Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 178607

December 5, 2012

DANTE LA. JIMENEZ, in his capacity as President and

representative of UNLAD SHIPPING & MANAGEMENT
CORPORATION, Petitioner,
vs.
HON. EDWIN SORONGON (in his capacity as Presiding
Judge of Branch 214 of the Regional Trial Court of
Mandaluyong City), SOCRATES ANTZOULATOS,
CARMEN ALAMIL, MARCELl GAZA and MARKOS
AVGOUSTIS, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari[ 1] filed by
Dante La. Jimenez (petitioner) to challenge the twin
resolutions of the Court of Appeals ( CA) dated November
23, 20062 and June 28, 20073 in CA-G.R. SP No. 96584,
which dismissed the petitioner's petition for certiorari and
denied his motion for reconsideration, respectively.
The Factual Antecedents
The petitioner is the president of Unlad Shipping &
Management Corporation, a local manning agency, while
Socrates Antzoulatos, Carmen Alamil, Marceli Gaza, and
Markos Avgoustis (respondents) are some of the listed

incorporators of Tsakos Maritime Services, Inc. (TMSI),

another local manning agency.
On August 19, 2003, the petitioner filed a complaintaffidavit4 with the Office of the City Prosecutor of
Mandaluyong City against the respondents for syndicated
and large scale illegal recruitment. 5 The petitioner alleged
that the respondents falsely represented their stockholdings
in TMSIs articles of incorporation6 to secure a license to
operate as a recruitment agency from the Philippine
Overseas Employment Agency (POEA).
On October 9, 2003, respondents Antzoulatos and Gaza filed
their joint counter-affidavit denying the complaint-affidavits
allegations.7 Respondents Avgoustis and Alamil did not
submit any counter-affidavit.
In a May 4, 2004 resolution,8 the 3rd Assistant City
Prosecutor recommended the filing of an information for
syndicated and large scale illegal recruitment against the
respondents. The City Prosecutor approved his
recommendation and filed the corresponding criminal
information with the Regional Trial Court (RTC) of
Mandaluyong City (docketed as Criminal Case No. MC048514 and raffled to Branch 212) presided by Judge Rizalina
T. Capco-Umali.
Subsequently, in a December 14, 2004 resolution, the City
Prosecutor reconsidered the May 4, 2004 resolution and filed
a motion with the RTC to withdraw the information.9 The
petitioner and respondents Antzoulatos and Gaza filed their
opposition10 and comment to the opposition, respectively.
In an August 1, 2005 resolution,11 the RTC denied the motion
to withdraw information as it found the existence of
probable cause to hold the respondents for trial.12 Thus, the

RTC ordered the issuance of warrants of arrest against the

respondents.
On August 26, 2005, respondents Antzoulatos and Gaza filed
an omnibus motion for reconsideration and for deferred
enforcement of the warrants of arrest.13 In a September 2,
2005 order,14 the RTC denied the omnibus motion,
reiterating that the trial court is the sole judge on whether a
criminal case should be dismissed or not.
On September 26, 2005, respondent Alamil filed a motion
for judicial determination of probable cause with a request
to defer enforcement of the warrants of arrest.15
On September 29, 2005, the petitioner filed his opposition
with motion to expunge, contending that respondent Alamil,
being a fugitive from justice, had no standing to seek any
relief and that the RTC, in the August 1, 2005 resolution,
already found probable cause to hold the respondents for
trial.16
In a September 30, 2005 order,17 the RTC denied respondent
Alamils motion for being moot and academic; it ruled that it
had already found probable cause against the respondents
in the August 1, 2005 resolution, which it affirmed in the
September 2, 2005 order.

respondent Alamils motion for reconsideration and the

petitioners motion to expunge. The case was later re-raffled
to Branch 214, presided by Judge Edwin D. Sorongon.
The RTC Rulings
In its March 8, 2006 order,21 the RTC granted respondent
Alamils motion for reconsideration. It treated respondent
Alamils motion for judicial determination as a motion to
dismiss for lack of probable cause. It found: (1) no evidence
on record to indicate that the respondents gave any false
information to secure a license to operate as a recruitment
agency from the POEA; and (2) that respondent Alamil
voluntarily submitted to the RTCs jurisdiction through the
filing of pleadings seeking affirmative relief. Thus, the RTC
dismissed the case, and set aside the earlier issued
warrants of arrest.
On April 3, 2006, the petitioner moved for reconsideration,
stressing the existence of probable cause to prosecute the
respondents and that respondent Alamil had no standing to
seek any relief from the RTC.22
On April 26, 2006, respondent Alamil moved to expunge the
motion for being a prohibited pleading since the motion did
not have the public prosecutors conformity.23

On October 10, 2005, respondent Alamil moved for

reconsideration and for the inhibition of Judge Capco-Umali,
for being biased or partial.18 On October 25, 2005, the
petitioner filed an opposition with a motion to expunge,
reiterating that respondent Alamil had no standing to seek
relief from the RTC.19

In its May 10, 2006 order,24 the RTC denied the petitioners
motion for reconsideration, finding that the petitioner
merely reiterated arguments in issues that had been finally
decided. The RTC ordered the motion expunged from the
records since the motion did not have the public
prosecutors conformity.

In a January 4, 2006 order,20 Judge Capco-Umali voluntarily

inhibited herself from the case and did not resolve

On May 19, 2006, the petitioner filed a notice of appeal. 25

On May 30, 2006, respondent Alamil moved to expunge the

petitioners notice of appeal since the public prosecutor did
not authorize the appeal and the petitioner had no civil
interest in the case.26
On June 27, 2006, the petitioner filed his comment to the
motion to expunge, claiming that, as the offended party, he
has the right to appeal the RTC order dismissing the case;
the respondents fraudulent acts in forming TMSI greatly
prejudiced him.27

The Petition
The petitioner argues that he has a legal standing to assail
the dismissal of the criminal case since he is the private
complainant and a real party in interest who had been
directly damaged and prejudiced by the respondents illegal
acts; respondent Alamil has no legal standing to seek any
relief from the RTC since she is a fugitive from justice.
The Case for the Respondents

In its August 7, 2006 joint order,28 the RTC denied the

petitioners notice of appeal since the petitioner filed it
without the conformity of the Solicitor General, who is
mandated to represent the People of the Philippines in
criminal actions appealed to the CA. Thus, the RTC ordered
the notice of appeal expunged from the records.

The respondents32 submit that the petitioner lacks a legal

standing to assail the dismissal of the criminal case since
the power to prosecute lies solely with the State, acting
through a public prosecutor; the petitioner acted
independently and without the authority of a public
prosecutor in the prosecution and appeal of the case.

On October 18, 2006, the petitioner elevated his case to the

CA via a Rule 65 petition for certiorari assailing the RTCs
March 8, 2006, May 10, 2006, and August 7, 2006 orders.

The Issue

The CA Ruling
In its November 23, 2006 resolution, 29 the CA dismissed
outright the petitioners Rule 65 petition for lack of legal
personality to file the petition on behalf of the People of the
Philippines. It noted that only the Office of the Solicitor
General (OSG) has the legal personality to represent the
People, under Section 35(1), Chapter 12, Title III, Book IV of
the 1987 Administrative Code. It also held that the
petitioner was not the real party in interest to institute the
case, him not being a victim of the crime charged to the
respondents, but a mere competitor in their recruitment
business. The CA denied30 the motion for
reconsideration31 that followed.

The case presents to us the issue of whether the CA

committed a reversible error in dismissing outright the
petitioners Rule 65 petition for certiorari for lack of legal
personality to file the petition on behalf of the People of the
Philippines.
Our Ruling
The petition lacks merit.
The petitioner has no legal personality to assail the
dismissal of the criminal case
It is well-settled that "every action must be prosecuted or
defended in the name of the real party in interest[,]" "who
stands to be benefited or injured by the judgment in the

suit, or by the party entitled to the avails of the

suit."33 Interest means material interest or an interest in
issue to be affected by the decree or judgment of the case,
as distinguished from mere interest in the question
involved.34 By real interest is meant a present substantial
interest, as distinguished from a mere expectancy, or a
future, contingent, subordinate or consequential
interest.35 When the plaintiff or the defendant is not a real
party in interest, the suit is dismissible.36

proceedings pending in the CA or in this Court. This ruling

has been repeatedly stressed in several cases38 and
continues to be the controlling doctrine.

Procedural law basically mandates that "[a]ll criminal

actions commenced by complaint or by information shall be
prosecuted under the direction and control of a public
prosecutor."37 In appeals of criminal cases before the CA and
before this Court, the OSG is the appellate counsel of the
People, pursuant to Section 35(1), Chapter 12, Title III, Book
IV of the 1987 Administrative Code. This section explicitly
provides:

In this case, the petitioner has no legal personality to assail

the dismissal of the criminal case since the main issue
raised by the petitioner involved the criminal aspect of the
case, i.e., the existence of probable cause. The petitioner
did not appeal to protect his alleged pecuniary interest as
an offended party of the crime, but to cause the
reinstatement of the criminal action against the
respondents. This involves the right to prosecute which
pertains exclusively to the People, as represented by the
OSG.40

SEC. 35. Powers and Functions. The Office of the Solicitor

General shall represent the Government of the Philippines,
its agencies and instrumentalities and its officials and
agents in any litigation, proceeding, investigation or matter
requiring the services of lawyers. . . . It shall have the
following specific powers and functions:
(1) Represent the Government in the Supreme Court
and the Court of Appeals in all criminal proceedings;
represent the Government and its officers in the Supreme
Court and Court of Appeals, and all other courts or tribunals
in all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a
party. (emphasis added)
The People is the real party in interest in a criminal case and
only the OSG can represent the People in criminal

While there may be rare occasions when the offended party

may be allowed to pursue the criminal action on his own
behalf39 (as when there is a denial of due process), this
exceptional circumstance does not apply in the present
case.

Respondent Alamil voluntarily submitted to the RTCs

jurisdiction
As a rule, one who seeks an affirmative relief is deemed to
have submitted to the jurisdiction of the court. Filing
pleadings seeking affirmative relief constitutes voluntary
appearance, and the consequent jurisdiction of one's person
to the jurisdiction of the court.41
Thus, by filing several motions before the RTC seeking the
dismissal of the criminal case, respondent Alamil voluntarily
submitted to the jurisdiction of the RTC. Custody of the law
is not required for the adjudication of reliefs other than an
application for bail.42

WHEREFORE, we hereby DENY the appeal. The twin

resolutions of the CoUJt of Appeals dated November 23,
2006 and June 28, 2007 in CAG. R. SP No. 96584
are AFFIRMED. Costs against the petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 175602

January 18, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
PO2 EDUARDO VALDEZ and EDWIN VALDEZ, AccusedAppellants.
DECISION
BERSAMIN, J.:
The sufficiency of the allegations of the facts and
circumstances constituting the elements of the crime
charged is crucial in every criminal prosecution because of
the ever-present obligation of the State to duly inform the
accused of the nature and cause of the accusation.
The accused were tried for and convicted of three counts of
murder on January 20, 2005 by the Regional Trial Court
(RTC), Branch 86, in Quezon City. They were penalized
with reclusion perpetua for each count, and ordered to pay
to the heirs of each victim P93,000.00 as actual
damages, P50,000.00 as civil indemnity, andP50,000.00 as
moral damages.
On appeal, the Court of Appeals (CA) upheld the RTC on July
18, 2006, subject to the modification that each accused pay
to the heirs of each victim P50,000.00 as civil
indemnity, P50,000.00 as moral damages, P25,000.00 as

temperate damages, and P25,000.00 as exemplary

damages, plus costs of suit.1
The accused came to the Court to seek acquittal. On May 9,
2007, however, accused Edwin Valdez filed a motion to
withdraw appeal, which the Court granted on October 10,
2007, thereby deeming Edwins appeal closed and
terminated.2 Hence, the Court hereby resolves only the
appeal of PO2 Eduardo Valdez.
Antecedents
The Office of the City Prosecutor of Quezon City charged the
two accused in the RTC with three counts of murder for the
killing of Ferdinand Sayson, Moises Sayson, Jr., and Joselito
Sayson, alleging:
Criminal Case No. 00-90718
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with
intent to kill, qualified with treachery, evident premeditation
and abuse of superior strength did, then and there, willfully,
unlawfully and feloniously, assault, attack and employ
personal violence upon the person of one FERDINAND
SAYSON Y DABOCOL by then and there shooting him with a
gun, hitting him on his head, thereby inflicting upon him
serious and mortal wound which was the direct and
immediate cause of his death, to the damage and prejudice
of the heirs of the said FERDINAND SAYSON Y DABOCOL.
CONTRARY TO LAW.3
Criminal Case No. 00-90719

That on or about the 1st day of March, 2000, in Quezon City,

Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with
intent to kill, qualified with treachery, evident premeditation
and abuse of superior strength did, then and there, willfully,
unlawfully and feloniously, assault, attack and employ
personal violence upon the person of one MOISES SAYSON,
JR. Y DABOCOL by then and there shooting him several
times with a gun, hitting him on his face and chest, thereby
inflicting upon him serious and mortal wound which was the
direct and immediate cause of his death, to the damage and
prejudice of the heirs of the said MOISES SAYSON, JR. Y
DABOCOL.
CONTRARY TO LAW.4
Criminal Case No. 00-90720
That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together,
confederating with and mutually helping each other, with
intent to kill, qualified with treachery, evident premeditation
and abuse of superior strength did, then and there, willfully,
unlawfully and feloniously, assault, attack and employ
personal violence upon the person of one JOSELITO SAYSON
Y DABOCOL by then and there shooting him with a gun,
hitting him on his back, thereby inflicting upon him serious
and mortal wound which was the direct and immediate
cause of his death, to the damage and prejudice of the heirs
of the said JOSELITO SAYSON Y DABOCOL.
CONTRARY TO LAW.5
The Office of the Solicitor General (OSG) summarized the
States evidence of guilt as follows:

On March 1, 2000, at around 8:00 oclock in the evening,

Estrella Sayson, (Estrella) was at the canteen (which also
includes a jai alai betting station) located at 77 Corregidor
Street, Bago Bantay, Quezon City. Estrella was preparing for
the celebration of the birthday of her second husband,
Wilfredo Lladones, which was held later in the evening.
Estrellas son, the deceased Moises Sayson, a former
policeman, and his wife, Susan Sayson (Susan) owned the
said canteen and managed the betting station. At about
9:00 oclock in the evening, Estrellas other sons Joselito
Sayson (Joselito) and Ferdinand Sayson (Ferdinand) arrived
at the canteen to greet their stepfather. Estrellas family and
other visitors ate and enjoyed themselves at the party (pp.
3-5, TSN, November 29, 2000; pp. 3-6, TSN, February 6,
2001; pp. 3-4, TSN, July 31, 2001).
At about 10:00 oclock in the evening, the celebration was
interrupted with the arrival of Eduardo and Edwin, who
alighted from a motorcycle in front of the jai alai fronton.
Eduardo and Edwin asked the jai alai teller, Jonathan Rubio
(Jonathan), to come out. Jonathan was then attending to
customers who were buying jai alai tickets. Moises
approached Eduardo and Edwin and tried to reason with
them. Estrella saw Eduardo and Edwin armed with guns. She
tried to prevent Moises from going near Edwin and Eduardo.
Moises did not heed his mothers warning. He went out and
advised Eduardo and Edwin not to force Jonathan to go out
of the fronton. Estrella then heard one of the accusedappellants threaten Moises with the words "Gusto mo unahin
na kita?" Moises replied "huwag." Successive shots were
thereafter heard. Moises fell and was continuously fired
upon even after he was sprawled on the ground. Ferdinand
immediately approached the scene to help his brother
Moises. Ferdinand, however was shot on the left temporal
portion of his head and fell. Somebody told Joselito to run
away, but he was hit at the back while running. Joselito fell
on a burger machine (pp. 7-11, TSN, November 29, 2000;

pp. 6-10, TSN, February 6, 2001; pp. 5-10, TSN, July 31,
2001; pp. 2-6, September 5, 2001).
After shooting the Sayson brothers, Eduardo and Edwin
escaped from the scene of the crime (p. 10, TSN, February
6, 2001).6
In turn, the appellants brief filed by the Public Attorneys
Office (PAO) rendered the version of the accused, to wit:
xxx [A]t about 10:00 oclock in the evening, Heidi dela Cruz
(a barbecue vendor) and Noel Valad-on (a tricycle driver)
saw accused Edwin Valdez alight from a bus. The latter
bought P100.00 worth of barbecue from Heidi then
proceeded towards home. He was walking along Corregidor
Street when Heidi saw Jun Sayson (Moises), then holding a
gun, block his (Edwins) way. Jun Sayson poked a gun at
accused Edwin, shouting, Putang-ina mo, papatayin kita.
The latter raised both his hands and said Wag kuya Jun,
maawa ka.
Accused Eduardo Valdez (a policeman), then carrying his 6year old child, was walking when his way was likewise
blocked but this time, by the siblings Joselito and Ferdinand
as well as their stepfather. Joselito twisted one of his
(Eduardos) hands at his back while his (Joseltios)
stepfather held the other. Ferdinand fired a gun but accused
Eduardo was able to evade. Joselito, who was positioned
behind Eduardo, was hit. He slumped and bled. He asked
Heidi to inform his family that he was hit. Heidi ran away.
She saw Jun (Moises) and accused Edwin grappling.
Thereafter, she heard gunshots.
Accused Eduardo ducked during the firing. He pretended to
be dead. Ferdinand stopped firing. Accused Eduardos son
approached him crying. Accused thereafter, brought his son

home, took his service firearm and on his way back to the
scene of the incident when he met General Jesus Almadin,
his commanding officer (CO). He reported the incident and
sought for advice. He was told to take a rest and go back on
(sic) the following day. He accompanied his CO to Camp
Crame. He surrendered his firearm to Sr./Insp. Rodolfo Araza
of the CIU. Accused Edwin Valdez likewise surrendered (TSN
dated 05 February 2003; pp. 3-9; 12 March 2003, pp. 2-16;
11 August 2003, pp. 2-18, 1 September 2003, pp. 3-10; 15
October 2003, pp. 2-8; 03 December 2003, pp. 2-4; 18
February 2004, pp. 2-9; 24 March 2004, pp. 3-9; 10 April
2004, pp. 2-7; 07 June 2004, pp. 2-25).7
The RTC convicted the two accused of three counts of
murder and sentenced them to suffer reclusion perpetuafor
each count of murder.8
On appeal, the CA affirmed the convictions. 9
Issues
In this appeal, PO2 Valdez assails the credibility of the
States witnesses by pointing to inconsistencies and
weaknesses in their testimonies; challenges the finding of
conspiracy between the accused; and contends that the
State did not establish the qualifying circumstance of
treachery.10
Ruling
The Court affirms the convictions, but holds PO2 Valdez
guilty only of three counts of homicide due to the failure of
the informations to allege the facts and circumstances
constituting treachery.

