordered. Narvasa, C .J ., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ ., concur.

EN BANC [G.R. No. L-1477. January 18, 1950.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIO GUILLEN, defendant-appellant. Mariano A. Albert for appellant. Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee. SYLLABUS 1. CRIMINAL LAW; MEDICAL JURISPRUDENCE; INSANITY AS A DEFENSE. The accused, a man of strong will and convictions, is not insane but suffers from a personality defect called Constitutional Psychopathic Inferiority, characterized by a weakness of censorship specially in relation to rationalization about the consequences of his acts. 2. CRIMINAL LAW; COMPLEX CRIME OF MURDER AND MULTIPLE ATTEMPTED MURDER; OFFENDED PARTIES OTHER THAN INTENDED VICTIM; ACT WITH INTENTION TO KILL; CRIMINAL LIABILITY. In throwing a hand grenade at the President with the intention of killing him, the appellant acted with malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal liability incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended to do. 3. ID.; ID.; ID.; QUALIFYING CIRCUMSTANCE OF TREACHERY PROPERLY CONSIDERED. The qualifying circumstance of treachery may properly be considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up a defense against the attack, or became aware of it. 4. ID.; ID.; ID.; QUALIFYING CIRCUMSTANCE OF PREMEDITATION MAY NOT PROPERLY BE TAKEN INTO ACCOUNT. The qualifying circumstance of premeditation may not properly be taken into account when the victim of the attack was not the one whom the defendant intended to kill. 5. ID.; ID.; AGGRAVATING CIRCUMSTANCES NEED NOT BE CONSIDERED. In meting out the penalty for the complex crime of murder and multiple attempted murder, aggravating circumstances need not be considered in view of article 48 of the Revised Penal Code, which provides that the prescribed penalty shall be imposed in its maximum period. 6. ID.; ID.; DEATH PENALTY, DUTY OF THE COURT TO APPLY. Under the facts and circumstances proved in this case, it is the painful duty of the court to apply the law and mete out to the accused the extreme penalty of death provided by article 248 of the Revised Penal Code. 7. ID.; CRIMINAL NEGLIGENCE, WHAT CONSTITUTES. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. DECISION

PER CURIAM, p: This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First Instance of Manila in case No. 2764, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the crime of murder and multiple frustrated murder, as charged in the information, and is sentenced to the penalty of death, to indemnify the heirs of the deceased Simeon Varela (or Barrela) in the sum f P2,000 and to pay the costs. Upon arraignment the accused entered a plea of not guilty to the charges contained in the information. Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the Honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and the defense, rendered judgment as above stated. In this connection it should be stated that, at the begin- ing of the trial and before arraignment, counsel de oficio for the accused moved that the mental condition of Guillen be examined. The court, notwithstanding that it had found out from the answers of the accused to questions propounded to him in order to test the soundness of his mind, that he was not suffering from any mental derangement, ordered that Julio Guillen be confined for a period of about 8 days in the government Psychopathic Hospital, there to be examined by medical experts who should report their findings accordingly. This was done, and, according to the report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13 and 14, reads: "FORMULATION AND DIAGNOSIS "Julio C. Guillen was placed under constant observation since admissions There was not a single moment during his whole 2 hours daily, that he was not under observation. "The motive behind the commission of the crime is stated above. The veracity of this motivation was determined in the Narco-synthesis That the narco-synthesis was successful was checked up the day after the test. The narco-synthesis proved not only that Julio C. Guillen was telling us the truth, but also did not reveal any conflict or complex that may explain a delusional or hallucinatory motive behind the act. "Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen. He was found to be intelligents always able to differentiate right from wrong, fully aware of the nature of the crime he committed and is equally decided to suffer for it in any manner or form. "His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives, temptations and provocations that preceded the act, were all those of an individual with a sound mind. "On the other hand he is a man of strong will and conviction and once arriving at a decision he executes, irrespective of consequences and as in this case, the commission of the act at Plaza Miranda.

"What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is seen not only in the present instance, but sometime when an employee in La Clementina Cigar Factory he engaged in a boxing bout Mr. Monzano, a Spaniard, one of the managers of the factory because Mr. Monzano wanted to abuse the women cigar makers, and felt it his duty to defend them. One time he ran after a policeman with a knife in hand after being provoked to a fight several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his apparently outspoken speeches. "All these mean a defect in his personality characterized by a weakness of censorship especially in relation to rationalization about the consequences of his acts "In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic Inferiority. "Final Diagnosis "Not insane: Constitutional Psychopathic Inferiority, without psychosis." In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not being insane, could be tried, as he was tried, for the offenses he committed on the date in question. THE FACTS Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and their respective memoranda, we find that there is no disagreement between the prosecution and the defense, as to the essential facts which caused the filing of the present criminal case against this accused. Those facts may be stated as follows: On the dates mentioned in this decision, Julio Guillen y Corpus, although not affiliated with any particular political group, had voted for the defeated candidate in the presidential elections held in 1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the Commonwealth and subsequently President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his alleged failure to redeem the pledges and fulfill the promises made by him during the presidential election campaign; and his disappointment was aggravated when, according to him, President Roxas, instead of looking after the interest of his country, sponsored and campaigned for the approval of the so-called "parity" measure. Hence he determined to assassinate the President. After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila, attended by a big crowd, President Roxas, accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform erected for that purpose and delivered his speech

expounding and trying to convince his thousands of listeners of the advantages to be gained by the Philippines, should the constitutional amendment granting American citizens the same rights granted to Filipino nationals be adopted. Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm, which was duly licensed, he thought of two hand grenades which were given him by an American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky. He had likewise been weighing the chances of killing President Roxas, either by going to Malacaang, or following his intended victim in the latter's trips to the provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having encountered many difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947. On the morning of that date he went to the house of Amado Hernandez whom he requested to prepare for him a document (Exhibit B), in accordance with their previous understanding in the preceding afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its materiality in this case, we deem it proper to quote hereunder the contents of said document. An English translation (Exhibit B-2) from its original in Tagalog reads: "FOR THE SAKE OF A FREE PHILIPPINES "I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by myself alone. It took me many days and nights pondering over this act, talking to my own conscience, to my God, until I reached my conclusion. It was my duty. "I did not expect to live long; I only had one life to spare. And had I expected to live much longer, had I had several lives to spare, I would not have hesitated either to sacrifice it for the sake of a principle which was the welfare of the people. "Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated. "I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived the people, he had astounded them with too many promises with no other purpose than to entice them; he even went to the extent of risking the heritage of our future generations. For these reasons he should not continue any longer. His life would mean nothing as compared with the welfare of eighteen million souls. And why should I not give up my life too if only for the good of those eighteen million soul. "These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of my act. It matters not if others will curse me. Time and history will show, I am sure, that I have only displayed a high degree of patriotism in the performance of my said act. "Hurrah for a free Philippines. "Cheers for the happiness of every Filipino home.

"May God pity on me. "Amen. "JULIO C. GUILLEN" A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said Exhibit B-1 appears unsigned, because he was in a hurry for that meeting at Plaza de Miranda. When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located close to the platform, and when he decided to carry out his evil purpose he stood on the chair on which he had been sitting and, from a distance of about seven meters, he hurled the grenade at the President when the latter had just closed his speech, was being congratulated by Ambassador Romulo and was about to leave the platform. General Castaeda, who was on the platform, saw the smoking, hissing, grenade and, without losing his presence of mind, kicked it away from the platform, along the stairway, and towards an open space where the general thought the grenade was likely to do the least. harm; and, covering the President with his body, shouted to the crowd that everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of persons who were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the fragments of the grenade had seriously injured Simeon Varela (or Barrela) who died on the following day as a result of mortal wounds caused by the fragments of the grenade (Exhibits and F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang. Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that one Angel Garcia, who was one of the spectators at that meeting, saw how a person who was standing next to him hurled an object at the platform and, after the explosion, ran away towards a barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower of the object that exploded Garcia went after him and had almost succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him, but some detectives, mistaking the former for the real criminal and the author of the explosion, placed him under arrest. In the meantime, while the City Mayor and some agents of the Manila Police Department were investigating the affair, one Manuel Robles volunteered the information that the person with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen for the previous ten years and had seen each other in the plaza a few moments previous to the explosion. The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and identified by Angel Garcia, as the same person who hurled towards the platform the object which exploded and whom Garcia tried to hold when he was running away.

During the investigation conducted by the police he readily admitted his responsibility, although at the same time he tried to justify his action in throwing the bomb at President Roxas. He also indicated to his captors the place where he had hidden his so-called last will quoted above and marked Exhibit B, which was then assigned by him and subsequently signed at the police headquarters. Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he signed a statement which contained his answers to questions propounded to him by Major A. Quintos of the Manila Police, who investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations made by him on the witness stand during the trial of this case. THE ISSUES In brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed the trial court, namely: first, "in finding the appellant guilty of murder for the death of Simeon Varela"; second, declaring the appellant guilty of the complex crime murder and multiple frustrated murder"; third,' in applying sub-section 1 of article 49 of the Revised Penal Code in determining the penalty to be imposed upon the accused"; and fourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public authorities in the commission of the crime." The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any shadow of doubt that, when Guillen attended that meeting, carrying with him two hand grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully well that, by throwing one of those two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the persons who were around his main and intended victim from being killed or at least injured, due to the highly explosive nature of the bomb employed by him to carry out his evil purpose. Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to kill the President, but that it did not make any difference to him if there were some people around the President when he hurled that bomb, because the killing of those who surrounded the President was tantamount to kill ing the President, in view of the fact that those persons, being loyal to the President, were identified with the latter. In other words, although it was not his main intention to kill the persons surrounding the President, he felt no compunction in killing them also in order to attain his main purpose of killing the President. The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the corresponding penalties for the different felonies committed, the sum total of which

shall not exceed three times the penalty to be imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised Penal Code. In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be qualified as imprudence it is necessary that neither malice nor intention to cause injury should intervene; where such intention exists, the act should be qualified by the felony it has produced even though it may not have been the intention of the actor to cause an evil of such gravity as that produced." (Viada's Comments on the Penal Code, vol. 7, 5th ed., p. 7.) And, as was held by this court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence. (People vs. Gona, 54 Phil., 605.) The case of People vs. Mabug-at, 51 Phil., 967, cited by counsel for appellant does not support his contention. In that case the defendant, with intent to kill his sweetheart, fired a shot from his revolver which hit not the intended victim but the latter's niece, who was seriously wounded. The defendant in that case contended that he was guilty only of unlawful discharge of firearms with injuries, but this court held that the act having been committed with intent to kill and with treachery, defendant was guilty of frustrated murder. Squarely on the point raised by counsel is the following decision of the Supreme Court of Spain: "Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose negado este a darselo al fiado, se retira aquel sin mediar entre ambos disputa alguna; pero, transcurrido un cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero: supuesta la no intencion en A de matar a C, y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de C de imprudencia temeraria? La Sala de lo criminal de la Audiencia de Granada lo estimo asi, y condeno al procesado a catorce afios de reclusion por el homicidio y a un ano de prision correccional por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de asesinato y no de homicidio, por haberse ejecutado con alevosia, es evidente que la muerte de C, suponiendo que no se propusiera Keiecutarla el procesado, no pudo calificarse de imprudencia temeraria, sino que tambien debio declararse le responsable de la misma,a tenor de lo dispuesto en este apartado ultimo del articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en la antedicha sentencia, aparte de otros articulos del Codigos se infringio por la Sala la disposicion de este apartado ultimo del articulo muy principalmente, y asi lo declars el Tribunal Supremo en S. de 18 de junio de 1872. (Gaceta de 1. de agosto.)" (I Viada. 5th Ed., p. 42.)

Article 48 of the Revised Penal Code provides as fol lows: "ART. 48. Penalty for Complex Crimes. When 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." We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is clearly governed by the first clause of article 48 because by a single act, that of throwing a highly explosive hand grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured parties. The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs. Mabug-at, supra, this court held that the qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the same case it was held that the qualifying circumstance of premeditation may not be properly taken into account when the person whom the defendant proposed to kill was different from the one who became his victim. There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him with the intention to kill him, thereby commencing the commission of a felony by overt acts, but he did not succeed in assassinating him "by reason of some cause or accidents other than his own spontaneous desistance." For the same reason we qualify the injuries caused on the four other persons already named as merely attempted and not frustrated murder. In this connection, it should be stated that, although there is abundant proof that, in violation of the provisions of article 148 of the Revised Penal Code, the accused Guillen has committed among others the offense of assault upon a person in authority, for in fact his efforts were directed towards the execution of his main purpose of eliminating President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his official capacity as the Chief Executive of the nation the hand grenade in question, yet, in view of the failure of the prosecution to insert in the information the appropriate allegation charging Guillen with the commission of said offense, we shall refrain from making a finding to that effect. The complex crimes of murder and multiple attempted murder committed by the accused with the single act of throwing a hand grenade at the President, was attended by the various aggravating circumstances alleged in the informations without any mitigating circumstance. But ue do not deem it necessary to consider said aggravating circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty for the most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporal in its maximum period to death. (Art. 248.) It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts and circumstances hereinabove narrated.

The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a unanimous vote. The death sentence shall be executed in accordance with article 81 of the Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial court may fix within 30 days from the date the record shall have been remanded. It is so ordered. Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, and Torres, JJ. concur. MORAN, C.J.: Mr. Justice F. R. Feria voted for the affirmance of the judgment of the lower court, but, on account of his absence at the time of the promulgation of this opinion, his signature does not appear herein.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

FIRST DIVISION [G.R. No. 130605. June 19, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIX UGANAP alias Commander Matador, FAUSTINO UGANAP, SALVADOR UGANAP, NONOY PANDAY, TIRSO ARANG and four (4) JOHN DOES, accused. FELIX UGANAP, accused-appellant. The Solicitor General for plaintiff-appellee. Medardo AG. Cadiente for accused-appellant. SYNOPSIS An information for the crime of Murder was filed against Felix Uganap, Salvador Uganap, Faustino Uganap, Nonoy Panday, Tirso Arang, and four John Does for the death of Pedro Arang. Salvador Uganap died before he could be arrested; hence, trial proceeded only as against Felix Uganap, Faustino Uganap, Nonoy Panday, and Tirso Arang. Six witnesses were presented by the prosecution, including one eyewitness and the doctor who conducted the necropsy over the victim's body. It was established from their testimonies that the victim and some of the accused were close relatives. The lone eyewitness, Samuel Arang, was also a cousin of the victim. He correctly identified the four surviving accused in open court. All the accused interposed denials and alibis. They denied that they were together on the night of the incident, or that they went to the house of Pedro Arang. The conspiracy theory of the prosecution fell through with the lower court, which found the evidence to be less than convincing. It held that only two of the five accused, herein accused-appellant and the deceased Salvador Uganap, were positively identified by witnesses Samuel Arang and Ernito Libano on the night of the incident. Having acquitted accused Faustino Uganap, Nonoy Panday, and Tirso Arang for failure of the prosecution to prove conspiracy as against them, the RTC held that only Felix Uganap and Salvador Uganap were culpable of the crime charged. Owing to the earlier death of Salvador Uganap, only Felix Uganap, herein accusedappellant, was convicted. In this appeal, Felix Uganap pleaded for the review of his conviction, asseverating that there was no sufficient evidence to hold him guilty of the crime of murder. TSHEIc According to the Supreme Court a diligent study of the records convinced the Court that a conspiracy to kill Pedro Arang was in fact clearly and convincingly proven, and that accused-appellant was a part of this conspiracy. The review of criminal cases necessitates a re-examination of the entire evidence on record. The Court is not prohibited from instituting a finding of conspiracy, in reversal of the findings of the lower court, when its existence is manifest from the evidence at hand. The plot against Pedro Arang's life having been explicitly established by the testimony of a witness, it would be absurd to accept that the other accused were at the victim's house as mere onlookers. Much as the Court is prevented from disturbing the acquittals granted them by the court a quo, it found the existence of a conspiracy among the accused, and held herein accused-appellant liable as one of the conspirators. There is nothing irregular with the acquittal of one of the supposed co-conspirators and the conviction of another. The Court found the presence of evident premeditation to qualify the killing to murder.

Another aggravating circumstance that was proven by the evidence is that the killing was carried out for a price. However, because under the Revised Rules of Criminal Procedure, effective December 1, 2000, generic-aggravating circumstances must be specifically named in the information, the Court allowed such amendment to retroact for the benefit of accused-appellant. Hence, the aggravating circumstance of price or reward was not appreciated. In the absence of mitigating or aggravating circumstances, the penalty of reclusion perpetua was applied. The decision of the trial court was affirmed with modification as to the damages. IAEcaH SYLLABUS 1. CRIMINAL LAW; CONSPIRACY; DIRECT PROOF OF EXISTENCE THEREOF, NOT ESSENTIAL. Conspiracy is revealed by the acts before, during and after the commission of the crime which indicate joint purpose, concerted action, and concurrence of sentiments. In innumerable cases, the Court has held that direct proof is not essential, because conspiracy may be equably inferred from the acts of the accused disclosing their joint purpose and design. In the instant case, however, nothing less than direct proof of a previous agreement to kill the victim, plus an eyewitness account of how the conspirators effected their plan, was submitted into evidence but disregarded by the trial court. 2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF TESTIMONIES OF WITNESSES; MAY BE BELIEVED WITH RESPECT TO SOME FACTS AND DISBELIEVED WITH RESPECT TO OTHER FACTS. Because of the inadequacies of Samuel Arang's testimony, there is no sufficient evidence to establish the precise mode of attack or extent of participation of each of the accused. However, we are not prepared to dismiss the entire testimony of Samuel Arang which does not merely dwell on the attack at the victim but also on the incidents moments before the attack, namely, that he saw the accused together at Salvador Uganap's house, that they were armed, and that they left together for the house of Pedro Arang. Shortly after these incidents, gunshots and a shout were heard by both Ernito Libano and Alejandro Bualan, Jr. coming from the direction of Pedro Arang's house. The next day, Pedro's lifeless body was found in that house. Thus, we give full credence to the testimony of Samuel Arang on the actuations of the accused moments before the killing. That his statements on the mode of attack do not jive with the medical findings should not operate to destroy the weight and credibility of his entire testimony. . . Even where a witness is found to have deliberately falsified the truth in some particulars, and it was not shown that there was such intended prevarication by complainant in this case, it is not required that the entire testimony be rejected, since such portions thereof deemed worthy of belief may be credited [People vs. Gohol, 170 SCRA 585 (1989)]. It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. [People vs. Arbolante, 203 SCRA 85 (1991)]. 3. CRIMINAL LAW; CONSPIRACY; AS LONG AS THE ACQUITTAL OF A CO-CONSPIRATOR DOES NOT REMOVE THE BASIS OF A CHARGE OF CONSPIRACY, ONE DEFENDANT MAY BE FOUND GUILTY OF THE OFFENSE. Besides, a conspiracy having been unquestionably shown, it is actually unnecessary to establish who among the malefactors inflicted the fatal blow. All conspirators are liable as co-principals regardless of intent and character of participation. The plot against Pedro Arang's life having been explicitly established by the testimony of Nolly Luchavez, it would be absurd to accept that Faustino

Uganap, Nonoy Panday and Tirso Arang were at the victim's house as mere onlookers. That they did not lift a finger against the victim is beside the point, because the evidence shows that they were part of the conspiracy from its inception. Much as we are prevented from disturbing the acquittals granted them by the court a quo, we reiterate the existence of a conspiracy among the accused and hold herein accusedappellant liable as one of the conspirators. Neither may accused-appellant invoke the acquittal of the other conspirators to merit the reversal of his conviction. The case of People vs. Arlalejo illustrates that . . . there is nothing irregular with the acquittal of one of the supposed co-conspirators and the conviction of another. Generally, conspiracy is only a means by which a crime is committed as the mere act of conspiring is not by itself punishable. Hence, it does not follow that one person alone cannot be convicted when there is a finding of conspiracy. As long as the acquittal of a co-conspirator does not remove the basis of a charge of conspiracy, one defendant may be found guilty of the offense. Unlike the case of Arlalejo, however, where the Court found that the evidence proved only the existence of a conspiracy but not the culpability of accused-appellant, the evidence in the instant case shows that the conspirators (including herein accused-appellant) implemented their plan to full effect. 4. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; REJECTED WHERE NO PARTICULARS WERE SHOWN AS TO THE MANNER BY WHICH THE AGGRESSION WAS COMMENCED AND DEVELOPED. We have earlier determined that no convincing evidence was submitted on the manner of attack. We cannot thus sustain the trial court's finding of treachery based on its admitted "surmise" on how the attack took place. While dismissing as incredible Samuel Arang's testimony that the victim was shot the moment he opened the door, it substituted in place of evidence its own inference that "Pedro Arang upon opening the door . . . immediately turned his back, but accused Salvador Uganap who was near him instantaneously stabbed him at the back, hitting him at his left side. As Pedro Arang was slumping down the floor, accused Felix Uganap shot him, hitting him at the upper middle part of his buttocks and right leg." This is purely conjecture on the part of the trial court. In several cases, we have declined to appreciate treachery where no particulars were shown as to the manner by which the aggression was commenced and developed. Treachery cannot be acknowledged on the basis of mere presumptions or suppositions, but must be proven as clearly as the crime itself. 5. ID.; ID.; EVIDENT PREMEDITATION; MUST BE ESTABLISHED WITH EQUAL CERTAINTY AND CLARITY AS THE CRIMINAL ACT ITSELF. The elements of evident premeditation must be established with equal certainty and clarity as the criminal act itself before it can be appreciated as a qualifying circumstance. These elements are: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that they clung to their determination to commit the crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof to allow the accused to reflect upon the consequences of their act. The essence, therefore, of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment. 6. CIVIL LAW; DAMAGES; LOSS OF EARNING CAPACITY; FORMULA FOR COMPUTATION. On the damages awarded for loss of earning capacity, we are inclined to grant the same despite the nonavailability of documentary evidence. In People vs. Dizon, we stated that oral testimony will suffice to

prove net earning capacity where the victim was employed as a daily wage worker earning less than the minimum wage under current labor laws. Pedro Arang, a hacienda worker receiving wages of P1,000.00 a month, was certainly earning far less than the minimum wage. The trial court correctly adopted the formula used by this Court in computing loss of earning capacity. Thus: Net earning capacity = [2/3 x (80 - age at time of death) x (gross annual income - reasonable and necessary living expenses)] As there is no proof of living expenses of the deceased, the net income is estimated to be 50% of the gross annual income. Hence, in the instant case, the damages payable for loss of earning capacity is computed as follows: Net earning capacity = [2/3 x (80 - 36) x (P12,000.00 - P6,000.00)] = 2/3 x 44 x P6,000.00 = P176,000.00. Based on the foregoing, the damages representing loss of earning capacity is set at P176,000.00.

EN BANC [G.R. No. 132169. October 26, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANICO NUEVO @ "SANY", accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYNOPSIS In an information, appellant was charged with rape committed against the will and consent of Roberta. The information did not allege any qualifying nor aggravating circumstance. During trial, Roberta identified appellant whom she knew since childhood as her assailant, and that although there was no illumination during the attack she is familiar with the sound of his voice. She testified that appellant was armed with a bolo and that she was raped in full view of her 10-year old niece whom appellant threatened from revealing the crime. The trial court convicted appellant and considered qualifying and aggravating circumstances not alleged in the information. Hence, this appeal assailing further the identification made by the victim. aCcSDT It has been held that identification of accused by the sound of his voice is acceptable where the witness and accused knew each other personally and closely for a number of years. The Revised Rules of Criminal Procedure which became effective December 1, 2002 provides that every complaint or information must state not only the qualifying but also the aggravating circumstances with specificity. Without the required allegations any qualifying and aggravating circumstance cannot be appreciated by the trial court. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL; GUIDING PRINCIPLES IN RAPE CASES. In resolving cases of rape, this Court is guided by the following principles: (a) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the appellant, although innocent, to disprove; (b) in view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense (People vs. Quijada, 321 SCRA 426 [1999]); and (d) the evaluation of the trial court judges regarding the credibility of witnesses deserves utmost respect on the ground that they are in the best position to observe the demeanor, act, conduct, and attitude of the witnesses in court while testifying (People vs. Maglente, 306 SCRA 546 [1999]). 2. ID.; EVIDENCE; CREDIBILITY; SOUND OF THE VOICE OF A PERSON, AN ACCEPTABLE MEANS OF IDENTIFICATION; REQUISITE. In People vs. Reyes, we held that once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable distance. In a number

of cases, we ruled that the sound of the voice of a person is an acceptable means of identification where it is established that the witness and the accused knew each other personally and closely for a number of years. Appellant did not deny that he and Roberta had known each other since childhood and that appellant and Roberta's husband were "barkada." It is not impossible then that complainant could immediately recognize appellant through his voice alone. In addition, appellant's face was very near the victim such that the victim could not have misidentified him, even only by voice recognition. 3. CRIMINAL LAW; RAPE; NOT NEGATED BY ABSENCE OF LACERATIONS OR ABSENCE OF SPERMATOZOA. Healed lacerations or the absence of spermatozoa in the vaginal canal do not negate rape. 4. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE TRIAL COURT UPHELD ON APPEAL. Considering the circumstances in this case, in the light of the testimony by the victim and her witnesses as well as of those for the defense, we agree with the trial court that Roberta had sufficiently identified appellant as the person who raped her, by means of force, violence and intimidation, against her will and without her consent. Appellant is guilty beyond reasonable doubt of the crime charged. 5. ID.; CRIMINAL PROCEDURE; APPEAL; THROWS ENTIRE CASE WIDE OPEN FOR REVIEW. An appeal in a criminal case throws the entire case wide open for review and it is the duty of the appellate court to correct errors, as may be found in the appealed judgment, even if unassigned. This salutary principle governs our automatic review of death penalty cases as well. 6. ID.; ID.; INFORMATION; MUST ALLEGE ALL QUALIFYING AND AGGRAVATING CIRCUMSTANCES; CASE AT BAR. In People vs. Amadore, G.R. No. 140669-75 & 140691, April 20, 2001, we held that the attendance of any of the circumstances under the provisions of Section 11 of Republic Act No. 7659, mandating the death penalty are in the nature of qualifying circumstances and the absence of proper averment thereof in the complaint will bar the imposition of that extreme penalty. The information in this case did not allege the qualifying circumstance, that the rape was committed in full view of a niece (a relative within the third degree of consanguinity). Because of this deficiency, appellant was not properly apprised of the extent of the punishment which the charges against him entailed. Thus, it was an error to consider the foregoing circumstance in the imposition of the proper penalty on appellant. Further, while the decision of the trial court held that dwelling and the use of a deadly weapon aggravated the crime committed, we find that these were not averred in the information. The Revised Rules of Criminal Procedure, effective December 1, 2000, provides that every complaint or information must state not only the qualifying but also the aggravating circumstances with specificity. This requirement of procedure has retroactive effect and is applicable to actions pending and undetermined at the time of their passage insofar as it is favorable to the appellant. Procedural laws are retroactive in that sense and to that extent. Here, it was error to appreciate dwelling and the use of a deadly weapon as aggravating circumstances in the commission of the offense. In sum, we find that no aggravating as well as qualifying circumstances have been properly pleaded and proved by the prosecution in this case. The result is that the crime committed by appellant is only simple rape, which under Article 335 of the Revised Penal Code as amended by R.A. 7659, the law prevailing at the time of commission thereof, is punished only with reclusion perpetua.