First of all, PO2 Valdez insists that the States witnesses

(Susan Sayson, Marites Sayson and Estrella Sayson) did not
really see the events as they transpired; and that they
wrongly identified the two accused as the persons who had
shot and killed the victims; and that the victims were
themselves the aggressors.
The CA rejected PO2 Valdezs insistence, holding thus:
In their Brief, the accused-appellants desperately attempted
to discredit the testimonies of witnesses Susan, Marites and
Estrella. They claimed that a perusal of Estrellas testimony
would cast doubt on her statement that she actually
witnessed the shooting incident. The accused-appellants
claimed that Estrella Sayson did not actually see who
allegedly threatened her son Moises with the words "Gusto
mo unahin na kita?" The accused-appellants also claimed
that Estrella also failed to see who shot Moises. They
likewise assailed the testimonies of Susan and Marites as
being incredible. They said that Susan testified that she was
in a state of shock after the incident and that she could not
speak; yet she was still able to give her statement on the
same day the incident allegedly happened. The accusedappellants also said that Marites testified that she was only
about five (5) meters away from them (accused-appellants)
when they alighted from their motorcycle; but that,
"interestingly," she only learned from her husband Joselito
that the accused-appellants were looking for a certain
Jonathan.
We are not persuaded. In her testimony, Estrella
satisfactorily explained her purported failure to see who
between the accused-appellants threatened Moises with the
words "Gusto mo unahin kita?" and who shot her son
Moises, by pointing out that she was then facing Moises
because she was preventing him from approaching the
accused-appellants, who were armed with short firearms.

Estrella categorically stated that she saw the accusedappellants alight from their motorcycle on March 1, 2000.
She could not have been mistaken about the identity of the
accused-appellants for the simple reason that they are her
neighbors and that their (the accused-appellants) father is
her "cumpadre." When the incident happened, the accusedappellants were about eight (8) to ten (10) meters away
from where she and her son Moises were standing. She
also saw with her own eyes how her son Moises fell after
she heard successive bursts of gunshots (approximately [9]
shots) coming from where the accused-appellants were
standing.11
Considering that the CA thereby affirmed the trial courts
findings of fact, its calibration of the testimonies of
witnesses and its assessment of their probative weight, as
well as its conclusions, the Court accords high respect, if not
conclusive effect, to the CAs findings.12 The justification for
this is that trial court was in the best position to assess the
credibility of witnesses by virtue of its firsthand observation
of the demeanor, conduct and attitude of the witnesses
under grilling examination. The only time when a reviewing
court was not bound by the trial courts assessment of
credibility arises upon a showing of a fact or circumstance of
weight and influence that was overlooked and, if considered,
could affect the outcome of the case.13 No such fact or
circumstance has been brought to the Courts attention.
It is not trite to remind that a truth-telling witness is not
always expected to give an error-free testimony because of
the lapse of time and the treachery of human memory; and
that inaccuracies noted in testimony may even suggest that
the witness is telling the truth and has not been
rehearsed.14 To properly appreciate the worth of testimony,
therefore, the courts do not resort to the individual words or
phrases alone but seek out the whole impression or effect of
what has been said and done.15

Secondly, PO2 Valdez argues that the three victims were

themselves the aggressors who had attacked to kill him and
his brother. He narrated during the trial that he dodged the
bullet fired from the gun of Ferdinand (one of the victims),
causing the bullet to fatally hit Joselito (another victim); that
he played dead to avoid being shot at again, and walked
away with his terrified son only after the way was clear for
them to leave; and that he heard gunshots while Edwin and
Jun (the third victim) grappled for control of a gun, and
assumed that the gunshots had hit and killed Jun and
Ferdinand.16
The argument of PO2 Valdez is bereft of factual merit.
It is fundamental that the question as to who between the
accused and the victim was the unlawful aggressor is a
question of fact addressed to the trial court for
determination based on the evidence on record. 17 The
records show that the version of PO2 Valdez was contrary to
the established facts and circumstances showing that he
and Edwin, then armed with short firearms, had gone to
the jai alai betting station of Moises to confront Jonathan
Rubio, the teller of the betting booth then busily attending
to bettors inside the booth; that because the accused were
calling to Rubio to come out of the booth, Moises
approached to pacify them, but one of them threatened
Moises: Gusto mo unahin na kita?; that immediately after
Moises replied: Huwag!, PO2 Valdez fired several shots at
Moises, causing him to fall to the ground; that PO2 Valdez
continued firing at the fallen Moises; that Ferdinand (another
victim) rushed to aid Moises, his brother, but Edwin shot
Ferdinand in the head, spilling his brains; that somebody
shouted to Joselito (the third victim) to run; that Edwin also
shot Joselito twice in the back; and that Joselito fell on a
burger machine. The shots fired at the three victims were
apparently fired from short distances.

The testimonial accounts of the States witnesses entirely

jibed with the physical evidence. Specifically, the medicolegal evidence showed that Ferdinand had a gunshot wound
in the head;18 that two gunshot wounds entered Joselitos
back and the right side of his neck;19 and that Moises
suffered a gunshot wound in the head and four gunshot
wounds in the chest.20 Also, Dr. Wilfredo Tierra of the NBI
Medico-Legal Office opined that the presence of marginal
abrasions at the points of entry indicated that the gunshot
wounds were inflicted at close range.21 Given that physical
evidence was of the highest order and spoke the truth more
eloquently than all witnesses put together,22 the congruence
between the testimonial recollections and the physical
evidence rendered the findings adverse to PO2 Valdez and
Edwin conclusive.1avvphi1
Thirdly, conspiracy exists when two or more persons come
to an agreement concerning the commission of a felony and
decide to commit the felony.23 Proof of the actual agreement
to commit the crime need not be direct because conspiracy
may be implied or inferred from their acts. 24 Herein, both
lower courts deduced the conspiracy between the accused
from the mode and manner in which they perpetrated the
killings. We are satisfied that their deduction was warranted.
Based on the foregoing, PO2 Valdez cannot now avoid
criminal responsibility for the fatal shooting by Edwin of
Ferdinand and Joselito. Both accused were convincingly
shown to have acted in concert to achieve a common
purpose of assaulting their unarmed victims with their guns.
Their acting in concert was manifest not only from their
going together to the betting station on board a single
motorcycle, but also from their joint attack that PO2 Valdez
commenced by firing successive shots at Moises and
immediately followed by Edwins shooting of Ferdinand and
Joselito one after the other. It was also significant that they

10

fled together on board the same motorcycle as soon as they

had achieved their common purpose.
To be a conspirator, one did not have to participate in every
detail of the execution; neither did he have to know the
exact part performed by his co-conspirator in the execution
of the criminal acts.25 Accordingly, the existence of the
conspiracy between PO2 Valdez and Edwin was properly
inferred and proved through their acts that were indicative
of their common purpose and community of interest. 26
And, fourthly, it is unavoidable for the Court to pronounce
PO2 Valdez guilty of three homicides, instead of three
murders, on account of the informations not sufficiently
alleging the attendance of treachery.
Treachery is the employment of means, methods, or forms
in the execution of any of the crimes against persons which
tend to directly and specially insure its execution, without
risk to the offending party arising from the defense which
the offended party might make.27 It encompasses a wide
variety of actions and attendant circumstances, the
appreciation of which is particular to a crime committed.
Corollarily, the defense against the appreciation of a
circumstance as aggravating or qualifying is also varied and
dependent on each particular instance. Such variety
generates the actual need for the State to specifically aver
the factual circumstances or particular acts that constitute
the criminal conduct or that qualify or aggravate the liability
for the crime in the interest of affording the accused
sufficient notice to defend himself.
It cannot be otherwise, for, indeed, the real nature of the
criminal charge is determined not from the caption or
preamble of the information, or from the specification of the
provision of law alleged to have been violated, which are

mere conclusions of law, but by the actual recital of the

facts in the complaint or information.28 In People v.
Dimaano,29 the Court elaborated:
For complaint or information to be sufficient, it must state
the name of the accused; the designation of the offense
given by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party;
the approximate time of the commission of the offense, and
the place wherein the offense was committed. What is
controlling is not the title of the complaint, nor the
designation of the offense charged or the particular law or
part thereof allegedly violated, these being mere
conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts
therein recited. The acts or omissions complained of must
be alleged in such form as is sufficient to enable a person of
common understanding to know what offense is intended to
be charged, and enable the court to pronounce proper
judgment. No information for a crime will be sufficient if it
does not accurately and clearly allege the elements of the
crime charged. Every element of the offense must be
stated in the information. What facts and
circumstances are necessary to be included therein
must be determined by reference to the definitions
and essentials of the specified crimes. The
requirement of alleging the elements of a crime in
the information is to inform the accused of the nature
of the accusation against him so as to enable him to
suitably prepare his defense. The presumption is that
the accused has no independent knowledge of the
facts that constitute the offense. [emphasis supplied]
The averments of the informations to the effect that the two
accused "with intent to kill, qualified with treachery, evident
premeditation and abuse of superior strength did xxx
assault, attack and employ personal violence upon" the

11

victims "by then and there shooting [them] with a gun,

hitting [them]" on various parts of their bodies "which
[were] the direct and immediate cause of [their] death[s]"
did not sufficiently set forth the facts and circumstances
describing how treachery attended each of the killings. It
should not be difficult to see that merely averring the killing
of a person by shooting him with a gun, without more, did
not show how the execution of the crime was directly and
specially ensured without risk to the accused from the
defense that the victim might make. Indeed, the use of the
gun as an instrument to kill was not per se treachery, for
there are other instruments that could serve the same lethal
purpose. Nor did the use of the term treachery constitute a
sufficient averment, for that term, standing alone, was
nothing but a conclusion of law, not an averment of a fact.
In short, the particular acts and circumstances constituting
treachery as an attendant circumstance in murder were
missing from the informations.
To discharge its burden of informing him of the charge, the
State must specify in the information the details of the crime
and any circumstance that aggravates his liability for the
crime. The requirement of sufficient factual averments is
meant to inform the accused of the nature and cause of the
charge against him in order to enable him to prepare his
defense. It emanates from the presumption of innocence in
his favor, pursuant to which he is always presumed to have
no independent knowledge of the details of the crime he is
being charged with. To have the facts stated in the body of
the information determine the crime of which he stands
charged and for which he must be tried thoroughly accords
with common sense and with the requirements of plain
justice, for, as the Court fittingly said in United States v. Lim
San: 30
From a legal point of view, and in a very real sense, it is of
no concern to the accused what is the technical name of the

crime of which he stands charged. It in no way aids him in a

defense on the merits. xxx. That to which his attention
should be directed, and in which he, above all things
else, should be most interested, are the facts
alleged. The real question is not did he commit a
crime given in the law some technical and specific
name, but did he perform the acts alleged in the
body of the information in the manner therein set
forth. If he did, it is of no consequence to him, either
as a matter of procedure or of substantive right, how
the law denominates the crime which those acts
constitute. The designation of the crime by name in
the caption of the information from the facts alleged
in the body of that pleading is a conclusion of law
made by the fiscal. In the designation of the crime
the accused never has a real interest until the trial
has ended. For his full and complete defense he need
not know the name of the crime at all. It is of no
consequence whatever for the protection of his
substantial rights. The real and important question to
him is, "Did you perform the acts alleged in the
manner alleged?" not "Did you commit a crime named
murder." If he performed the acts alleged, in the
manner stated, the law determines what the name of
the crime is and fixes the penalty therefor. It is the
province of the court alone to say what the crime is
or what it is named. xxx. (emphasis supplied)
A practical consequence of the non-allegation of a detail
that aggravates his liability is to prohibit the introduction or
consideration against the accused of evidence that tends to
establish that detail. The allegations in the information are
controlling in the ultimate analysis. Thus, when there is a
variance between the offense charged in the information
and that proved, and the offense as charged is included in
or necessarily includes the offense proved, the accused shall
be convicted of the offense proved included in the offense

12

charged, or of the offense charged included in the offense

proved.31 In that regard, an offense charged necessarily
includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the
information, constitute the latter; an offense charged is
necessarily included in the offense proved when the
essential ingredients of the former constitute or form part of
those constituting the latter.32

SO ORDERED.

We now fix the penalty for each count of homicide.

Pursuant to Article 249 of the Revised Penal Code, the
penalty for homicide is reclusion temporal.33 There being no
circumstances modifying criminal liability, the penalty is
applied in its medium period (i.e., 14 years, 8 months and 1
day to 17 years and 4 months). Under the Indeterminate
Sentence Law, the minimum of the indeterminate sentence
is taken from prision mayor, and the maximum from the
medium period of reclusion temporal. Hence, the Court
imposes the indeterminate sentence of 10 years of prision
mayor as minimum to 17 years of reclusion temporal as
maximum for each count of homicide.
WHEREFORE, the decision of the Court of Appeals
promulgated on July 18, 2006 is MODIFIED by finding PO2
Eduardo Valdez guilty beyond reasonable doubt of three
counts of HOMICIDE, and sentencing him to suffer for each
count the indeterminate sentence of 10 years of prision
mayor as minimum to 17 years of reclusion temporal as
maximum; and to pay to the respective heirs of the late
Ferdinand Sayson, Moises Sayson, Jr., and Joselito Sayson
the amounts of P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and P25,000.00 as temperate damages.
The accused shall pay the costs of suit.