7. CIVIL LAW; DAMAGES AWARDED RAPE VICTIM. Private complainant is entitled not only to P50,000 as civil indemnity, but following current jurisprudence, also to P50,000 as moral damages and P25,000 as exemplary damages. DCcAIS DECISION QUISUMBING, J.: On automatic review is the decision 1 of the Regional Trial Court of Sindangan, Zamboanga del Norte, Branch 11, finding accused Sanico Nuevo @ "Sany" guilty of rape and sentencing him to death. His conviction stemmed from the following information: 2 That, in the evening, on or about the 4th day of December, 1994, in the municipality of Godod, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused, moved by lewd and unchaste design and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously succeed in having sexual intercourse with one ROBERTA CIDO, a 20 year old married woman, against her will and without her consent. CONTRARY TO LAW (Viol. of Art. 335, Revised Penal Code). A plea of not guilty was entered upon arraignment. During trial, the prosecution presented three witnesses, namely: (1) complainant Roberta Cido; (2) Anselmo Cido, Jr., the complainant's husband; and (3) Dr. Esmeralda Nadela, a resident physician of the Sindangan District Hospital, Sindangan, Zamboanga del Norte. They testified as follows: ROBERTA CIDO 3 recalled that at about 9:00 o'clock in the evening of December 4, 1994, Sanico Nuevo passed by their house and invited her husband Anselmo Cido, Jr., to a drinking spree at the house of Anselmo, Sr., her father-in-law. 4 She was left at home with her 10-month-old daughter and her nineyear-old niece Gemma Atis. They slept in the living room, cum bedroom, the only room in the house. 5 At around 11:00 P.M., appellant surreptitiously returned and entered their room. She was awakened when appellant held her neck, pinned down her arms and took off her clothing. While Sanico was removing her panties, she struggled to extricate herself but to no avail. She was unable to shout because appellant was covering her mouth. While she was lying on her back, appellant laid on top of her and proceeded to forcibly have sexual intercourse with her, at the same time pinning her down with a bolo. As this was happening her niece Gemma, who was present, witnessed what was being done to her. Appellant even warned Gemma not to reveal what she saw and at the same time threatened Roberta not to tell her husband about the incident or else he would kill her. 6 He thereafter left the house. Roberta further testified that her husband Anselmo, Jr., returned home only the morning after. She immediately told her husband about the previous night's incident. The latter hastened to the house of Sanico but did not find him. Appellant was arrested that same afternoon. 7

Although Roberta testified on cross-examination, that she did not see him because it was very dark that night, she identified him through his voice. 8 She was certain it was he because she was very familiar with appellant's voice. Not only have they been neighbors since childhood, she also heard the appellant when he invited her husband earlier that evening, and when he warned her and her niece not to tell anyone what happened. For his part, ANSELMO CIDO, JR., corroborated part of his wife's story. He narrated that at around 9:00 P.M., December 4, 1994, Sanico with companions dropped by their house and invited him to a drinking spree in his father's (Anselmo, Sr.) house, about 50 meters away from theirs. While there, they drank until dawn. Sanico left his father's place at around 11:00 P.M., purportedly to answer the call of nature, and returned only at around 1:00 A.M. of December 5, 1994. At the time Sanico left, Anselmo, Jr., observed that he was carrying an 18-inch bolo. When Anselmo, Jr., arrived home early in the morning, his wife told him of her ordeal. 9 DR. ESMERALDA NADELA testified on her medical findings contained in her Medico-Legal Certificate dated December 6, 1994, which document 10 she brought along and read in open court. She said Roberta told her that the latter was submitting herself for medical examination because she was raped, and that her last sexual contact with her husband was a week before the incident. Nadela testified further that based on her examination conducted two days after the alleged incident, no fresh injuries were actually found on the victim; that only old lacerations were present; that such absence was possible due to the victim's previous child birth; and that no spermatozoa was found on the victim, which was likely because the examination was conducted only two days after the alleged rape. 11 For the defense, two witnesses were presented. First was the appellant himself, SANICO NUEVO. He declared that he knew Roberta since they were schoolmates in grade school and she was a former neighbor. He lived about 100 meters from her house. Moreover, her husband Anselmo, Jr., was his "barkada". He recounted that at about 6:30 P.M., December 4, 1994, his father and he went to the house of Anselmo, Sr., to buy Tanduay Rum and drank with their friends Rudy and Ami Tinambakan. On the way, they had to pass by the house of Anselmo, Jr. He denied he invited the younger Anselmo to go drinking as the latter's house was already close by. It was Anselmo, Jr., who later followed and joined them until around 10:30 P.M. Appellant said he stayed in the house of Anselmo, Sr., where he slept at around 12:00 o'clock midnight. It was already 6:30 A.M. the following day when he woke up. He denied raping Roberta. He added that the house of Anselmo, Sr., was only about 35 meters from the house of Roberta. 12 The second witness for the defense was EMELIO 13 NUEVO, brother of appellant. He claimed that he was with his brother Sanico and two neighbors the night of the incident. He corroborated his brother's story that they were drinking at the house of Anselmo, Sr., and he noticed his brother asleep on the upper floor of Anselmo, Sr.'s house, when he left at around 5:00 A.M. early in the morning while the others were still dancing downstairs. He admitted, however, that he told no one of seeing his brother sleep in the house of Anselmo, Sr., even when he found out that his brother was to be arrested, and even when he saw him tied up and already in the custody of the police. He did not disclose this fact, even when he was already alone with his other brother who was a councilor of their place. It was only in

his testimony during trial that he chose to reveal these facts in Sanico's defense. He also said he was not aware of any misunderstanding between his brother and the spouses Roberta and Anselmo, Jr. 14 The trial court found the prosecution's version of events credible and disbelieved that of the defense. It rendered judgment as follows: IN VIEW OF THE FOREGOING, the Court finds the accused SANICO NUEVO guilty beyond reasonable doubt of the crime charged in the above-quoted information with aggravating circumstances of dwelling (Article 14, (3) of the Revised Penal Code; People vs. Padilla, 242 SCRA 629) and committed in full view of the relative within the third degree of consanguinity (Sec. 11, R.A. 7659), but since no mitigating circumstances (sic) to offset the above aggravating circumstances, the Court hereby sentences the accused Sanico Nuevo to suffer the maximum penalty provided by law which is DEATH and to pay the private offended party in the sum of P50,000.00. COSTS de oficio. SO ORDERED. 15 In his brief, appellant assigns one error only: THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SANICO NUEVO OF COMMITTING RAPE AGAINST ALLEGED VICTIM ROBERTA CIDO DESPITE INSUFFICIENT EVIDENCE OF HIS POSITIVE IDENTIFICATION. 16 In resolving cases of rape, this Court is guided by the following principles: (a) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the appellant, although innocent, to disprove; (b) in view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense (People vs. Quijada, 321 SCRA 426 [1999]); and (d) the evaluation of the trial court judges regarding the credibility of witnesses deserves utmost respect on the ground that they are in the best position to observe the demeanor, act, conduct, and attitude of the witnesses in court while testifying (People vs. Maglente, 306 SCRA 546 [1999]). In our view, the first issue for our resolution here is whether appellant was sufficiently identified by the offended party based only on her recognition of the sound of his voice. The second issue is whether the prosecution's evidence suffices for the conviction of rape and the imposition of the death penalty on him. Appellant denies he raped Roberta Cido. He questions the certainty of his identification as the offender. He avers that the night of the rape, there was no moon and it was very dark. Nor was there any showing of illumination from any source in and out of the house of the victim. Further, she averred that she identified her rapist only because she recognized his voice. According to appellant, such voice identification is insufficient to prove he was the rapist.

In People vs. Reyes, 17 we held that once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable distance. In a number of cases, we ruled that the sound of the voice of a person is an acceptable means of identification where it is established that the witness and the accused knew each other personally and closely for a number of years. 18 Appellant did not deny that he and Roberta had known each other since childhood 19 and that appellant and Roberta's husband were "barkada." 20 It is not impossible then that complainant could immediately recognize appellant through his voice alone. In addition, appellant's face was very near the victim 21 such that the victim could not have misidentified him, even only by voice recognition. According to appellant, Roberta claims she smelled marijuana on the rapist but she patently made a mistake since he should have smelled of Tanduay Rum instead, because that was what he drank. In addition, he argues that since no physical injury was found on Roberta to show that there was force or intimidation inflicted on her, therefore, no rape had happened. As testified to by Dr. Nadela, however, lacerations or signs of injury may not be present in this case due to the fact that the victim had already given birth to a child. 22 Moreover, according to the victim, 23 appellant's penis was relatively small in size, about two and a half inches long. This is consistent with Dr. Nadela's testimony that in some cases of women who have already given birth, it would take an "extralarge" male organ to cause lacerations. According to her, healed lacerations or the absence of spermatozoa in the vaginal canal do not negate rape. 24 We are, thus, constrained to say that appellant's bland conclusion that no rape happened for lack of physical injuries on the person of the victim is clearly a non-sequitur. Appellant's claim that Roberta should have smelled him reeking of liquor instead of marijuana is beside the point and deserves scant consideration. Note that appellant and his five other companions shared only four bottles of pocket-sized Tanduay mixed with softdrinks. 25 Thus, it was not unlikely that he did not smell strongly of liquor. Further, note that the drinking spree started at 8:30 P.M., and it was barely two hours thereafter when appellant left the group, according to prosecution witnesses. Besides, that Roberta said she detected the smell of marijuana on her abuser does not change the fact that she identified him positively and without any reservation as the perpetrator of the offense. Considering the circumstances in this case, in the light of the testimony by the victim and her witnesses as well as of those for the defense, we agree with the trial court that Roberta had sufficiently identified appellant as the person who raped her, by means of force, violence and intimidation, against her will and without her consent. Appellant is guilty beyond reasonable doubt of the crime charged. We are, however, constrained to disagree concerning the penalty imposed on him. An appeal in a criminal case throws the entire case wide open for review and it is the duty of the appellate court to correct errors, as may be found in the appealed judgment, even if unassigned. 26 This salutary principle governs our automatic review of death penalty cases as well. Although not assigned as an error, it is our view that the trial court erred in appreciating the qualifying circumstance under par. 3, Section 11, R.A. 7659, 27 concerning the presence of a relative, to justify the imposition of the death penalty.

In People vs. Amadore, we held that the attendance of any of the circumstances under the provisions of Section 11 of Republic Act No. 7659, mandating the death penalty are in the nature of qualifying circumstances and the absence of proper averment thereof in the complaint will bar the imposition of that extreme penalty. 28 The information in this case did not allege the qualifying circumstance, that the rape was committed in full view of a niece (a relative within the third degree of consanguinity). Because of this deficiency, appellant was not properly apprised of the extent of the punishment which the charges against him entailed. Thus, it was an error to consider the foregoing circumstance in the imposition of the proper penalty on appellant. Further, while the decision of the trial court held that dwelling and the use of a deadly weapon aggravated the crime committed, we find that these were not averred in the information. The Revised Rules of Criminal Procedure, effective December 1, 2000, provides that every complaint or information must state not only the qualifying but also the aggravating circumstances with specificity. 29 This requirement of procedure has retroactive effect and is applicable to actions pending and undetermined at the time of their passage insofar as it is favorable to the appellant. Procedural laws are retroactive in that sense and to that extent. 30 Here, it was error to appreciate dwelling and the use of a deadly weapon as aggravating circumstances in the commission of the offense. In sum, we find that no aggravating as well as qualifying circumstances have been properly pleaded and proved by the prosecution in this case. The result is that the crime committed by appellant is only simple rape, which under Article 335 of the Revised Penal Code as amended by R.A. 7659, the law prevailing at the time of commission thereof, is punished only with reclusion perpetua. SIaHDA Moreover, on the civil aspect, modification is also in order. Private complainant is entitled not only to P50,000 as civil indemnity, but following current jurisprudence, also to P50,000 as moral damages and P25,000 as exemplary damages. WHEREFORE, the decision of the trial court is MODIFIED. The appellant is declared GUILTY of the crime of simple rape beyond reasonable doubt, and he is hereby sentenced to suffer the penalty of reclusion perpetua. Conformably with prevailing jurisprudence, appellant is also ordered to pay the offended party P50,000 as civil indemnity, P50,000 as moral damages and P25,000 as exemplary damages. aATHIE SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Pardo, Buena, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur. Vitug, J., is on official leave.

THIRD DIVISION [G.R. No. 145391. August 26, 2002.] AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs. MARIO LLAVORE LAROYA, respondent. Yolanda C. Castro for petitioners. Pablo Olarte for private respondent. SYNOPSIS As a result of a vehicular accident between two vehicles, one driven by Mario Llavore Laroya and the other owned by Roberto Capitulo and driven by Avelino Casupanan, two cases were filed before the Municipal Circuit Trial Court (MCTC) of Capas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property. This case was on its preliminary investigation stage when Casupanan and Capitulo filed a civil case against Laroya for quasi-delict. However, upon motion of Laroya on the ground of forum-shopping, the MCTC dismissed the civil case. Casupanan and Capitulo then filed a petition for certiorari before the Regional Trial Court (RTC) of Capas, Tarlac. But the RTC ruled that the order of dismissal issued by the MCTC is a final order which disposes of the case and therefore, the proper remedy should have been an appeal. Hence, Casupanan and Capitulo filed this petition. CIAcSa The Court held that the MCTC dismissed the civil action for quasi-delict on the ground of forumshopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal that the dismissal was with prejudice. Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states that it is with prejudice. Thus, the MCTC's dismissal, being silent on the matter, is a dismissal without prejudice. Section 1 of Rule 41 provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Clearly, the Capas RTC's order dismissing the petition for certiorari on the ground that the proper remedy is an ordinary appeal, is erroneous. Further, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil action." Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The order of dismissal by the MCTC of the civil case on the ground of forum shopping is erroneous. aDSHIC SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; ORDER OF DISMISSAL; ABSENT A DECLARATION THAT THE DISMISSAL IS WITH PREJUDICE, THE SAME IS DEEMED WITHOUT PREJUDICE. The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal that the dismissal was with prejudice.

Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states it is with prejudice. Absent a declaration that the dismissal is with prejudice, the same is deemed without prejudice. Thus, the MCTC's dismissal, being silent on the matter, is a dismissal without prejudice. HAEDCT 2. ID.; ID.; ID.; DISMISSAL WITHOUT PREJUDICE IS NOT APPEALABLE. Section 1 of Rule 41 provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41 expressly states that "where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65." Clearly, the Capas RTC's order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous. 3. ID.; ID.; FORUM-SHOPPING; ELUCIDATED. The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Forum-shopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought. HIaTDS 4. ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. [T]here is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action. Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. 5. ID.; 2000 RULES ON CRIMINAL PROCEDURE; PROSECUTION OF CIVIL ACTION; PRIVATE COMPLAINANT OR THE ACCUSED CAN FILE A SEPARATE CIVIL ACTION. Any aggrieved person can invoke [Articles 2176 and 2177 of the Civil Code] provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. Either the private complainant or the accused can file a separate civil action under these articles. There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles. ESITcH 6. ID.; ID.; ID.; REQUIRES THE ACCUSED TO LITIGATE HIS COUNTERCLAIM, CROSS-CLAIM OR THIRDPARTY COMPLAINT IN A SEPARATE CIVIL ACTION. [P]aragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit: "SECTION 1. Institution of criminal and civil actions. (a) . . . . No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action." Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action. SaCIAE

7. ID.; ID.; ID.; CIVIL ACTION ARISING FROM THE CRIME; THE ONLY CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION. Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only the action to recover civil liability arising from the crime or exdelicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action "deemed instituted" in the criminal action.

8. ID.; ID.; ID.; ID.; MAY BE FILED SEPARATELY BY RESERVING SUCH RIGHT IN THE CRIMINAL ACTION OR IF SEPARATELY FILED, MAY BE CONSOLIDATED WITH THE CRIMINAL ACTION. Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence. Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action. The consolidation under this Rule does not apply to separate civil actions arising from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code. TaHIDS 9. ID.; ID.; ID.; ID.; IF IT IS RESERVED, IT COULD NOT BE FILED UNTIL AFTER FINAL JUDGMENT OF THE CRIMINAL ACTION OR IF SEPARATELY FILED, IT IS SUSPENDED UPON THE FILING OF THE CRIMINAL ACTION. Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action. If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action. This rule applied only to the separate civil action filed to recover liability ex-delicto. The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action. . . . Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action, filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto. ISDHcT

10. ID.; ID.; ID.; INDEPENDENT CIVIL ACTION IN ARTICLES 32, 33, 34 AND 2176 OF THE CIVIL CODE MAY BE FILED SEPARATELY BY THE OFFENDED PARTY EVEN WITHOUT RESERVATION. Under Section I of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the

present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action. 11. ID.; ID.; ID.; OFFENDED PARTY CAN SEPARATELY FILE A CRIMINAL CASE AND A CIVIL CASE FOR QUASI-DELICT, WITHOUT VIOLATING THE RULE ON NON-FORUM SHOPPING. [T]he offended party can file two separate suits for the same act or omission. The first, a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians. cDaEAS 12. ID.; ID.; ID.; ACCUSED CAN FILE A CIVIL ACTION FOR QUASI-DELICT FOR THE SAME ACT OR OMISSION HE IS ACCUSED OF IN THE CRIMINAL CASE. [T]he accused can file a civil action for quasidelict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil action." This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his counterclaim against the offended party. If the accused does not file a separate civil action for quasi-delict, the prescriptive period may set in since the period continues to run until the civil action for quasi-delict is filed. Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law. cTaDHS 13. ID.; ID.; ID.; INDEPENDENT CIVIL ACTION MAY PROCEED INDEPENDENTLY OF THE CRIMINAL PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE LATTER. We make this ruling aware of the possibility that the decision of the trial court in the criminal case may vary with the decision of the trial court in the independent civil action. This possibility has always been recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly provides that the independent civil action "may proceed independently of the criminal proceedings and regardless of the result of the latter." In Azucena vs. Potenciano, the Court declared: ". . . . There can indeed be no other logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution whether it be conviction or acquittal would render meaningless the independent character of the civil action and the clear injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and regardless of the result of the latter.'" More than half a century has passed since the Civil Code introduced the concept of a civil action separate and

independent from the criminal action although arising from the same act or omission. The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts, one hearing the criminal case and the other the civil action for quasi-delict. The fear of conflicting and irreconcilable decisions may be more apparent than real. In any event, there are sufficient remedies under the Rules of Court to deal with such remote possibilities. ECDAcS 14. ID.; ID.; RETROACTIVE EFFECT; APPLICABLE IN CASE AT BAR. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that ". . . statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent." DECISION CARPIO, J p: The Case This is a petition for review on certiorari to set aside the Resolution 1 dated December 28, 1999 dismissing the petition for certiorari and the Resolution 2 dated August 24, 2000 denying the motion for reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special Civil Action No. 17-C (99). The Facts Two vehicles, one driven by respondent Mario Llavore Laroya ("Laroya" for brevity) and the other owned by petitioner Roberto Capitulo ("Capitulo" for brevity) and driven by petitioner Avelino Casupanan ("Casupanan" for brevity), figured in an accident. As a result, two cases were filed with the Municipal Circuit Trial Court ("MCTC" for brevity) of Capas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property, docketed as Criminal Case No. 00299. On the other hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict, docketed as Civil Case No. 2089. AHaDSI When the civil case was filed, the criminal case was then at its preliminary investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-shopping considering the pendency of the criminal case. The MCTC granted the motion in the Order of March 26, 1999 and dismissed the civil case. On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate civil action which can proceed independently of the criminal case. The MCTC denied the motion for reconsideration in the Order of May 7, 1999. Casupanan and Capitulo filed a petition for certiorari under Rule 65 before the Regional Trial Court ("Capas RTC" for brevity) of Capas, Tarlac, Branch 66, 3 assailing the MCTC's Order of dismissal.

The Trial Court's Ruling The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari for lack of merit. The Capas RTC ruled that the order of dismissal issued by the MCTC is a final order which disposes of the case and therefore the proper remedy should have been an appeal. The Capas RTC further held that a special civil action for certiorari is not a substitute for a lost appeal. Finally, the Capas RTC declared that even on the premise that the MCTC erred in dismissing the civil case, such error is a pure error of judgment and not an abuse of discretion. EcSaHA Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in the Resolution of August 24, 2000. Hence, this petition. The Issue The petition premises the legal issue in this wise: "In a certain vehicular accident involving two parties, each one of them may think and believe that the accident was caused by the fault of the other. . . . [T]he first party, believing himself to be the aggrieved party, opted to file a criminal case for reckless imprudence against the second party. On the other hand, the second party, together with his operator, believing themselves to be the real aggrieved parties, opted in turn to file a civil case for quasi-delict against the first party who is the very private complainant in the criminal case." 4 Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case. The Court's Ruling Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the ground of forum-shopping, constitutes a counterclaim in the criminal case. Casupanan and Capitulo argue that if the accused in a criminal case has a counterclaim against the private complainant, he may file the counterclaim in a separate civil action at the proper time. They contend that an action on quasi-delict is different from an action resulting from the crime of reckless imprudence, and an accused in a criminal case can be an aggrieved party in a civil case arising from the same incident. They maintain that under Articles 31 and 2176 of the Civil Code, the civil case can proceed independently of the criminal action. Finally, they point out that Casupanan was not the only one who filed the independent civil action based on quasi-delict but also Capitulo, the owner-operator of the vehicle, who was not a party in the criminal case. In his Comment, Laroya claims that the petition is fatally defective as it does not state the real antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to question the order of dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there is

no question of law to be resolved as the order of dismissal is already final and a petition for certiorari is not a substitute for a lapsed appeal. In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of whether there is forum-shopping since they filed only one action the independent civil action for quasi-delict against Laroya. Nature of the Order of Dismissal The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal 5 that the dismissal was with prejudice. Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states it is with prejudice. 6 Absent a declaration that the dismissal is with prejudice, the same is deemed without prejudice. Thus, the MCTC's dismissal, being silent on the matter, is a dismissal without prejudice. Section 1 of Rule 41 7 provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41 expressly states that "where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65." Clearly, the Capas RTC's order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous. Forum-Shopping The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. 8 Forumshopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought. 9 However, there is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action. cdll Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. These articles on culpa aquiliana read: "Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant."

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. Either the private complainant or the accused can file a separate civil action under these articles. There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles. Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit: "SECTION 1. Institution of criminal and civil actions. (a) . . . . "No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action." (Italics supplied) Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action. AECDHS Filing of a separate civil action Section 1, Rule 111 of the 1985 Rules on Criminal Procedure ("1985 Rules" for brevity), as amended in 1988, allowed the filing of a separate civil action independently of the criminal action provided the offended party reserved the right to file such civil action. Unless the offended party reserved the civil action before the presentation of the evidence for the prosecution, all civil actions arising from the same act or omission were deemed "impliedly instituted" in the criminal case. These civil actions referred to the recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the recovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations. Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the offended party had to reserve in the criminal action the right to bring such action. Otherwise, such civil action was deemed "impliedly instituted" in the criminal action. Section 1, Rule 111 of the 1985 Rules provided as follows: "Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. In no case may the offended party recover damages twice for the same act or omission of the accused. xxx xxx xxx." (Italics supplied)

Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as follows: "SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. HIESTA The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx (b) ... xxx xxx

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this rule governing consolidation of the civil and criminal actions." (Italics supplied) Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only the action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action "deemed instituted" in the criminal action. 10 Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence. Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action. The consolidation under this Rule does not apply to separate civil actions arising from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code. 11

Suspension of the Separate Civil Action Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action. If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action. This rule applied only to the separate civil action filed to recover liability ex-delicto. The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action. The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to wit: "SEC. 2. When separate civil action is suspended. After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly. During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. cIECTH xxx xxx xxx." (Italics supplied)

Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action, filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto. When civil action may proceed independently The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in the criminal case, can file a separate civil action against the offended party in the criminal case. Section 3, Rule 111 of the 2000 Rules provides as follows:

"SEC. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended

party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action." (Italics supplied) Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly allows the "offended party" to bring an independent civil action under Articles 32, 33, 34 and 2176 of the Civil Code. As stated in Section 3 of the present Rule 111, this civil action shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the "offended party recover damages twice for the same act or omission charged in the criminal action." There is no question that the offended party in the criminal action can file an independent civil action for quasi-delict against the accused. Section 3 of the present Rule 111 expressly states that the "offended party" may bring such an action but the "offended party" may not recover damages twice for the same act or omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers to the offended party in the criminal action, not to the accused. Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos 12 where the Court held that the accused therein could validly institute a separate civil action for quasi-delict against the private complainant in the criminal case. In Cabaero, the accused in the criminal case filed his Answer with Counterclaim for malicious prosecution. At that time the Court noted the "absence of clear-cut rules governing the prosecution on impliedly instituted civil actions and the necessary consequences and implications thereof." Thus, the Court ruled that the trial court should confine itself to the criminal aspect of the case and disregard any counterclaim for civil liability. The Court further ruled that the accused may file a separate civil case against the offended party "after the criminal case is terminated and/or in accordance with the new Rules which may be promulgated." The Court explained that a crossclaim, counterclaim or third-party complaint on the civil aspect will only unnecessarily complicate the proceedings and delay the resolution of the criminal case. Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to address the lacuna mentioned in Cabaero. Under this provision, the accused is barred from filing a counterclaim, cross-claim or third-party complaint in the criminal case. However, the same provision states that "any cause of action which could have been the subject (of the counterclaim, cross-claim or third-party complaint) may be litigated in a separate civil action." The present Rule 111 mandates the accused to file his counterclaim in a separate civil action which shall proceed independently of the criminal action, even as the civil action of the offended party is litigated in the criminal action. Conclusion Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action. EaCSTc

Thus, the offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians. Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil action." This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his counterclaim against the offended party. If the accused does not file a separate civil action for quasidelict, the prescriptive period may set in since the period continues to run until the civil action for quasidelict is filed. Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law. Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is erroneous. We make this ruling aware of the possibility that the decision of the trial court in the criminal case may vary with the decision of the trial court in the independent civil action. This possibility has always been recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly provides that the independent civil action "may proceed independently of the criminal proceedings and regardless of the result of the latter." In Azucena vs. Potenciano, 13 the Court declared: ". . . . There can indeed be no other logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution whether it be conviction or acquittal would render meaningless the independent character of the civil action and the clear injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and regardless of the result of the latter.'" More than half a century has passed since the Civil Code introduced the concept of a civil action separate and independent from the criminal action although arising from the same act or omission. The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts,

one hearing the criminal case and the other the civil action for quasi-delict. The fear of conflicting and irreconcilable decisions may be more apparent than real. In any event, there are sufficient remedies under the Rules of Court to deal with such remote possibilities. One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that ". . . statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent." 14 WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and Civil Case No. 2089 is REINSTATED. aEHTSc SO ORDERED. Puno and Panganiban, JJ., concur. Sandoval-Gutierrez, J., is on leave.

FIRST DIVISION [G.R. No. 129282. November 29, 2001.] DMPI EMPLOYEES CREDIT COOPERATIVE, INC., (DMPI-ECCI), petitioner, vs. HON. ALEJANDRO M. VELEZ, as Presiding Judge of the RTC, Misamis Oriental, Br. 20, and ERIBERTA VILLEGAS, respondents. Isaidro Q. Lico and Marieto P. Gallego for petitioner. Constantino Jaraula for private respondents. SYNOPSIS Carmen Mandawe is an employee of DMPI-ECCI. Allegedly, respondent Villegas entrusted money to Mandawe for deposit with DMPI Employees Credit Corporation, Inc. DMPI-ECCI. Mandawe, however, failed to account the entrusted amount and hence, an information for estafa was filed against her. Subsequently, when Villegas also filed a complaint for sum of money and damages against Mandawe and DMPI-ECCI, DMPI-ECCI sought the dismissal of the same on the ground that there is a pending criminal case and the civil complaint failed to contain a certification against forum shopping as required under Circular No. 28-91. SDIACc There was no violation of the circular. At the time of the filing of the civil complaint, the requirement of certification on forum shopping is not yet applicable to the lower courts. On the issue of the pending criminal case, under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the same is waived or its filing reserved. This does not include recovery of civil liability under Arts. 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission which may be prosecuted separately without reservation. Thus, the independent civil action for damages on account of the fraud committed against Villegas under Art. 33 of the Civil Code may proceed independently even if without reservation as to its filing. SYLLABUS 1. REMEDIAL LAW; CIRCULAR NO. 28-91 (CERTIFICATION OF NON-FORUM SHOPPING); EXTENDED APPLICATION THEREOF. Circular No. 28-91 of the Supreme Court requires a certificate of non-forum shopping to be attached to petitions filed before the Supreme Court and the Court of Appeals. This circular was revised on February 8, 1994 by extending the requirement to all initiatory pleadings filed in all courts and quasi-judicial agencies other than the Supreme Court and the Court of Appeals. Respondent Villegas' failure to attach a certificate of non-forum shopping in her complaint did not violate Circular No. 28-91, because at the time of filing, the requirement applied only to petitions filed with the Supreme Court and the Court of Appeals. Likewise, Administrative Circular No. 04-94 is inapplicable for the reason that the complaint was filed on March 29, 1994, three days before April 1, 1994, the date of effectivity of the circular. 2. CRIMINAL LAW; CLASSES OF INJURIES; PERSONAL INJURY; CIVIL LIABILITY; ELUCIDATED. As a general rule, an offense causes two (2) classes of injuries. The first is the social injury produced by the

criminal act which is sought to be repaired thru the imposition of the corresponding penalty, and the second is the personal injury caused to the victim of the crime which injury is sought to be compensated through indemnity which is civil in nature. Thus, "every person criminally liable for a felony is also civilly liable." This is the law governing the recovery of civil liability arising from the commission of an offense. Civil liability includes restitution, reparation for damage caused, and indemnification of consequential damages. The offended party may prove the civil liability of an accused arising from the commission of the offense in the criminal case since the civil action is either deemed instituted with the criminal action or is separately instituted. However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission, the rule has been changed. Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. There is no more need for a reservation of the right to file the independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines. "The reservation and waiver referred to refers only to the civil action for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately even without a reservation." AaECSH 3. REMEDIAL LAW; CRIMINAL PROCEDURE; RETRO-ACTIVE EFFECT OF INDEPENDENT CIVIL ACTIONS. The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became effective on December 1, 2000 are applicable to this case. Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage. There are no vested rights in the rules of procedure. Thus, Civil Case No. CV-94-214, an independent civil action for damages on account of the fraud committed against respondent Villegas under Article 33 of the Civil Code, may proceed independently even if there was no reservation as to its filing. DECISION PARDO, J p: The Case In this special civil action for certiorari, petitioner DMPI Employees Credit Cooperative, Inc. (DMPI-ECCI) seeks the annulment of the order 1 of the Regional Trial Court, Misamis Oriental, Branch 20, granting the motion for reconsideration of respondent Eriberta Villegas, and thus reversing the previous dismissal of Civil Case No. CV-94-214. IaESCH The Facts On February 18, 1994, the prosecuting attorney filed with the Regional Trial Court, Misamis Oriental, Branch 37, an information for estafa 2 against Carmen Mandawe for alleged failure to account to respondent Eriberta Villegas the amount of P608,532.46. Respondent Villegas entrusted this amount to Carmen Mandawe, an employee of petitioner DMPI-ECCI, for deposit with the teller of petitioner.

Subsequently, on March 29, 1994, respondent Eriberta Villegas filed with the Regional Trial Court, Misamis Oriental, Branch 20, a complaint 3 against Carmen Mandawe and petitioner DMPI-ECCI for a sum of money and damages with preliminary attachment arising out of the same transaction. In time, petitioner sought the dismissal of the civil case on the following grounds: (1) that there is a pending criminal case in RTC Branch 37, arising from the same facts, and (2) that the complaint failed to contain a certification against forum shopping as required by Supreme Court Circular No. 28-91. 4 On December 12, 1996, the trial court issued an order 5 dismissing Civil Case No. CV-94-214. On January 21, 1997, respondent filed a motion for reconsideration 6 of the order. On February 21, 1997, the trial court issued an order 7 granting respondent's motion for reconsideration, thereby recalling the dismissal of the case. Hence, this petition. 8 The Issues The issues raised are: (1) whether the plaintiff's failure to attach a certification against forum shopping in the complaint is a ground to dismiss the case; 9 and, (2) whether the civil case could proceed independently of the criminal case for estafa without having reserved the filing of the civil action. The Court's Ruling On the first issue, Circular No. 28-91 10 of the Supreme Court requires a certificate of non-forum shopping to be attached to petitions filed before the Supreme Court and the Court of Appeals. This circular was revised on February 8, 1994 11 by extending the requirement to all initiatory pleadings filed in all courts and quasi-judicial agencies other than the Supreme Court and the Court of Appeals. Respondent Villegas' failure to attach a certificate of non-forum shopping in her complaint did not violate Circular No. 28-91, because at the time of filing, the requirement applied only to petitions filed with the Supreme Court and the Court of Appeals. 12 Likewise, Administrative Circular No. 04-94 is inapplicable for the reason that the complaint was filed on March 29, 1994, three days before April 1, 1994, the date of effectivity of the circular. 13 On the second issue, as a general rule, an offense causes two (2) classes of injuries. The first is the social injury produced by the criminal act which is sought to be repaired thru the imposition of the corresponding penalty, and the second is the personal injury caused to the victim of the crime which injury is sought to be compensated through indemnity which is civil in nature. 14 Thus, "every person criminally liable for a felony is also civilly liable." 15 This is the law governing the recovery of civil liability arising from the commission of an offense. Civil liability includes restitution, reparation for damage caused, and indemnification of consequential damages. 16

The offended party may prove the civil liability of an accused arising from the commission of the offense in the criminal case since the civil action is either deemed instituted with the criminal action or is separately instituted. Rule 111, Section 1 of the Revised Rules of Criminal Procedure, which became effective on December 1, 2000, provides that: SCEDaT "(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action." [Italics supplied] Rule 111, Section 2 further provides that "After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action." [Italics supplied] However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission, the rule has been changed. Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. 17 There is no more need for a reservation of the right to file the independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines. "The reservation and waiver referred to refers only to the civil action for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately even without a reservation." 18 Rule 111, Section 3 reads: "Sec. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action." The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became effective on December 1, 2000 are applicable to this case. Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage. There are no vested rights in the rules of procedure. 19

Thus, Civil Case No. CV-94-214, an independent civil action for damages on account of the fraud committed against respondent Villegas under Article 33 of the Civil Code, may proceed independently even if there was no reservation as to its filing. aSCHIT

The Fallo WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the order dated February 21, 1997. 20 No costs. SHCaDA SO ORDERED.

SECOND DIVISION [G.R. No. L-24803. May 26, 1977.] PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano, deceased, plaintiffs-appellants, vs. REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said minor, defendants-appellees. Cruz & Avecilla for appellants. Marvin R. Hill & Associates for appellees. DECISION BARREDO, J p: Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the son of the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground that his act was not criminal, because of "lack of intent to kill, coupled with mistake." Actually, the motion to dismiss based on the following grounds: "1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule III, of the Revised Rules of Court; "2. The action is barred by a prior judgment which is now final and or in res-adjudicata;

"3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved as guardian of the other defendant through emancipation by marriage." (P. 23, Record [p. 4, Record on Appeal.]) was first denied by the trial court. It was only upon motion for reconsideration of the defendants of such denial, reiterating the above grounds that the following order was issued: "Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after thoroughly examining the arguments therein contained, the Court finds the same to be meritorious and well-founded. WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the dismissal of the above entitled case. "SO ORDERED.

"Quezon City, Philippines, January 29, 1965." (p. 40, Record [p. 21, Record on Appeal.) Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the following assignment of errors: "THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF DEFENDANTS THAT I "THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS INAPPLICABLE; II "THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-ADJUDICATA; III "THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and IV "THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION BY MARRIAGE." (page 4, Record.) It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant-appellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance of Quezon City. After due trial, he was acquitted on the ground that his act was not criminal because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has favored Us with a copy of the decision of acquittal, presumably because appellants do not dispute that such indeed was the basis stated in the court's decision. And so, when appellants filed their complaint against appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their son, the appellees filed the motion to dismiss above-referred to. As We view the foregoing background of this case, the two decisive issues presented for Our resolution are: 1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case wherein the action for civil liability was not reversed? 2. May Article 2180 (2nd and last paragraphs) of the Civil Code be applied against Atty. Hill, notwithstanding the undisputed fact that at the time of the occurrence complained of, Reginald, though a minor, living with and getting subsistence from his father, was already legally married?

The first issue presents no more problem than the need for a reiteration and further clarification of the dual character, criminal and civil, of fault or negligence as a source of obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated, on the basis of a scholarly dissertation by Justice Bocobo on the nature of culpa aquiliana in relation to culpa criminal or delito and mere culpa or fault, with pertinent citation of decisions of the Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same given act can result in civil liability not only under the Penal Code but also under the Civil Code. Thus, the opinion holds: "The above case is pertinent because it shows that the same act may come under both the Penal Code and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and therefore could have been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not the employee who was being sued." (pp. 615-616, 73 Phil.) 1 "It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the same act of negligence being a proper subject matter either of a criminal action with its consequent civil liability arising from a crime or of an entirely separate and independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate individuality of a cuasi-delito or culpa aquiliana under the Civil Code has been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have been prosecuted and convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil liability arising from his crime." (p. 617, 73 Phil.) 2 "It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple negligence and not only punished but also made civilly liable because of his criminal negligence, nevertheless this Court awarded damages in an independent civil action for fault or negligence under article 1902 of the Civil Code." (p. 618, 73 Phil.) 3 "The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But inasmuch as we are announcing doctrines that have been little understood, in the past, it might not be inappropriate to indicate their foundations. "Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, accordingly to the literal import of article 1093 of the Civil Code, the legal institution of culpa aquilina would have very little scope and application in actual life. Death or injury to persons and damage to property through any degree of negligence even the slightest would have to be indemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation to absurd and anomalous. Nor are we, in the interpretation of

the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code. "Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium." (p. 620, 73 Phil.) "Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extracontractual. In the present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the harms done by such practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for the better safeguarding or private rights because it re-establishes an ancient and additional remedy, and for the further reason that an independent civil action, not depending on the issues, limitations and results of a criminal prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redress." (p. 621, 73 Phil.) Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the opinion in Garcia - that the concurrence of the Penal Code and the Civil Code therein referred to contemplate only acts of negligence and not intentional voluntary acts deeper reflection would reveal that the thrust of the pronouncements therein is not so limited, but that in fact it actually extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia, provided textually that obligations "which are derived from acts or omissions in which fault or negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an undesirable construction or interpretation of the letter of the law that "killeth, rather than the spirit that giveth life" hence, the ruling that "(W)e will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the

Spanish Civil Code." And so, because Justice Bacobo was Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to be noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, "not punishable by law," thereby making it clear that the concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or negligent. Thus, the corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says, "Obligations derived from quasi-delicts shall be governed by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of the new code provides: "ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant." According to the Code Commission: "The foregoing provision (Article 2177) through at first sight startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the criminal law, while the latter is a 'culpa aquilian' or quasidelict, of ancient origin, having always had its own foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and 'culpa extra-contractual' or 'cuasi-delito' has been sustained by decision of the Supreme Court of Spain and maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery." (Report of the Code) Commission, p. 162.) Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice Bacobo about construction that upholds "the spirit that giveth life" rather than that which is literal that killeth the intent of the lawmaker should be observed in applying the same. And considering that the preliminary chapter on human relations of the new Civil Code definitely establishes the separability and independence of liability in a civil action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice, and more in harmony with modern progress", to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished

even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law. 4 It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him. Coming now to the second issue about the effect of Reginald's emancipation by marriage on the possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the conclusion of appellees that Atty. Hill is already free from responsibility cannot be upheld. While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under Article 397, emancipation takes place "by the marriage of the minor (child)", it is, however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate parental authority over the child's person. It shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian." Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company." In the instant case, it is not controverted that Reginald, although married, was living with his father and getting subsistence from him at the time of the occurrence in question. Factually, therefore, Reginald was still subservient to and dependent on his father, a situation which is not unusual. It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability of parents with their offending child under Article 2180 is that is the obligation of the parent to supervise their minor children in order to prevent them from causing damage to third persons. 5 On the other hand, the clear implication of Article 399, in providing that a minor emancipated by marriage may not, nevertheless, sue or be sued without the assistance of the parents, is that such emancipation does not carry with it freedom to enter into transactions or do any act that can give rise to judicial litigation. (See Manresa, id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial action. Otherwise stated, the marriage of a minor child does not relieve the parents of the duty to see to it that the child, while still a minor, does not give answerable for the borrowings of money and alienation or encumbering of real property which cannot be done by their minor married child without their consent. (Art. 399; Manresa, supra.) Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become merely subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in accordance with the foregoing opinion. Costs against appellees. Fernando (Chairman), Antonio and Martin, JJ., concur. Concepcion Jr., J., is on leave. Martin, J., was designated to sit in the Second Division. Separate Opinions AQUINO, J., concurring: Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when judged by accepted legal standards. "The idea thus expressed is undoubtedly board enough to include any rational conception of liability for the tortious acts likely to be developed in any society." (Street, J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, 600). See article 38, Civil Code and the ruling that "the infant tortfeasor is liable in a civil action to the injured person in the same manner and to the same extent as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs. Tiangco, 74 Phil. 576, 579).

SECOND DIVISION [G.R. No. 104392. February 20, 1996.] RUBEN MANIAGO, petitioner, vs. THE COURT OF APPEALS (First Division), HON. RUBEN C. AYSON, in his capacity as Acting Presiding Judge, Regional Trial Court, Branch IV, Baguio City, and ALFREDO BOADO, respondents. Lauro D. Gacayan for petitioner. Domogan Lockey Orate Dao-Ayan Boquiren Adquilen Cascolin and Sinlao Law Offices for private respondent. SYLLABUS 1. REMEDIAL, LAW, ACTIONS; INDEPENDENT CIVIL ACTIONS; RIGHT TO BRING ACTION FOR DAMAGES MUST BE RESERVED IN CRIMINAL CASE. The right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. Section 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. 2. ID.; ID.; ID.; ID.; EXCEPTIONS. On the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. 3. ID.; ID.; ID.; ID.; RESERVATION DOES NOT IMPAIR, DIMINISH OR DEFEAT SUBSTANTIVE RIGHTS. The requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately. 4. ID.; ID.; ID.; ID.; PRACTICAL REASON. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the

filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code is ultimately recoverable from the accused. 5. ID.; ID.; ID.; ID.; ID.; SERVES TO IMPLEMENT PROHIBITION AGAINST DOUBLE RECOVERY FOR THE SAME ACT OR OMISSION. In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. As held in Barredo v. Garcia, the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. 6. ID.; ID.; ID.; FILING OF CIVIL ACTION AGAINST EMPLOYEE AHEAD OF CRIMINAL ACTION, AN EXPRESS RESERVATION TO INSTITUTE IT SEPARATELY. In Dulay v. Court of Appeals this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately. DECISION MENDOZA, J p: Petitioner Ruben Maniago was the owner of shuttle buses which were used in transporting employees of the Texas Instruments, (Phils.), Inc. from Baguio City proper to its plant site at the Export Processing Authority in Loakan, Baguio City. On January 7, 1990, one of his buses figured in a vehicular accident with a passenger jeepney owned by private respondent Alfredo Boado along Loakan Road, Baguio City. As a result of the accident, a criminal case for reckless imprudence resulting in damage to property and multiple physical injuries was filed on March 2, 1990 against petitioner's driver, Herminio Andaya, with the Regional Trial Court of Baguio City, Branch III, where it was docketed as Criminal Case No. 7514-R. A month later, on April 19, 1990, a civil case for damages was filed by private respondent Boado against petitioner himself. The complaint, docketed as Civil Case No. 2050-R, was assigned to Branch IV of the same court. Petitioner moved for the suspension of the proceedings in the civil case against him, citing the pendency of the criminal case against his driver. But the trial court, in its order dated August 30, 1991, denied

petitioner's motion on the ground that pursuant to the Civil Code, the action could proceed independently of the criminal action, in addition to the fact that the petitioner was not the accused in the criminal case. Petitioner took the matter on certiorari and prohibition to the Court of Appeals, maintaining that the civil action could not proceed independently of the criminal case because no reservation of the right to bring it separately had been made in the criminal case. On January 31, 1992, the Court of Appeals dismissed his petition on the authority of Garcia v. Florido, 1 and Abellana v. Marave, 2 which it held allowed a civil action for damages to be filed independently of the criminal action even though no reservation to file the same has been made. Therefore, it was held, the trial court correctly denied petitioner's motion to suspend the proceedings in the civil case. 3 Hence this petition for review on certiorari. There is no dispute that private respondent, as offended party in the criminal case, did not reserve the right to bring a separate civil action, based on the same accident, either against the driver, Herminio Andaya, or against the latter's employer, herein petitioner Ruben Maniago. The question is whether despite the absence of such reservation, private respondent may nonetheless bring an action for damages against petitioner under the following provisions of the Civil Code: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. Art. 2177 states that responsibility for fault or negligence under the above-quoted provisions is entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code. However, Rule 111 of the Revised Rules of Criminal Procedure, while reiterating that a civil action under these provisions of the Civil Code may be brought separately from the criminal action; provides that the right to bring it must be reserved. This Rule reads: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. xxx xxx xxx

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx xxx xxx

Sec. 3. When civil action may proceed independently. In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. Based on these provisions, petitioner argues that the civil action against him was impliedly instituted in the criminal action previously filed against his employee because private respondent did not reserve his right to bring this action separately. (The records show that while this case was pending in the Court of Appeals, the criminal action was dismissed on July 10, 1992 for failure of the prosecution to file a formal offer of its evidence, with the consequence that the prosecution failed to prosecute its case. Accordingly, it seems to be petitioner's argument that since the civil action to recover damages was impliedly instituted with the criminal action, the dismissal of the criminal case brought with it the dismissal of the civil action.) Private respondent admits that he did not reserve the right to institute the present civil action against Andaya's employer. He contends, however, that the rights provided in Arts. 2176 and 2177 of the Civil Code are substantive rights and, as such, their enforcement cannot be conditioned on a reservation to bring the action to enforce them separately. Private respondent cites in support of his position statements made in Abellana v. Marave, 4 Tayag v. Alcantara, 5 Madeja v. Caro, 6 and Jarantilla v. Court of Appeals, 7 to the effect that the requirement to reserve the civil action is substantive in character and, therefore, is beyond the rulemaking power of this Court under the Constitution. 8 After considering the arguments of the parties, we have reached the conclusion that the right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. I. A. To begin with, 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from

crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. 9 Thus Rule 111, 1 of the Revised Rules of Criminal Procedure expressly provides: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. B. There are statements in some cases implying that Rule 111, 1 and 3 are beyond the rulemaking power of the Supreme Court under the Constitution. A careful examination of the cases, however, will show that approval of the filing of separate civil action for damages even though no reservation of the right to institute such civil action had been reserved rests on considerations other than that no reservation is needed. In Garcia v. Florido 10 the right of an injured person to bring an action for damages even if he did not make a reservation of his action in the criminal prosecution for physical injuries through reckless imprudence was upheld on the ground that by bringing the civil action the injured parties had "in effect abandoned their right to press for recovery of damages in the criminal case. . . . Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared." 11 The statement that Rule 111, 1 of the 1964 Rules is "an unauthorized amendment of substantive law, Articles 32, 33, and 34 of the Civil Code, which do not provide for the reservation" is not the ruling of the Court but only an aside, quoted from an observation made in the footnote of a decision in another case. 12 Another case cited by private respondent in support of his contention that the civil case need not be reserved in the criminal case is Abellana v. Marave 13 in which the right of persons injured in a vehicular accident to bring a separate action for damages was sustained despite the fact that the right to bring it separately was not reserved. But the basis of the decision in that case was the fact that the filing of the civil case was equivalent to a reservation because it was made after the decision of the City Court convicting the accused had been appealed. Pursuant to Rule 123, 7 of the 1964 Rules, this had the effect of vacating the decision in the criminal case so that technically, the injured parties could still reserve their right to institute a civil action while the criminal case was pending in the Court of First Instance. The statement "the right of a party to sue for damages independently of the criminal action is a substantive right which cannot be frittered away by a construction that could render it nugatory" without raising a "serious constitutional question" 14 was thrown in only as additional support for the ruling of the Court.

On the other hand, in Madeja v. Caro 15 the Court held that a civil action for damages could proceed even while the criminal case for homicide through reckless imprudence was pending and did not have to await the termination of the criminal case precisely because the widow of the deceased had reserved her right to file a separate civil action for damages. We do not see how this case can lend support to the view of private respondent. In Jarantilla v. Court of Appeals 16 the ruling is that the acquittal of the accused in the criminal case for physical injuries through reckless imprudence on the ground of reasonable doubt is not a bar to the filing of an action for damages even though the filing of the latter action was not reserved. This is because of Art. 29 of the Civil Code which provides that "when an accused is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted." This ruling obviously cannot apply to this case because the basis of the dismissal of the criminal case against the driver is the fact that the prosecution failed to prove its case as a result of its failure to make a formal offer of its evidence. Rule 132, 34 of the Revised Rules on Evidence provides that "The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified." To the same effect are the holdings in Tayag, Sr. v. Alcantara, 17 Bonite v. Zosa 18 and Diong Bi Chu v. Court of Appeals 19 Since Art. 29 of the Civil Code authorizes the bringing of a separate civil action in case of acquittal on reasonable doubt and under the Revised Rules of Criminal Procedure such action is not required to be reserved, it is plain that the statement in these cases that to require a reservation to be made would be to sanction an unauthorized amendment of the Civil Code provisions is a mere dictum. As already noted in connection with the case of Garcia v. Florido, that statement was not the ruling of the Court but only an observation borrowed from another case. 20 The short of it is that the rulings in these cases are consistent with the proposition herein made that, on the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. Indeed the question on whether the criminal action and the action for recovery of the civil liability must be tried in a single proceeding has always been regarded a matter of procedure and, since the rulemaking power has been conferred by the Constitution on this Court, it is in the keeping of this Court. Thus the subject was provided for by G.O. No. 58, the first Rules of Criminal Procedure under the American rule. Sec. 107 of these Orders provided: The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear

and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right. This was superseded by the 1940 Rules of Court, Rule 106 of which provided: SEC. 15. Intervention of the offended party in criminal action. Unless the offended party has waived the civil action or expressly reserved the right to institute it after the termination of the criminal case, and subject to the provisions of Section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense. This Rule was amended thrice, in 1964, in 1985 and lastly in 1988. Through all the shifts or changes in policy as to the civil action arising from the same act or omission for which a criminal action is brought, one thing is clear: The change has been effected by this Court. Whatever contrary impression may have been created by Garcia v. Florido 21 and its progeny 22 must therefore be deemed to have been clarified and settled by the new rules which require reservation of the right to recover the civil liability, otherwise the action will be deemed to have been instituted with the criminal action. Contrary to private respondent's contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned that rule that such action must be reserved before it may be brought separately. Indeed, the requirement that the right to institute actions under the Civil Code separately must be reserved is not incompatible with the independent character of such actions. There is a difference between allowing the trial of civil actions to proceed independently of the criminal prosecution and requiring that, before they may be instituted at all, a reservation to bring them separately must be made. Put in another way, it is the conduct of the trial of the civil action not its institution through the filing of a complaint which is allowed to proceed independently of the outcome of the criminal case. C. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code, is ultimately recoverable from the accused. 23 In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been held subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi-delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate

and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. 24 As held in Barredo v. Garcia, 25 the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will be deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. II. Nor does it matter that the action is against the employer to enforce his vicarious liability under Art. 2180 of the Civil Code. Though not an accused in the criminal case, the employer is very much a party, as long as the right to bring or institute a separate action (whether arising from crime or from quasi delict) is not reserved. 26 The ruling that a decision convicting the employee is binding and conclusive upon the employer "not only with regard to its civil liability but also with regard to its amount because the liability of an employer cannot be separated but follows that of his employee" 27 is true not only with respect to the civil liability arising from crime but also with respect to the civil liability under the Civil Code. Since whatever is recoverable against the employer is ultimately recoverable by him from the employee, the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the employee or against his employer. Thus in Dulay v. Court of Appeals 28 this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately. WHEREFORE, the decision appealed from is REVERSED and the complaint against petitioner is DISMISSED. SO ORDERED. Regalado, Romero and Puno, JJ., concur.