13

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172035

July 4, 2012

FERNANDO Q. MIGUEL, Petitioner,

vs.
THE HONORABLE SANDIGANBAYAN, Respondent.
DECISION
BRION, J.:
Before the Court is a petition for certiorari under Rule
651 filed by Fernando Q. Miguel (petitioner), assailing the
January 25, 2006 and March 27, 2006 resolutions2 of the
Sandiganbayan. These resolutions (i) ordered the
petitioners suspension from public office and (ii) denied the
petitioners motion for reconsideration of the suspension
order.
THE ANTECEDENT FACTS
On May 29, 1996, then Vice Mayor Mercelita M. Lucido and
other local officials3 of Koronadal City, South Cotabato filed a
letter-complaint with the Office of the OmbudsmanMindanao (Ombudsman)4 charging the petitioner, among
others,5 with violation of Republic Act (R.A.) No. 3019, in
connection with the consultancy services for the
architectural aspect, the engineering design, and the
construction supervision and management of the proposed
Koronadal City public market (project).6

In a June 27, 1996 order, the Ombudsman directed the

petitioner, among others, to submit his counter-affidavit. On
October 23, 1996, after moving for an extension, the
petitioner filed his counter-affidavit.7 In its July 29, 1999
resolution, the Ombudsman found probable cause against
the petitioner and some private individuals for violation of
R.A. No. 3019 and against the petitioner alone for
Falsification of Public Document under Article 171, par. 4 of
the Revised Penal Code.8
On March 1, 2000, the Ombudsman filed the corresponding
informations with the Sandiganbayan.9 The information for
violation of Section 3(e) of R.A. No. 3019 reads:
That on 10 January 1995 or sometime prior or subsequent
thereto, in the Municipality of Koronadal, South Cotabato,
Philippines, and within the jurisdiction of this Honorable
Court, the [petitioner], a high ranking public officer in his
capacity as former Municipal Mayor of Koronadal, South
Cotabato, and as such while in the performance of his
official functions, committing the offense in relation to his
office, taking advantage of his official position, conspiring
and confederating with the private [individuals]
xxx acting with evident bad faith and manifest partiality, did
then and there willfully, unlawfully and criminally give
unwarranted benefits and advantages to said [accused], by
inviting them to participate in the prequalification of
consultants to provide the Detailed Architectural &
Engineering Design and Construction Supervision and
Management of the proposed Koronadal Public Market,
without causing the publication of said invitation in a
newspaper of general circulation, thereby excluding other
consultants from participating in said
prequalification.10 (Emphases and underscoring added)
On motions separately filed by two of the petitioners coaccused,11 the Sandiganbayan ordered the Office of the

14

Special Prosecutor (OSP) to conduct a reinvestigation. On

August 21, 2000, the petitioner, through counsel, followed
suit and orally moved for a reinvestigation, which the
Sandiganbayan likewise granted. The Sandiganbayan gave
the petitioner ten (10) days within which to file his counteraffidavit with the OSP.12
Instead of submitting his counter-affidavit, the petitioner
asked13 the Sandiganbayan for a thirty-day extension to
submit his counter-affidavit. Shortly before the expiry of the
extension requested, the petitioner asked14 the OSP for an
additional thirty-day period to file his counter-affidavit.
Despite the two extensions asked and granted, the
petitioner asked the OSP anew for a twenty-day extension
period.15
Despite the extension period asked and given, the petitioner
failed to file his counter-affidavit, prompting Prosecutor
Norberto B. Ruiz to declare that the petitioner had waived
his right to submit countervailing evidence (April 25, 2001
resolution). On July 31, 2001, then Ombudsman Aniano
Desierto approved the resolution.16
On August 7, 2001, Prosecutor Ruiz asked the
Sandiganbayan for the arraignment and trial of the
petitioner and of the other accused private individuals.17
On August 6, 2002, after several extensions sought and
granted, the petitioner filed a Motion to Quash and/or
Reinvestigation for the criminal cases against him. On
February 18, 2003, the Sandiganbayan denied the
petitioners motion because of the pending OSP
reinvestigation this, despite the OSPs earlier termination
of the reinvestigation for the petitioners continuous failure
to submit his counter-affidavit.18 The petitioner did not
question the denial of his motion.

On November 3, 2004, the petitioner was arraigned; he

pleaded not guilty in both criminal cases.19
On April 28, 2005, the OSP filed a Motion to Suspend [the
petitioner] Pendente Lite. On June 27, 2005, the petitioner
filed his "Vigorous Opposition" based on the "obvious and
fatal defect of the [i]nformation" in failing to allege that the
giving of unwarranted benefits and advantages was done
through manifest partiality, evident bad faith or gross
inexcusable negligence.20
On January 25, 2006, the Sandiganbayan promulgated the
assailed resolution21 suspending the petitioner pendente lite

WHEREFORE, PREMISES CONSIDERED, the Prosecutions

Motion is GRANTED. As prayed for, the Court hereby orders
the suspension of [the petitioner] from his position as City
Mayor, Koronadal City, South Cotabato, and from any other
public position he now holds. His suspension shall be for a
period of ninety (90) days only.22
On February 2, 2006, the petitioner moved for
reconsideration of his suspension order and demanded for a
pre-suspension hearing.23 The Sandiganbayan denied his
motion,24 prompting him to file this certiorari petition to
challenge the validity of his suspension order.
THE PETITION
The petitioner claims that the Sandiganbayan gravely
abused its discretion in ordering his suspension despite the
failure of the information to allege that the giving of
unwarranted benefits and advantages by the petitioner was
made through "manifest partiality, evident bad faith or gross
inexcusable negligence." He alleges that the phrases

15

"evident bad faith" and "manifest partiality" actually refers

not to him, but to his co-accused,25 rendering the
information fatally defective.
The petitioner bewails the lack of hearing before the
issuance of his suspension order. Citing Luciano, et al. v.
Hon. Mariano, etc., et al.,26 he claims that "[n]owhere in the
records of the [case] can [one] see any order or resolution
requiring the [p]etitioner to show cause at a specific date of
hearing why he should not be ordered suspended."27 For the
petitioner, the requirement of a pre-suspension hearing can
only be satisfied if the Sandiganbayan ordered an actual
hearing to settle the "defect" in the information.
THE OSPS COMMENT
The OSP argues for the sufficiency of the information since
all the elements of the offense under Section 3(b) of R.A. No.
3019 are specifically pleaded by way of ultimate facts.
These elements are:
1. The petitioner was the Municipal Mayor of
Koronadal, South Cotabato at the time material to
the acts complained of;
2. The petitioner acted with manifest partiality and
evident bad faith when he invited only his coaccused private individuals to participate in the
prequalification of consultants for the project instead
of publishing it in a newspaper of general circulation;
and
3. The petitioners actions, performed in relation to
his office, gave unwarranted benefits and
advantages to his co-accused.28

The OSP faults the petitioner for his attempt to mislead the
Court on the sufficiency of the allegations in the information,
by conveniently failing to cite the phrase "acting with
evident bad faith and manifest partiality" when the
petitioner quoted the "relevant" portions of the information
in his petition.
Citing Juan v. People,29 the OSP argues that while no actual
pre-suspension hearing was conducted, the events
preceding the issuance of the suspension order already
satisfied the purpose of conducting a pre-suspension
hearing i.e., basically, to determine the validity of the
information. Here, the petitioner was afforded his right to
preliminary investigation both by the Ombudsman and by
the OSP (when the petitioner moved for a reinvestigation
with the Sandiganbayan); the acts for which the petitioner
was charged constitute a violation of R.A. No. 3019 and Title
VII, Book II of the Revised Penal Code; and the petitioner
already moved to quash the information, although
unsuccessfully, after he had been declared to have waived
his right to submit countervailing evidence in the
reinvestigation by the OSP.30
ISSUES
There are only two issues presented for our resolution:
1. Whether the information, charging the petitioner
with violation of Section 3(e) of R.A. No. 3019, is
valid; and
2. If it is valid, whether the absence of an actual presuspension hearing renders invalid the suspension
order against the petitioner.
THE COURTS RULING

16

We dismiss the petition for failure to establish any grave

abuse of discretion in the issuance of the assailed
resolutions.
The information for violation of R.A. No. 3019 is valid
In deference to the constitutional right of an accused to be
informed of the nature and the cause of the accusation
against him,31 Section 6, Rule 110 of the Revised Rules of
Criminal Procedure (Rules)32 requires, inter alia, that the
information shall state the designation of the offense given
by the statute and the acts or omissions imputed which
constitute the offense charged. Additionally, the Rules
requires that these acts or omissions and its attendant
circumstances "must be stated in ordinary and concise
language" and "in terms sufficient to enable a person of
common understanding to know what offense is being
charged x x x and for the court to pronounce judgment." 33
The test of the informations sufficiency is whether the crime
is described in intelligible terms and with such particularity
with reasonable certainty so that the accused is duly
informed of the offense charged. In particular, whether an
information validly charges an offense depends on whether
the material facts alleged in the complaint or information
shall establish the essential elements of the offense charged
as defined in the law. The raison detre of the requirement in
the Rules is to enable the accused to suitably prepare his
defense.34
In arguing against the validity of the information, the
petitioner appears to go beyond the standard of a "person of
common understanding" in appreciating the import of the
phrase "acting with evident bad faith and manifest
partiality." A reading of the information clearly reveals that
the phrase "acting with evident bad faith and manifest

partiality" was merely a continuation of the prior allegation

of the acts of the petitioner, and that he ultimately acted
with evident bad faith and manifest partiality in giving
unwarranted benefits and advantages to his co-accused
private individuals. This is what a plain and non-legalistic
reading of the information would yield.
Notably, in his petition, the petitioner would have us believe
that this elemental phrase was actually omitted in the
information35 when, in his reaction to the OSPs comment,
what the petitioner actually disputes is simply the clarity of
the phrases position, in relation with the other averments in
the information. Given the supposed ambiguity of the
subject being qualified by the phrase "acting with evident
bad faith and manifest partiality," the remedy of the
petitioner, if at all, is merely to move for a bill of particulars
and not for the quashal of an information which sufficiently
alleges the elements of the offense charged.36
The pre-suspension order is valid
Section 13 of R.A. No. 3019 reads:
Section 13. Suspension and loss of benefits. Any public
officer against whom any criminal prosecution under a valid
information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall be
suspended from office. Should he be convicted by final
judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he
failed to receive during suspension, unless in the meantime
administrative proceedings have been filed against him.
While the suspension of a public officer under this provision
is mandatory,37 the suspension requires a prior hearing to

17

determine "the validity of the information"38 filed against

him, "taking into account the serious and far reaching
consequences of a suspension of an elective public official
even before his conviction."39 The accused public officials
right to challenge the validity of the information before a
suspension order may be issued includes the right to
challenge the (i) validity of the criminal proceeding leading
to the filing of an information against him, and (ii) propriety
of his prosecution on the ground that the acts charged do
not constitute a violation of R.A. No. 3019 or of the
provisions on bribery of the Revised Penal Code.40
In Luciano v. Mariano41 that the petitioner relied upon, the
Court required, "by way of broad guidelines for the lower
courts in the exercise of the power of suspension," that
(c) upon the filing of such information, the trial court
should issue an order with proper notice requiring the
accused officer to show cause at a specific date of hearing
why he should not be ordered suspended from office
pursuant to the cited mandatory provisions of the Act.
Where either the prosecution seasonably files a motion for
an order of suspension or the accused in turn files a motion
to quash the information or challenges the validity thereof,
such show-cause order of the trial court would no longer be
necessary. What is indispensable is that the trial court duly
hear the parties at a hearing held for determining the
validity of the information, and thereafter hand down its
ruling, issuing the corresponding order of suspension should
it uphold the validity of the information or withholding such
suspension in the contrary case.
(d) No specific rules need be laid down for such presuspension hearing. Suffice it to state that the accused
should be given a fair and adequate opportunity to
challenge the validity of the criminal proceedings against
him, e.g. that he has not been afforded the right of due

preliminary investigation; that the acts for which he stands

charged do not constitute a violation of the provisions of
Republic Act No. 3019 or of the bribery provisions of the
Revised Penal Code which would warrant his mandatory
suspension from office under section 13 of the Act; or he
may present a motion to quash the information on any of
the grounds provided in Rule 117 of the Rules of Court.
(Emphasis supplied)
The petitioner questions the absence of any show cause
order issued by the Sandiganbayan before his suspension in
office was ordered. As clear as the day, however, Luciano
considered it unnecessary for the trial court to issue a show
cause order when the motion, seeking the suspension of the
accused pendente lite, has been submitted by the
prosecution, as in the present case.
The purpose of the law in requiring a pre-suspension hearing
is to determine the validity of the information so that the
trial court can have a basis to either suspend the accused
and proceed with the trial on the merits of the case,
withhold the suspension and dismiss the case, or correct
any part of the proceedings that impairs its
validity.1wphi1That hearing is similar to a challenge to the
validity of the information by way of a motion to quash.42
While a pre-suspension hearing is aimed at securing for the
accused fair and adequate opportunity to challenge the
validity of the information or the regularity of the
proceedings against him,43 Luciano likewise emphasizes that
no hard and fast rule exists in regulating its conduct. 44 With
the purpose of a pre-suspension hearing in mind, the
absence of an actual hearing alone cannot be determinative
of the validity of a suspension order.

18

In Bedruz v. Sandiganbayan,45 the Court considered the

opposition of the accused (to the prosecutions motion to
suspend pendente lite) as sufficient to dispense with the
need to actually set the prosecutions motion for hearing.
The same conclusion was reached in Juan v. People,46 where
the Court ruled:
In the case at bar, while there was no pre-suspension
hearing held to determine the validity of the Informations
that had been filed against petitioners, we believe that the
numerous pleadings filed for and against them have
achieved the goal of this procedure. The right to due
process is satisfied nor just by an oral hearing but by the
filing and the consideration by the court of the parties'
pleadings, memoranda and other position papers.
Since a pre-suspension hearing is basically a due process
requirement, when an accused public official is given an
adequate opportunity to be heard on his possible defenses
against the mandatory suspension under R.A. No. 3019,
then an accused would have no reason to complain that no
actual hearing was conducted.47 It is well settled that "to be
heard" does not only mean oral arguments in court; one
may be heard also through pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, has
been accorded, no denial of procedural due process exists. 48
In the present case, the petitioner (i) filed his Vigorous
Opposition (to the OSPs Motion to Suspend Accused
Pendente Lite), and after receiving an adverse ruling from
the Sandiganbayan, (ii) moved for reconsideration of the
suspension order issued against him, and (iii) filed a Reply to
the OSPs Opposition to his plea for reconsideration.49 Given
this opportunity, we find that the petitioners continued
demand for the conduct of an actual pre-suspension hearing
based on the same alleged "defect in the

information,"50 which we have found wanting has legally

nothing to anchor itself on.
Another reason that militates against the petitioners
position relates to the nature of Section 13 of R.A. No. 3019;
it is not a penal provision that would call for a liberal
interpretation in favor of the accused public official and a
strict construction against the State.51 The suspension
required under this provision is not a penalty, as it is not
imposed as a result of judicial proceedings; in fact, if
acquitted, the accused official shall be entitled to
reinstatement and to the salaries and benefits which he
failed to receive during his suspension. 52
Rather, the suspension under Section 13 of R.A. No. 3019 is
a mere preventive measure53 that arises from the legal
presumption that unless the accused is suspended, he may
frustrate his prosecution or commit further acts of
malfeasance or do both, in the same way that upon a
finding that there is probable cause to believe that a crime
has been committed and that the accused is probably guilty
thereof, the law requires the judge to issue a warrant for the
arrest of the accused.54
Suspension under R.A. No. 3019 being a mere preventive
measure whose duration shall in no case exceed ninety (90)
days,55 the adequacy of the opportunity to contest the
validity of the information and of the proceedings that
preceded its filing vis--vis the merits of the defenses of the
accused cannot be measured alone by the absence or
presence of an actual hearing. An opportunity to be heard
on ones defenses, however unmeritorious it may be,
against the suspension mandated by law equally and
sufficiently serves both the due process right of the accused
and the mandatory nature of the suspension required by
law.

19

Lest it be forgotten, Section 13 of R.A. No. 3019 reinforces

the principle enshrined in the Constitution that a public
office is a public trust.56 In light of the constitutional
principle underlying the imposition of preventive suspension
of a public officer charged under a valid information and the
nature of this suspension, the petitioners demand for a
trial-type hearing in the present case would only
overwhelmingly frustrate, rather than promote, the orderly
and speedy dispensation of justice.
WHEREFORE, we hereby DISMISS the petition for lack of
merit.
SO ORDERED.

20

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 179031

November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BENJAMIN SORIA y GOMEZ, Accused-Appellant.