FIRST DIVISION [G.R. No. 130605. June 19, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIX UGANAP alias Commander Matador, FAUSTINO UGANAP, SALVADOR UGANAP, NONOY PANDAY, TIRSO ARANG and four (4) JOHN DOES, accused. FELIX UGANAP, accused-appellant. The Solicitor General for plaintiff-appellee. Medardo AG. Cadiente for accused-appellant. SYNOPSIS An information for the crime of Murder was filed against Felix Uganap, Salvador Uganap, Faustino Uganap, Nonoy Panday, Tirso Arang, and four John Does for the death of Pedro Arang. Salvador Uganap died before he could be arrested; hence, trial proceeded only as against Felix Uganap, Faustino Uganap, Nonoy Panday, and Tirso Arang. Six witnesses were presented by the prosecution, including one eyewitness and the doctor who conducted the necropsy over the victim's body. It was established from their testimonies that the victim and some of the accused were close relatives. The lone eyewitness, Samuel Arang, was also a cousin of the victim. He correctly identified the four surviving accused in open court. All the accused interposed denials and alibis. They denied that they were together on the night of the incident, or that they went to the house of Pedro Arang. The conspiracy theory of the prosecution fell through with the lower court, which found the evidence to be less than convincing. It held that only two of the five accused, herein accused-appellant and the deceased Salvador Uganap, were positively identified by witnesses Samuel Arang and Ernito Libano on the night of the incident. Having acquitted accused Faustino Uganap, Nonoy Panday, and Tirso Arang for failure of the prosecution to prove conspiracy as against them, the RTC held that only Felix Uganap and Salvador Uganap were culpable of the crime charged. Owing to the earlier death of Salvador Uganap, only Felix Uganap, herein accusedappellant, was convicted. In this appeal, Felix Uganap pleaded for the review of his conviction, asseverating that there was no sufficient evidence to hold him guilty of the crime of murder. TSHEIc According to the Supreme Court a diligent study of the records convinced the Court that a conspiracy to kill Pedro Arang was in fact clearly and convincingly proven, and that accused-appellant was a part of this conspiracy. The review of criminal cases necessitates a re-examination of the entire evidence on record. The Court is not prohibited from instituting a finding of conspiracy, in reversal of the findings of the lower court, when its existence is manifest from the evidence at hand. The plot against Pedro Arang's life having been explicitly established by the testimony of a witness, it would be absurd to accept that the other accused were at the victim's house as mere onlookers. Much as the Court is prevented from disturbing the acquittals granted them by the court a quo, it found the existence of a conspiracy among the accused, and held herein accused-appellant liable as one of the conspirators. There is nothing irregular with the acquittal of one of the supposed co-conspirators and the conviction of another. The Court found the presence of evident premeditation to qualify the killing to murder.

Another aggravating circumstance that was proven by the evidence is that the killing was carried out for a price. However, because under the Revised Rules of Criminal Procedure, effective December 1, 2000, generic-aggravating circumstances must be specifically named in the information, the Court allowed such amendment to retroact for the benefit of accused-appellant. Hence, the aggravating circumstance of price or reward was not appreciated. In the absence of mitigating or aggravating circumstances, the penalty of reclusion perpetua was applied. The decision of the trial court was affirmed with modification as to the damages. IAEcaH SYLLABUS 1. CRIMINAL LAW; CONSPIRACY; DIRECT PROOF OF EXISTENCE THEREOF, NOT ESSENTIAL. Conspiracy is revealed by the acts before, during and after the commission of the crime which indicate joint purpose, concerted action, and concurrence of sentiments. In innumerable cases, the Court has held that direct proof is not essential, because conspiracy may be equably inferred from the acts of the accused disclosing their joint purpose and design. In the instant case, however, nothing less than direct proof of a previous agreement to kill the victim, plus an eyewitness account of how the conspirators effected their plan, was submitted into evidence but disregarded by the trial court. 2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF TESTIMONIES OF WITNESSES; MAY BE BELIEVED WITH RESPECT TO SOME FACTS AND DISBELIEVED WITH RESPECT TO OTHER FACTS. Because of the inadequacies of Samuel Arang's testimony, there is no sufficient evidence to establish the precise mode of attack or extent of participation of each of the accused. However, we are not prepared to dismiss the entire testimony of Samuel Arang which does not merely dwell on the attack at the victim but also on the incidents moments before the attack, namely, that he saw the accused together at Salvador Uganap's house, that they were armed, and that they left together for the house of Pedro Arang. Shortly after these incidents, gunshots and a shout were heard by both Ernito Libano and Alejandro Bualan, Jr. coming from the direction of Pedro Arang's house. The next day, Pedro's lifeless body was found in that house. Thus, we give full credence to the testimony of Samuel Arang on the actuations of the accused moments before the killing. That his statements on the mode of attack do not jive with the medical findings should not operate to destroy the weight and credibility of his entire testimony. . . Even where a witness is found to have deliberately falsified the truth in some particulars, and it was not shown that there was such intended prevarication by complainant in this case, it is not required that the entire testimony be rejected, since such portions thereof deemed worthy of belief may be credited [People vs. Gohol, 170 SCRA 585 (1989)]. It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. [People vs. Arbolante, 203 SCRA 85 (1991)]. 3. CRIMINAL LAW; CONSPIRACY; AS LONG AS THE ACQUITTAL OF A CO-CONSPIRATOR DOES NOT REMOVE THE BASIS OF A CHARGE OF CONSPIRACY, ONE DEFENDANT MAY BE FOUND GUILTY OF THE OFFENSE. Besides, a conspiracy having been unquestionably shown, it is actually unnecessary to establish who among the malefactors inflicted the fatal blow. All conspirators are liable as co-principals regardless of intent and character of participation. The plot against Pedro Arang's life having been explicitly established by the testimony of Nolly Luchavez, it would be absurd to accept that Faustino

Uganap, Nonoy Panday and Tirso Arang were at the victim's house as mere onlookers. That they did not lift a finger against the victim is beside the point, because the evidence shows that they were part of the conspiracy from its inception. Much as we are prevented from disturbing the acquittals granted them by the court a quo, we reiterate the existence of a conspiracy among the accused and hold herein accusedappellant liable as one of the conspirators. Neither may accused-appellant invoke the acquittal of the other conspirators to merit the reversal of his conviction. The case of People vs. Arlalejo illustrates that . . . there is nothing irregular with the acquittal of one of the supposed co-conspirators and the conviction of another. Generally, conspiracy is only a means by which a crime is committed as the mere act of conspiring is not by itself punishable. Hence, it does not follow that one person alone cannot be convicted when there is a finding of conspiracy. As long as the acquittal of a co-conspirator does not remove the basis of a charge of conspiracy, one defendant may be found guilty of the offense. Unlike the case of Arlalejo, however, where the Court found that the evidence proved only the existence of a conspiracy but not the culpability of accused-appellant, the evidence in the instant case shows that the conspirators (including herein accused-appellant) implemented their plan to full effect. 4. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; REJECTED WHERE NO PARTICULARS WERE SHOWN AS TO THE MANNER BY WHICH THE AGGRESSION WAS COMMENCED AND DEVELOPED. We have earlier determined that no convincing evidence was submitted on the manner of attack. We cannot thus sustain the trial court's finding of treachery based on its admitted "surmise" on how the attack took place. While dismissing as incredible Samuel Arang's testimony that the victim was shot the moment he opened the door, it substituted in place of evidence its own inference that "Pedro Arang upon opening the door . . . immediately turned his back, but accused Salvador Uganap who was near him instantaneously stabbed him at the back, hitting him at his left side. As Pedro Arang was slumping down the floor, accused Felix Uganap shot him, hitting him at the upper middle part of his buttocks and right leg." This is purely conjecture on the part of the trial court. In several cases, we have declined to appreciate treachery where no particulars were shown as to the manner by which the aggression was commenced and developed. Treachery cannot be acknowledged on the basis of mere presumptions or suppositions, but must be proven as clearly as the crime itself. 5. ID.; ID.; EVIDENT PREMEDITATION; MUST BE ESTABLISHED WITH EQUAL CERTAINTY AND CLARITY AS THE CRIMINAL ACT ITSELF. The elements of evident premeditation must be established with equal certainty and clarity as the criminal act itself before it can be appreciated as a qualifying circumstance. These elements are: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that they clung to their determination to commit the crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof to allow the accused to reflect upon the consequences of their act. The essence, therefore, of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment. 6. CIVIL LAW; DAMAGES; LOSS OF EARNING CAPACITY; FORMULA FOR COMPUTATION. On the damages awarded for loss of earning capacity, we are inclined to grant the same despite the nonavailability of documentary evidence. In People vs. Dizon, we stated that oral testimony will suffice to

prove net earning capacity where the victim was employed as a daily wage worker earning less than the minimum wage under current labor laws. Pedro Arang, a hacienda worker receiving wages of P1,000.00 a month, was certainly earning far less than the minimum wage. The trial court correctly adopted the formula used by this Court in computing loss of earning capacity. Thus: Net earning capacity = [2/3 x (80 - age at time of death) x (gross annual income - reasonable and necessary living expenses)] As there is no proof of living expenses of the deceased, the net income is estimated to be 50% of the gross annual income. Hence, in the instant case, the damages payable for loss of earning capacity is computed as follows: Net earning capacity = [2/3 x (80 - 36) x (P12,000.00 - P6,000.00)] = 2/3 x 44 x P6,000.00 = P176,000.00. Based on the foregoing, the damages representing loss of earning capacity is set at P176,000.00. DECISION GONZAGA-REYES, J p: Petitioner is the lone appellant from the decision of the Regional Trial Court of Davao City 1 which convicted him alone for the murder of Pedro Arang and acquitted the rest of the accused. ETDHSa The information against Felix Uganap, Salvador Uganap, Faustino Uganap, Nonoy Panday, Tirso Arang, and four John Does, docketed as Criminal Case No. 23264-91, reads: The undersigned accuses the above-named accused of the crime of Murder under Art. 248 of the Revised Penal Code, committed as follows: That on or about January 6, 1990, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring and confederating together and helping each other, armed with firearm and a bladed weapon, with treachery and evident premeditation and with intent to kill, willfully, unlawfully and feloniously attacked, assaulted, stabbed and shot with said weapons one Pedro Arang, thereby inflicting him mortal wounds which caused his death. CONTRARY TO LAW. 2 Salvador Uganap died before he could be arrested; hence, trial proceed only as against Felix Uganap, Faustino Uganap, Nonoy Panday, and Tirso Arang. Six witnesses were presented by the prosecution, including one eyewitness and the doctor who conducted the necropsy over the victim's body. It was established from the testimonies that the victim and some of the accused were close relatives. Accused Tirso Arang is the half-brother of the victim, while accused-appellant Felix Uganap is also the victim's cousin. Accused Faustino Uganap is the brother-in-law of the victim, being the brother of the latter's wife, Leilani Arang. They are all members of the Bagobo tribe. The lone eyewitness, Samuel Arang, also a cousin of the victim, testified that at around 8:30 in the evening of January 6, 1990, he was walking home when he stopped near the house of Salvador Uganap,

one of the accused, to light a cigarette. He peeped through a hole in the wall of the house and saw the five accused gathered together Felix Uganap had a .38 revolver tucked to his waist, while Nonoy Panday held a pistolized carbine. 3 The room was illuminated by a lamp. 4 Upon seeing that they were armed, Samuel Arang moved away from the house and hid behind a coconut tree. The accused left Salvador Uganap's house and went to the victim's house, which was about 30 meters away from where the witness was. 5 Samuel Arang stated that he saw Salvador Uganap kick the door of Pedro Arang's house; seconds later, Pedro opened the door, carrying with him a kerosene lamp. Immediately, Felix Uganap shot him. Pedro shouted for help, calling on his "Tio Pelagio" (the eyewitness' father). Upon seeing the shooting, Samuel Arang fled to his house where he told his father of what he saw. As they were afraid, they did not attempt to rescue the victim but waited until the next morning to attend to the body. 6 Samuel Arang correctly identified the four surviving accused in open court. The trial court also took into consideration the testimony of Nolly Luchavez, who identified all the accused as members of a religious vigilante group called Ituman. Luchavez was himself recruited into the group when he was only 14 years old. Accused-appellant Felix Uganap was the group's designated field commander, and carried the alias "Commander Matador". Accused Nonoy Panday was also a commander. Luchavez left the group after five years, in 1990, disillusioned that the group which he thought had good objectives turned out to be nothing more than a gang of hired killers. 7 Luchavez's testimony revealed that the plan to kill Pedro Arang was proposed by Faustino Uganap at a coffee shop in Toril, Davao City on December 18, 1989. Present at that meeting were the four other accused and Luchavez. Faustino paid Felix P3,000.00 for the purpose. Luchavez was supposed to knock on the door of Pedro Arang's house. He said that the group intended to undertake the killing on December 24, but this was aborted since they found out that the victim left town to visit his wife in Tagum. 8 Hence, the plan was set to January 6. Luchavez, however, was unable to go with the group to Pedro Arang's house because he had a fever that day. Felix Uganap reportedly said, "Well, it is alright, anyway we have another mission." 9 The day after, he learned from Tirso Arang and Felix Uganap that Pedro had been killed. The trial court determined that the cause of the conflict between Faustino Uganap and the victim was a piece of land. 10 Pedro wanted to build his house therein but Faustino opposed it. Two other prosecution witnesses corroborated the testimony of the eyewitness, Samuel Arang. Ernito Libano and Alejandro Bualan, Jr. both heard gunshots from the direction of Pedro Arang's house. Libano heard a shout and recognized the victim's voice. He also claimed that when he looked out of his window he recognized Salvador Uganap, whose face was illuminated by the sulo (torch) he was holding, as one of the persons standing outside Pedro Arang's house. Based on the necropsy report of Dr. Jose Ladrido, it was ascertained that Pedro Arang died almost instantly from the multiple wounds he sustained seven stab wounds and three gunshot wounds. The

stab wound that punctured the victim's left kidney, and the gunshot wound that penetrated the intestines, were fatal. All the accused interposed denials and alibis. They denied that they were together on the night of the incident, or that they went to the house of Pedro Arang. Faustino said he was making copra with his nephew, Margarito Arang. Nonoy Panday and Tirso Arang said that they were not in town. Accusedappellant stated that he reported to work at Crown Fruits, where he remained on duty as a guard the whole night. They all denied being members of the vigilante group Ituman. CaDSHE The conspiracy theory of the prosecution fell through with the lower court, which found the evidence to be less than convincing. It held that only two of the five accused, herein accused-appellant and the deceased Salvador Uganap, were positively identified by witnesses Samuel Arang and Ernito Libano on the night of the incident. Moreover, although Nolly Luchavez testified that Faustino Uganap proposed the killing, there was no showing that he participated in the killing as based on the account of Samuel Arang he, as well as Nonoy Panday and Tirso Arang, merely stood around while Felix Uganap assaulted Pedro Arang. 11 The RTC likewise found that the purported eyewitness account that Pedro was shot as soon as he opened the door was belied by the necropsy report which indicated that the bullets entered the victim's body from the posterior. In fact, all stab and gunshot wounds were located on the victim's back. The trial court pursued its point in this wise: Analyzing further the Necropsy Report and testimony of Dr. Jose Ladrido, the victim Pedro Arang could not have been shot while standing because the gunshot wounds were located at the lower part of his body and (their) projection was downwards. If Pedro Arang was shot while standing or even in a prone position, the projection of the gunshot wounds would not be downwards but at level. The most logical explanation is that Pedro Arang was first stabbed and when he was slumping down, he was shot. At a distance of 30 meters from where witness Samuel Arang was standing and taking into consideration the nighttime, and the relative position of accused Salvador Uganap, who we believe is in front of the group, as he was holding a lamp and therefore, his back was turned from witness Samuel Arang, the latter could not have seen accused Felix Uganap frontally shooting the victim Pedro Arang. 12 Thus, the trial court concluded: Collating the various testimon(ies) of (the) prosecution witnesses, we surmised that Pedro Arang upon opening the door and realizing the malevolent intention of the men standing outside, immediately turned his back, but accused Salvador Uganap who was near him instantaneously stabbed him at the back, hitting him at his left side. As Pedro Arang was slumping down (on) the floor, accused Felix Uganap shot him, hitting him at the upper middle part of his buttocks and right leg. 13 From this mode of attack, the trial court concluded treachery. The killing was thus qualified to murder.

Having acquitted accused Faustino Uganap, Nonoy Panday, and Tirso Arang for failure of the prosecution to prove conspiracy as against them, the RTC held that only Felix Uganap and Salvador Uganap were proved culpable. Owing to the earlier death of Salavador Uganap, only Felix Uganap, herein accused appellant, was convicted. The dispositive part of the RTC decision reads: IN VIEW OF ALL THE FOREGOING, accused Faustino Uganap, Nonoy Panday and Tirso Arang are hereby acquitted of the crime charged and they shall be released from custody immediately. In pronouncing an acquittal, we are moved by the circumstances already mentioned which though not enough to convince us of accused's innocence, nonetheless, preclude us from making a pronouncement that the guilt had been established beyond reasonable doubt which is ought to be, to justify their conviction (People vs. Joel Quintero y Ybasco, G.R No. 80315-16, November 16, 1994). As to accused Felix Uganap, his guilt having been established beyond reasonable doubt of the crime of Murder under Art. 248 of the Revised Penal Code, he is hereby sentenced to suffer a penalty of reclusion perpetua. Accused Felix Uganap is further ordered to indemnify the family of Pedro Arang the following: 1. P50,000.00 for the death of Pedro Arang;

2. For loss of income, what was proved on record is that the victim, at the time of his death, was 36 years old, in good health, and working at a hacienda with wage of P1,000.00 per month. Hence, using the formula repeatedly adopted by the Supreme Court: [2/3 x (80 - age of victim at time of death) x a reasonable portion of the net income which would have been received by the heirs as support], this Court fixes the award for loss of earning capacity of the victim at P90,000.00; and 3. P5,000.00 for burial expenses.

SO ORDERED. 14 In this appeal, Felix Uganap pleads a review of his conviction, asseverating that there was no sufficient evidence to hold him guilty of the murder of Pedro Arang. He bases his argument on the inconsistencies in the testimony of the purported eyewitness, Samuel Arang, whose claim that he saw accusedappellant shoot the victim as soon as the latter opened the door was proven wrong by the location of the wounds on the victim's body. He asserts that the credibility of Samuel Arang's statements being in serious question, his conviction could not stand in the absence of positive identification of him as the assailant and murderer of Pedro Arang. Accused-appellant's argument capitalizes on the lower court's finding of the absence of conspiracy. Without a finding of conspiracy, where the perpetrators are perceived to further a common criminal design and thus, the act of one is taken to be the act of all, a conviction of accused-appellant must rest on evidence that points to him particularly as the assailant and killer of Pedro Arang. Indeed, reasonable

doubt of accused-appellant's guilt is engendered by the inadequacies of the lone eyewitness' testimony which, due to his distance (he witnessed the incident some 30 meters afar) and poor visibility (there was no moon that night and the only illumination came from the sulo that Salvador Uganap held), failed to clearly and convincingly point to accused-appellant, to the exclusion of everyone else, as the perpetrator of the crime. The credibility of Samuel Arang's account is further undermined by the fact that it is not supported by the findings in the necropsy report (the location of the wounds does not sustain the claim that the victim was frontally shot), a matter which the defense insists could mean that the whole eyewitness claim was a fabrication. Certainly, the position of accused-appellant is easy to accept where, setting the conspiracy theory aside, there is no direct evidence that positively identifies him as the one who rendered the fatal blow or shot which killed Pedro Arang. A diligent study of the records, however, convinces the Court that a conspiracy to kill Pedro Arang was in fact clearly and convincingly proven, and that accused-appellant was a part of this conspiracy. The review of criminal cases necessitates a re-examination of the entire evidence on record. Although the absence of conspiracy, as with any other finding of fact, will not be disturbed on appeal where the same is consistent with the evidence presented, the Court is likewise not prohibited from instituting a finding of conspiracy, in reversal of the findings of the lower court, when its existence is manifest from the evidence at hand. CHDTIS Conspiracy is revealed by the acts before, during and after the commission of the crime which indicate joint purpose, concerted action, and concurrence of sentiments. 15 In innumerable cases, the Court has held that direct proof is not essential, 16 because conspiracy may be equably inferred from the acts of the accused disclosing their joint purpose and design. In the instant case, however, nothing less than direct proof of a previous agreement to kill the victim, plus an eyewitness account of how the conspirators effected their plan, was submitted into evidence but disregarded by the trial court. The testimony of Nolly Luchavez attests that a conspiracy was hatched on December 18, 1989, when Faustino Uganap's proposal to kill Pedro Arang was accepted by the rest of the accused. On that same occasion, money changed hands and the evil deal was sealed. It was accused-appellant himself who received the money from Faustino Uganap. The criminal resolve was sustained for more than two weeks (the first meeting was on December 18, 1989; the second meeting, December 24, 1989; the killing was done on January 6, 1990.). 17 Because of the inadequacies of Samuel Arang's testimony, there is no sufficient evidence to establish the precise mode of attack or extent of participation of each of the accused. However, we are not prepared to dismiss the entire testimony of Samuel Arang which does not merely dwell on the attack at the victim but also on the incidents moments before the attack, namely, that he saw the accused together at Salvador Uganap's house, that they were armed, and that they left together for the house of Pedro Arang. Shortly after these incidents, gunshots and a shout were heard by both Ernito Libano and Alejandro Bualan, Jr. coming from the direction of Pedro Arang's house. The next day, Pedro's lifeless body was found in that house.

Thus, we give full credence to the testimony of Samuel Arang on the actuations of the accused moments before the killing. That his statements on the mode of attack do not jive with the medical findings should not operate to destroy the weight and credibility of his entire testimony. . . . Even where a witness is found to have deliberately falsified the truth in some particulars, and it was not shown that there was such intended prevarication by complainant in this case, it is not required that the entire testimony be rejected, since such portions thereof deemed worthy of belief may be credited. [People vs. Gohol, 170 SCRA 585 (1989).] It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. [People vs. Arbolante, 203 SCRA 85 (1991).] 18 Besides, a conspiracy having been unquestionably shown, it is actually unnecessary to establish who among the malefactors inflicted the fatal blow. 19 All conspirators are liable as co-principals regardless of intent and character of participation. 20 The plot against Pedro Arang's life having been explicitly established by the testimony of Nolly Luchavez, it would be absurd to accept that Faustino Uganap, Nonoy Panday and Tirso Arang were at the victim's house as mere onlookers. That they did not lift a finger against the victim is beside the point, because the evidence shows that they were part of the conspiracy from its inception. Much as we are prevented from disturbing the acquittals granted them by the court a quo, 21 we reiterate the existence of a conspiracy among the accused and hold herein accused-appellant liable as one of the conspirators. Neither may accused-appellant invoke the acquittal of the other conspirators to merit the reversal of his conviction. The case of People vs. Arlalejo 22 illustrates that . . . there is nothing irregular with the acquittal of one of the supposed co-conspirators and the conviction of another. Generally, conspiracy is only a means by which a crime is committed as the mere act of conspiring is not by itself punishable. Hence, it does not follow that one person alone cannot be convicted when there is a finding of conspiracy. As long as the acquittal of a co-conspirator does not remove the basis of a charge of conspiracy, one defendant may be found guilty of the offense. Unlike the case of Arlalejo, however, where the Court found that the evidence proved only the existence of a conspiracy but not the culpability of accused-appellant, the evidence in the instant case shows that the conspirators (including herein accused-appellant) implemented their plan to full effect. The information alleges that the crime was attended by treachery and evident premeditation. 23 The existence of any of these circumstances will qualify the killing to murder. The evidence falls short of proving treachery, but we find the presence of evident premeditation. We have earlier determined that no convincing evidence was submitted on the manner of attack. We cannot thus sustain the trial court's finding of treachery based on its admitted "surmise" 24 on how the attack took place. While dismissing as incredible Samuel Arang's testimony that the victim was shot the moment he opened the door, it substituted in place of evidence its own inference that "Pedro Arang upon opening the door . . . immediately turned his back, but accused Salavador Uganap who was near

him instantaneously stabbed him at the back, hitting him at his left side. As Pedro Arang was slumping down the floor, accused Felix Uganap shot him, hitting him at the upper middle part of his buttocks and right leg." 25 This is purely conjecture on the part of the trial court. In several cases, we have declined to appreciate treachery where no particulars were shown as to the manner by which the aggression was commenced and developed. 26 Treachery cannot be acknowledged on the basis of mere presumptions or suppositions, but must be proven as clearly as the crime itself. 27 Similarly, the elements of evident premeditation must be established with equal certainty and clarity as the criminal act itself before it can be appreciated as a qualifying circumstance. 28 These elements are: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that they clung to their determination to commit the crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof to allow the accused to reflect upon the consequences of their act. 29 The essence, therefore, of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment. 30 All the elements of evident premeditation are met in this case. As early as December 18, 1989, the conspirators had determined to kill Pedro Arang. On December 24, 1989, they met to set their heinous plan into effect but they had to postpone it because Pedro left for another town to visit his wife. Still they clung to their resolve as they simply postponed the execution to January 6, 1990. All these demonstrate that the criminal intent had been harbored in dark reflection and calculation for more than two weeks, where the malefactors had every opportunity to abandon it but did not do so. The Court also observes that another aggravating circumstance was proven by the evidence. Nolly Luchavez's testimony that the taking of Pedro Arang's life carried the price of P3,000.00 was categorical, credible, and unrebutted. TAacCE PROSECUTOR GARCIA, JR. Q: A: Q: A: Q: A: Q: A: Q: Alright, you said the group was for hire. Was there any amount involved during that meeting? Yes, sir. Who had the money and to whom was the money given? Given to us. The money came from Faustino (Uganap), intended for Felix Uganap. How much was given by Faustino to Felix? P3,000.00. Did you see? Yes, sir. Did you see (if) the money was counted by Felix?

A:

Yes, sir, that was after we took our merienda, he immediately counted the money. 31

However, because under the Rules of Criminal Procedure as revised on December 1, 2000, generic aggravating circumstances must be specifically named in the information, 32 the Court will allow for this amendment to retroact for the benefit of accused-appellant. Hence, the aggravating circumstance of price or reward will not be appreciated. The crime was committed before the amendatory provisions of Republic Act No. 7659 33 took effect. Thus, at that time, the provisions of Article 248 of the Revised Penal Code set the penalty for murder at reclusion temporal in its maximum period to death. Conformably with People vs. Muoz 34 and reiterative cases 35 , in the absence of mitigating or aggravating circumstances, the penalty of reclusion perpetua is applicable. On the damages awarded for loss of earning capacity, we are inclined to grant the same despite the non-availability of documentary evidence. 36 In People vs. Dizon, 37 we stated that oral testimony will suffice to prove net earning capacity where the victim was employed as a daily wage worker earning less than the minimum wage under current labor laws. Pedro Arang, a hacienda worker receiving wages of P1,000.00 a month, 38 was certainly earning far less than the minimum wage. The trial court correctly adopted the formula used by this Court in computing loss of earning capacity. Thus: Net earning capacity = [2/3 x (80 - age at time of death) x (gross annual

income - reasonable and necessary living expenses)] 39 As there is no proof of living expenses of the deceased, the net income is estimated to be 50% of the gross annual income. 40 Hence, in the instant case, the damages payable for loss of earning capacity is computed as follows: Net earning capacity = = = [2/3 x (80 - 36) x (P12,000.00 - P6,000.00)]

2/3 x 44 x P6,000.00 P176,000.00

Based on the foregoing, the damages representing loss of earning capacity is set at P176,000.00. The award of P5,000.00 as actual damages, representing burial expenses, is sustained. 41 WHEREFORE, the appealed decision is AFFIRMED with the above modifications. Accused-appellant Felix Uganap is hereby declared guilty of murder and sentenced to suffer the penalty of reclusion perpetua. He is further required to pay the heirs of Pedro Arang P50,000.00 as death indemnity, P176,000.00 as damages for loss of earning capacity, and P5,000.00 as actual damages.

SO ORDERED. Melo, Vitug, Panganiban and Sandoval-Gutierrez, JJ., concur.

EN BANC [G.R. No. 132169. October 26, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANICO NUEVO @ "SANY", accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYNOPSIS In an information, appellant was charged with rape committed against the will and consent of Roberta. The information did not allege any qualifying nor aggravating circumstance. During trial, Roberta identified appellant whom she knew since childhood as her assailant, and that although there was no illumination during the attack she is familiar with the sound of his voice. She testified that appellant was armed with a bolo and that she was raped in full view of her 10-year old niece whom appellant threatened from revealing the crime. The trial court convicted appellant and considered qualifying and aggravating circumstances not alleged in the information. Hence, this appeal assailing further the identification made by the victim. aCcSDT It has been held that identification of accused by the sound of his voice is acceptable where the witness and accused knew each other personally and closely for a number of years. The Revised Rules of Criminal Procedure which became effective December 1, 2002 provides that every complaint or information must state not only the qualifying but also the aggravating circumstances with specificity. Without the required allegations any qualifying and aggravating circumstance cannot be appreciated by the trial court. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL; GUIDING PRINCIPLES IN RAPE CASES. In resolving cases of rape, this Court is guided by the following principles: (a) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the appellant, although innocent, to disprove; (b) in view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense (People vs. Quijada, 321 SCRA 426 [1999]); and (d) the evaluation of the trial court judges regarding the credibility of witnesses deserves utmost respect on the ground that they are in the best position to observe the demeanor, act, conduct, and attitude of the witnesses in court while testifying (People vs. Maglente, 306 SCRA 546 [1999]). 2. ID.; EVIDENCE; CREDIBILITY; SOUND OF THE VOICE OF A PERSON, AN ACCEPTABLE MEANS OF IDENTIFICATION; REQUISITE. In People vs. Reyes, we held that once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable distance. In a number

of cases, we ruled that the sound of the voice of a person is an acceptable means of identification where it is established that the witness and the accused knew each other personally and closely for a number of years. Appellant did not deny that he and Roberta had known each other since childhood and that appellant and Roberta's husband were "barkada." It is not impossible then that complainant could immediately recognize appellant through his voice alone. In addition, appellant's face was very near the victim such that the victim could not have misidentified him, even only by voice recognition. 3. CRIMINAL LAW; RAPE; NOT NEGATED BY ABSENCE OF LACERATIONS OR ABSENCE OF SPERMATOZOA. Healed lacerations or the absence of spermatozoa in the vaginal canal do not negate rape. 4. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE TRIAL COURT UPHELD ON APPEAL. Considering the circumstances in this case, in the light of the testimony by the victim and her witnesses as well as of those for the defense, we agree with the trial court that Roberta had sufficiently identified appellant as the person who raped her, by means of force, violence and intimidation, against her will and without her consent. Appellant is guilty beyond reasonable doubt of the crime charged. 5. ID.; CRIMINAL PROCEDURE; APPEAL; THROWS ENTIRE CASE WIDE OPEN FOR REVIEW. An appeal in a criminal case throws the entire case wide open for review and it is the duty of the appellate court to correct errors, as may be found in the appealed judgment, even if unassigned. This salutary principle governs our automatic review of death penalty cases as well. 6. ID.; ID.; INFORMATION; MUST ALLEGE ALL QUALIFYING AND AGGRAVATING CIRCUMSTANCES; CASE AT BAR. In People vs. Amadore, G.R. No. 140669-75 & 140691, April 20, 2001, we held that the attendance of any of the circumstances under the provisions of Section 11 of Republic Act No. 7659, mandating the death penalty are in the nature of qualifying circumstances and the absence of proper averment thereof in the complaint will bar the imposition of that extreme penalty. The information in this case did not allege the qualifying circumstance, that the rape was committed in full view of a niece (a relative within the third degree of consanguinity). Because of this deficiency, appellant was not properly apprised of the extent of the punishment which the charges against him entailed. Thus, it was an error to consider the foregoing circumstance in the imposition of the proper penalty on appellant. Further, while the decision of the trial court held that dwelling and the use of a deadly weapon aggravated the crime committed, we find that these were not averred in the information. The Revised Rules of Criminal Procedure, effective December 1, 2000, provides that every complaint or information must state not only the qualifying but also the aggravating circumstances with specificity. This requirement of procedure has retroactive effect and is applicable to actions pending and undetermined at the time of their passage insofar as it is favorable to the appellant. Procedural laws are retroactive in that sense and to that extent. Here, it was error to appreciate dwelling and the use of a deadly weapon as aggravating circumstances in the commission of the offense. In sum, we find that no aggravating as well as qualifying circumstances have been properly pleaded and proved by the prosecution in this case. The result is that the crime committed by appellant is only simple rape, which under Article 335 of the Revised Penal Code as amended by R.A. 7659, the law prevailing at the time of commission thereof, is punished only with reclusion perpetua.

7. CIVIL LAW; DAMAGES AWARDED RAPE VICTIM. Private complainant is entitled not only to P50,000 as civil indemnity, but following current jurisprudence, also to P50,000 as moral damages and P25,000 as exemplary damages. DCcAIS DECISION QUISUMBING, J.: On automatic review is the decision 1 of the Regional Trial Court of Sindangan, Zamboanga del Norte, Branch 11, finding accused Sanico Nuevo @ "Sany" guilty of rape and sentencing him to death. His conviction stemmed from the following information: 2 That, in the evening, on or about the 4th day of December, 1994, in the municipality of Godod, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused, moved by lewd and unchaste design and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously succeed in having sexual intercourse with one ROBERTA CIDO, a 20 year old married woman, against her will and without her consent. CONTRARY TO LAW (Viol. of Art. 335, Revised Penal Code). A plea of not guilty was entered upon arraignment. During trial, the prosecution presented three witnesses, namely: (1) complainant Roberta Cido; (2) Anselmo Cido, Jr., the complainant's husband; and (3) Dr. Esmeralda Nadela, a resident physician of the Sindangan District Hospital, Sindangan, Zamboanga del Norte. They testified as follows: ROBERTA CIDO 3 recalled that at about 9:00 o'clock in the evening of December 4, 1994, Sanico Nuevo passed by their house and invited her husband Anselmo Cido, Jr., to a drinking spree at the house of Anselmo, Sr., her father-in-law. 4 She was left at home with her 10-month-old daughter and her nineyear-old niece Gemma Atis. They slept in the living room, cum bedroom, the only room in the house. 5 At around 11:00 P.M., appellant surreptitiously returned and entered their room. She was awakened when appellant held her neck, pinned down her arms and took off her clothing. While Sanico was removing her panties, she struggled to extricate herself but to no avail. She was unable to shout because appellant was covering her mouth. While she was lying on her back, appellant laid on top of her and proceeded to forcibly have sexual intercourse with her, at the same time pinning her down with a bolo. As this was happening her niece Gemma, who was present, witnessed what was being done to her. Appellant even warned Gemma not to reveal what she saw and at the same time threatened Roberta not to tell her husband about the incident or else he would kill her. 6 He thereafter left the house. Roberta further testified that her husband Anselmo, Jr., returned home only the morning after. She immediately told her husband about the previous night's incident. The latter hastened to the house of Sanico but did not find him. Appellant was arrested that same afternoon. 7

Although Roberta testified on cross-examination, that she did not see him because it was very dark that night, she identified him through his voice. 8 She was certain it was he because she was very familiar with appellant's voice. Not only have they been neighbors since childhood, she also heard the appellant when he invited her husband earlier that evening, and when he warned her and her niece not to tell anyone what happened. For his part, ANSELMO CIDO, JR., corroborated part of his wife's story. He narrated that at around 9:00 P.M., December 4, 1994, Sanico with companions dropped by their house and invited him to a drinking spree in his father's (Anselmo, Sr.) house, about 50 meters away from theirs. While there, they drank until dawn. Sanico left his father's place at around 11:00 P.M., purportedly to answer the call of nature, and returned only at around 1:00 A.M. of December 5, 1994. At the time Sanico left, Anselmo, Jr., observed that he was carrying an 18-inch bolo. When Anselmo, Jr., arrived home early in the morning, his wife told him of her ordeal. 9 DR. ESMERALDA NADELA testified on her medical findings contained in her Medico-Legal Certificate dated December 6, 1994, which document 10 she brought along and read in open court. She said Roberta told her that the latter was submitting herself for medical examination because she was raped, and that her last sexual contact with her husband was a week before the incident. Nadela testified further that based on her examination conducted two days after the alleged incident, no fresh injuries were actually found on the victim; that only old lacerations were present; that such absence was possible due to the victim's previous child birth; and that no spermatozoa was found on the victim, which was likely because the examination was conducted only two days after the alleged rape. 11 For the defense, two witnesses were presented. First was the appellant himself, SANICO NUEVO. He declared that he knew Roberta since they were schoolmates in grade school and she was a former neighbor. He lived about 100 meters from her house. Moreover, her husband Anselmo, Jr., was his "barkada". He recounted that at about 6:30 P.M., December 4, 1994, his father and he went to the house of Anselmo, Sr., to buy Tanduay Rum and drank with their friends Rudy and Ami Tinambakan. On the way, they had to pass by the house of Anselmo, Jr. He denied he invited the younger Anselmo to go drinking as the latter's house was already close by. It was Anselmo, Jr., who later followed and joined them until around 10:30 P.M. Appellant said he stayed in the house of Anselmo, Sr., where he slept at around 12:00 o'clock midnight. It was already 6:30 A.M. the following day when he woke up. He denied raping Roberta. He added that the house of Anselmo, Sr., was only about 35 meters from the house of Roberta. 12 The second witness for the defense was EMELIO 13 NUEVO, brother of appellant. He claimed that he was with his brother Sanico and two neighbors the night of the incident. He corroborated his brother's story that they were drinking at the house of Anselmo, Sr., and he noticed his brother asleep on the upper floor of Anselmo, Sr.'s house, when he left at around 5:00 A.M. early in the morning while the others were still dancing downstairs. He admitted, however, that he told no one of seeing his brother sleep in the house of Anselmo, Sr., even when he found out that his brother was to be arrested, and even when he saw him tied up and already in the custody of the police. He did not disclose this fact, even when he was already alone with his other brother who was a councilor of their place. It was only in

his testimony during trial that he chose to reveal these facts in Sanico's defense. He also said he was not aware of any misunderstanding between his brother and the spouses Roberta and Anselmo, Jr. 14 The trial court found the prosecution's version of events credible and disbelieved that of the defense. It rendered judgment as follows: IN VIEW OF THE FOREGOING, the Court finds the accused SANICO NUEVO guilty beyond reasonable doubt of the crime charged in the above-quoted information with aggravating circumstances of dwelling (Article 14, (3) of the Revised Penal Code; People vs. Padilla, 242 SCRA 629) and committed in full view of the relative within the third degree of consanguinity (Sec. 11, R.A. 7659), but since no mitigating circumstances (sic) to offset the above aggravating circumstances, the Court hereby sentences the accused Sanico Nuevo to suffer the maximum penalty provided by law which is DEATH and to pay the private offended party in the sum of P50,000.00. COSTS de oficio. SO ORDERED. 15 In his brief, appellant assigns one error only: THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SANICO NUEVO OF COMMITTING RAPE AGAINST ALLEGED VICTIM ROBERTA CIDO DESPITE INSUFFICIENT EVIDENCE OF HIS POSITIVE IDENTIFICATION. 16 In resolving cases of rape, this Court is guided by the following principles: (a) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the appellant, although innocent, to disprove; (b) in view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense (People vs. Quijada, 321 SCRA 426 [1999]); and (d) the evaluation of the trial court judges regarding the credibility of witnesses deserves utmost respect on the ground that they are in the best position to observe the demeanor, act, conduct, and attitude of the witnesses in court while testifying (People vs. Maglente, 306 SCRA 546 [1999]). In our view, the first issue for our resolution here is whether appellant was sufficiently identified by the offended party based only on her recognition of the sound of his voice. The second issue is whether the prosecution's evidence suffices for the conviction of rape and the imposition of the death penalty on him. Appellant denies he raped Roberta Cido. He questions the certainty of his identification as the offender. He avers that the night of the rape, there was no moon and it was very dark. Nor was there any showing of illumination from any source in and out of the house of the victim. Further, she averred that she identified her rapist only because she recognized his voice. According to appellant, such voice identification is insufficient to prove he was the rapist.

In People vs. Reyes, 17 we held that once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable distance. In a number of cases, we ruled that the sound of the voice of a person is an acceptable means of identification where it is established that the witness and the accused knew each other personally and closely for a number of years. 18 Appellant did not deny that he and Roberta had known each other since childhood 19 and that appellant and Roberta's husband were "barkada." 20 It is not impossible then that complainant could immediately recognize appellant through his voice alone. In addition, appellant's face was very near the victim 21 such that the victim could not have misidentified him, even only by voice recognition. According to appellant, Roberta claims she smelled marijuana on the rapist but she patently made a mistake since he should have smelled of Tanduay Rum instead, because that was what he drank. In addition, he argues that since no physical injury was found on Roberta to show that there was force or intimidation inflicted on her, therefore, no rape had happened. As testified to by Dr. Nadela, however, lacerations or signs of injury may not be present in this case due to the fact that the victim had already given birth to a child. 22 Moreover, according to the victim, 23 appellant's penis was relatively small in size, about two and a half inches long. This is consistent with Dr. Nadela's testimony that in some cases of women who have already given birth, it would take an "extralarge" male organ to cause lacerations. According to her, healed lacerations or the absence of spermatozoa in the vaginal canal do not negate rape. 24 We are, thus, constrained to say that appellant's bland conclusion that no rape happened for lack of physical injuries on the person of the victim is clearly a non-sequitur. Appellant's claim that Roberta should have smelled him reeking of liquor instead of marijuana is beside the point and deserves scant consideration. Note that appellant and his five other companions shared only four bottles of pocket-sized Tanduay mixed with softdrinks. 25 Thus, it was not unlikely that he did not smell strongly of liquor. Further, note that the drinking spree started at 8:30 P.M., and it was barely two hours thereafter when appellant left the group, according to prosecution witnesses. Besides, that Roberta said she detected the smell of marijuana on her abuser does not change the fact that she identified him positively and without any reservation as the perpetrator of the offense. Considering the circumstances in this case, in the light of the testimony by the victim and her witnesses as well as of those for the defense, we agree with the trial court that Roberta had sufficiently identified appellant as the person who raped her, by means of force, violence and intimidation, against her will and without her consent. Appellant is guilty beyond reasonable doubt of the crime charged. We are, however, constrained to disagree concerning the penalty imposed on him. An appeal in a criminal case throws the entire case wide open for review and it is the duty of the appellate court to correct errors, as may be found in the appealed judgment, even if unassigned. 26 This salutary principle governs our automatic review of death penalty cases as well. Although not assigned as an error, it is our view that the trial court erred in appreciating the qualifying circumstance under par. 3, Section 11, R.A. 7659, 27 concerning the presence of a relative, to justify the imposition of the death penalty.

In People vs. Amadore, we held that the attendance of any of the circumstances under the provisions of Section 11 of Republic Act No. 7659, mandating the death penalty are in the nature of qualifying circumstances and the absence of proper averment thereof in the complaint will bar the imposition of that extreme penalty. 28 The information in this case did not allege the qualifying circumstance, that the rape was committed in full view of a niece (a relative within the third degree of consanguinity). Because of this deficiency, appellant was not properly apprised of the extent of the punishment which the charges against him entailed. Thus, it was an error to consider the foregoing circumstance in the imposition of the proper penalty on appellant. Further, while the decision of the trial court held that dwelling and the use of a deadly weapon aggravated the crime committed, we find that these were not averred in the information. The Revised Rules of Criminal Procedure, effective December 1, 2000, provides that every complaint or information must state not only the qualifying but also the aggravating circumstances with specificity. 29 This requirement of procedure has retroactive effect and is applicable to actions pending and undetermined at the time of their passage insofar as it is favorable to the appellant. Procedural laws are retroactive in that sense and to that extent. 30 Here, it was error to appreciate dwelling and the use of a deadly weapon as aggravating circumstances in the commission of the offense. In sum, we find that no aggravating as well as qualifying circumstances have been properly pleaded and proved by the prosecution in this case. The result is that the crime committed by appellant is only simple rape, which under Article 335 of the Revised Penal Code as amended by R.A. 7659, the law prevailing at the time of commission thereof, is punished only with reclusion perpetua. SIaHDA Moreover, on the civil aspect, modification is also in order. Private complainant is entitled not only to P50,000 as civil indemnity, but following current jurisprudence, also to P50,000 as moral damages and P25,000 as exemplary damages. WHEREFORE, the decision of the trial court is MODIFIED. The appellant is declared GUILTY of the crime of simple rape beyond reasonable doubt, and he is hereby sentenced to suffer the penalty of reclusion perpetua. Conformably with prevailing jurisprudence, appellant is also ordered to pay the offended party P50,000 as civil indemnity, P50,000 as moral damages and P25,000 as exemplary damages. aATHIE SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Pardo, Buena, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur. Vitug, J., is on official leave.

THIRD DIVISION [G.R. No. 145391. August 26, 2002.] AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs. MARIO LLAVORE LAROYA, respondent. Yolanda C. Castro for petitioners. Pablo Olarte for private respondent. SYNOPSIS As a result of a vehicular accident between two vehicles, one driven by Mario Llavore Laroya and the other owned by Roberto Capitulo and driven by Avelino Casupanan, two cases were filed before the Municipal Circuit Trial Court (MCTC) of Capas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property. This case was on its preliminary investigation stage when Casupanan and Capitulo filed a civil case against Laroya for quasi-delict. However, upon motion of Laroya on the ground of forum-shopping, the MCTC dismissed the civil case. Casupanan and Capitulo then filed a petition for certiorari before the Regional Trial Court (RTC) of Capas, Tarlac. But the RTC ruled that the order of dismissal issued by the MCTC is a final order which disposes of the case and therefore, the proper remedy should have been an appeal. Hence, Casupanan and Capitulo filed this petition. CIAcSa The Court held that the MCTC dismissed the civil action for quasi-delict on the ground of forumshopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal that the dismissal was with prejudice. Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states that it is with prejudice. Thus, the MCTC's dismissal, being silent on the matter, is a dismissal without prejudice. Section 1 of Rule 41 provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Clearly, the Capas RTC's order dismissing the petition for certiorari on the ground that the proper remedy is an ordinary appeal, is erroneous. Further, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil action." Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The order of dismissal by the MCTC of the civil case on the ground of forum shopping is erroneous. aDSHIC SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; ORDER OF DISMISSAL; ABSENT A DECLARATION THAT THE DISMISSAL IS WITH PREJUDICE, THE SAME IS DEEMED WITHOUT PREJUDICE. The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal that the dismissal was with prejudice.

Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states it is with prejudice. Absent a declaration that the dismissal is with prejudice, the same is deemed without prejudice. Thus, the MCTC's dismissal, being silent on the matter, is a dismissal without prejudice. HAEDCT 2. ID.; ID.; ID.; DISMISSAL WITHOUT PREJUDICE IS NOT APPEALABLE. Section 1 of Rule 41 provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41 expressly states that "where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65." Clearly, the Capas RTC's order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous. 3. ID.; ID.; FORUM-SHOPPING; ELUCIDATED. The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Forum-shopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought. HIaTDS 4. ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. [T]here is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action. Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. 5. ID.; 2000 RULES ON CRIMINAL PROCEDURE; PROSECUTION OF CIVIL ACTION; PRIVATE COMPLAINANT OR THE ACCUSED CAN FILE A SEPARATE CIVIL ACTION. Any aggrieved person can invoke [Articles 2176 and 2177 of the Civil Code] provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. Either the private complainant or the accused can file a separate civil action under these articles. There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles. ESITcH 6. ID.; ID.; ID.; REQUIRES THE ACCUSED TO LITIGATE HIS COUNTERCLAIM, CROSS-CLAIM OR THIRDPARTY COMPLAINT IN A SEPARATE CIVIL ACTION. [P]aragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit: "SECTION 1. Institution of criminal and civil actions. (a) . . . . No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action." Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action. SaCIAE

7. ID.; ID.; ID.; CIVIL ACTION ARISING FROM THE CRIME; THE ONLY CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION. Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only the action to recover civil liability arising from the crime or exdelicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action "deemed instituted" in the criminal action.

8. ID.; ID.; ID.; ID.; MAY BE FILED SEPARATELY BY RESERVING SUCH RIGHT IN THE CRIMINAL ACTION OR IF SEPARATELY FILED, MAY BE CONSOLIDATED WITH THE CRIMINAL ACTION. Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence. Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action. The consolidation under this Rule does not apply to separate civil actions arising from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code. TaHIDS 9. ID.; ID.; ID.; ID.; IF IT IS RESERVED, IT COULD NOT BE FILED UNTIL AFTER FINAL JUDGMENT OF THE CRIMINAL ACTION OR IF SEPARATELY FILED, IT IS SUSPENDED UPON THE FILING OF THE CRIMINAL ACTION. Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action. If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action. This rule applied only to the separate civil action filed to recover liability ex-delicto. The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action. . . . Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action, filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto. ISDHcT

10. ID.; ID.; ID.; INDEPENDENT CIVIL ACTION IN ARTICLES 32, 33, 34 AND 2176 OF THE CIVIL CODE MAY BE FILED SEPARATELY BY THE OFFENDED PARTY EVEN WITHOUT RESERVATION. Under Section I of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the

present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action. 11. ID.; ID.; ID.; OFFENDED PARTY CAN SEPARATELY FILE A CRIMINAL CASE AND A CIVIL CASE FOR QUASI-DELICT, WITHOUT VIOLATING THE RULE ON NON-FORUM SHOPPING. [T]he offended party can file two separate suits for the same act or omission. The first, a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians. cDaEAS 12. ID.; ID.; ID.; ACCUSED CAN FILE A CIVIL ACTION FOR QUASI-DELICT FOR THE SAME ACT OR OMISSION HE IS ACCUSED OF IN THE CRIMINAL CASE. [T]he accused can file a civil action for quasidelict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil action." This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his counterclaim against the offended party. If the accused does not file a separate civil action for quasi-delict, the prescriptive period may set in since the period continues to run until the civil action for quasi-delict is filed. Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law. cTaDHS 13. ID.; ID.; ID.; INDEPENDENT CIVIL ACTION MAY PROCEED INDEPENDENTLY OF THE CRIMINAL PROCEEDINGS AND REGARDLESS OF THE RESULT OF THE LATTER. We make this ruling aware of the possibility that the decision of the trial court in the criminal case may vary with the decision of the trial court in the independent civil action. This possibility has always been recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly provides that the independent civil action "may proceed independently of the criminal proceedings and regardless of the result of the latter." In Azucena vs. Potenciano, the Court declared: ". . . . There can indeed be no other logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution whether it be conviction or acquittal would render meaningless the independent character of the civil action and the clear injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and regardless of the result of the latter.'" More than half a century has passed since the Civil Code introduced the concept of a civil action separate and

independent from the criminal action although arising from the same act or omission. The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts, one hearing the criminal case and the other the civil action for quasi-delict. The fear of conflicting and irreconcilable decisions may be more apparent than real. In any event, there are sufficient remedies under the Rules of Court to deal with such remote possibilities. ECDAcS 14. ID.; ID.; RETROACTIVE EFFECT; APPLICABLE IN CASE AT BAR. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that ". . . statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent." DECISION CARPIO, J p: The Case This is a petition for review on certiorari to set aside the Resolution 1 dated December 28, 1999 dismissing the petition for certiorari and the Resolution 2 dated August 24, 2000 denying the motion for reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special Civil Action No. 17-C (99). The Facts Two vehicles, one driven by respondent Mario Llavore Laroya ("Laroya" for brevity) and the other owned by petitioner Roberto Capitulo ("Capitulo" for brevity) and driven by petitioner Avelino Casupanan ("Casupanan" for brevity), figured in an accident. As a result, two cases were filed with the Municipal Circuit Trial Court ("MCTC" for brevity) of Capas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property, docketed as Criminal Case No. 00299. On the other hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict, docketed as Civil Case No. 2089. AHaDSI When the civil case was filed, the criminal case was then at its preliminary investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-shopping considering the pendency of the criminal case. The MCTC granted the motion in the Order of March 26, 1999 and dismissed the civil case. On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate civil action which can proceed independently of the criminal case. The MCTC denied the motion for reconsideration in the Order of May 7, 1999. Casupanan and Capitulo filed a petition for certiorari under Rule 65 before the Regional Trial Court ("Capas RTC" for brevity) of Capas, Tarlac, Branch 66, 3 assailing the MCTC's Order of dismissal.

The Trial Court's Ruling The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari for lack of merit. The Capas RTC ruled that the order of dismissal issued by the MCTC is a final order which disposes of the case and therefore the proper remedy should have been an appeal. The Capas RTC further held that a special civil action for certiorari is not a substitute for a lost appeal. Finally, the Capas RTC declared that even on the premise that the MCTC erred in dismissing the civil case, such error is a pure error of judgment and not an abuse of discretion. EcSaHA Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in the Resolution of August 24, 2000. Hence, this petition. The Issue The petition premises the legal issue in this wise: "In a certain vehicular accident involving two parties, each one of them may think and believe that the accident was caused by the fault of the other. . . . [T]he first party, believing himself to be the aggrieved party, opted to file a criminal case for reckless imprudence against the second party. On the other hand, the second party, together with his operator, believing themselves to be the real aggrieved parties, opted in turn to file a civil case for quasi-delict against the first party who is the very private complainant in the criminal case." 4 Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case. The Court's Ruling Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the ground of forum-shopping, constitutes a counterclaim in the criminal case. Casupanan and Capitulo argue that if the accused in a criminal case has a counterclaim against the private complainant, he may file the counterclaim in a separate civil action at the proper time. They contend that an action on quasi-delict is different from an action resulting from the crime of reckless imprudence, and an accused in a criminal case can be an aggrieved party in a civil case arising from the same incident. They maintain that under Articles 31 and 2176 of the Civil Code, the civil case can proceed independently of the criminal action. Finally, they point out that Casupanan was not the only one who filed the independent civil action based on quasi-delict but also Capitulo, the owner-operator of the vehicle, who was not a party in the criminal case. In his Comment, Laroya claims that the petition is fatally defective as it does not state the real antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to question the order of dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there is

no question of law to be resolved as the order of dismissal is already final and a petition for certiorari is not a substitute for a lapsed appeal. In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of whether there is forum-shopping since they filed only one action the independent civil action for quasi-delict against Laroya. Nature of the Order of Dismissal The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal 5 that the dismissal was with prejudice. Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states it is with prejudice. 6 Absent a declaration that the dismissal is with prejudice, the same is deemed without prejudice. Thus, the MCTC's dismissal, being silent on the matter, is a dismissal without prejudice. Section 1 of Rule 41 7 provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41 expressly states that "where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65." Clearly, the Capas RTC's order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous. Forum-Shopping The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. 8 Forumshopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought. 9 However, there is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action. cdll Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. These articles on culpa aquiliana read: "Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant."