"AAA", a minor, 7 years of age[,] by then and there inserting

his penis into [the] genital of said complainant, all against
her will and consent, which act debases, degrades, or
demeans the intrinsic worth and dignity of said "AAA", as a
human being, in violation of said law.
CONTRARY TO LAW.5
Appellant pleaded not guilty to the crime charged. Pre-trial
and trial thereafter ensued.
Version of the Prosecution

DECISION
DEL CASTILLO, J.:
This case involves a fathers detestable act of abusing his
daughter through rape by sexual assault.
Factual Antecedents
Accused-appellant Benjamin Soria y Gomez (appellant)
seeks a review of the December 29, 2006 Decision1 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01442 which
affirmed with modification the June 30, 2005 Judgment 2 of
the Regional Trial Court (RTC) of Quezon City, Branch 94, in
Criminal Case No. Q-01-98692. Said RTC Judgment found
appellant guilty beyond reasonable doubt of the crime of
rape committed against his daughter "AAA",3 as described in
an Information,4 the relevant portion of which reads:
That on or about the 26th day of February, 2000, in Quezon
City, Philippines, the said accused, who is the father of
private complainant "AAA", did then and there willfully,
unlawfully, and feloniously with force and intimidation
commit an act of sexual assault upon the person of one

On February 26, 2000, "AAA" and her siblings enjoyed the

spaghetti their father (appellant) brought home for
merienda. After eating, "AAA" went to the bedroom to rest.
Thereafter, appellant also entered the room and positioned
himself on top of "AAA", took off her clothes and inserted his
penis into her vagina. "AAA" felt intense pain from her
breast down to her vagina and thus told her father that it
was painful. At that point, appellant apologized to his
daughter, stood up, and left the room. This whole incident
was witnessed by "AAAs" brother, "BBB".
The pain persisted until "AAAs" vagina started to bleed. She
thus told her aunt about it and they proceeded to a hospital
for treatment. Her mother was also immediately informed of
her ordeal. Subsequently, "AAA" was taken into the custody
of the Department of Social Welfare and Development.
On March 15, 2000, Medico-Legal Officer Francisco A. Supe,
Jr., M.D. (Dr. Supe) examined "AAA", which examination
yielded the following results:

21

GENERAL AND EXTRA-GENITAL: Fairly developed, fairly

nourished and coherent female child. Breasts are
undeveloped. Abdomen is flat and soft.
GENITAL: There is absent growth of pubic hair. Labia majora
are full, convex, and coaptated with light brown labia minora
presenting in between. On separating the same, disclosed
an elastic, fleshy type, hyperemic and intact hymen.
Posterior fourchette is sharp.
CONCLUSION: The subject is in virgin state physically. There
are no external signs of application of any form of physical
trauma.6
Version of the Defense
Appellant admitted that he was at home on the day and
time of "AAAs" alleged rape but denied committing the
same. Instead, he claimed that the filing of the rape case
against him was instigated by his wife, whom he confronted
about her illicit affair with a man residing in their
community. According to appellant, he could not have
molested "AAA" because he treated her well. In fact, he was
the only one sending his children to school since his wife
already neglected them and seldom comes home.
Ruling of the Regional Trial Court
On June 30, 2005, the trial court rendered its
Judgment7 finding appellant guilty beyond reasonable doubt
of the crime of rape against "AAA", his daughter of minor
age, as charged in the Information. It ruled that the lack of
tenacious resistance on the part of "AAA" is immaterial
considering that appellants moral ascendancy and influence
over her substitute for violence and intimidation.8 It also
held that his wife could not have instigated the filing of the

rape case since as the mother of "AAA", it would not be

natural for her to use her child as a tool to exact revenge
especially if it will result in her embarrassment and
stigma.9 The trial court gave credence to the testimony of
"AAA" and her positive identification of appellant as her
rapist, and rejected the latters defense of denial. The
dispositive portion of the Judgment reads as follows:
WHEREFORE, premises considered, judgment is hereby
rendered finding the herein accused, BENJAMIN SORIA Y
GOMEZ GUILTY beyond reasonable doubt of the crime as
charged and sentences him to suffer the supreme penalty of
DEATH and to indemnify the offended party the amount of
P75,000.00, to pay moral damages in the amount of
P50,000.00, and the amount of P25,000.00 as exemplary
damages to deter other fathers with perverse proclivities for
aberrant sexual behavior for sexually abusing their own
daughters.
SO ORDERED.10
Ruling of the Court of Appeals
In its Decision11 dated December 29, 2006, the CA found
partial merit in the appeal. While the appellate court was
convinced that appellant raped "AAA", it nevertheless noted
the prosecutions failure to present her birth certificate as
competent proof of her minority. Thus, the CA concluded
that the crime committed by appellant against his daughter
was only simple rape and accordingly modified the penalty
imposed by the trial court from death to reclusion perpetua
and reduced the civil indemnity awarded from P75,000.00 to
P50,000.00. The dispositive portion of the appellate courts
Decision reads as follows:

22

WHEREFORE, premises considered, the appeal is hereby

GRANTED and the June 30, 2005 Decision of the Regional
Trial Court of Quezon City, Branch 94, in Criminal Case No.
Q-01-98692, is hereby MODIFIED, in that, the penalty
imposed is reduced to reclusion perpetua instead of death
and the civil indemnity to be paid by the offender to the
victim is hereby reduced to the amount of P50,000.00
instead of P75,000.00 pursuant to prevailing jurisprudence
as explained in this decision.

GRAVELY ERRED IN IMPOSING THE DEATH PENALTY

UPON HIM.13

Pursuant to Section 13(c), Rule 124 of the 2000 Rules of

Criminal Procedure as amended by A.M. No. 00-5-03-SC
dated September 28, 2004, which became effective on
October 15, 2004, this judgment of the Court of Appeals
may be appealed to the Supreme Court by notice of appeal
filed with the Clerk of Court of the Court of Appeals.

Appellant asserts that he should be acquitted of the crime of

rape since there is no evidence that would establish the fact
of sexual intercourse. Aside from the prosecutions failure to
prove penile contact, "AAAs" testimony was also wanting in
details as to how he took off her underwear or whether she
saw his penis during the incident despite leading questions
propounded on the matter by the prosecution. The medical
report even revealed that "AAAs" hymen remained intact
and that there were no notable lacerations or external
physical injuries thereon. Appellant therefore surmises that
his wife merely instigated "AAA" to file this baseless rape
case against him in retaliation for his act of confronting her
about her illicit relationship with a neighbor.

SO ORDERED.12

Our Ruling

Still insisting on his innocence, appellant comes to this Court

through this appeal.

The appeal lacks merit.

Assignment of Errors
Appellant adopts the same assignment of errors he raised
before the appellate court, viz:
I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE
ACCUSED GUILTY OF THE CRIME OF RAPE DESPITE
THE FAILURE OF THE PROSECUTION TO OVERTHROW
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE
X X X.
II. ASSUMING ARGUENDO THAT THE ACCUSED IS
GUILTY OF THE CRIME CHARGED, THE TRIAL COURT

The crime of rape under Article 266-A of

the Revised Penal Code (RPC).
Republic Act No. 8353, otherwise known as the Anti-Rape
Law of 1997, classified the crime of rape as a crime against
persons. It also amended Article 335 of the RPC and
incorporated therein Article 266-A which reads:
Article 266-A. Rape, When and How Committed. Rape is
committed
1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
a) Through force, threat or intimidation;

23

b) When the offended party is deprived of

reason or is otherwise unconscious,
c) By means of fraudulent machination or
grave abuse of authority;
d) When the offended party is under twelve
(12) years of age or is demented, even
though none of the circumstances mentioned
above be present;
2) By any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his
penis into another persons mouth or anal orifice, or
any instrument or object, into the genital or anal
orifice of another person.
Thus, rape can now be committed either through sexual
intercourse or by sexual assault. Rape under paragraph 1 of
the above-cited article is referred to as rape through sexual
intercourse. Carnal knowledge is the central element and it
must be proven beyond reasonable doubt.14 It is commonly
denominated as "organ rape" or "penile rape"15 and must be
attended by any of the circumstances enumerated in
subparagraphs (a) to (d) of paragraph 1.
On the other hand, rape under paragraph 2 of Article 266-A
is commonly known as rape by sexual assault. The
perpetrator, under any of the attendant circumstances
mentioned in paragraph 1, commits this kind of rape by
inserting his penis into another persons mouth or anal
orifice, or any instrument or object into the genital or anal
orifice of another person. It is also called "instrument or
object rape", also "gender-free rape".16

The Information did not specify whether

the crime of rape was committed through
sexual intercourse or by sexual assault.
The Information in this case did not specify with certainty
whether appellant committed the rape through sexual
intercourse under paragraph 1 of Article 266-A, or rape by
sexual assault as described in paragraph 2 thereof. The
Information stated that appellant inserted his penis into the
genital of "AAA," which constituted rape by sexual
intercourse under the first paragraph of Article 266-A. At the
same time, the Information alleged that appellant used force
and intimidation to commit an act of sexual assault. While
these allegations cause ambiguity, they only pertain to the
mode or manner of how the rape was committed and the
same do not invalidate the Information or result in the
automatic dismissal of the case. "[W]here an offense may be
committed in any of the different modes and the offense is
alleged to have been committed in two or more modes
specified, the indictment is sufficient, notwithstanding the
fact that the different means of committing the same
offense are prohibited by separate sections of the statute.
The allegation in the information of the various ways of
committing the offense should be regarded as a description
of only one offense and the information is not thereby
rendered defective on the ground of multifariousness."17 Any
objection from the appellant with respect to the Information
is held to have been waived failing any effort to oppose the
same before trial.18 He therefore can be convicted of rape
through sexual intercourse or rape by sexual assault,
depending on the evidence adduced during trial.
The findings of the RTC and the CA on
the credibility of "AAA" deserve respect

24

and great weight.

Both the trial court and the CA held that "AAA" was a
credible witness. They ruled that her testimony deserved
credence and is sufficient evidence that she was raped by
appellant. We find no cogent reason to overturn these
findings.
It would be highly inconceivable for "AAA" to impute to her
own father the crime of raping her unless the imputation is
true.19 In fact, it takes "a certain amount of psychological
depravity for a young woman to concoct a story which
would put her own father in jail for the rest of his remaining
life and drag the rest of the family including herself to a
lifetime of shame"20 unless the imputation is true.
When a rape victims testimony on the manner she was
defiled is "straightforward and candid, and is corroborated
by the medical findings of the examining physician as in this
case, the same is sufficient to support a conviction for
rape."21

he had carnal knowledge of "AAA". There must be proof that

his penis touched the labia of "AAA" or slid into her female
organ, and not merely stroked the external surface thereof,
to ensure his conviction of rape by sexual
intercourse.221vvph!1
We reviewed the testimony of "AAA" and found nothing
therein that would show that she was raped through sexual
intercourse. While "AAA" categorically stated that she felt
something inserted into her vagina, her testimony was
sorely lacking in important details that would convince us
with certainty that it was indeed the penis of appellant that
was placed into her vagina.
When "AAA" was placed on the witness stand, she narrated
that:
Q - The earlier statement which you made when you said
that you wanted to explain something about your father, is
that true?
A - Yes, sir.

Appellant is guilty of rape by sexual

assault and not through sexual

Q - So, you said that you wanted to explain something about

your father, what was that?

intercourse.

A - What he did, sir.

The trial courts conviction of the appellant was for rape

through sexual intercourse under paragraph 1(a) of Article
266-A. The CA sustained the trial courts finding that
appellant had sexual intercourse with "AAA" against her will.

Q - What was that?

In determining whether appellant is indeed guilty of rape

through sexual intercourse under paragraph 1 of Article 266A, it is essential to establish beyond reasonable doubt that

A - I was raped, sir.

Q - What did he do when you said he raped you?
A - He laid on top of me, sir.23

25

xxxx

A - Yes, sir.

Q - So when you said he laid on top of you, did you feel

anything? Did you feel any pain in any part of your body?

Q - Why do you know that he was there?

A - He told me so, sir.

A - Yes, sir.
Q - Who?
Q - In what part of your body did you feel pain?
A - "BBB".
A - I felt pain in my breast and my stomach.
Q - What about your private part?

Q - Okay, when you felt pain as something was inserted

[into] your private part, what did you say to your father?

A - Yes, sir.

A - He left the room.

Q - Did you know why your stomach as well as your body

and your private part hurt or become painful?

Q - Before he went away and left?

A - It was painful, sir.

A - I dont know, sir.

Q - And what was the answer of your father?
Q - Did you feel something inserted into your private part?
A - He said sorry, sir.
A - Yes, sir.
Q - What is that, if you know?

Q - How long was he or how long were you in that position,

you were lying down and your father was on top of you?

A - The bird of my papa.

A - I do not know, sir.24

Q - Why did you know that?

xxxx

A - Because my brother, "BBB", told me.

Q - Earlier, you were making reference to your father whom

you said abused you. I am asking you now to tell us if your
father is around?

Q - Why? Was "BBB", your brother, present when your father

was on top of you?

A - Yes, sir.

26

Q - Will you please point x x x to him?

A - Yes, sir. (Witness pointing to a man who is wearing yellow
t-shirt and maong pants who when asked identified himself
as Benjamin Soria.)
Q - Is he the same person who according to you laid on top
of you and inserted something into your vagina or private
part?
A - Yes, sir.25
It is evident from the testimony of "AAA" that she was
unsure whether it was indeed appellants penis which
touched her labia and entered her organ since she was
pinned down by the latters weight, her father having
positioned himself on top of her while she was lying on her
back. "AAA" stated that she only knew that it was the "bird"
of her father which was inserted into her vagina after being
told by her brother "BBB". Clearly, "AAA" has no personal
knowledge that it was appellants penis which touched her
labia and inserted into her vagina. Hence, it would be
erroneous to conclude that there was penile contact based
solely on the declaration of "AAAs" brother, "BBB", which
declaration was hearsay due to "BBBs" failure to testify.
Based on the foregoing, it was an error on the part of the
RTC and the CA to conclude that appellant raped "AAA"
through sexual intercourse.
Instead, we find appellant guilty of rape by sexual assault. It
cannot be denied that appellant inserted an object into
"AAAs" female organ. "AAA" categorically testified that
appellant inserted something into her vagina. She claimed
to have suffered tremendous pain during the insertion. The
insertion even caused her vagina to bleed necessitating her
examination at the hospital. Both the trial court and the CA

found "AAAs" testimony to be credible. We find no

compelling reason not to lend credence to the same.
This defilement constitutes rape under paragraph 2 of
Article 266-A of the RPC, which provides that rape by sexual
assault is committed "by any person who, under any of the
circumstances mentioned in paragraph 1 hereof, shall
commit an act of sexual assault by inserting x x x any
instrument or object, into the genital or anal orifice of
another person."
Moreover, Dr. Supe corroborated her testimony as follows:
Q - Doctor, with respect to Exhibit A, the Medico-Legal
Report pertaining to the entry into the genital, which reads:
On separating the hymen, disclosed was an elastic, fleshy
type, hyperemic and intact hymen. Will you please tell us,
Doctor, what is this hyperemic hymen?
A - Hyperemic hymen, sir, means that at the time of
examination, I found out that it was reddish in color.
Q - Considering the age of the child or the patient, the
victim whom you examined at that time who was about 6
years old, will you be able to tell us, Doctor, what could
have caused this kind of injury, because this is an injury to
the hymen?
A - Hyperemic, sir, is observed whenever there is friction
applied to an area, such as in the form of scratching.
Q - What about insertion of object, would this result into
hyperemic hymen?
A - If the object is being rubbed, sir, there is a possibility.

27

Q - A finger will produce this kind of injury?

(b) By inserting any instrument or object into

the genital or anal orifice of another person;

A - Possible, sir.26
According to Dr. Supe, it is possible that "AAAs" hyperemic
hymen may be the result of the insertion of a finger or
object. While Dr. Supe said that the injury could also be
attributed to scratching, "AAAs" testimony is bereft of any
showing that she scratched her genital organ thus causing
the reddening. Appellant would also want to make it appear
that the injury of "AAA" was the result of friction from
playing or riding a bicycle since the doctor testified that this
was also possible. However, there is likewise no evidence
that friction was applied on "AAAs" female organ when she
played hide and seek with her playmates or that she
actually rode a bicycle. On the other hand, "AAA" was
categorical in stating that in the afternoon of February 26,
2000, appellant removed her clothes, laid on top of her, and
that she felt something being inserted into her vagina and
that thereafter she experienced pain in her genitals. The
foregoing thus proved that appellant inserted an object into
"AAAs" vagina against her will and without consent. Simply
put, appellant committed the crime of rape by sexual
assault.
The following are the elements of rape by sexual assault:
(1) That the offender commits an act of sexual
assault;
(2) That the act of sexual assault is committed by
any of the following means:
(a) By inserting his penis into another
persons mouth or anal orifice; or

(3) That the act of sexual assault is accomplished

under any of the following circumstances:
(a) By using force and intimidation;
(b) When the woman is deprived of reason or
otherwise unconscious; or
(c) By means of fraudulent machination or
grave abuse of authority; or
(d) When the woman is under 12 years of age
or demented.27
In the instant case, it was clearly established that appellant
committed an act of sexual assault on "AAA" by inserting an
instrument or object into her genital. We find it
inconsequential that "AAA" could not specifically identify the
particular instrument or object that was inserted into her
genital. What is important and relevant is that indeed
something was inserted into her vagina. To require "AAA" to
identify the instrument or object that was inserted into her
vagina would be contrary to the fundamental tenets of due
process. It would be akin to requiring "AAA" to establish
something that is not even required by law. Moreover, it
might create problems later on in the application of the law
if the victim is blind or otherwise unconscious. Moreover, the
prosecution satisfactorily established that appellant
accomplished the act of sexual assault through his moral
ascendancy and influence over "AAA" which substituted for
violence and intimidation. Thus, there is no doubt that
appellant raped "AAA" by sexual assault.