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. Either the private complainant or the accused can file a separate civil action under these articles. There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles. Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit: "SECTION 1. Institution of criminal and civil actions. (a) . . . . "No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action." (Italics supplied) Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action. AECDHS Filing of a separate civil action Section 1, Rule 111 of the 1985 Rules on Criminal Procedure ("1985 Rules" for brevity), as amended in 1988, allowed the filing of a separate civil action independently of the criminal action provided the offended party reserved the right to file such civil action. Unless the offended party reserved the civil action before the presentation of the evidence for the prosecution, all civil actions arising from the same act or omission were deemed "impliedly instituted" in the criminal case. These civil actions referred to the recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the recovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations. Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the offended party had to reserve in the criminal action the right to bring such action. Otherwise, such civil action was deemed "impliedly instituted" in the criminal action. Section 1, Rule 111 of the 1985 Rules provided as follows: "Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. In no case may the offended party recover damages twice for the same act or omission of the accused. xxx xxx xxx." (Italics supplied)

Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as follows: "SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. HIESTA The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx (b) ... xxx xxx

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this rule governing consolidation of the civil and criminal actions." (Italics supplied) Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only the action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action "deemed instituted" in the criminal action. 10 Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence. Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action. The consolidation under this Rule does not apply to separate civil actions arising from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code. 11

Suspension of the Separate Civil Action Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action. If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action. This rule applied only to the separate civil action filed to recover liability ex-delicto. The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action. The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to wit: "SEC. 2. When separate civil action is suspended. After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly. During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. cIECTH xxx xxx xxx." (Italics supplied)

Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action, filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto. When civil action may proceed independently The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in the criminal case, can file a separate civil action against the offended party in the criminal case. Section 3, Rule 111 of the 2000 Rules provides as follows:

"SEC. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended

party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action." (Italics supplied) Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly allows the "offended party" to bring an independent civil action under Articles 32, 33, 34 and 2176 of the Civil Code. As stated in Section 3 of the present Rule 111, this civil action shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the "offended party recover damages twice for the same act or omission charged in the criminal action." There is no question that the offended party in the criminal action can file an independent civil action for quasi-delict against the accused. Section 3 of the present Rule 111 expressly states that the "offended party" may bring such an action but the "offended party" may not recover damages twice for the same act or omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers to the offended party in the criminal action, not to the accused. Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos 12 where the Court held that the accused therein could validly institute a separate civil action for quasi-delict against the private complainant in the criminal case. In Cabaero, the accused in the criminal case filed his Answer with Counterclaim for malicious prosecution. At that time the Court noted the "absence of clear-cut rules governing the prosecution on impliedly instituted civil actions and the necessary consequences and implications thereof." Thus, the Court ruled that the trial court should confine itself to the criminal aspect of the case and disregard any counterclaim for civil liability. The Court further ruled that the accused may file a separate civil case against the offended party "after the criminal case is terminated and/or in accordance with the new Rules which may be promulgated." The Court explained that a crossclaim, counterclaim or third-party complaint on the civil aspect will only unnecessarily complicate the proceedings and delay the resolution of the criminal case. Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to address the lacuna mentioned in Cabaero. Under this provision, the accused is barred from filing a counterclaim, cross-claim or third-party complaint in the criminal case. However, the same provision states that "any cause of action which could have been the subject (of the counterclaim, cross-claim or third-party complaint) may be litigated in a separate civil action." The present Rule 111 mandates the accused to file his counterclaim in a separate civil action which shall proceed independently of the criminal action, even as the civil action of the offended party is litigated in the criminal action. Conclusion Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action. EaCSTc

Thus, the offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians. Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil action." This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his counterclaim against the offended party. If the accused does not file a separate civil action for quasidelict, the prescriptive period may set in since the period continues to run until the civil action for quasidelict is filed. Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law. Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is erroneous. We make this ruling aware of the possibility that the decision of the trial court in the criminal case may vary with the decision of the trial court in the independent civil action. This possibility has always been recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly provides that the independent civil action "may proceed independently of the criminal proceedings and regardless of the result of the latter." In Azucena vs. Potenciano, 13 the Court declared: ". . . . There can indeed be no other logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution whether it be conviction or acquittal would render meaningless the independent character of the civil action and the clear injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and regardless of the result of the latter.'" More than half a century has passed since the Civil Code introduced the concept of a civil action separate and independent from the criminal action although arising from the same act or omission. The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts,

one hearing the criminal case and the other the civil action for quasi-delict. The fear of conflicting and irreconcilable decisions may be more apparent than real. In any event, there are sufficient remedies under the Rules of Court to deal with such remote possibilities. One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that ". . . statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent." 14 WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and Civil Case No. 2089 is REINSTATED. aEHTSc SO ORDERED. Puno and Panganiban, JJ., concur. Sandoval-Gutierrez, J., is on leave.

FIRST DIVISION [G.R. No. 129282. November 29, 2001.] DMPI EMPLOYEES CREDIT COOPERATIVE, INC., (DMPI-ECCI), petitioner, vs. HON. ALEJANDRO M. VELEZ, as Presiding Judge of the RTC, Misamis Oriental, Br. 20, and ERIBERTA VILLEGAS, respondents. Isaidro Q. Lico and Marieto P. Gallego for petitioner. Constantino Jaraula for private respondents. SYNOPSIS Carmen Mandawe is an employee of DMPI-ECCI. Allegedly, respondent Villegas entrusted money to Mandawe for deposit with DMPI Employees Credit Corporation, Inc. DMPI-ECCI. Mandawe, however, failed to account the entrusted amount and hence, an information for estafa was filed against her. Subsequently, when Villegas also filed a complaint for sum of money and damages against Mandawe and DMPI-ECCI, DMPI-ECCI sought the dismissal of the same on the ground that there is a pending criminal case and the civil complaint failed to contain a certification against forum shopping as required under Circular No. 28-91. SDIACc There was no violation of the circular. At the time of the filing of the civil complaint, the requirement of certification on forum shopping is not yet applicable to the lower courts. On the issue of the pending criminal case, under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the same is waived or its filing reserved. This does not include recovery of civil liability under Arts. 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission which may be prosecuted separately without reservation. Thus, the independent civil action for damages on account of the fraud committed against Villegas under Art. 33 of the Civil Code may proceed independently even if without reservation as to its filing. SYLLABUS 1. REMEDIAL LAW; CIRCULAR NO. 28-91 (CERTIFICATION OF NON-FORUM SHOPPING); EXTENDED APPLICATION THEREOF. Circular No. 28-91 of the Supreme Court requires a certificate of non-forum shopping to be attached to petitions filed before the Supreme Court and the Court of Appeals. This circular was revised on February 8, 1994 by extending the requirement to all initiatory pleadings filed in all courts and quasi-judicial agencies other than the Supreme Court and the Court of Appeals. Respondent Villegas' failure to attach a certificate of non-forum shopping in her complaint did not violate Circular No. 28-91, because at the time of filing, the requirement applied only to petitions filed with the Supreme Court and the Court of Appeals. Likewise, Administrative Circular No. 04-94 is inapplicable for the reason that the complaint was filed on March 29, 1994, three days before April 1, 1994, the date of effectivity of the circular. 2. CRIMINAL LAW; CLASSES OF INJURIES; PERSONAL INJURY; CIVIL LIABILITY; ELUCIDATED. As a general rule, an offense causes two (2) classes of injuries. The first is the social injury produced by the

criminal act which is sought to be repaired thru the imposition of the corresponding penalty, and the second is the personal injury caused to the victim of the crime which injury is sought to be compensated through indemnity which is civil in nature. Thus, "every person criminally liable for a felony is also civilly liable." This is the law governing the recovery of civil liability arising from the commission of an offense. Civil liability includes restitution, reparation for damage caused, and indemnification of consequential damages. The offended party may prove the civil liability of an accused arising from the commission of the offense in the criminal case since the civil action is either deemed instituted with the criminal action or is separately instituted. However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission, the rule has been changed. Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. There is no more need for a reservation of the right to file the independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines. "The reservation and waiver referred to refers only to the civil action for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately even without a reservation." AaECSH 3. REMEDIAL LAW; CRIMINAL PROCEDURE; RETRO-ACTIVE EFFECT OF INDEPENDENT CIVIL ACTIONS. The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became effective on December 1, 2000 are applicable to this case. Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage. There are no vested rights in the rules of procedure. Thus, Civil Case No. CV-94-214, an independent civil action for damages on account of the fraud committed against respondent Villegas under Article 33 of the Civil Code, may proceed independently even if there was no reservation as to its filing. DECISION PARDO, J p: The Case In this special civil action for certiorari, petitioner DMPI Employees Credit Cooperative, Inc. (DMPI-ECCI) seeks the annulment of the order 1 of the Regional Trial Court, Misamis Oriental, Branch 20, granting the motion for reconsideration of respondent Eriberta Villegas, and thus reversing the previous dismissal of Civil Case No. CV-94-214. IaESCH The Facts On February 18, 1994, the prosecuting attorney filed with the Regional Trial Court, Misamis Oriental, Branch 37, an information for estafa 2 against Carmen Mandawe for alleged failure to account to respondent Eriberta Villegas the amount of P608,532.46. Respondent Villegas entrusted this amount to Carmen Mandawe, an employee of petitioner DMPI-ECCI, for deposit with the teller of petitioner.

Subsequently, on March 29, 1994, respondent Eriberta Villegas filed with the Regional Trial Court, Misamis Oriental, Branch 20, a complaint 3 against Carmen Mandawe and petitioner DMPI-ECCI for a sum of money and damages with preliminary attachment arising out of the same transaction. In time, petitioner sought the dismissal of the civil case on the following grounds: (1) that there is a pending criminal case in RTC Branch 37, arising from the same facts, and (2) that the complaint failed to contain a certification against forum shopping as required by Supreme Court Circular No. 28-91. 4 On December 12, 1996, the trial court issued an order 5 dismissing Civil Case No. CV-94-214. On January 21, 1997, respondent filed a motion for reconsideration 6 of the order. On February 21, 1997, the trial court issued an order 7 granting respondent's motion for reconsideration, thereby recalling the dismissal of the case. Hence, this petition. 8 The Issues The issues raised are: (1) whether the plaintiff's failure to attach a certification against forum shopping in the complaint is a ground to dismiss the case; 9 and, (2) whether the civil case could proceed independently of the criminal case for estafa without having reserved the filing of the civil action. The Court's Ruling On the first issue, Circular No. 28-91 10 of the Supreme Court requires a certificate of non-forum shopping to be attached to petitions filed before the Supreme Court and the Court of Appeals. This circular was revised on February 8, 1994 11 by extending the requirement to all initiatory pleadings filed in all courts and quasi-judicial agencies other than the Supreme Court and the Court of Appeals. Respondent Villegas' failure to attach a certificate of non-forum shopping in her complaint did not violate Circular No. 28-91, because at the time of filing, the requirement applied only to petitions filed with the Supreme Court and the Court of Appeals. 12 Likewise, Administrative Circular No. 04-94 is inapplicable for the reason that the complaint was filed on March 29, 1994, three days before April 1, 1994, the date of effectivity of the circular. 13 On the second issue, as a general rule, an offense causes two (2) classes of injuries. The first is the social injury produced by the criminal act which is sought to be repaired thru the imposition of the corresponding penalty, and the second is the personal injury caused to the victim of the crime which injury is sought to be compensated through indemnity which is civil in nature. 14 Thus, "every person criminally liable for a felony is also civilly liable." 15 This is the law governing the recovery of civil liability arising from the commission of an offense. Civil liability includes restitution, reparation for damage caused, and indemnification of consequential damages. 16

The offended party may prove the civil liability of an accused arising from the commission of the offense in the criminal case since the civil action is either deemed instituted with the criminal action or is separately instituted. Rule 111, Section 1 of the Revised Rules of Criminal Procedure, which became effective on December 1, 2000, provides that: SCEDaT "(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action." [Italics supplied] Rule 111, Section 2 further provides that "After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action." [Italics supplied] However, with respect to civil actions for recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission, the rule has been changed. Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. 17 There is no more need for a reservation of the right to file the independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines. "The reservation and waiver referred to refers only to the civil action for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately even without a reservation." 18 Rule 111, Section 3 reads: "Sec. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action." The changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became effective on December 1, 2000 are applicable to this case. Procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage. There are no vested rights in the rules of procedure. 19

Thus, Civil Case No. CV-94-214, an independent civil action for damages on account of the fraud committed against respondent Villegas under Article 33 of the Civil Code, may proceed independently even if there was no reservation as to its filing. aSCHIT

The Fallo WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the order dated February 21, 1997. 20 No costs. SHCaDA SO ORDERED. Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago., JJ., concur.

SECOND DIVISION [G.R. No. 104392. February 20, 1996.] RUBEN MANIAGO, petitioner, vs. THE COURT OF APPEALS (First Division), HON. RUBEN C. AYSON, in his capacity as Acting Presiding Judge, Regional Trial Court, Branch IV, Baguio City, and ALFREDO BOADO, respondents. Lauro D. Gacayan for petitioner. Domogan Lockey Orate Dao-Ayan Boquiren Adquilen Cascolin and Sinlao Law Offices for private respondent. SYLLABUS 1. REMEDIAL, LAW, ACTIONS; INDEPENDENT CIVIL ACTIONS; RIGHT TO BRING ACTION FOR DAMAGES MUST BE RESERVED IN CRIMINAL CASE. The right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. Section 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. 2. ID.; ID.; ID.; ID.; EXCEPTIONS. On the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. 3. ID.; ID.; ID.; ID.; RESERVATION DOES NOT IMPAIR, DIMINISH OR DEFEAT SUBSTANTIVE RIGHTS. The requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately. 4. ID.; ID.; ID.; ID.; PRACTICAL REASON. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the

filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code is ultimately recoverable from the accused. 5. ID.; ID.; ID.; ID.; ID.; SERVES TO IMPLEMENT PROHIBITION AGAINST DOUBLE RECOVERY FOR THE SAME ACT OR OMISSION. In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. As held in Barredo v. Garcia, the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. 6. ID.; ID.; ID.; FILING OF CIVIL ACTION AGAINST EMPLOYEE AHEAD OF CRIMINAL ACTION, AN EXPRESS RESERVATION TO INSTITUTE IT SEPARATELY. In Dulay v. Court of Appeals this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately. DECISION MENDOZA, J p: Petitioner Ruben Maniago was the owner of shuttle buses which were used in transporting employees of the Texas Instruments, (Phils.), Inc. from Baguio City proper to its plant site at the Export Processing Authority in Loakan, Baguio City. On January 7, 1990, one of his buses figured in a vehicular accident with a passenger jeepney owned by private respondent Alfredo Boado along Loakan Road, Baguio City. As a result of the accident, a criminal case for reckless imprudence resulting in damage to property and multiple physical injuries was filed on March 2, 1990 against petitioner's driver, Herminio Andaya, with the Regional Trial Court of Baguio City, Branch III, where it was docketed as Criminal Case No. 7514-R. A month later, on April 19, 1990, a civil case for damages was filed by private respondent Boado against petitioner himself. The complaint, docketed as Civil Case No. 2050-R, was assigned to Branch IV of the same court. Petitioner moved for the suspension of the proceedings in the civil case against him, citing the pendency of the criminal case against his driver. But the trial court, in its order dated August 30, 1991, denied

petitioner's motion on the ground that pursuant to the Civil Code, the action could proceed independently of the criminal action, in addition to the fact that the petitioner was not the accused in the criminal case. Petitioner took the matter on certiorari and prohibition to the Court of Appeals, maintaining that the civil action could not proceed independently of the criminal case because no reservation of the right to bring it separately had been made in the criminal case. On January 31, 1992, the Court of Appeals dismissed his petition on the authority of Garcia v. Florido, 1 and Abellana v. Marave, 2 which it held allowed a civil action for damages to be filed independently of the criminal action even though no reservation to file the same has been made. Therefore, it was held, the trial court correctly denied petitioner's motion to suspend the proceedings in the civil case. 3 Hence this petition for review on certiorari. There is no dispute that private respondent, as offended party in the criminal case, did not reserve the right to bring a separate civil action, based on the same accident, either against the driver, Herminio Andaya, or against the latter's employer, herein petitioner Ruben Maniago. The question is whether despite the absence of such reservation, private respondent may nonetheless bring an action for damages against petitioner under the following provisions of the Civil Code: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. Art. 2177 states that responsibility for fault or negligence under the above-quoted provisions is entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code. However, Rule 111 of the Revised Rules of Criminal Procedure, while reiterating that a civil action under these provisions of the Civil Code may be brought separately from the criminal action; provides that the right to bring it must be reserved. This Rule reads: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. xxx xxx xxx

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx xxx xxx

Sec. 3. When civil action may proceed independently. In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. Based on these provisions, petitioner argues that the civil action against him was impliedly instituted in the criminal action previously filed against his employee because private respondent did not reserve his right to bring this action separately. (The records show that while this case was pending in the Court of Appeals, the criminal action was dismissed on July 10, 1992 for failure of the prosecution to file a formal offer of its evidence, with the consequence that the prosecution failed to prosecute its case. Accordingly, it seems to be petitioner's argument that since the civil action to recover damages was impliedly instituted with the criminal action, the dismissal of the criminal case brought with it the dismissal of the civil action.) Private respondent admits that he did not reserve the right to institute the present civil action against Andaya's employer. He contends, however, that the rights provided in Arts. 2176 and 2177 of the Civil Code are substantive rights and, as such, their enforcement cannot be conditioned on a reservation to bring the action to enforce them separately. Private respondent cites in support of his position statements made in Abellana v. Marave, 4 Tayag v. Alcantara, 5 Madeja v. Caro, 6 and Jarantilla v. Court of Appeals, 7 to the effect that the requirement to reserve the civil action is substantive in character and, therefore, is beyond the rulemaking power of this Court under the Constitution. 8 After considering the arguments of the parties, we have reached the conclusion that the right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. I. A. To begin with, 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from

crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. 9 Thus Rule 111, 1 of the Revised Rules of Criminal Procedure expressly provides: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. B. There are statements in some cases implying that Rule 111, 1 and 3 are beyond the rulemaking power of the Supreme Court under the Constitution. A careful examination of the cases, however, will show that approval of the filing of separate civil action for damages even though no reservation of the right to institute such civil action had been reserved rests on considerations other than that no reservation is needed. In Garcia v. Florido 10 the right of an injured person to bring an action for damages even if he did not make a reservation of his action in the criminal prosecution for physical injuries through reckless imprudence was upheld on the ground that by bringing the civil action the injured parties had "in effect abandoned their right to press for recovery of damages in the criminal case. . . . Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared." 11 The statement that Rule 111, 1 of the 1964 Rules is "an unauthorized amendment of substantive law, Articles 32, 33, and 34 of the Civil Code, which do not provide for the reservation" is not the ruling of the Court but only an aside, quoted from an observation made in the footnote of a decision in another case. 12 Another case cited by private respondent in support of his contention that the civil case need not be reserved in the criminal case is Abellana v. Marave 13 in which the right of persons injured in a vehicular accident to bring a separate action for damages was sustained despite the fact that the right to bring it separately was not reserved. But the basis of the decision in that case was the fact that the filing of the civil case was equivalent to a reservation because it was made after the decision of the City Court convicting the accused had been appealed. Pursuant to Rule 123, 7 of the 1964 Rules, this had the effect of vacating the decision in the criminal case so that technically, the injured parties could still reserve their right to institute a civil action while the criminal case was pending in the Court of First Instance. The statement "the right of a party to sue for damages independently of the criminal action is a substantive right which cannot be frittered away by a construction that could render it nugatory" without raising a "serious constitutional question" 14 was thrown in only as additional support for the ruling of the Court.

On the other hand, in Madeja v. Caro 15 the Court held that a civil action for damages could proceed even while the criminal case for homicide through reckless imprudence was pending and did not have to await the termination of the criminal case precisely because the widow of the deceased had reserved her right to file a separate civil action for damages. We do not see how this case can lend support to the view of private respondent. In Jarantilla v. Court of Appeals 16 the ruling is that the acquittal of the accused in the criminal case for physical injuries through reckless imprudence on the ground of reasonable doubt is not a bar to the filing of an action for damages even though the filing of the latter action was not reserved. This is because of Art. 29 of the Civil Code which provides that "when an accused is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted." This ruling obviously cannot apply to this case because the basis of the dismissal of the criminal case against the driver is the fact that the prosecution failed to prove its case as a result of its failure to make a formal offer of its evidence. Rule 132, 34 of the Revised Rules on Evidence provides that "The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified." To the same effect are the holdings in Tayag, Sr. v. Alcantara, 17 Bonite v. Zosa 18 and Diong Bi Chu v. Court of Appeals 19 Since Art. 29 of the Civil Code authorizes the bringing of a separate civil action in case of acquittal on reasonable doubt and under the Revised Rules of Criminal Procedure such action is not required to be reserved, it is plain that the statement in these cases that to require a reservation to be made would be to sanction an unauthorized amendment of the Civil Code provisions is a mere dictum. As already noted in connection with the case of Garcia v. Florido, that statement was not the ruling of the Court but only an observation borrowed from another case. 20 The short of it is that the rulings in these cases are consistent with the proposition herein made that, on the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. Indeed the question on whether the criminal action and the action for recovery of the civil liability must be tried in a single proceeding has always been regarded a matter of procedure and, since the rulemaking power has been conferred by the Constitution on this Court, it is in the keeping of this Court. Thus the subject was provided for by G.O. No. 58, the first Rules of Criminal Procedure under the American rule. Sec. 107 of these Orders provided: The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear

and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right. This was superseded by the 1940 Rules of Court, Rule 106 of which provided: SEC. 15. Intervention of the offended party in criminal action. Unless the offended party has waived the civil action or expressly reserved the right to institute it after the termination of the criminal case, and subject to the provisions of Section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense. This Rule was amended thrice, in 1964, in 1985 and lastly in 1988. Through all the shifts or changes in policy as to the civil action arising from the same act or omission for which a criminal action is brought, one thing is clear: The change has been effected by this Court. Whatever contrary impression may have been created by Garcia v. Florido 21 and its progeny 22 must therefore be deemed to have been clarified and settled by the new rules which require reservation of the right to recover the civil liability, otherwise the action will be deemed to have been instituted with the criminal action. Contrary to private respondent's contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned that rule that such action must be reserved before it may be brought separately. Indeed, the requirement that the right to institute actions under the Civil Code separately must be reserved is not incompatible with the independent character of such actions. There is a difference between allowing the trial of civil actions to proceed independently of the criminal prosecution and requiring that, before they may be instituted at all, a reservation to bring them separately must be made. Put in another way, it is the conduct of the trial of the civil action not its institution through the filing of a complaint which is allowed to proceed independently of the outcome of the criminal case. C. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code, is ultimately recoverable from the accused. 23 In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been held subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi-delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate

and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. 24 As held in Barredo v. Garcia, 25 the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will be deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. II. Nor does it matter that the action is against the employer to enforce his vicarious liability under Art. 2180 of the Civil Code. Though not an accused in the criminal case, the employer is very much a party, as long as the right to bring or institute a separate action (whether arising from crime or from quasi delict) is not reserved. 26 The ruling that a decision convicting the employee is binding and conclusive upon the employer "not only with regard to its civil liability but also with regard to its amount because the liability of an employer cannot be separated but follows that of his employee" 27 is true not only with respect to the civil liability arising from crime but also with respect to the civil liability under the Civil Code. Since whatever is recoverable against the employer is ultimately recoverable by him from the employee, the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the employee or against his employer. Thus in Dulay v. Court of Appeals 28 this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately. WHEREFORE, the decision appealed from is REVERSED and the complaint against petitioner is DISMISSED. SO ORDERED. Regalado, Romero and Puno, JJ., concur. SECOND DIVISION [G.R. No. 104392. February 20, 1996.] RUBEN MANIAGO, petitioner, vs. THE COURT OF APPEALS (First Division), HON. RUBEN C. AYSON, in his capacity as Acting Presiding Judge, Regional Trial Court, Branch IV, Baguio City, and ALFREDO BOADO, respondents. Lauro D. Gacayan for petitioner. Domogan Lockey Orate Dao-Ayan Boquiren Adquilen Cascolin and Sinlao Law Offices for private respondent. SYLLABUS

1. REMEDIAL, LAW, ACTIONS; INDEPENDENT CIVIL ACTIONS; RIGHT TO BRING ACTION FOR DAMAGES MUST BE RESERVED IN CRIMINAL CASE. The right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. Section 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. 2. ID.; ID.; ID.; ID.; EXCEPTIONS. On the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. 3. ID.; ID.; ID.; ID.; RESERVATION DOES NOT IMPAIR, DIMINISH OR DEFEAT SUBSTANTIVE RIGHTS. The requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately. 4. ID.; ID.; ID.; ID.; PRACTICAL REASON. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code is ultimately recoverable from the accused. 5. ID.; ID.; ID.; ID.; ID.; SERVES TO IMPLEMENT PROHIBITION AGAINST DOUBLE RECOVERY FOR THE SAME ACT OR OMISSION. In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. As held in

Barredo v. Garcia, the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. 6. ID.; ID.; ID.; FILING OF CIVIL ACTION AGAINST EMPLOYEE AHEAD OF CRIMINAL ACTION, AN EXPRESS RESERVATION TO INSTITUTE IT SEPARATELY. In Dulay v. Court of Appeals this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately. DECISION MENDOZA, J p: Petitioner Ruben Maniago was the owner of shuttle buses which were used in transporting employees of the Texas Instruments, (Phils.), Inc. from Baguio City proper to its plant site at the Export Processing Authority in Loakan, Baguio City. On January 7, 1990, one of his buses figured in a vehicular accident with a passenger jeepney owned by private respondent Alfredo Boado along Loakan Road, Baguio City. As a result of the accident, a criminal case for reckless imprudence resulting in damage to property and multiple physical injuries was filed on March 2, 1990 against petitioner's driver, Herminio Andaya, with the Regional Trial Court of Baguio City, Branch III, where it was docketed as Criminal Case No. 7514-R. A month later, on April 19, 1990, a civil case for damages was filed by private respondent Boado against petitioner himself. The complaint, docketed as Civil Case No. 2050-R, was assigned to Branch IV of the same court. Petitioner moved for the suspension of the proceedings in the civil case against him, citing the pendency of the criminal case against his driver. But the trial court, in its order dated August 30, 1991, denied petitioner's motion on the ground that pursuant to the Civil Code, the action could proceed independently of the criminal action, in addition to the fact that the petitioner was not the accused in the criminal case. Petitioner took the matter on certiorari and prohibition to the Court of Appeals, maintaining that the civil action could not proceed independently of the criminal case because no reservation of the right to bring it separately had been made in the criminal case. On January 31, 1992, the Court of Appeals dismissed his petition on the authority of Garcia v. Florido, 1 and Abellana v. Marave, 2 which it held allowed a civil action for damages to be filed independently of the criminal action even though no reservation to file the same has been made. Therefore, it was held, the trial court correctly denied petitioner's motion to suspend the proceedings in the civil case. 3