28

Appellants contentions are untenable.

The failure of "AAA" to mention that her panty was removed
prior to the rape does not preclude sexual assault. We
cannot likewise give credence to the assertion of appellant
that the crime of rape was negated by the medical findings
of an intact hymen or absence of lacerations in the vagina of
"AAA". Hymenal rupture, vaginal laceration or genital injury
is not indispensable because the same is not an element of
the crime of rape.28 "An intact hymen does not negate a
finding that the victim was raped."29 Here, the finding of
reddish discoloration of the hymen of "AAA" during her
medical examination and the intense pain she felt in her
vagina during and after the sexual assault sufficiently
corroborated her testimony that she was raped.
Likewise undeserving of credence is appellants contention
that his wife merely instigated "AAA" to file the charge of
rape against him in retaliation for his having confronted her
about her illicit affair with another man. This imputation of ill
motive is flimsy considering that it is unnatural for
appellants wife to stoop so low as to subject her own
daughter to the hardships and shame concomitant with a
prosecution for rape, just to assuage her hurt feelings.30 It is
also improbable for appellants wife to have dared
encourage their daughter "AAA" to publicly expose the
dishonor of the family unless the rape was indeed
committed.31
Penalty
Under Article 266-B of the RPC, the penalty for rape by
sexual assault is prision mayor. However, the penalty is
increased to reclusion temporal "if the rape is committed by
any of the 10 aggravating/qualifying circumstances
mentioned in this article". The Information alleged the

qualifying circumstances of relationship and minority. It was

alleged that appellant is the father of "AAA". During the pretrial conference, the parties stipulated that "AAA" is the
daughter of appellant.32 During trial, appellant admitted his
filial bond with "AAA".33 "Admission in open court of
relationship has been held to be sufficient and, hence,
conclusive to prove relationship with the victim."34
With respect to minority, however, the Information
described "AAA" as a 7-year old daughter of appellant. While
this also became the subject of stipulation during the pretrial conference, same is insufficient evidence of "AAAs"
age. Her minority must be "proved conclusively and
indubitably as the crime itself".35 "There must be
independent evidence proving the age of the victim, other
than the testimonies of prosecution witnesses and the
absence of denial by the accused."36 Documents such as her
original or duly certified birth certificate, baptismal
certificate or school records would suffice as competent
evidence of her age.37 Here, there was nothing on record to
prove the minority of "AAA" other than her testimony,
appellants absence of denial, and their pre-trial
stipulation.38 The prosecution also failed to establish that the
documents referred to above were lost, destroyed,
unavailable or otherwise totally absent.39
It is settled that "when either one of the qualifying
circumstances of relationship and minority is omitted or
lacking, that which is pleaded in the information and proved
by the evidence may be considered as an aggravating
circumstance."40 As such, appellants relationship with "AAA"
may be considered as an aggravating circumstance.
In view of these, the imposable penalty is reclusion temporal
which ranges from twelve (12) years and one (1) day to
twenty (20) years. Applying the Indeterminate Sentence
Law, the penalty next lower in degree is prision mayor which

29

ranges from six (6) years and one (1) day to twelve (12)
years. Hence, a penalty of twelve (12) years of prison
mayor, as minimum, to twenty (20) years of reclusion
temporal, as maximum, is imposed upon appellant.
Damages
In line with prevailing jurisprudence, the awards of
P50,000.00 as civil indemnity, P50,000.00 as moral
damages and P25,000.00 as exemplary damages are each
modified to P30,000.00.41 "AAA" is also entitled to an
interest on all the amounts of damages awarded at the legal
rate of 6% per annum from the date of finality of this
judgment until fully paid.42
WHEREFORE, the December 29, 2006 Decision of the Court
of Appeals in CA-G.R. CR-H.C. No. 01442 is AFFIRMED with
MODIFICATIONS. Accused-appellant Benjamin Soria y Gomez
is found guilty beyond reasonable doubt of the crime of rape
by sexual assault and is sentenced to suffer the penalty of
twelve (12) years of prison mayor, as minimum, to twenty
(20) years of reclusion temporal, as maximum. He is also
ordered to pay "AAA" the amounts of P30,000.00 as civil
indemnity, P30,000.00 as moral damages, and P30,000.00
as exemplary damages. "AAA" is entitled to an interest on
all damages awarded at the legal rate of 6% per annum
from the date of finality of this judgment until fully paid.
SO ORDERED.

30

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 192565

February 28, 2012

UNION BANK OF THE, PHILIPPINES and DESI

TOMAS, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We review in this Rule 45 petition, the decision1 of the
Regional Trial Court, Branch 65, Makati City (RTC-Makati
City) in Civil Case No. 09-1038. The petition seeks to reverse
and set aside the RTC-Makati City decision dismissing the
petition for certiorari of petitioners Union Bank of the
Philippines (Union Bank) and Desi Tomas (collectively, the
petitioners). The RTC found that the Metropolitan Trial Court,
Branch 63, Makati City (MeTC-Makati City) did not commit
any grave abuse of discretion in denying the motion to
quash the information for perjury filed by Tomas.
The Antecedents
Tomas was charged in court for perjury under Article 183 of
the Revised Penal Code (RPC) for making a false narration in
a Certificate against Forum Shopping. The Information
against her reads:

That on or about the 13th day of March 2000 in the City of

Makati, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously make
untruthful statements under oath upon a material matter
before a competent person authorized to administer oath
which the law requires to wit: said accused stated in the
Verification/Certification/Affidavit of merit of a complaint for
sum of money with prayer for a writ of replevin docketed as
[Civil] Case No. 342-00 of the Metropolitan Trial Court[,]
Pasay City, that the Union Bank of the Philippines has not
commenced any other action or proceeding involving the
same issues in another tribunal or agency, accused knowing
well that said material statement was false thereby making
a willful and deliberate assertion of falsehood.2
The accusation stemmed from petitioner Union Banks two
(2) complaints for sum of money with prayer for a writ of
replevin against the spouses Eddie and Eliza Tamondong
and a John Doe. The first complaint, docketed as Civil Case
No. 98-0717, was filed before the RTC, Branch 109, Pasay
City on April 13, 1998. The second complaint, docketed as
Civil Case No. 342-000, was filed on March 15, 2000 and
raffled to the MeTC, Branch 47, Pasay City. Both complaints
showed that Tomas executed and signed the Certification
against Forum Shopping. Accordingly, she was charged of
deliberately violating Article 183 of the RPC by falsely
declaring under oath in the Certificate against Forum
Shopping in the second complaint that she did not
commence any other action or proceeding involving the
same issue in another tribunal or agency.
Tomas filed a Motion to Quash,3 citing two grounds. First, she
argued that the venue was improperly laid since it is the
Pasay City court (where the Certificate against Forum
Shopping was submitted and used) and not the MeTC-Makati
City (where the Certificate against Forum Shopping was

31

subscribed) that has jurisdiction over the perjury case.

Second, she argued that the facts charged do not constitute
an offense because: (a) the third element of perjury the
willful and deliberate assertion of falsehood was not
alleged with particularity without specifying what the other
action or proceeding commenced involving the same issues
in another tribunal or agency; (b) there was no other action
or proceeding pending in another court when the second
complaint was filed; and (c) she was charged with perjury by
giving false testimony while the allegations in the
Information make out perjury by making a false affidavit.

the long standing view on the venue with respect to perjury

cases. In this particular case[,] the high court reiterated the
rule that the criminal action shall be instituted and tried in
the court of the municipality or territory where the offense
was committed, or where any of its essential ingredients
occurred. It went on to declare that since the subject
document[,] the execution of which was the subject of the
charge[,] was subscribed and sworn to in Manila[,] then the
court of the said territorial jurisdiction was the proper venue
of the criminal action[.]
xxxx

The MeTC-Makati City denied the Motion to Quash, ruling

that it has jurisdiction over the case since the Certificate
against Forum Shopping was notarized in Makati City. 4 The
MeTC-Makati City also ruled that the allegations in the
Information sufficiently charged Tomas with perjury.5 The
MeTC-Makati City subsequently denied Tomas motion for
reconsideration.6
The petitioners filed a petition for certiorari before the RTCMakati City to annul and set aside the MeTC-Makati City
orders on the ground of grave abuse of discretion. The
petitioners anchored their petition on the rulings in United
States v. Canet7 and Ilusorio v. Bildner8 which ruled that
venue and jurisdiction should be in the place where the false
document was presented.
The Assailed RTC Decision
In dismissing the petition for certiorari, the RTC-Makati City
held:
[I]nsofar as the petitioners stance is concerned[,] the more
recent case of [Sy Tiong Shiou v. Sy] (GR Nos. 174168 &
179438, March 30, 2009) however, reaffirms what has been

x x x Given the present state of jurisprudence on the matter,

it is not amiss to state that the city court of Makati City has
jurisdiction to try and decide the case for perjury inasmuch
as the gist of the complaint itself which constitute[s] the
charge against the petitioner dwells solely on the act of
subscribing to a false certification. On the other hand, the
charge against the accused in the case of Ilusorio v. Bildner,
et al., based on the complaint-affidavits therein[,] was not
simply the execution of the questioned documents but
rather the introduction of the false evidence through the
subject documents before the court of Makati
City.9 (emphasis ours)
The RTC-Makati City ruled that the MeTC-Makati City did not
commit grave abuse of discretion since the order denying
the Motion to Quash was based on jurisprudence later than
Ilusorio. The RTC-Makati City also observed that the facts in
Ilusorio are different from the facts of the present case.
Lastly, the RTC-Makati City ruled that the Rule 65 petition
was improper since the petitioners can later appeal the
decision in the principal case. The RTC-Makati City
subsequently denied the petitioners motion for
reconsideration.10

32

The Petition
The petitioners pray that we reverse the RTC-Makati City
decision and quash the Information for perjury against
Tomas. The petitioners contend that the Ilusorio ruling is
more applicable to the present facts than our ruling in Sy
Tiong Shiou v. Sy Chim.11 They argued that the facts in
Ilusorio showed that the filing of the petitions in court
containing the false statements was the essential ingredient
that consummated the perjury. In Sy Tiong, the perjurious
statements were made in a General Information Sheet (GIS)
that was submitted to the Securities and Exchange
Commission (SEC).
Interestingly, Solicitor General Jose Anselmo I. Cadiz shared
the petitioners view. In his Manifestation and Motion in lieu
of Comment (which we hereby treat as the Comment to the
petition), the Solicitor General also relied on Ilusorio and
opined that the lis mota in the crime of perjury is the
deliberate or intentional giving of false evidence in the court
where the evidence is material. The Solicitor General
observed that the criminal intent to assert a falsehood
under oath only became manifest before the MeTC-Pasay
City.
The Issue
The case presents to us the issue of what the proper venue
of perjury under Article 183 of the RPC should be Makati
City, where the Certificate against Forum Shopping was
notarized, or Pasay City, where the Certification was
presented to the trial court.
The Courts Ruling

We deny the petition and hold that the MeTC-Makati City is

the proper venue and the proper court to take cognizance of
the perjury case against the petitioners.
Venue of Action and Criminal Jurisdiction
Venue is an essential element of jurisdiction in criminal
cases. It determines not only the place where the criminal
action is to be instituted, but also the court that has the
jurisdiction to try and hear the case. The reason for this rule
is two-fold. First, the jurisdiction of trial courts is limited to
well-defined territories such that a trial court can only hear
and try cases involving crimes committed within its
territorial jurisdiction.12 Second, laying the venue in the
locus criminis is grounded on the necessity and justice of
having an accused on trial in the municipality of province
where witnesses and other facilities for his defense are
available.13
Unlike in civil cases, a finding of improper venue in criminal
cases carries jurisdictional consequences. In determining the
venue where the criminal action is to be instituted and the
court which has jurisdiction over it, Section 15(a), Rule 110
of the 2000 Revised Rules of Criminal Procedure provides:
(a) Subject to existing laws, the criminal action shall
be instituted and tried in the court or municipality or
territory where the offense was committed or where
any of its essential ingredients occurred. [emphasis
ours]
The above provision should be read in light of Section 10,
Rule 110 of the 2000 Revised Rules of Criminal Procedure
which states:

33

Place of commission of the offense. The complaint or

information is sufficient if it can be understood from its
allegations that the offense was committed or some of its
essential ingredients occurred at some place within the
jurisdiction of the court, unless the particular place where it
was committed constitutes an essential element of the
offense charged or is necessary for its identification.
Both provisions categorically place the venue and
jurisdiction over criminal cases not only in the court where
the offense was committed, but also where any of its
essential ingredients took place. In other words, the venue
of action and of jurisdiction are deemed sufficiently alleged
where the Information states that the offense was
committed or some of its essential ingredients occurred at a
place within the territorial jurisdiction of the court.
Information Charging Perjury
Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as
amended, contains the requirement for a Certificate against
Forum Shopping. The Certificate against Forum Shopping
can be made either by a statement under oath in the
complaint or initiatory pleading asserting a claim or relief; it
may also be in a sworn certification annexed to the
complaint or initiatory pleading. In both instances, the
affiant is required to execute a statement under oath before
a duly commissioned notary public or any competent person
authorized to administer oath that: (a) he or she has not
theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his or her knowledge, no
such other action or claim is pending therein; (b) if there is
such other pending action or claim, a complete statement of
the present status thereof; and (c) if he or she should
thereafter learn that the same or similar action or claim has
been filed or is pending, he or she shall report that fact

within five days therefrom to the court wherein his or her

aforesaid complaint or initiatory pleading has been filed. In
relation to the crime of perjury, the material matter in a
Certificate against Forum Shopping is the truth of the
required declarations which is designed to guard against
litigants pursuing simultaneous remedies in different fora. 14
In this case, Tomas is charged with the crime of perjury
under Article 183 of the RPC for making a false Certificate
against Forum Shopping. The elements of perjury under
Article 183 are:
(a) That the accused made a statement under oath
or executed an affidavit upon a material matter.
(b) That the statement or affidavit was made before
a competent officer, authorized to receive and
administer oath.
(c) That in the statement or affidavit, the accused
made a willful and deliberate assertion of a
falsehood.
(d) That the sworn statement or affidavit containing
the falsity is required by law or made for a legal
purpose.15 (emphasis ours)
Where the jurisdiction of the court is being assailed in a
criminal case on the ground of improper venue, the
allegations in the complaint and information must be
examined together with Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure. On this basis, we find
that the allegations in the Information sufficiently support a
finding that the crime of perjury was committed by Tomas
within the territorial jurisdiction of the MeTC-Makati City.

34

The first element of the crime of perjury, the execution of

the subject Certificate against Forum Shopping was alleged
in the Information to have been committed in Makati City.
Likewise, the second and fourth elements, requiring the
Certificate against Forum Shopping to be under oath before
a notary public, were also sufficiently alleged in the
Information to have been made in Makati City:
That on or about the 13th day of March 2000 in the City of
Makati, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously make
untruthful statements under oath upon a material matter
before a competent person authorized to administer oath
which the law requires to wit: said accused stated in the
Verification/Certification/Affidavit x x x.16
We also find that the third element of willful and deliberate
falsehood was also sufficiently alleged to have been
committed in Makati City, not Pasay City, as indicated in the
last portion of the Information:
[S]aid accused stated in the
Verification/Certification/Affidavit of merit of a complaint for
sum of money with prayer for a writ of replevin docketed as
[Civil] Case No. 342-00 of the Metropolitan Trial Court[,]
Pasay City, that the Union Bank of the Philippines has not
commenced any other action or proceeding involving the
same issues in another tribunal or agency, accused knowing
well that said material statement was false thereby making
a willful and deliberate assertion of
falsehood.17 (underscoring ours)
Tomas deliberate and intentional assertion of falsehood was
allegedly shown when she made the false declarations in
the Certificate against Forum Shopping before a notary

public in Makati City, despite her knowledge that the

material statements she subscribed and swore to were not
true. Thus, Makati City is the proper venue and MeTC-Makati
City is the proper court to try the perjury case against
Tomas, pursuant to Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure as all the essential
elements constituting the crime of perjury were committed
within the territorial jurisdiction of Makati City, not Pasay
City.
Referral to the En Banc
The present case was referred to the En Banc primarily to
address the seeming conflict between the division rulings of
the Court in the Ilusorio case that is cited as basis of this
petition, and the Sy Tiong case that was the basis of the
assailed RTC-Makati City ruling.
The Cited Ilusorio and Sy Tiong Cases
The subject matter of the perjury charge in Ilusorio involved
false statements contained in verified petitions filed with the
court for the issuance of a new owners duplicate copies of
certificates of title. The verified petitions containing the
false statements were subscribed and sworn to in Pasig City,
but were filed in Makati City and Tagaytay City. The question
posed was: which court (Pasig City, Makati City and/or
Tagaytay City) had jurisdiction to try and hear the perjury
cases?
We ruled that the venues of the action were in Makati City
and Tagaytay City, the places where the verified petitions
were filed. The Court reasoned out that it was only upon
filing that the intent to assert an alleged falsehood became
manifest and where the alleged untruthful statement found

35

relevance or materiality. We cited as jurisprudential

authority the case of United States. v. Caet18 which ruled:
It is immaterial where the affidavit was subscribed and
sworn, so long as it appears from the information that the
defendant, by means of such affidavit, "swore to" and
knowingly submitted false evidence, material to a point at
issue in a judicial proceeding pending in the Court of First
Instance of Iloilo Province. The gist of the offense charged is
not the making of the affidavit in Manila, but the intentional
giving of false evidence in the Court of First Instance of Iloilo
Province by means of such affidavit. [emphasis and
underscoring deleted]
In Sy Tiong, the perjured statements were made in a GIS
which was subscribed and sworn to in Manila. We ruled that
the proper venue for the perjury charges was in Manila
where the GIS was subscribed and sworn to. We held that
the perjury was consummated in Manila where the false
statement was made. As supporting jurisprudence, we cited
the case of Villanueva v. Secretary of Justice19 that, in turn,
cited an American case entitled U.S. v. Norris.20 We ruled in
Villanueva that
Perjury is an obstruction of justice; its perpetration well may
affect the dearest concerns of the parties before a tribunal.
Deliberate material falsification under oath constitutes the
crime of perjury, and the crime is complete when a witness'
statement has once been made.

The RPC penalizes three forms of false testimonies. The first

is false testimony for and against the defendant in a
criminal case (Articles 180 and 181, RPC); the second is
false testimony in a civil case (Article 182, RPC); and the
third is false testimony in other cases (Article 183, RPC).
Based on the Information filed, the present case involves the
making of an untruthful statement in an affidavit on a
material matter.
These RPC provisions, however, are not really the bases of
the rulings cited by the parties in their respective
arguments. The cited Ilusorio ruling, although issued by this
Court in 2008, harked back to the case of Caet which was
decided in 1915, i.e., before the present RPC took
effect.21 Sy Tiong, on the other hand, is a 2009 ruling that
cited Villanueva, a 2005 case that in turn cited United States
v. Norris, a 1937 American case. Significantly, unlike Canet,
Sy Tiong is entirely based on rulings rendered after the
present RPC took effect.22
The perjurious act in Caet consisted of an information
charging perjury through the presentation in court of a
motion accompanied by a false sworn affidavit. At the time
the Caet ruling was rendered, the prevailing law on perjury
and the rules on prosecution of criminal offenses were found
in Section 3, Act No. 1697 of the Philippine Commission, and
in Subsection 4, Section 6 of General Order No. 58 23 for the
procedural aspect.
Section 3 of Act No. 1697 reads:

The Crime of Perjury: A Background

To have a better appreciation of the issue facing the Court, a
look at the historical background of how the crime of perjury
(specifically, Article 183 of the RPC) evolved in our
jurisdiction.

Sec. 3. Any person who, having taken oath before a

competent tribunal, officer, or person, in any case in which a
law of the Philippine Islands authorizes an oath to be
administered, that he will testify, declare, depose, or certify
truly, or that any written testimony, declaration, disposition,

36

or certificate by him subscribed is true, willfully and contrary

to such oath states or subscribes any material matter which
he does not believe to be true, is guilty of perjury, and shall
be punished by a fine of not more than two thousand pesos
and by imprisonment for not more than five years; and shall
moreover, thereafter be incapable of holding any public
office or of giving testimony in any court of the Philippine
Islands until such time as the judgment against him is
reversed.

157 of Del Pans Proposed Correctional Code. Said arts. 318

and 319, together with art. 321 of the old Penal Code, were
impliedly repealed by Act 1697, the Perjury Law, passed on
August 23, 1907, which in turn was expressly repealed by
the Administrative Code of 1916, Act 2657. In view of the
express repeal of Act 1697, arts. 318 and 321 of the old
Penal Code were deemed revived. However, Act 2718
expressly revived secs. 3 and 4 of the Perjury Law. Art. 367
of the Revised Penal Code repealed Act Nos. 1697 and 2718.

This law was copied, with the necessary changes, from

Sections 539224 and 539325 of the Revised Statutes of the
United States.26 Act No. 1697 was intended to make the
mere execution of a false affidavit punishable in our
jurisdiction.27

It should be noted that perjury under Acts 1697 and 2718

includes false testimony, whereas, under the Revised Penal
Code, false testimony includes perjury. Our law on false
testimony is of Spanish origin, but our law on perjury (art.
183 taken from sec. 3 of Act 1697) is derived from American
statutes. The provisions of the old Penal Code on false
testimony embrace perjury committed in court or in some
contentious proceeding, while perjury as defined in Act 1697
includes the making of a false affidavit. The provisions of the
Revised Penal Code on false testimony "are more severe and
strict than those of Act 1697" on perjury. [italics ours]

In turn, Subsection 4, Section 6 of General Order No. 58

provided that the venue shall be the court of the place
where the crime was committed.
As applied and interpreted by the Court in Caet, perjury
was committed by the act of representing a false document
in a judicial proceeding.28 The venue of action was held by
the Court to be at the place where the false document was
presented since the presentation was the act that
consummated the crime.
The annotation of Justices Aquino and Grio-Aquino in their
textbook on the RPC29 interestingly explains the history of
the perjury provisions of the present RPC and traces as well
the linkage between Act No. 1697 and the present Code. To
quote these authors:30
Art. 180 was taken from art. 318 of the Old Penal Code and
art. 154 of Del Pans Proposed Correctional Code, while art.
181 was taken from art. 319 of the old Penal Code and Art.

With this background, it can be appreciated that Article 183

of the RPC which provides:
The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period shall be imposed
upon any person, who knowingly makes untruthful
statements and not being included in the provisions of the
next preceding articles, shall testify under oath, or make an
affidavit, upon any material matter before a competent
person authorized to administer an oath in cases in which
the law so requires. [emphasis supplied; emphases ours]
in fact refers to either of two punishable acts (1) falsely
testifying under oath in a proceeding other than a criminal

37

or civil case; and (2) making a false affidavit before a person

authorized to administer an oath on any material matter
where the law requires an oath.
As above discussed, Sy Tiong decided under Article 183 of
the RPC essentially involved perjured statements made in
a GIS that was subscribed and sworn to in Manila and
submitted to the SEC in Mandaluyong City. Thus, the case
involved the making of an affidavit, not an actual testimony
in a proceeding that is neither criminal nor civil. From this
perspective, the situs of the oath, i.e., the place where the
oath was taken, is the place where the offense was
committed. By implication, the proper venue would have
been the City of Mandaluyong the site of the SEC had the
charge involved an actual testimony made before the SEC.
In contrast, Caet involved the presentation in court of a
motion supported and accompanied by an affidavit that
contained a falsity. With Section 3 of Act No. 1697 as basis,
the issue related to the submission of the affidavit in a
judicial proceeding. This came at a time when Act No. 1697
was the perjury law, and made no distinction between
judicial and other proceedings, and at the same time
separately penalized the making of false statements under
oath (unlike the present RPC which separately deals with
false testimony in criminal, civil and other proceedings,
while at the same time also penalizing the making of false
affidavits). Understandably, the venue should be the place
where the submission was made to the court or the situs of
the court; it could not have been the place where the
affidavit was sworn to simply because this was not the
offense charged in the Information.
The case of Ilusorio cited the Caet case as its authority, in
a situation where the sworn petitions filed in court for the
issuance of duplicate certificates of title (that were allegedly
lost) were the cited sworn statements to support the charge

of perjury for the falsities stated in the sworn petitions. The

Court ruled that the proper venue should be the Cities of
Makati and Tagaytay because it was in the courts of these
cities "where the intent to assert an alleged falsehood
became manifest and where the alleged untruthful
statement finds relevance or materiality in deciding the
issue of whether new owners duplicate copies of the
[Certificate of Condominium Title] and [Transfer Certificates
of Title] may issue."31 To the Court, "whether the perjurious
statements contained in the four petitions were subscribed
and sworn in Pasig is immaterial, the gist of the offense of
perjury being the intentional giving of false
statement,"32 citing Caet as authority for its statement.
The statement in Ilusorio may have partly led to the present
confusion on venue because of its very categorical tenor in
pointing to the considerations to be made in the
determination of venue; it leaves the impression that the
place where the oath was taken is not at all a material
consideration, forgetting that Article 183 of the RPC clearly
speaks of two situations while Article 182 of the RPC likewise
applies to false testimony in civil cases.
The Ilusorio statement would have made perfect sense had
the basis for the charge been Article 182 of the RPC, on the
assumption that the petition itself constitutes a false
testimony in a civil case. The Caet ruling would then have
been completely applicable as the sworn statement is used
in a civil case, although no such distinction was made under
Caet because the applicable law at the time (Act No. 1697)
did not make any distinction.
If Article 183 of the RPC were to be used, as what in fact
appears in the Ilusorio ruling, then only that portion of the
article, referring to the making of an affidavit, would have
been applicable as the other portion refers to false
testimony in other proceedings which a judicial petition for

38

the issuance of a new owners duplicate copy of a Certificate

of Condominium Title is not because it is a civil proceeding
in court. As a perjury based on the making of a false
affidavit, what assumes materiality is the site where the
oath was taken as this is the place where the oath was
made, in this case, Pasig City.

before a competent person authorized to administer an oath

in cases in which the law so requires." The constitutive act
of the offense is the making of an affidavit; thus, the
criminal act is consummated when the statement containing
a falsity is subscribed and sworn before a duly authorized
person.

Procedurally, the rule on venue of criminal cases has been

subject to various changes from the time General Order No.
58 was replaced by Rules 106 to 122 of the Rules of Court
on July 1, 1940. Section 14, Rule 106 of the Rules of Court
provided for the rule on venue of criminal actions and it
expressly included, as proper venue, the place where any
one of the essential ingredients of the crime took
place.1wphi1 This change was followed by the passage of
the 1964 Rules of Criminal Procedure,33 the 1985 Rules of
Criminal Procedure,34 and the 2000 Revised Rules of Criminal
Procedure which all adopted the 1940 Rules of Criminal
Procedures expanded venue of criminal actions. Thus, the
venue of criminal cases is not only in the place where the
offense was committed, but also where any of its essential
ingredients took place.

Based on these considerations, we hold that our ruling in Sy

Tiong is more in accord with Article 183 of the RPC and
Section 15(a), Rule 110 of the 2000 Revised Rules of
Criminal Procedure. To reiterate for the guidance of the Bar
and the Bench, the crime of perjury committed through the
making of a false affidavit under Article 183 of the RPC is
committed at the time the affiant subscribes and swears to
his or her affidavit since it is at that time that all the
elements of the crime of perjury are executed. When the
crime is committed through false testimony under oath in a
proceeding that is neither criminal nor civil, venue is at the
place where the testimony under oath is given. If in lieu of
or as supplement to the actual testimony made in a
proceeding that is neither criminal nor civil, a written sworn
statement is submitted, venue may either be at the place
where the sworn statement is submitted or where the oath
was taken as the taking of the oath and the submission are
both material ingredients of the crime committed. In all
cases, determination of venue shall be based on the acts
alleged in the Information to be constitutive of the crime
committed.

In the present case, the Certification against Forum

Shopping was made integral parts of two complaints for sum
of money with prayer for a writ of replevin against the
respondent spouses Eddie Tamondong and Eliza B.
Tamondong, who, in turn, filed a complaint-affidavit against
Tomas for violation of Article 183 of the RPC. As alleged in
the Information that followed, the criminal act charged was
for the execution by Tomas of an affidavit that contained a
falsity.

WHEREFORE, premises considered, we hereby DENY the

petition for lack of merit. Costs against the petitioners.
SO ORDERED.

Under the circumstances, Article 183 of the RPC is indeed

the applicable provision; thus, jurisdiction and venue should
be determined on the basis of this article which penalizes
one who "make[s] an affidavit, upon any material matter

39

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 192123

March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has
been pronounced guilty of reckless imprudence resulting in
serious physical injuries by the Regional Trial Court (RTC)
and the Court of Appeals (CA). He had been part of the team
of anesthesiologists during the surgical pull-through
operation conducted on a three-year old patient born with
an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2,
19922 with an imperforate anus. Two days after his birth,
Gerald underwent colostomy, a surgical procedure to bring
one end of the large intestine out through the abdominal
wall,3 enabling him to excrete through a colostomy bag
attached to the side of his body.4
On May 17, 1995, Gerald, then three years old, was
admitted at the Ospital ng Maynila for a pull-through
operation.5 Dr. Leandro Resurreccion headed the surgical

team, and was assisted by Dr. Joselito Luceo, Dr. Donatella

Valea and Dr. Joseph Tibio. The anesthesiologists included
Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr.
Fernando Solidum (Dr. Solidum).6 During the operation,
Gerald experienced bradycardia,7 and went into a coma.8 His
coma lasted for two weeks,9 but he regained consciousness
only after a month.10 He could no longer see, hear or
move.11
Agitated by her sons helpless and unexpected condition,
Ma. Luz Gercayo (Luz) lodged a complaint for reckless
imprudence resulting in serious physical injuries with the
City Prosecutors Office of Manila against the attending
physicians.12
Upon a finding of probable cause, the City Prosecutors
Office filed an information solely against Dr.
Solidum,13alleging:
That on or about May 17, 1995, in the City of Manila,
Philippines, the said accused, being then an anesthesiologist
at the Ospital ng Maynila, Malate, this City, and as such was
tasked to administer the anesthesia on three-year old baby
boy GERALD ALBERT GERCAYO, represented by his mother,
MA. LUZ GERCAYO, the former having been born with an
imperforate anus [no anal opening] and was to undergo an
operation for anal opening [pull through operation], did then
and there willfully, unlawfully and feloniously fail and
neglect to use the care and diligence as the best of his
judgment would dictate under said circumstance, by failing
to monitor and regulate properly the levels of anesthesia
administered to said GERALD ALBERT GERCAYO and using
100% halothane and other anesthetic medications, causing
as a consequence of his said carelessness and negligence,
said GERALD ALBERT GERCAYO suffered a cardiac arrest and
consequently a defect called hypoxic encephalopathy
meaning insufficient oxygen supply in the brain, thereby

40

rendering said GERALD ALBERT GERCAYO incapable of

moving his body, seeing, speaking or hearing, to his
damage and prejudice.

Upon motion of Dr. Anita So and Dr. Marichu Abella to

reconsider their solidary liability,18 the RTC excluded them
from solidary liability as to the damages, modifying its
decision as follows:

Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of
Manila, but was transferred to the RTC pursuant to Section 5
of Republic Act No. 8369 (The Family Courts Act of
1997),15 where it was docketed as Criminal Case No. 01190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr.
Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical
injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused
DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable
doubt as principal of the crime charged and is hereby
sentenced to suffer the indeterminate penalty of TWO (2)
MONTHS and ONE (1) DAY of arresto mayor as minimum to
ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision
correccional as maximum and to indemnify, jointly and
severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the
amount of P500,000.00 as moral damages and P100,000.00
as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his
provisional liberty is hereby CANCELLED.
SO ORDERED.17

WHEREFORE, premises considered, the Court finds accused

Dr. Fernando Solidum, guilty beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to
suffer the indeterminate penalty of two (2) months and one
(1) day of arresto mayor as minimum to one (1) year, one
(1) month and ten (10) days of prision correccional as
maximum and to indemnify jointly and severally with Ospital
ng Maynila, private complainant Luz Gercayo the amount
of P500,000.00 as moral damages and P100,000 as
exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his
provisional liberty is hereby cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr.
Solidum,20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa
loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and
found fit to undergo a major operation. As noted by the
OSG, the accused himself testified that pre-operation tests
were conducted to ensure that the child could withstand the
surgery. Except for his imperforate anus, the child was
healthy. The tests and other procedures failed to reveal that
he was suffering from any known ailment or disability that

41

could turn into a significant risk. There was not a hint that
the nature of the operation itself was a causative factor in
the events that finally led to hypoxia.

the absence of a showing of arbitrariness or disregard of

material facts that might affect the disposition of the case.
People v. Paraiso 349 SCRA 335.