Hence this petition for review on certiorari. There is no dispute that private respondent, as offended party in the criminal case, did not reserve the right to bring a separate civil action, based on the same accident, either against the driver, Herminio Andaya, or against the latter's employer, herein petitioner Ruben Maniago. The question is whether despite the absence of such reservation, private respondent may nonetheless bring an action for damages against petitioner under the following provisions of the Civil Code: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. Art. 2177 states that responsibility for fault or negligence under the above-quoted provisions is entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code. However, Rule 111 of the Revised Rules of Criminal Procedure, while reiterating that a civil action under these provisions of the Civil Code may be brought separately from the criminal action; provides that the right to bring it must be reserved. This Rule reads: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. xxx xxx xxx

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx xxx xxx

Sec. 3. When civil action may proceed independently. In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may

be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. Based on these provisions, petitioner argues that the civil action against him was impliedly instituted in the criminal action previously filed against his employee because private respondent did not reserve his right to bring this action separately. (The records show that while this case was pending in the Court of Appeals, the criminal action was dismissed on July 10, 1992 for failure of the prosecution to file a formal offer of its evidence, with the consequence that the prosecution failed to prosecute its case. Accordingly, it seems to be petitioner's argument that since the civil action to recover damages was impliedly instituted with the criminal action, the dismissal of the criminal case brought with it the dismissal of the civil action.) Private respondent admits that he did not reserve the right to institute the present civil action against Andaya's employer. He contends, however, that the rights provided in Arts. 2176 and 2177 of the Civil Code are substantive rights and, as such, their enforcement cannot be conditioned on a reservation to bring the action to enforce them separately. Private respondent cites in support of his position statements made in Abellana v. Marave, 4 Tayag v. Alcantara, 5 Madeja v. Caro, 6 and Jarantilla v. Court of Appeals, 7 to the effect that the requirement to reserve the civil action is substantive in character and, therefore, is beyond the rulemaking power of this Court under the Constitution. 8 After considering the arguments of the parties, we have reached the conclusion that the right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. I. A. To begin with, 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. 9 Thus Rule 111, 1 of the Revised Rules of Criminal Procedure expressly provides: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

B. There are statements in some cases implying that Rule 111, 1 and 3 are beyond the rulemaking power of the Supreme Court under the Constitution. A careful examination of the cases, however, will show that approval of the filing of separate civil action for damages even though no reservation of the right to institute such civil action had been reserved rests on considerations other than that no reservation is needed. In Garcia v. Florido 10 the right of an injured person to bring an action for damages even if he did not make a reservation of his action in the criminal prosecution for physical injuries through reckless imprudence was upheld on the ground that by bringing the civil action the injured parties had "in effect abandoned their right to press for recovery of damages in the criminal case. . . . Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared." 11 The statement that Rule 111, 1 of the 1964 Rules is "an unauthorized amendment of substantive law, Articles 32, 33, and 34 of the Civil Code, which do not provide for the reservation" is not the ruling of the Court but only an aside, quoted from an observation made in the footnote of a decision in another case. 12 Another case cited by private respondent in support of his contention that the civil case need not be reserved in the criminal case is Abellana v. Marave 13 in which the right of persons injured in a vehicular accident to bring a separate action for damages was sustained despite the fact that the right to bring it separately was not reserved. But the basis of the decision in that case was the fact that the filing of the civil case was equivalent to a reservation because it was made after the decision of the City Court convicting the accused had been appealed. Pursuant to Rule 123, 7 of the 1964 Rules, this had the effect of vacating the decision in the criminal case so that technically, the injured parties could still reserve their right to institute a civil action while the criminal case was pending in the Court of First Instance. The statement "the right of a party to sue for damages independently of the criminal action is a substantive right which cannot be frittered away by a construction that could render it nugatory" without raising a "serious constitutional question" 14 was thrown in only as additional support for the ruling of the Court. On the other hand, in Madeja v. Caro 15 the Court held that a civil action for damages could proceed even while the criminal case for homicide through reckless imprudence was pending and did not have to await the termination of the criminal case precisely because the widow of the deceased had reserved her right to file a separate civil action for damages. We do not see how this case can lend support to the view of private respondent. In Jarantilla v. Court of Appeals 16 the ruling is that the acquittal of the accused in the criminal case for physical injuries through reckless imprudence on the ground of reasonable doubt is not a bar to the filing of an action for damages even though the filing of the latter action was not reserved. This is because of Art. 29 of the Civil Code which provides that "when an accused is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted." This ruling obviously cannot apply to this case because the basis of the

dismissal of the criminal case against the driver is the fact that the prosecution failed to prove its case as a result of its failure to make a formal offer of its evidence. Rule 132, 34 of the Revised Rules on Evidence provides that "The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified." To the same effect are the holdings in Tayag, Sr. v. Alcantara, 17 Bonite v. Zosa 18 and Diong Bi Chu v. Court of Appeals 19 Since Art. 29 of the Civil Code authorizes the bringing of a separate civil action in case of acquittal on reasonable doubt and under the Revised Rules of Criminal Procedure such action is not required to be reserved, it is plain that the statement in these cases that to require a reservation to be made would be to sanction an unauthorized amendment of the Civil Code provisions is a mere dictum. As already noted in connection with the case of Garcia v. Florido, that statement was not the ruling of the Court but only an observation borrowed from another case. 20 The short of it is that the rulings in these cases are consistent with the proposition herein made that, on the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. Indeed the question on whether the criminal action and the action for recovery of the civil liability must be tried in a single proceeding has always been regarded a matter of procedure and, since the rulemaking power has been conferred by the Constitution on this Court, it is in the keeping of this Court. Thus the subject was provided for by G.O. No. 58, the first Rules of Criminal Procedure under the American rule. Sec. 107 of these Orders provided: The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right. This was superseded by the 1940 Rules of Court, Rule 106 of which provided: SEC. 15. Intervention of the offended party in criminal action. Unless the offended party has waived the civil action or expressly reserved the right to institute it after the termination of the criminal case, and subject to the provisions of Section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense.

This Rule was amended thrice, in 1964, in 1985 and lastly in 1988. Through all the shifts or changes in policy as to the civil action arising from the same act or omission for which a criminal action is brought, one thing is clear: The change has been effected by this Court. Whatever contrary impression may have been created by Garcia v. Florido 21 and its progeny 22 must therefore be deemed to have been clarified and settled by the new rules which require reservation of the right to recover the civil liability, otherwise the action will be deemed to have been instituted with the criminal action. Contrary to private respondent's contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned that rule that such action must be reserved before it may be brought separately. Indeed, the requirement that the right to institute actions under the Civil Code separately must be reserved is not incompatible with the independent character of such actions. There is a difference between allowing the trial of civil actions to proceed independently of the criminal prosecution and requiring that, before they may be instituted at all, a reservation to bring them separately must be made. Put in another way, it is the conduct of the trial of the civil action not its institution through the filing of a complaint which is allowed to proceed independently of the outcome of the criminal case. C. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code, is ultimately recoverable from the accused. 23 In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been held subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi-delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. 24 As held in Barredo v. Garcia, 25 the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will be deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. II. Nor does it matter that the action is against the employer to enforce his vicarious liability under Art. 2180 of the Civil Code. Though not an accused in the criminal case, the employer is very much a party, as

long as the right to bring or institute a separate action (whether arising from crime or from quasi delict) is not reserved. 26 The ruling that a decision convicting the employee is binding and conclusive upon the employer "not only with regard to its civil liability but also with regard to its amount because the liability of an employer cannot be separated but follows that of his employee" 27 is true not only with respect to the civil liability arising from crime but also with respect to the civil liability under the Civil Code. Since whatever is recoverable against the employer is ultimately recoverable by him from the employee, the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the employee or against his employer. Thus in Dulay v. Court of Appeals 28 this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately. WHEREFORE, the decision appealed from is REVERSED and the complaint against petitioner is DISMISSED. SO ORDERED. Regalado, Romero and Puno, JJ., concur. SECOND DIVISION [G.R. No. 104392. February 20, 1996.] RUBEN MANIAGO, petitioner, vs. THE COURT OF APPEALS (First Division), HON. RUBEN C. AYSON, in his capacity as Acting Presiding Judge, Regional Trial Court, Branch IV, Baguio City, and ALFREDO BOADO, respondents. Lauro D. Gacayan for petitioner. Domogan Lockey Orate Dao-Ayan Boquiren Adquilen Cascolin and Sinlao Law Offices for private respondent. SYLLABUS 1. REMEDIAL, LAW, ACTIONS; INDEPENDENT CIVIL ACTIONS; RIGHT TO BRING ACTION FOR DAMAGES MUST BE RESERVED IN CRIMINAL CASE. The right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. Section 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action.

2. ID.; ID.; ID.; ID.; EXCEPTIONS. On the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. 3. ID.; ID.; ID.; ID.; RESERVATION DOES NOT IMPAIR, DIMINISH OR DEFEAT SUBSTANTIVE RIGHTS. The requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately. 4. ID.; ID.; ID.; ID.; PRACTICAL REASON. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code is ultimately recoverable from the accused. 5. ID.; ID.; ID.; ID.; ID.; SERVES TO IMPLEMENT PROHIBITION AGAINST DOUBLE RECOVERY FOR THE SAME ACT OR OMISSION. In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. As held in Barredo v. Garcia, the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. 6. ID.; ID.; ID.; FILING OF CIVIL ACTION AGAINST EMPLOYEE AHEAD OF CRIMINAL ACTION, AN EXPRESS RESERVATION TO INSTITUTE IT SEPARATELY. In Dulay v. Court of Appeals this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the

filing of the civil action against the employer constituted an express reservation of the right to institute it separately. DECISION MENDOZA, J p: Petitioner Ruben Maniago was the owner of shuttle buses which were used in transporting employees of the Texas Instruments, (Phils.), Inc. from Baguio City proper to its plant site at the Export Processing Authority in Loakan, Baguio City. On January 7, 1990, one of his buses figured in a vehicular accident with a passenger jeepney owned by private respondent Alfredo Boado along Loakan Road, Baguio City. As a result of the accident, a criminal case for reckless imprudence resulting in damage to property and multiple physical injuries was filed on March 2, 1990 against petitioner's driver, Herminio Andaya, with the Regional Trial Court of Baguio City, Branch III, where it was docketed as Criminal Case No. 7514-R. A month later, on April 19, 1990, a civil case for damages was filed by private respondent Boado against petitioner himself. The complaint, docketed as Civil Case No. 2050-R, was assigned to Branch IV of the same court. Petitioner moved for the suspension of the proceedings in the civil case against him, citing the pendency of the criminal case against his driver. But the trial court, in its order dated August 30, 1991, denied petitioner's motion on the ground that pursuant to the Civil Code, the action could proceed independently of the criminal action, in addition to the fact that the petitioner was not the accused in the criminal case. Petitioner took the matter on certiorari and prohibition to the Court of Appeals, maintaining that the civil action could not proceed independently of the criminal case because no reservation of the right to bring it separately had been made in the criminal case. On January 31, 1992, the Court of Appeals dismissed his petition on the authority of Garcia v. Florido, 1 and Abellana v. Marave, 2 which it held allowed a civil action for damages to be filed independently of the criminal action even though no reservation to file the same has been made. Therefore, it was held, the trial court correctly denied petitioner's motion to suspend the proceedings in the civil case. 3 Hence this petition for review on certiorari. There is no dispute that private respondent, as offended party in the criminal case, did not reserve the right to bring a separate civil action, based on the same accident, either against the driver, Herminio Andaya, or against the latter's employer, herein petitioner Ruben Maniago. The question is whether despite the absence of such reservation, private respondent may nonetheless bring an action for damages against petitioner under the following provisions of the Civil Code: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. Art. 2177 states that responsibility for fault or negligence under the above-quoted provisions is entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code. However, Rule 111 of the Revised Rules of Criminal Procedure, while reiterating that a civil action under these provisions of the Civil Code may be brought separately from the criminal action; provides that the right to bring it must be reserved. This Rule reads: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. xxx xxx xxx

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. xxx xxx xxx

Sec. 3. When civil action may proceed independently. In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. Based on these provisions, petitioner argues that the civil action against him was impliedly instituted in the criminal action previously filed against his employee because private respondent did not reserve his right to bring this action separately. (The records show that while this case was pending in the Court of Appeals, the criminal action was dismissed on July 10, 1992 for failure of the prosecution to file a formal offer of its evidence, with the consequence that the prosecution failed to prosecute its case. Accordingly, it seems to be petitioner's argument that since the civil action to recover damages was

impliedly instituted with the criminal action, the dismissal of the criminal case brought with it the dismissal of the civil action.) Private respondent admits that he did not reserve the right to institute the present civil action against Andaya's employer. He contends, however, that the rights provided in Arts. 2176 and 2177 of the Civil Code are substantive rights and, as such, their enforcement cannot be conditioned on a reservation to bring the action to enforce them separately. Private respondent cites in support of his position statements made in Abellana v. Marave, 4 Tayag v. Alcantara, 5 Madeja v. Caro, 6 and Jarantilla v. Court of Appeals, 7 to the effect that the requirement to reserve the civil action is substantive in character and, therefore, is beyond the rulemaking power of this Court under the Constitution. 8 After considering the arguments of the parties, we have reached the conclusion that the right to bring an action for damages under the Civil Code must be reserved as required by Rule 111, 1, otherwise it should be dismissed. I. A. To begin with, 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule 111 before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. 9 Thus Rule 111, 1 of the Revised Rules of Criminal Procedure expressly provides: Section 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. B. There are statements in some cases implying that Rule 111, 1 and 3 are beyond the rulemaking power of the Supreme Court under the Constitution. A careful examination of the cases, however, will show that approval of the filing of separate civil action for damages even though no reservation of the right to institute such civil action had been reserved rests on considerations other than that no reservation is needed. In Garcia v. Florido 10 the right of an injured person to bring an action for damages even if he did not make a reservation of his action in the criminal prosecution for physical injuries through reckless imprudence was upheld on the ground that by bringing the civil action the injured parties had "in effect

abandoned their right to press for recovery of damages in the criminal case. . . . Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared." 11 The statement that Rule 111, 1 of the 1964 Rules is "an unauthorized amendment of substantive law, Articles 32, 33, and 34 of the Civil Code, which do not provide for the reservation" is not the ruling of the Court but only an aside, quoted from an observation made in the footnote of a decision in another case. 12 Another case cited by private respondent in support of his contention that the civil case need not be reserved in the criminal case is Abellana v. Marave 13 in which the right of persons injured in a vehicular accident to bring a separate action for damages was sustained despite the fact that the right to bring it separately was not reserved. But the basis of the decision in that case was the fact that the filing of the civil case was equivalent to a reservation because it was made after the decision of the City Court convicting the accused had been appealed. Pursuant to Rule 123, 7 of the 1964 Rules, this had the effect of vacating the decision in the criminal case so that technically, the injured parties could still reserve their right to institute a civil action while the criminal case was pending in the Court of First Instance. The statement "the right of a party to sue for damages independently of the criminal action is a substantive right which cannot be frittered away by a construction that could render it nugatory" without raising a "serious constitutional question" 14 was thrown in only as additional support for the ruling of the Court. On the other hand, in Madeja v. Caro 15 the Court held that a civil action for damages could proceed even while the criminal case for homicide through reckless imprudence was pending and did not have to await the termination of the criminal case precisely because the widow of the deceased had reserved her right to file a separate civil action for damages. We do not see how this case can lend support to the view of private respondent. In Jarantilla v. Court of Appeals 16 the ruling is that the acquittal of the accused in the criminal case for physical injuries through reckless imprudence on the ground of reasonable doubt is not a bar to the filing of an action for damages even though the filing of the latter action was not reserved. This is because of Art. 29 of the Civil Code which provides that "when an accused is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted." This ruling obviously cannot apply to this case because the basis of the dismissal of the criminal case against the driver is the fact that the prosecution failed to prove its case as a result of its failure to make a formal offer of its evidence. Rule 132, 34 of the Revised Rules on Evidence provides that "The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified." To the same effect are the holdings in Tayag, Sr. v. Alcantara, 17 Bonite v. Zosa 18 and Diong Bi Chu v. Court of Appeals 19 Since Art. 29 of the Civil Code authorizes the bringing of a separate civil action in case of acquittal on reasonable doubt and under the Revised Rules of Criminal Procedure such action is not required to be reserved, it is plain that the statement in these cases that to require a reservation to

be made would be to sanction an unauthorized amendment of the Civil Code provisions is a mere dictum. As already noted in connection with the case of Garcia v. Florido, that statement was not the ruling of the Court but only an observation borrowed from another case. 20 The short of it is that the rulings in these cases are consistent with the proposition herein made that, on the basis of Rule 111, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. Indeed the question on whether the criminal action and the action for recovery of the civil liability must be tried in a single proceeding has always been regarded a matter of procedure and, since the rulemaking power has been conferred by the Constitution on this Court, it is in the keeping of this Court. Thus the subject was provided for by G.O. No. 58, the first Rules of Criminal Procedure under the American rule. Sec. 107 of these Orders provided: The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right. This was superseded by the 1940 Rules of Court, Rule 106 of which provided: SEC. 15. Intervention of the offended party in criminal action. Unless the offended party has waived the civil action or expressly reserved the right to institute it after the termination of the criminal case, and subject to the provisions of Section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense. This Rule was amended thrice, in 1964, in 1985 and lastly in 1988. Through all the shifts or changes in policy as to the civil action arising from the same act or omission for which a criminal action is brought, one thing is clear: The change has been effected by this Court. Whatever contrary impression may have been created by Garcia v. Florido 21 and its progeny 22 must therefore be deemed to have been clarified and settled by the new rules which require reservation of the right to recover the civil liability, otherwise the action will be deemed to have been instituted with the criminal action. Contrary to private respondent's contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in

nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned that rule that such action must be reserved before it may be brought separately. Indeed, the requirement that the right to institute actions under the Civil Code separately must be reserved is not incompatible with the independent character of such actions. There is a difference between allowing the trial of civil actions to proceed independently of the criminal prosecution and requiring that, before they may be instituted at all, a reservation to bring them separately must be made. Put in another way, it is the conduct of the trial of the civil action not its institution through the filing of a complaint which is allowed to proceed independently of the outcome of the criminal case. C. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code, is ultimately recoverable from the accused. 23 In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been held subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi-delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. 24 As held in Barredo v. Garcia, 25 the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will be deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. II. Nor does it matter that the action is against the employer to enforce his vicarious liability under Art. 2180 of the Civil Code. Though not an accused in the criminal case, the employer is very much a party, as long as the right to bring or institute a separate action (whether arising from crime or from quasi delict) is not reserved. 26 The ruling that a decision convicting the employee is binding and conclusive upon the employer "not only with regard to its civil liability but also with regard to its amount because the liability of an employer cannot be separated but follows that of his employee" 27 is true not only with respect to the civil liability arising from crime but also with respect to the civil liability under the Civil Code. Since whatever is recoverable against the employer is ultimately recoverable by him from the employee, the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the employee or against his employer. Thus in Dulay v. Court of Appeals 28 this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the

right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately. WHEREFORE, the decision appealed from is REVERSED and the complaint against petitioner is DISMISSED. SO ORDERED. Regalado, Romero and Puno, JJ., concur.

EN BANC [G.R. Nos. 136317-18. November 22, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO YAOTO, accused-appellant. The Solicitor General for plaintiff-appellee. Flora C. Atilano and Brenda E. Canapi for accused-appellant. SYNOPSIS Convicted of raping his daughter and sentenced to death, appellant, on appeal, claimed: that it was impossible to remove Angeline's blouse, bra and shorts if her hands and feet were tied; that the healing lacerations in Angeline's genitals were caused by her having sexual intercourse with her boyfriend; and that considering appellant's age, he was no longer capable of maintaining an erection inside the vagina of a woman for thirty minutes. TcSHaD The Supreme Court affirmed his conviction on appeal. While the Court disfavors engaging in assumptions and conjectures, nowhere in Angeline's testimony was it mentioned that said articles of clothing were completely taken off her body; it is possible that appellant removed them but not completely. Appellant also assumed that he was no longer capable of maintaining an erection inside the vagina of a woman for thirty minutes, but Angeline only gave an estimate of "about thirty minutes." Whether Angeline engaged in sexual intercourse with her boyfriend is of no consequence. As found by the trial court, he had carnal knowledge of his daughter against her will and the latter positively identified him as the perpetrator of the crime. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL COURT THEREON ARE GENERALLY NOT DISTURBED ON APPEAL; EXCEPTIONS; CASE AT BAR. Whether Angeline engaged in sexual intercourse with her boyfriend is of no consequence. The fact remains that, as found by the trial court, accused-appellant had carnal knowledge of his daughter without her consent and against her will. Angeline positively identified her own father as the perpetrator of the dastardly deed. . . . The trial court believed her and there is no reason for this Court not to respect the trial court's assessment of Angeline's credibility as a witness. Ordinarily, this Court will not disturb the findings of the trial court as to the credibility of the witness considering that it is in a better position to observe her candor and behavior on the witness stand. Evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses and their demeanor, conduct, and attitude, especially under cross-examination. Its assessment is respected unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case. None is present in the instant case. 2. ID.; ID.; ID.; A YOUNG GIRL WOULD NOT LIKELY CONCOCT A STORY OF DEFLORATION; CASE AT BAR. No woman would concoct a story of defloration, allow an examination of her private parts and

submit herself to public humiliation and scrutiny via an open trial, if her sordid tale was not true and her sole motivation was not to have the culprit apprehended and punished. A young girl's revelation that she was raped, coupled with her voluntary submission to medical examination and her willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity by, as in this case, her own father, cannot be so easily dismissed as a mere concoction. Courts usually give credence to the testimony of a girl who is a victim of sexual assault, particularly if it constitutes incestuous rape because, normally, no person would be willing to undergo the humiliation of a public trial and to testify on the details of her ordeal were it not to condemn an injustice. 3. CRIMINAL LAW; REVISED PENAL CODE; ARTICLE 335 THEREOF AS AMENDED BY R.A. NO. 7659; FAILURE TO ALLEGE THE VICTIM'S RELATIONSHIP TO THE ACCUSED CONCURRENTLY WITH HER MINORITY BARS CONVICTION FOR RAPE IN ITS QUALIFIED FORM; CASE AT BAR. This Court, however, does not agree with the trial court's imposition of the death penalty against accused-appellant. The attendant circumstances enumerated in Section 11 of R.A. No. 7659 are in the nature of qualifying circumstances. . . . While the qualifying circumstance of minority was alleged in the two Informations, accused-appellant's relationship with Angeline was not. The failure to allege in the information the relationship of the victim to the offender concurrently with the minority of the victim bars accusedappellant's conviction for rape in its qualified form. The requisite for the complete allegations on the particulars of the indictment is based on the right of the accused to be fully informed of the nature of the charges against him so that he may adequately prepare for his defense pursuant to the due process clause of the Constitution. ACaDTH DECISION YNARES-SANTIAGO, J p: Accused-appellant Eduardo Yaoto was charged with two (2) counts of rape in the following Informations which read, thus: CAETcH Criminal Case No. 6203-V-97: That on or about June 2, 1997 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of force and intimidation employed upon the person of one ANGELINE YAOTO, 17 years old, did then and there willfully, unlawfully and feloniously have sexual intercourse with the said ANGELINE YAOTO, against her will and without her consent. Criminal Case No. 6204-V-97: That on or about June 7, 1997 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of force and intimidation employed upon the person of one ANGELINE YAOTO, 17 years old, did then and there willfully, unlawfully and feloniously have sexual intercourse with the said ANGELINE YAOTO, against her will and without her consent.

Accused-appellant pleaded "not guilty" to both counts. Thereafter, trial on the merits ensued. The trial court found the following facts: At 3:00 in the afternoon of June 2, 1997, seventeen-year old Angeline Yaoto and her father, herein accused-appellant Eduardo Yaoto, were the only persons left in the house of Angelina's grandmother, located at No. 4598 Chico Street, Gen. T. de Leon, Valenzuela, Metro Manila. Accused-appellant suddenly hit Angeline with a belt, then tied her hands to the sofa with a piece of rope, removed her shorts, panties, blouse and bra. When Angeline was completely naked, accused-appellant mashed her breasts and kissed her. Thereafter, accused-appellant undressed himself, spread Angeline's legs, placed himself on top of her and inserted his penis into her vagina. Angeline's resistance proved futile as accused-appellant easily overpowered her. After thirty minutes, accused-appellant untied Angeline, put back her dress and threatened her with harm in case she reveals what had just transpired between them. IDASHa After the rape incident, accused-appellant would always carry an ice pick and keep watch on Angeline. Even when she had to go to the comfort room, accused-appellant would follow and watch her. He would even chain her whenever he went out to buy food. At 10:00 in the morning of June 7, 1997, Angeline was sleeping in the sala when accused-appellant lay down beside her, touched her thighs and whispered his intention to have sexual intercourse with her again. Just like the first time, he mauled her but this time, he tied her feet when she refused. He then undressed her and again proceeded to have sexual intercourse with her. Having satisfied his lust, accused-appellant laid down on a mat and placed a bolo beside him. He ordered complainant to lie down with him. When accused-appellant fell asleep, Angeline seized the opportunity to escape. She proceeded to the "Parada," flagged down a tricycle and directed the driver to take her to the Valenzuela Police Station, where she narrated her ordeal at the hands of her father, causing the police authorities to apprehend accused-appellant. In her medico-genital examination, Dr. Armie M. Soreta-Umil of the National Bureau of Investigation, certified that Angeline suffered genital and extragenital injuries. 1 Angeline's sexual orifice bore lacerations on the fourchette and hymen. The hymenal laceration was at 6:00 position. There were contusions on different parts of her body revealing that Angeline was not only sexually but also physically assaulted. Accused-appellant denied the charges against him. He claimed that in October 1996, he and Angeline moved into his mother's house where his brother and family also resided. At that time, he was jobless while his wife was working in Saudi Arabia. Accused-appellant described his relationship with Angeline as typical of a father-daughter relationship. He was, however, against Angeline's relationship with her boyfriend, with whom she eloped sometime in 1996 when she was still in high school.

Accused-appellant claimed that Angeline went on vacation from May 25, 1997 to June 2, 1997, but he did not know where she spent her vacation. Angeline allegedly returned only on June 2, 1997 at about 3:00 in the afternoon, and handed him a marriage license. He tore the paper and in his anger slapped Angeline. On June 8, 1997, accused-appellant asked Angeline to pawn her wristwatch so they would have money to spend on food. When she failed to pawn her wristwatch, accused-appellant told her that had she not eloped, she might still have a job, to which Angeline retorted: "Why, Papa, is it my obligation to feed you?" Insulted and angered, accused-appellant beat Angeline with his belt. On June 9, 1997, Angeline was nowhere to be found. Accused-appellant claimed that on that date, Angeline went to the police station accompanied by her boyfriend and reported that she was raped by her father. The trial court rendered a decision, 2 the dispositive portion of which reads: WHEREFORE, finding the accused EDUARDO YAOTO GUILTY beyond reasonable doubt of the offense charged: CRIM. CASE NO. 6203-V-97 Accused Eduardo Yaoto is hereby sentenced to DEATH. He is likewise condemned to indemnify the victim the amount of P50,000.00. CRIM. CASE NO. 6204-V-97 Accused Eduardo Yaoto is hereby sentenced to DEATH. He is ordered to indemnify the victim the amount of P50,000.00. Costs against the accused. Let the complete records of the case be immediately forwarded to the Honorable Supreme Court for automatic review pursuant to Article 47 of the Revised Penal Code as amended by Section 22 of Republic Act 7659. Hence, this automatic review. Accused-appellant contends that the trial court erred: I. II. III. IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE COMPLAINANT; IN NOT GIVING EVEN AN IOTA OF WEIGHT TO THE TESTIMONY OF THE ACCUSED; AND IN IMPOSING THE DEATH PENALTY IN THE CASE AT BAR. HTCaAD

Basically, accused-appellant assails the credibility of Angeline. He argues that based on Angeline's testimony: 1) it is improbable for accused-appellant to forcibly remove her blouse and bra while her hands were tied during the June 2, 1997 incident; 2) it is improbable for accused-appellant to remove her shorts and panty while her feet were tied together during the June 7, 1997 incident; 3) it is almost

impossible for accused-appellant to spread the legs of Angeline and insert his private organ into her vagina while her feet were tied with a rope; and 4) it is highly improbable for accused-appellant to dress Angeline before untying her. In addition, accused-appellant submits that "it is beyond normal human condition for a man's penis to remain erect for thirty minutes inside the vagina of a woman during sexual intercourse, taking into consideration the age of the accused in this case." 3 Accused-appellant also questions Angeline's testimony that he guarded her whenever she went to the comfort room, chained her whenever he went out to buy food, and did not allow her to go out of the house from June 2, 1997 to June 7, 1997. According to accused-appellant, those were "unnatural behavior" that would have aroused the suspicion of household members, particularly, his brother's family. 4 Likewise, accused-appellant assails Angeline's testimony that he had a bolo and an ice pick with which he threatened her. He maintains that Angeline's testimony on the matter was doubtful considering the failure of the prosecution to offer said items in evidence, including the rope with which he allegedly tied her. Lastly, accused-appellant tries to discredit the medical findings on Angeline. He insists that the healing lacerations in complainant's genitals were caused by the latter's having sexual intercourse with her boyfriend. The arguments of accused-appellant are not meritorious. Accused-appellant asserts that it was highly improbable for him to have forcibly removed Angeline's blouse and bra since her hands were tied with a rope on a sofa. The validity of this argument, however, rests on the assumption that to remove the blouse and bra means to take them off completely as what accused-appellant claims. At most, the argument is merely an assumption which is not supported by the evidence on record. While this Court disfavors engaging in assumptions and conjectures, it is possible that accused-appellant removed Angeline's blouse and bra but not completely. According to Angeline, during the June 2, 1997 incident, accused-appellant undressed her after her hands were tied. It was not specified however whether she was undressed completely or only partially. In fact in her affidavit, she stated under oath the following: . . . [N]aganap po ito noong June 2, 1997 sa ganap na ika-alas 3:00 ng hapon sa loob ng aming bahay, pinaggugulpi po ako at saka ako po ay hiniga sa sofa, itinali po ang aking mga kamay at ang ginawa po niya sa akin ay ginulpi at pinalo ng sinturon at habang ako po ay nanlalata na sa kagugulpi ay inililis po ang aking damit at nilamas ang aking suso, . . . 5 In Filipino, the term ililis means to roll up, pull or lift up. 6 Hence, what Angeline was actually referring to when she declared "inililis po ang aking damit" was that her blouse and bra were only either rolled up,

pulled up or lifted up to the point where her breasts were exposed to make it possible for accusedappellant to mash them. Consistently, she also testified that after raping her, accused-appellant put her dress back on her before untying her. This means that her blouse and bra were not completely taken off her body. LexLib During the second rape incident, accused-appellant likewise assumes that for Angeline to be able to remove her shorts and panty, said articles of clothing should be taken off completely. Thus, he argues that it would be impossible to remove Angeline's shorts and panties if her feet were tied. However, this is a mere assumption, which does not find support in the recorded evidence. As testified by Angeline: Q: A: Q: A: Q: A: Q: A: And how were you mauled? Also the same. He beat me with a belt and tied my feet. To where were your hands and feet tied? My feet. In other words, you would like to convey to this court that your feet were tied to each other? Yes, sir. What about your hands? My hands were being held by his two hands.

Q: And after your feet were tied to each other, and after your hands were being held by the accused, what happened next? A: Q: A: Q: A: Q: A: Q: A: He undressed me again. What was the first part of your clothing that was removed by the accused? My shorts. And what was the next? Panty. Then? Blouse. And after everything was removed from you, what did the accused do? He did what he did. He mashed my breast and simultaneously kissed me. 7 (emphasis supplied)

Nowhere in Angeline's testimony was it mentioned that her shorts and panty were completely taken off her body. All she said was that accused-appellant removed her shorts and panty.

Accused-appellant likewise makes an assumption when he said that it is "beyond normal human condition for a man's penis to remain erect for thirty minutes inside the vagina of a woman during sexual intercourse, taking into consideration the age of the accused in this case." 8 He assumes that accused-appellant, considering his age, was no longer capable of maintaining an erection inside the vagina of a woman for thirty minutes. It should be noted, however, that Angeline only gave an estimate of "about thirty minutes." Accused-appellant further assails Angeline's credibility by arguing that if the rape incidents did really happen, then family members would have been alerted to her "unnatural behavior" during the period between the two rape incidents. There is nothing unnatural in Angeline's behavior from June 2, 1997 to June 7, 1997, the period between the two rape incidents, that would have alerted other family members. On the contrary, what appeared to be unusual and therefore unnatural was accusedappellant's own behavior. During that time, he guarded Angeline while armed with deadly weapons, chained her whenever he went out to buy something, and prevented her from going out of the house. In a further attempt to erode Angeline's credibility, accused-appellant points out the failure of the prosecution to offer the bolo, ice pick, the chains and even the rope used to tie her as physical evidence. Needless to say, the prosecution is not bound to offer them in evidence if only to prove the truthfulness or credibility of Angeline's testimony. The prosecution has the discretion as to what testimonial, physical or documentary evidence to offer. In fact, it has the option to choose only those pieces by evidence it deems necessary to establish its cause. Moreover, those items are not really necessary or crucial in proving the element of force and intimidation, as said element has been amply established by Angeline's testimony, which was in fact, corroborated by the physical examination conducted by Medico-Legal Officer Dr. Armie Soreta-Umil. Accused-appellant next tries to cast doubt as to who caused the lacerations in her genitals. He attributes the healing lacerations in Angeline's genitals to her having sexual intercourse with her boyfriend. TacESD Whether Angeline engaged in sexual intercourse with her boyfriend is of no consequence. The fact remains that, as found by the trial court, accused-appellant had carnal knowledge of his daughter without her consent and against her will. Angeline positively identified her own father as the perpetrator of the dastardly deed. As observed by the trial court: Angeline Yaoto's testimony is clear and positive and reliable. . . . Angeline's testimony is sincere. There is no sign that it was fabricated or she falsely testified against her own father/accused. Her testimony was forthright in narrating how she was sexually abused by her father on June 2, 1997 and June 7, 1997 in the house located at No. 4598 Chico St., Gen. T. de Leon, Valenzuela, Metro Manila. She was straight in pointing to her own father as her abuser. 9 The trial court believed her and there is no reason for this Court not to respect the trial court's assessment of Angeline's credibility as a witness. Ordinarily, this Court will not disturb the findings of the

trial court as to the credibility of the witness considering that it is in a better position to observe her candor and behavior on the witness stand. Evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses and their demeanor, conduct, and attitude, especially under cross-examination. Its assessment is respected unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case. 10 None is present in the instant case. EHaCID Besides, no woman would concoct a story of defloration, allow an examination of her private parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid tale was not true and her sole motivation was not to have the culprit apprehended and punished. A young girl's revelation that she was raped, coupled with her voluntary submission to medical examination and her willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity by, as in this case, her own father, cannot be so easily dismissed as a mere concoction. Courts usually give credence to the testimony of a girl who is a victim of sexual assault, particularly if it constitutes incestuous rape because, normally, no person would be willing to undergo the humiliation of a public trial and to testify on the details of her ordeal were it not to condemn an injustice. 11 This Court, however, does not agree with the trial court's imposition of the death penalty against accused-appellant. The attendant circumstances enumerated in Section 11 of R.A. No. 7659 are in the nature of qualifying circumstances. The pertinent provisions of Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, state that: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. . . . . While the qualifying circumstance of minority was alleged in the two Informations, accused-appellant's relationship with Angeline was not. The failure to allege in the information the relationship of the victim to the offender concurrently with the minority of the victim bars accused-appellant's conviction for rape in its qualified form. The requisite for the complete allegations on the particulars of the indictment is based on the right of the accused to be fully informed of the nature of the charges against him so that he may adequately prepare for his defense pursuant to the due process clause of the Constitution. 12 This Court notes that the trial court only awarded civil indemnity to the victim. In addition to civil indemnity, moral damages may likewise be awarded to rape victims. 13 Moral damages are awarded in rape cases without need of showing that the victim suffered from mental, physical, and psychological trauma as these are too obvious to require recital by the victim during the trial. 14 This Court, however, cannot award exemplary damages since the aggravating circumstance of relationship was not stated in the two Informations, hence, there is no legal basis to award such. 15

WHEREFORE, the Decision of the Regional Trial Court, Branch 171, Valenzuela, Metro Manila, finding accused-appellant guilty beyond reasonable doubt of the crime of rape, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant is found GUILTY of two (2) counts of simple rape and is sentenced to suffer the penalty of reclusion perpetua for each count. In addition to the award of indemnity ex delicto amounting to P50,000.00 in each case, the amount of P50,000.00 is also awarded as moral damages, for each of the two (2) counts of rape. Costs de oficio. STaCIA SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez and Carpio, JJ., concur.

EN BANC [G.R. No. 141881. November 21, 2001.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VIRGILIO BERNABE y RAFOL, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYNOPSIS This is an automatic review of the decision of the trial court finding appellant Virgilio Bernabe guilty of raping his 17-year-old daughter Maria Esnelia Bernabe, on October 29, 1998. SEIDAC Appellant harped on the fact that the victim's hymen was intact after the alleged rape. He argued that no rape was committed as indicated in the finding of the medico-legal officer whose examination of the victim showed that her hymen has not been injured. He also pointed out that it was impossible for him to have raped her daughter without being detected since his family lives in a very congested place. The Supreme Court had examined the record of the case, especially the victim's testimony, and found no reason to doubt that she was telling the truth when she declared that her father had raped her. The absence of external injury on her does not necessarily negate the commission of rape. Even the fact that the medical report states that her hymen is still intact does not negate rape. It is well settled that full penetration is not even required, as proof of entrance showing the slightest penetration of the male organ within the labia or pudendum of the female organ is sufficient. The Court also discredited appellant's argument that the place where the rape was committed was so congested and packed with people that any untoward incident would be well nigh impossible. There is no rule that rape can be committed only in seclusion. The Court has repeatedly declared that "lust is no respecter of time and place." The Court affirmed the guilt of the appellant but modified the damages awarded to the victim and downgraded the penalty to reclusion perpetua for failure of the prosecution to sufficiently prove the minority of the victim. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NO YOUNG GIRL WOULD CONCOCT A SORDID TALE OF SO SERIOUS A CRIME AS SEXUAL MOLESTATION AT THE HAND OF HER OWN FATHER IF HER MOTIVE WERE OTHER THAN A FERVENT DESIRE TO SEEK JUSTICE; CASE AT BAR. We have examined the record of the case, especially Maria Esnelia's testimony, and we find no reason to doubt that she was telling the truth when she declared that her father had raped her. Indeed, no young girl would concoct a sordid tale of so serious a crime as sexual molestation at the hands of her own father, undergo gynecological examination, subject herself to the stigma and embarrassment of a public trial, if her motive were other than a fervent desire to seek justice (People vs. Sacapao, 313 SCRA 650 [1999];

People vs. Buenviaje, G.R. No. 130949, April 4, 2001). That Maria Esnelia was only being used by her aunts to get back at her father is too flimsy a reason to inspire belief. IESDCH 2. ID.; ID.; ID.; ABSENT ARBITRARINESS AND OVERSIGHT, THE APPELLATE COURT WILL NOT DEPART FROM TRIAL COURT'S CONCLUSIONS WITH RESPECT THERETO. It is also well-entrenched in our jurisprudence that when it comes to the issue of credibility, this Court, as any other appellate court, would ordinarily defer to the assessment and evaluation given by the trial court, for only trial courts are in so unique a position as to be able to observe that elusive and insurmountable evidence of the witness' deportment on the witness stand while testifying (People vs. Barbera, G.R. No. 130609, May 30, 2000). Only when such assessment is tainted with arbitrariness or oversight of some fact or circumstance of weight and influence will the appellate courts depart from the trial court's factual conclusions (People vs. Balgos, G.R. No. 126115, January 26, 2000). No such arbitrariness or oversight appears in the case at hand. As can be gleaned from the record of the case, Maria Esnelia was candid and forthright in her narration of the harrowing experience she underwent at the hands of her own father. 3. CRIMINAL LAW; RAPE; NOT NEGATED BY ABSENCE OF EXTERNAL INJURY; FRESHLY BROKEN HYMEN IS NOT ESSENTIAL ELEMENT OF THE CRIME; CASE AT BAR. Appellant harps on the fact that Maria Esnelia's hymen was intact after the alleged rape. He further contends that there were no signs of injury that would prove that he indeed raped his daughter. In People vs. de la Costa (G.R. No. 133904, October 5, 2000), we reiterated an old doctrine to the effect that the absence of external injury does not necessarily negate the commission of rape. Lack of lacerated wounds does not also negate sexual intercourse. A freshly broken hymen is not an essential element of rape. Even the fact that the medical report states that the hymen of the victim is still intact does not negate rape (People vs. Bawang, G.R. No. 131942, October 5, 2000). It is well-settled that full penetration is not even required, as proof of entrance showing the slightest penetration of the male organ within the labia or pudendum of the female organ is sufficient. (People vs. Tismo, 204 SCRA 535 [1991]; People vs. Clopino, 290 SCRA 432 [1998]) 4. ID.; ID.; LUST IS NO RESPECTER OF TIME AND PLACE. Hackneyed and discredited too is the argument that the place where the rape was committed is so congested and packed with people that any untoward incident would be well-nigh impossible. The Court may take judicial notice of the fact that among poor couples with big families living in small quarters, copulation does not seem to be a problem despite the presence of other persons around them. There is no rule that rape can be committed only in seclusion. We have repeatedly declared that "lust is no respecter of time and place" (People vs. Labayne, G.R. No. 132170, April 20, 2001 citing People vs. Ignacio, 233 SCRA 1 [1991]). ETHaDC 5. ID.; ID.; SPECIAL QUALIFYING CIRCUMSTANCES OF MINORITY AND RELATIONSHIP; MUST BE ALLEGED AND PROVED TO JUSTIFY IMPOSITION OF DEATH PENALTY; PENALTY OF DEATH REDUCED TO RECLUSION PERPETUA WHERE MINORITY OF THE VICTIM ALTHOUGH ALLEGED WAS NOT SUFFICIENTLY ESTABLISHED; CASE AT BAR. Before the death penalty can be properly imposed for the crime of rape in accordance with Republic Act No. 7659, an allegation of the complainant's age as well as filial relationship with the accused is essential. Both minority and actual relationship between the parties

must be alleged and proved, otherwise, barred is any conviction for rape in its qualified form (People vs. Labayne, supra). In the case at bar, while the Information alleged both the minority of the victim and her relationship with appellant, the prosecution failed to prove the victim's age when it presented only the baptismal certificate of Maria Esnelia and not her birth certificate. It is elementary that a baptismal certificate only proves the fact of baptism but not the circumstances of birth. Without essential proof on the matter of the date of birth of complainant, or other convincing evidence in the absence thereof, we cannot rule with certainty whether Maria Esnelia was indeed a minor at the time of the commission of the crime, especially so because she does not appear to be obviously a minor, as she allegedly was already 17 years old at the time of the assault. Verily, with our young girls now looking, acting, and dressing up more maturely, one would be hard put to conclude with any measure of certainty, that a budding lass is 13 or 18 years of age. Withal, the penalty of death imposed by the trial court on appellant should be reduced to reclusion perpetua as provided for by law (Article 266-A, Revised Penal Code; People vs. del Mundo, Sr., G.R. No. 132065, April 3, 2001). 6. CIVIL LAW; DAMAGES; CIVIL INDEMNITY OF P50,000.00 AND MORAL DAMAGES OF P50,000.00 AWARDED TO RAPE VICTIM IN LINE WITH CURRENT JURISPRUDENCE; AWARD OF EXEMPLARY DAMAGES; REDUCED TO P25,000.00 IN LINE WITH PREVAILING JURISPRUDENCE. The trial court likewise erred in awarding moral damages in the amount of P75,000.00 and exemplary damages amounting to P50,000.00. In line with current jurisprudence, rape victims are entitled to civil indemnity of P50,000.00 and moral damages of P50,000.00 only (People vs. Aca-ac, G.R. No. 142500, April 20, 2001). The award of exemplary damages is sustained but in the reduced amount of P25,000.00 also in consonance with prevailing jurisprudence (People vs. Bares, G.R. Nos. 137762-65, March 27, 2001). HAcaCS/ DECISION MELO, J p: In an Information dated October 30, 1998, accused-appellant was charged with the crime of rape allegedly committed as follows: That on or about the 29th day of October, 1998 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Virgilio Bernabe y Rafol, by means of force and intimidation, employed upon the person of complainant Maria Esnelia Bernabe y Javier, his daughter, a 17 year old minor, did then and there wilfully, unlawfully and feloniously have carnal knowledge with said private complainant, against her will and consent. Contrary to law. (p. 13, Rollo.) Upon arraignment, accused-appellant pleaded 'not guilty.' Thereafter, trial ensued. The People's case is succinctly summarized by the Office of the Solicitor General in its Appellee's Brief as follows:

On October 29, 1998, around 1:30 o'clock in the morning, Maria Esnelia Bernabe was sleeping with her sister in a room of their house located at No. 1919-D Leveriza St., Pasay City, when her father (herein appellant) came home 'bangag' or very drunk (p. 9, TSN, December 4, 1999). Appellant entered said room, approached Maria Esnelia and started kissing her nape as well as other parts of her body. Then, appellant removed her panty and inserted his penis into her vagina. She resisted by pushing him but to no avail. Appellant succeeded in satisfying his beastly desires on his own daughter just like what happened in the previous years starting 1994 (pp. 7-8, ibid). Maria Esnelia could not take it anymore so she reported the incident to her cousin, Cristina Martin (p. 12, ibid; p. 16, TSN, December 11, 1998). Later, she also told her aunts, Marcelina and Analyn Bernabe, about it (p. 16, ibid). At 2:00 o'clock in the morning of the same day, she was accompanied by her aunts to the Pasay City police headquarters, where she lodged a complaint for rape against appellant and executed a sworn statement (Exhibit A; p. 5, TSN, December 4, 1998; p. 18, TSN, December 11, 1998). At 4:00 o'clock in the morning, policemen came to Maria Esnelia's house and arrested appellant (p. 19, TSN, December 11, 1998). Later that day, Maria Esnelia was examined by Dra. Anabelle Soliman (pp. 5-6, TSN, December 14, 1998). In her testimony, Dra. Soliman revealed, thus: Q. And based on your findings and conclusions on the victim stated when interviewed by you that she was sexually abused sometime during the period 1995 up to 1998. Now, based on your findings, would it be compatible on the said allegation? A. My conclusions was that, I did not find any injuries on the hymen, as well as on the outside genital parts of the victim, and the opening of the hymen is wide enough to accommodate the average size of a male organ without producing a hymenal injury. (pp. 7-8, TSN, December 14, 1998) Appellant, on the other hand, denied raping his own daughter. He testified that Maria Esnelia charged him with rape because he resented her boyfriend who for sometime slept in their house. He also depicted her daughter as a rebel and an ingrate who played hooky in school and neglected her studies despite the fact that he works hard to send her to school, and her elder brother had to stop schooling just so she can continue with her studies. Appellant also claimed that his two sisters assisted his daughter in filing the rape case against him because of a land dispute between them. His sisters allegedly wanted to get back at him by using his own daughter through this case. It was also argued that no rape was committed as indicated in the finding of the medico-legal officer whose examination of complainant showed that her hymen has not been injured. Appellant pointed out too that his family lives in a very congested place with complainant sharing her room with a younger sister, for which cause it was impossible for him to have raped Maria Esnelia without being detected.

On January 29, 2000, the trial court handed down its judgment of conviction, disposing: IN VIEW OF ALL THE FOREGOING, the Court opines that the prosecution has proven the guilt of the accused Virgilio Bernabe y Rafol for the crime of Rape as defined and penalized under Article 335 of the Revised Penal Code as amended by RA 7659 and the Court hereby sentences the accused Virgilio Bernabe y Rafol to suffer the penalty of death and to indemnify the complainant P75,000.00, moral and exemplary damages in the amount of P50,000.00. SO ORDERED. (p. 45, Rollo.) Hence, the instant automatic review. We have examined the record of the case, especially Maria Esnelia's testimony, and we find no reason to doubt that she was telling the truth when she declared that her father had raped her. Indeed, no young girl would concoct a sordid tale of so serious a crime as sexual molestation at the hands of her own father, undergo gynecological examination, subject herself to the stigma and embarrassment of a public trial, if her motive were other than a fervent desire to seek justice (People vs. Sacapao, 313 SCRA 650 [1999]; People vs. Buenviaje, G.R. No. 130949, April 4, 2001). That Maria Esnelia was only being used by her aunts to get back at her father is too flimsy a reason to inspire belief. AaSCTD It is also well-entrenched in our jurisprudence that when it comes to the issue of credibility, this Court, as any other appellate court, would ordinarily defer to the assessment and evaluation given by the trial court, for only trial courts are in so unique a position as to be able to observe that elusive and insurmountable evidence of the witness' deportment on the witness stand while testifying (People vs. Babera, G.R. No. 130609, May 30, 2000). Only when such assessment is tainted with arbitrariness or oversight of some fact or circumstance of weight and influence will the appellate courts depart from the trial court's factual conclusions (People vs. Balgos, G.R. No. 126115, January 26, 2000). No such arbitrariness or oversight appears in the case at hand. As can be gleaned from the record of the case, Maria Esnelia was candid and forthright in her narration of the harrowing experience she underwent at the hands of her own father. Appellant harps on the fact that Maria Esnelia's hymen was intact after the alleged rape. He further contends that there were no signs of injury that would prove that he indeed raped his daughter. In People vs. de la Cuesta (G.R. No. 133904, October 5, 2000), we reiterated an old doctrine to the effect that the absence of external injury does not necessarily negate the commission of rape. Lack of lacerated wounds does not also negate sexual intercourse. A freshly broken hymen is not an essential element of rape. Even the fact that the medical report states that the hymen of the victim is still intact does not negate rape (People vs. Bawang, G.R. No. 131942, October 5, 2000). It is well-settled that full penetration is not even required, as proof of entrance showing the slightest penetration of the male organ within the labia or pudendum of the female organ is sufficient. (People vs. Tismo, 204 SC RA 535 [1991]; People vs. Clopino, 290 SCRA 432 [1998])

Hackneyed and discredited too is the argument that the place where the rape was committed is so congested and packed with people that any untoward incident would be well-nigh impossible. The Court may take judicial notice of the fact that among poor couples with big families living in small quarters, copulation does not seem to be a problem despite the presence of other persons around them. There is no rule that rape can be committed only in seclusion. We have repeatedly declared that "lust is no respecter of time and place" (People vs. Labayne, G.R. No. 132170, April 20, 2001 citing People vs. Ignacio, 233 SCRA 1 [1991]). EASIHa However, before the death penalty can be properly imposed for the crime of rape in accordance with Republic Act No. 7659, an allegation of the complainant's age as well as filial relationship with the accused is essential. Both minority and actual relationship between the parties must be alleged and proved, otherwise, barred is any conviction for rape in its qualified form (People vs. Labayne, supra). In the case at bar, while the Information alleged both the minority of the victim and her relationship with appellant, the prosecution failed to prove the victim's age when it presented only the baptismal certificate of Maria Esnelia and not her birth certificate. It is elementary that a baptismal certificate only proves the fact of baptism but not the circumstances of birth. Without essential proof on the matter of the date of birth of complainant, or other convincing evidence in the absence thereof, we cannot rule with certainty whether Maria Esnelia was indeed a minor at the time of the commission of the crime, especially so because she does not appear to be obviously a minor, as she allegedly was already 17 years old at the time of the assault. Verily, with our young girls now looking, acting, and dressing up more maturely, one would be hard put to conclude with any measure of certainty, that a budding lass is 13 or 18 years of age. Withal, the penalty of death imposed by the trial court on appellant should be reduced to reclusion perpetua as provided for by law (Article 266-A, Revised Penal Code; People vs. del Mundo, Sr., G.R. No. 132065, April 3, 2001). The trial court likewise erred in awarding moral damages in the amount of P75,000.00 and exemplary damages amounting to P50,000.00. In line with current jurisprudence, rape victims are entitled to civil indemnity of P50,000.00 and moral damages of P50,000.00 only (People vs. Aca-ac, G.R. No. 142500, April 20, 2001). The award of exemplary damages is sustained but in the reduced amount of P25,000.00 also in consonance with prevailing jurisprudence (People vs. Bares, G.R. Nos. 137762-65, March 27, 2001). WHEREFORE, the decision under review is hereby AFFIRMED with the MODIFICATION that the penalty imposed on appellant is downgraded to reclusion perpetua, and with the awards for civil indemnity, moral damages, and exemplary damages reduced to P50,000.00 for the first two, and P25,000.00 for the last. No special pronouncement is made as to costs. cEAaIS SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez and Carpio, JJ., concur.

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G.R. No. 137457 November 21, 2001 PEOPLE OF THE PHIL. vs. ROSAURO SIA, ET AL.