In short, the lower court has been left with no reasonable

hypothesis except to attribute the accident to a failure in the
proper administration of anesthesia, the gravamen of the
charge in this case. The High Court elucidates in Ramos vs.
Court of Appeals 321 SCRA 584

The res ipsa loquitur test has been known to be applied in

criminal cases. Although it creates a presumption of
negligence, it need not offend due process, as long as the
accused is afforded the opportunity to go forward with his
own evidence and prove that he has no criminal intent. It is
in this light not inconsistent with the constitutional
presumption of innocence of an accused.

In cases where the res ipsa loquitur is applicable, the court

is permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can
determine the proper standard of care.

IN VIEW OF THE FOREGOING, the modified decision of the

lower court is affirmed.
SO ORDERED.21

Where common knowledge and experience teach that a

resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it
occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act
or omission complained of and the injury sustained while
under the custody and management of the defendant
without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain redress
for injury suffered by him.
The lower court has found that such a nexus exists between
the act complained of and the injury sustained, and in line
with the hornbook rules on evidence, we will afford the
factual findings of a trial court the respect they deserve in

Dr. Solidum filed a motion for reconsideration, but the CA

denied his motion on May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE LOWER COURT IN
UPHOLDING THE PETITIONERS CONVICTION FOR THE
CRIME CHARGED BASED ON THE TRIAL COURTS
OPINION, AND NOT ON THE BASIS OF THE FACTS
ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A
CLEAR MISAPPREHENSION OF FACTS WHICH IF
CORRECTED, WILL RESULT TO THE ACQUITTAL OF

42

THE PETITIONER. FURTHER, THE HONORABLE COURT

ERRED IN AFFIRMING THE SAID DECISION OF THE
LOWER COURT, AS THIS BREACHES THE CRIMINAL
LAW PRINCIPLE THAT THE PROSECUTION MUST
PROVE THE ALLEGATIONS OF THE INFORMATION
BEYOND REASONABLE DOUBT, AND NOT ON THE
BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN
APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
WHEN THE DEFENSE WAS ABLE TO PROVE THAT
THERE IS NO NEGLIGENCE ON THE PART OF THE
PETITIONER, AND NO OVERDOSING IN THE
APPLICATION OF THE ANESTHETIC AGENT BECAUSE
THERE WAS NO 100% HALOTHANE ADMINISTERED
TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND
THE APPLICATION THEREOF, WAS REGULATED BY AN
ANESTHESIA MACHINE. THUS, THE APPLICATION OF
THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
CONTRADICTED THE ESTABLISHED FACTS AND THE
LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY
DAMAGES IS NOT JUSTIFIED THERE BEING NO
NEGLIGENCE ON THE PART OF THE PETITIONER.
ASSUMING THAT THE CHILD IS ENTITLED TO
FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS
A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO
NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC
AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE,
AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution,

namely: (a) whether or not the doctrine of res ipsa loquitur
was applicable herein; and (b) whether or not Dr. Solidum
was liable for criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the
transaction speaks for itself." The doctrine res ipsa loquitur
means that "where the thing which causes injury is shown to
be under the management of the defendant, and the
accident is such as in the ordinary course of things does not
happen if those who have the management use proper care,
it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from
want of care."24 It is simply "a recognition of the postulate
that, as a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who
controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is
charged with negligence. It is grounded in the superior logic
of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not
a rule of substantive law, but merely a mode of proof or a
mere procedural convenience. The doctrine, when

43

applicable to the facts and circumstances of a given case, is

not meant to and does not dispense with the requirement of
proof of culpable negligence against the party charged. It
merely determines and regulates what shall be prima facie
evidence thereof, and helps the plaintiff in proving a breach
of the duty. The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence is
absent and not readily available.27
The applicability of the doctrine of res ipsa loquitur in
medical negligence cases was significantly and exhaustively
explained in Ramos v. Court of Appeals,28 where the Court
said
Medical malpractice cases do not escape the application of
this doctrine. Thus, res ipsa loquitur has been applied when
the circumstances attendant upon the harm are themselves
of such a character as to justify an inference of negligence
as the cause of that harm. The application of res ipsa
loquitur in medical negligence cases presents a question of
law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit
a given inference.
Although generally, expert medical testimony is relied upon
in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself
provides the proof of negligence. The reason is that the
general rule on the necessity of expert testimony applies
only to such matters clearly within the domain of medical
science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone
familiar with the facts. Ordinarily, only physicians and
surgeons of skill and experience are competent to testify as

to whether a patient has been treated or operated upon with

a reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are
observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without
the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that
a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence
may be drawn giving rise to an application of the doctrine of
res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how
and why it occurred. When the doctrine is appropriate, all
that the patient must do is prove a nexus between the
particular act or omission complained of and the injury
sustained while under the custody and management of the
defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way, under
usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine
in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on
a healthy part of the body which was not under, or in the
area, of treatment, removal of the wrong part of the body
when another part was intended, knocking out a tooth while
a patients jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an
operation for appendicitis, among others.

44

Nevertheless, despite the fact that the scope of res ipsa

loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res
ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where
a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due
care had been exercised. A distinction must be made
between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure
of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific
treatment. The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct,
or why any particular scientific treatment did not produce
the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result
of an operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of the
operation any extraordinary incident or unusual event
outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such
operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent
cause or causes of the untoward consequence. If there was
such extraneous intervention, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if he could.

In order to allow resort to the doctrine, therefore, the

following essential requisites must first be satisfied, to wit:
(1) the accident was of a kind that does not ordinarily occur
unless someone is negligent; (2) the instrumentality or
agency that caused the injury was under the exclusive
control of the person charged; and (3) the injury suffered
must not have been due to any voluntary action or
contribution of the person injured.29
The Court considers the application here of the doctrine of
res ipsa loquitur inappropriate. Although it should be
conceded without difficulty that the second and third
elements were present, considering that the anesthetic
agent and the instruments were exclusively within the
control of Dr. Solidum, and that the patient, being then
unconscious during the operation, could not have been
guilty of contributory negligence, the first element was
undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through
operation. Except for the imperforate anus, Gerald was then
of sound body and mind at the time of his submission to the
physicians. Yet, he experienced bradycardia during the
operation, causing loss of his senses and rendering him
immobile. Hypoxia, or the insufficiency of oxygen supply to
the brain that caused the slowing of the heart rate,
scientifically termed as bradycardia, would not ordinarily
occur in the process of a pull-through operation, or during
the administration of anesthesia to the patient, but such fact
alone did not prove that the negligence of any of his
attending physicians, including the anesthesiologists, had
caused the injury. In fact, the anesthesiologists attending to
him had sensed in the course of the operation that the lack
of oxygen could have been triggered by the vago-vagal
reflex, prompting them to administer atropine to the
patient.30

45

This conclusion is not unprecedented. It was similarly

reached in Swanson v. Brigham,31 relevant portions of the
decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old
Randall Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a
swollen throat and some breathing difficulty. Early in the
morning of January 9 the patient was restless, and at 1:30
a.m. Dr. Brigham examined the patient. His inspection of the
patient's air passage revealed that it was in satisfactory
condition. At 4:15 a.m. Dr. Brigham received a telephone
call from the hospital, advising him that the patient was
having respiratory difficulty. The doctor ordered that oxygen
be administered and he prepared to leave for the hospital.
Ten minutes later, 4:25 a.m., the hospital called a second
time to advise the doctor that the patient was not
responding. The doctor ordered that a medicine be
administered, and he departed for the hospital. When he
arrived, the physician who had been on call at the hospital
had begun attempts to revive the patient. Dr. Brigham
joined him in the effort, but the patient died.
The doctor who performed the autopsy concluded that the
patient died between 4:25 a.m. and 4:30 a.m. of asphyxia,
as a result of a sudden, acute closing of the air passage. He
also found that the air passage had been adequate to
maintain life up to 2 or 3 minutes prior to death. He did not
know what caused the air passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital
for the treatment of infectious mononucleosis dies of
asphyxiation. But that is not sufficient to invoke res ipsa
loquitur. The fact that the injury rarely occurs does not in

itself prove that the injury was probably caused by

someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298,
474 P.2d 909 (1970). Nor is a bad result by itself enough to
warrant the application of the doctrine. Nelson v. Murphy, 42
Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The
Negligence Case Res Ipsa Loquitur 24:10 (1972). The
evidence presented is insufficient to establish the first
element necessary for application of res ipsa loquitur
doctrine. The acute closing of the patients air passage and
his resultant asphyxiation took place over a very short
period of time. Under these circumstances it would not be
reasonable to infer that the physician was negligent. There
was no palpably negligent act. The common experience of
mankind does not suggest that death would not be expected
without negligence. And there is no expert medical
testimony to create an inference that negligence caused the
injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa
loquitur, the Court next determines whether the CA correctly
affirmed the conviction of Dr. Solidum for criminal
negligence.
Negligence is defined as the failure to observe for the
protection of the interests of another person that degree of
care, precaution, and vigilance that the circumstances justly
demand, whereby such other person suffers injury. 32Reckless
imprudence, on the other hand, consists of voluntarily doing
or failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of
precaution on the part of the person performing or failing to
perform such act.33

46

Dr. Solidums conviction by the RTC was primarily based on

his failure to monitor and properly regulate the level of
anesthetic agent administered on Gerald by overdosing at
100% halothane. In affirming the conviction, the CA
observed:
On the witness stand, Dr. Vertido made a significant
turnaround. He affirmed the findings and conclusions in his
report except for an observation which, to all intents and
purposes, has become the storm center of this dispute. He
wanted to correct one piece of information regarding the
dosage of the anesthetic agent administered to the child. He
declared that he made a mistake in reporting a 100%
halothane and said that based on the records it should have
been 100% oxygen.
The records he was relying on, as he explains, are the
following:
(a) the anesthesia record A portion of the chart in
the record was marked as Exhibit 1-A and 1-B to
indicate the administration at intervals of the
anesthetic agent.
(b) the clinical abstract A portion of this record that
reads as follows was marked Exhibit 3A. 3B
Approximately 1 hour and 45 minutes through the
operation, patient was noted to have bradycardia (CR
= 70) and ATSO4 0.2 mg was immediately
administered. However, the bradycardia persisted,
the inhalational agent was shut off, and the patient
was ventilated with 100% oxygen and another dose
of ATSO4 0.2 mg was given. However, the patient did
not respond until no cardiac rate can be auscultated
and the surgeons were immediately told to stop the
operation. The patient was put on a supine position

and CPR was initiated. Patient was given 1 amp of

epinephrine initially while continuously doing cardiac
massage still with no cardiac rate appreciated;
another ampule of epinephrine was given and after
45 secs, patients vital signs returned to normal. The
entire resuscitation lasted approximately 3-5 mins.
The surgeons were then told to proceed to the
closure and the childs vital signs throughout and
until the end of surgery were: BP = 110/70; CR =
116/min and RR = 20-22 cycles/min (on assisted
ventilation).
Dr. Vertido points to the crucial passage in the clinical
abstract that the patient was ventilated with 100% oxygen
and another dose of ATSO4 when the bradycardia persisted,
but for one reason or another, he read it as 100% halothane.
He was asked to read the anesthesia record on the
percentage of the dosage indicated, but he could only
sheepishly note I cant understand the number. There are no
clues in the clinical abstract on the quantity of the
anesthetic agent used. It only contains the information that
the anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with halothane as
the sole anesthetic agent and that 1 hour and 45 minutes
after the operation began, bradycardia occurred after which
the inhalational agent was shut off and the patient
administered with 100% oxygen. It would be apparent that
the 100% oxygen that Dr. Vertido said should be read in lieu
of 100% halothane was the pure oxygen introduced after
something went amiss in the operation and the halothane
itself was reduced or shut off.
The key question remains what was the quantity of
halothane used before bradycardia set in?
The implication of Dr. Vertidos admission is that there was
no overdose of the anesthetic agent, and the accused Dr.

47

Solidum stakes his liberty and reputation on this conclusion.

He made the assurance that he gave his patient the utmost
medical care, never leaving the operating room except for a
few minutes to answer the call of nature but leaving behind
the other members of his team Drs. Abella and Razon to
monitor the operation. He insisted that he administered only
a point 1% not 100% halothane, receiving corroboration
from Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and was
therefore conversant of the things that happened. She
revealed that they were using a machine that closely
monitored the concentration of the agent during the
operation.
But most compelling is Dr. Solidums interpretation of the
anesthesia record itself, as he takes the bull by the horns, so
to speak. In his affidavit, he says, reading from the record,
that the quantity of halothane used in the operation is one
percent (1%) delivered at time intervals of 15 minutes. He
studiedly mentions the concentration of halothane as
reflected in the anesthesia record (Annex D of the
complaint-affidavit) is only one percent (1%) The numbers
indicated in 15 minute increments for halothane is an
indication that only 1% halothane is being delivered to the
patient Gerard Gercayo for his entire operation; The amount
of halothane delivered in this case which is only one percent
cannot be summated because halothane is constantly being
rapidly eliminated by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations,
the RTC argued that the volte-face of Dr. Vertido on the
question of the dosage of the anesthetic used on the child
would not really validate the non-guilt of the
anesthesiologist. Led to agree that the halothane used was
not 100% as initially believed, he was nonetheless unaware

of the implications of the change in his testimony. The court

observed that Dr. Vertido had described the condition of the
child as hypoxia which is deprivation of oxygen, a diagnosis
supported by the results of the CT Scan. All the symptoms
attributed to a failing central nervous system such as
stupor, loss of consciousness, decrease in heart rate, loss of
usual acuity and abnormal motor function, are
manifestations of this condition or syndrome. But why would
there be deprivation of oxygen if 100% oxygen to 1%
halothane was used? Ultimately, to the court, whether
oxygen or halothane was the object of mistake, the
detrimental effects of the operation are incontestable, and
they can only be led to one conclusion if the application of
anesthesia was really closely monitored, the event could not
have happened.34
The Prosecution did not prove the elements of reckless
imprudence beyond reasonable doubt because the
circumstances cited by the CA were insufficient to establish
that Dr. Solidum had been guilty of inexcusable lack of
precaution in monitoring the administration of the
anesthetic agent to Gerald. The Court aptly explained in
Cruz v. Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable
lack of precaution" in the treatment of his patient is to be
determined according to the standard of care observed by
other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of
the profession at the time of treatment or the present state
of medical science. In the recent case of Leonila GarciaRueda v. Wilfred L. Pacasio, et. al., this Court stated that in
accepting a case, a doctor in effect represents that, having
the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such
training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care

48

that any other reasonably competent doctor would use to

treat a condition under the same circumstances. It is in this
aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the
profession but also that the physician's conduct in the
treatment and care falls below such standard. Further,
inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as
to causation.

An action upon medical negligence whether criminal, civil

or administrative calls for the plaintiff to prove by
competent evidence each of the following four elements,
namely: (a) the duty owed by the physician to the patient,
as created by the physician-patient relationship, to act in
accordance with the specific norms or standards established
by his profession; (b) the breach of the duty by the
physicians failing to act in accordance with the applicable
standard of care; (3) the causation, i.e., there must be a
reasonably close and causal connection between the
negligent act or omission and the resulting injury; and (4)
the damages suffered by the patient.36

xxxx
In litigations involving medical negligence, the plaintiff has
the burden of establishing appellant's negligence and for a
reasonable conclusion of negligence, there must be proof of
breach of duty on the part of the surgeon as well as a causal
connection of such breach and the resulting death of his
patient. In Chan Lugay v. St Luke's Hospital, Inc., where the
attending physician was absolved of liability for the death of
the complainants wife and newborn baby, this Court held
that:
"In order that there may be a recovery for an injury,
however, it must be shown that the injury for which
recovery is sought must be the legitimate consequence of
the wrong done; the connection between the negligence and
the injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes. In other words,
the negligence must be the proximate cause of the injury.
For, negligence, no matter in what it consists, cannot create
a right of action unless it is the proximate cause of the injury
complained of. And the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and
without which the result would not have occurred."

In the medical profession, specific norms or standards to

protect the patient against unreasonable risk, commonly
referred to as standards of care, set the duty of the
physician to act in respect of the patient. Unfortunately, no
clear definition of the duty of a particular physician in a
particular case exists. Because most medical malpractice
cases are highly technical, witnesses with special medical
qualifications must provide guidance by giving the
knowledge necessary to render a fair and just verdict. As a
result, the standard of medical care of a prudent physician
must be determined from expert testimony in most cases;
and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care
and skill commonly possessed and exercised by similar
specialists under similar circumstances. The specialty
standard of care may be higher than that required of the
general practitioner.37
The standard of care is an objective standard by which the
conduct of a physician sued for negligence or malpractice
may be measured, and it does not depend, therefore, on any
individual physicians own knowledge either. In attempting
to fix a standard by which a court may determine whether
the physician has properly performed the requisite duty

49

toward the patient, expert medical testimony from both

plaintiff and defense experts is required. The judge, as the
trier of fact, ultimately determines the standard of care,
after listening to the testimony of all medical experts.38
Here, the Prosecution presented no witnesses with special
medical qualifications in anesthesia to provide guidance to
the trial court on what standard of care was applicable. It
would consequently be truly difficult, if not impossible, to
determine whether the first three elements of a negligence
and malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an
anesthesiologist himself who served as the Chairman of the
Committee on Ethics and Malpractice of the Philippine
Society of Anesthesiologists that investigated the complaint
against Dr. Solidum, his testimony mainly focused on how
his Committee had conducted the investigation.39 Even then,
the report of his Committee was favorable to Dr.
Solidum,40 to wit:
Presented for review by this committee is the case of a 3
year old male who underwent a pull-thru operation and was
administered general anesthesia by a team of anesthesia
residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in
preparation for the anastomosis, had bradycardia. The
anesthesiologists, sensing that the cause thereof was the
triggering of the vago-vagal reflex, administered atropine to
block it but despite the administration of the drug in two
doses, cardiac arrest ensued. As the records show, prompt
resuscitative measures were administered and spontaneous
cardiac function re-established in less than five (5) minutes
and that oxygen was continuously being administered
throughout, unfortunately, as later become manifest, patient
suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the

administration of anaesthesia, the committee find that the
same were all in accordance with the universally accepted
standards of medical care and there is no evidence of any
fault or negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the
National Bureau of Investigation, was also presented as a
Prosecution witness, but his testimony concentrated on the
results of the physical examination he had conducted on
Gerald, as borne out by the following portions of his direct
examination, to wit:
FISCAL CABARON Doctor, what do you mean by General
Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in
the conduction of Anesthesia and in this case, halothane
was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you
mentioned that after one hour and 45 minutes after the
operation, the patient experienced a bradycardia or slowing
of heart rate, now as a doctor, would you be able to tell this
Honorable Court as to what cause of the slowing of heart
rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why
there was a bradycardia of time because is some reason one
way or another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?

50

A Well bradycardia can be caused by anesthetic agent itself

and that is a possibility, were talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen
within that situation.
FISCAL CABARON Now, this representation would like to ask
you about the slowing of heart rate, now what is the
immediate cause of the slowing of the heart rate of a
person?
WITNESS Well, one of the more practical reason why there is
slowing of the heart rate is when you do a vagal reflex in the
neck wherein the vagal receptors are located at the lateral
part of the neck, when you press that, you produce the
slowing of the heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what
about the deficiency in the supply of oxygen by the patient,
would that also cause the slowing of the heart rate?

Q Now, you made mention also doctor that the use of

general anesthesia using 100% halothane and other
anesthetic medications probably were contributory to the
production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more
specifically on his interpretation of the anesthesia record
and the factors that could have caused Gerald to experience
bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page
3, will you kindly read to this Honorable court your last
paragraph and if you will affirm that as if it is correct?
A "The use of General Anesthesia, that is using 100%
Halothane probably will be contributory to the production of
Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in
this Court Doctor?

A Well that is a possibility sir, I mean not as slowing of the

heart rate, if there is a hypoxia or there is a low oxygen level
in the blood, the normal thing for the heart is to pump or to
do not a bradycardia but a to counter act the Hypoxia
that is being experienced by the patient

WITNESS Based on the records, I know the - - -

(sic).

Q I will show you doctor a clinical record. I am a lawyer I am

not a doctor but will you kindly look at this and tell me
where is 100%, the word "one hundred" or 1-0-0, will you
kindly look at this Doctor, this Xerox copy if you can show to
this Honorable Court and even to this representation the
word "one hundred" or 1-0-0 and then call me.

xxxx

Q 100%?
A 100% based on the records.

51

xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that
100, 1-0-0 and if there is, you just call me and even the
attention of the Presiding Judge of this Court. Okay, you read
one by one.

Q I remember doctor, according to you there are so many

factors that contributed to what you call hypoxia and
according to you, when this Gerald suffered hypoxia, there
are other factors that might lead to this Hypoxia at the time
of this operation is that correct?
WITNESS The possibility is there, sir.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA Im asking you, just answer my question, did
you see there 100% and 100 figures, tell me, yes or no?
WITNESS Im trying to look at the 100%, there is no 100%
there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may
we request also temporarily, because this is just a xerox
copy presented by the fiscal, that the percentage here that
the Halothane administered by Dr. Solidum to the patient is
1% only so may we request that this portion, temporarily
your Honor, we are marking this anesthesia record as our
Exhibit 1 and then this 1% Halothane also be bracketed and
the same be marked as our Exhibit "1-A".
xxxx

Q And according to you, it might also be the result of such

other, some or it might be due to operations being
conducted by the doctor at the time when the operation is
being done might also contribute to that hypoxia is that
correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation
conducted to this Gerald, Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted
to this Gerald, there is a possibility that this Gerald might
[be] exposed to some risk is that correct?

ATTY. COMIA Doctor, my attention was called also when you

said that there are so many factors that contributed to
Hypoxia is that correct?

A That is a possibility sir.

WITNESS Yes, sir.

Q And which according to you that Gerald suffered hypoxia

is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that
correct?

52

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido
maintained that Geralds operation for his imperforate anus,
considered a major operation, had exposed him to the risk
of suffering the same condition.43 He then corrected his
earlier finding that 100% halothane had been administered
on Gerald by saying that it should be 100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor
and regulate properly the levels of anesthesia administered
to said Gerald Albert Gercayo and using 100% halothane
and other anesthetic medications."45However, the foregoing
circumstances, taken together, did not prove beyond
reasonable doubt that Dr. Solidum had been recklessly
imprudent in administering the anesthetic agent to Gerald.
Indeed, Dr. Vertidos findings did not preclude the probability
that other factors related to Geralds major operation, which
could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia
and had then led Gerald to experience bradycardia. Dr.
Vertido revealingly concluded in his report, instead, that
"although the anesthesiologist followed the normal routine
and precautionary procedures, still hypoxia and its
corresponding side effects did occur."46
The existence of the probability about other factors causing
the hypoxia has engendered in the mind of the Court a
reasonable doubt as to Dr. Solidums guilt, and moves us to
acquit him of the crime of reckless imprudence resulting to
serious physical injuries. "A reasonable doubt of guilt,"
according to United States v. Youthsey:47
x x x is a doubt growing reasonably out of evidence or the
lack of it. It is not a captious doubt; not a doubt engendered
merely by sympathy for the unfortunate position of the

defendant, or a dislike to accept the responsibility of

convicting a fellow man. If, having weighed the evidence on
both sides, you reach the conclusion that the defendant is
guilty, to that degree of certainty as would lead you to act
on the faith of it in the most important and crucial affairs of
your life, you may properly convict him. Proof beyond
reasonable doubt is not proof to a mathematical
demonstration. It is not proof beyond the possibility of
mistake.
We have to clarify that the acquittal of Dr. Solidum would
not immediately exempt him from civil liability.1wphi1 But
we cannot now find and declare him civilly liable because
the circumstances that have been established here do not
present the factual and legal bases for validly doing so. His
acquittal did not derive only from reasonable doubt. There
was really no firm and competent showing how the injury to
Gerard had been caused. That meant that the manner of
administration of the anesthesia by Dr. Solidum was not
necessarily the cause of the hypoxia that caused the
bradycardia experienced by Gerard. Consequently, to
adjudge Dr. Solidum civilly liable would be to speculate on
the cause of the hypoxia. We are not allowed to do so, for
civil liability must not rest on speculation but on competent
evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of
civil liability, we have to address the unusual decree of the
RTC, as affirmed by the CA, of expressly holding Ospital ng
Maynila civilly liable jointly and severally with Dr. Solidum.
The decree was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of
civil liability that is deemed instituted with the criminal

53

action refers only to that arising from the offense

charged.48 It is puzzling, therefore, how the RTC and the CA
could have adjudged Ospital ng Maynila jointly and severally
liable with Dr. Solidum for the damages despite the obvious
fact that Ospital ng Maynila, being an artificial entity, had
not been charged along with Dr. Solidum. The lower courts
thereby acted capriciously and whimsically, which rendered
their judgment against Ospital ng Maynila void as the
product of grave abuse of discretion amounting to lack of
jurisdiction.

conducted for profit but purely in charitable and

humanitarian work.50Secondly, assuming that Ospital ng
Maynila was engaged in industry for profit, Dr. Solidum must
be shown to be an employee of Ospital ng Maynila acting in
the discharge of his duties during the operation on Gerald.
Yet, he definitely was not such employee but a consultant of
the hospital. And, thirdly, assuming that civil liability was
adjudged against Dr. Solidum as an employee (which did not
happen here), the execution against him was unsatisfied
due to his being insolvent.

Not surprisingly, the flawed decree raises other material

concerns that the RTC and the CA overlooked. We deem it
important, then, to express the following observations for
the instruction of the Bench and Bar.

WHEREFORE, the Court GRANTS the petition for review on

certiorari; REVERSES AND SETS ASIDE the decision
promulgated on January 20, 2010; ACQUITS Dr. Fernando P.
Solidum of the crime of reckless imprudence resulting to
serious physical injuries; and MAKES no pronouncement on
costs of suit.

For one, Ospital ng Maynila was not at all a party in the

proceedings. Hence, its fundamental right to be heard was
not respected from the outset. The R TC and the CA should
have been alert to this fundamental defect. Verily, no person
can be prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party. Such a rule
would enforce the constitutional guarantee of due process of
law.

SO ORDERED.

Moreover, Ospital ng Maynila could be held civilly liable only

when subsidiary liability would be properly enforceable
pursuant to Article 103 of the Revised Penal Code. But the
subsidiary liability seems far-fetched here. The conditions
for subsidiary liability to attach to Ospital ng Maynila should
first be complied with. Firstly, pursuant to Article 103 of the
Revised Penal Code, Ospital ng Maynila must be shown to be
a corporation "engaged in any kind of industry." The term
industry means any department or branch of art, occupation
or business, especially one that employs labor and capital,
and is engaged in industry.49 However, Ospital ng Maynila,
being a public hospital, was not engaged in industry

54

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 191240

July 30, 2014

CRISTINA B. CASTILLO, Petitioner,

vs.
PHILLIP R. SALVADOR, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari which assails
the Decision1 dated February 11, 2010 of the Court of
Appeals (CA) in CA-G.R. CR No. 30151 with respect only to
the civil aspect of the case as respondent Phillip R. Salvador
had been acquitted of the crime of estafa. Respondent
Phillip Salvador and his brother Ramon Salvador were
charged with estafa under Article 315, paragraph 2 (a) of
the Revised Penal Code in an Information2 which reads:
That during the period from March 2001 up to May 2002, in
the City of Las Pias, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring and confederating together and both of them
mutually helping and aiding one another, with intent to gain
and by means of false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud,
did then and there willfully, unlawfully and feloniously
defraud the complainant CRISTINA B. CASTILLO, in the
amount of US$100,000.00 in the following manner, to wit:
Respondents convinced the complainant to invest into the

remittance business in the name of accused PHILLIP R.

SALVADOR in Hongkong, representing to her that they will
personally take charge of the operations and marketing of
the said business, assuring her with huge profits because of
the popularity of accused PHILLIP R. SALVADOR, knowing
very well that the said manifestations/representations and
fraudulent manifestations were false and were intended only
to exact money from the Complainant, and by reason of the
said false representations made by both accused, the
Complainant gave and entrusted to the accused the amount
of US$100,000.00 as seed money to start the operations of
the business and the said accused, once in the possession of
the said amount of money, misappropriated, misapplied
and/or converted the same to their own personal use and
benefit, to the damage and prejudice of the Complainant in
the aforementioned amount of US$100,000.00.
CONTRARY TO LAW.3
Upon their arraignment, respondentand his brother Ramon
pleaded not guilty4 to the offense charged.
Trial on the merits thereafter ensued.
Petitioner Cristina B. Castillo testified that she is engaged in
real estate business, educational institution, boutique, and
trading business.5 She met respondent through a common
friend in December 2000 and became close since then.
Respondent had told her that his friends, Jinggoy Estrada
and Rudy Fernandez, were engaged in the freight and
remittance business and that Jinggoy even brought him
toHong Kong and Singapore to promote the former's
business.6 Petitioner eventually met respondents brother
and manager, Ramon Salvador, to whom she volunteered to
financially help respondent in his bid for the Vice-Mayoralty
race in Mandaluyong.7 It was also in the same meeting that

55

they talked about the matter of engaging in a freight and

remittance business.8Respondent enticed petitioner to go to
Hong Kong to see for herself the viability of such business
and Ramon suggested to use respondents name to attract
the overseas contract workers.9
In March 2001, petitioner and her husband, together with
respondent and a certain Virgilio Calubaquib wentto Hong
Kong and they witnessed respondents popularity among the
Filipino domestic helpers.10 In April 2001, the same group,
with Ramon this time, went to Bangkok where respondents
popularity was again shown among the overseas
Filipinos.11 In both instances, respondent promoted their
prospective business. In both trips, petitioner paid for all the
travelexpenses and even gave respondent US$10,000.00 as
pocket money for the Hong Kong trip and another
US$10,000.00 for the Bangkok trip.12 Her accountant
introduced her to a certain Roy Singun who is into the
freight and money remittance business.13 In August 2001,
respondent initiated a trip to Palau, to observe Singuns
business thereat to which petitioner acceded.14 Petitioner
paid for the travel expenses and even gaverespondent
US$20,000.00.15 In October 2001, she and respondent had a
training at Western Union at First World Center in Makati
City.16
As petitioner had deeply fallen in love with respondent and
since she trusted him very much as heeven acted as a
father to her children when her annulment was ongoing, she
agreed to embark on the remittance business. In December
2001, she, accompanied by her mother, Zenaida G. Bondoc
(Zenaida), and Ramon, went to Hong Kong and had the
Phillip Salvador Freight and Remittance International Limited
registered on December 27, 2001.17 A Memorandum of
Articles of Incorporation and a Certificate of Incorporation
were issued.18 They also rented an office space in
Tsimshatsui, Kowloon, Hong Kong which they registered as

their office address as a requirement for opening a business

in Hong Kong, thus, a Notification of Situation of Registered
Office was also issued.19 She agreed with respondent and
Ramon that any profit derived from the business would be
equally divided among them and thatrespondent would be
in charge of promotion and marketing in Hong Kong,while
Ramon would take charge of the operations of business in
the Philippines and she would be financing the business. 20
The business has not operated yet as petitioner was still
raising the amount of US$100,000.00 as capital for the
actual operation.21 When petitioner already had the money,
she handed the same to respondent in May 2002 at her
mothers house in Las Pias City, which was witnessed by
her disabled half-brother Enrico B. Tan (Enrico).22She also
gave respondent P100,000.00 in cash to begiven to Charlie
Chau, who is a resident of Hong Kong, as payment for the
heart-shaped earrings she bought from him while she was
there. Respondent and Ramon went to Hong Kong in May
2002. However, the proposed business never operated as
respondent only stayed in Hong Kongfor three days. When
she asked respondent about the money and the business,
the latter told her that the money was deposited in a
bank.23 However, upon further query, respondent confessed
that he used the money to pay for his other
obligations.24 Since then, the US$100,000.00 was not
returned at all.
On cross-examination, petitioner testified that she fell
deeply in love with respondent and was convinced thathe
truly loved her and intended to marry her once there would
beno more legal impediment;25 that she helped in financing
respondents campaign in the May 2001 elections.26 As she
loved respondent so much, she gave him monthly
allowances amounting to hundreds of thousands of pesos
because he had no work back then.27 She filed the
annulment case against her husband on November 21, 2001

56

and respondent promised her marriage.28 She claimed that

respondent and Ramon lured her with sweet words in going
into the freight and remittance business, which never
operated despite the money she had given
respondent.29 She raised the US$100,000.00 by means of
selling and pawning her pieces of diamond jewelry. 30
Petitioner admitted being blinded by her love for respondent
which made her follow all the advice given by him and his
brother Ramon, i.e., to save money for her and respondents
future because after the annulment, they would get married
and to give the capital for the remittance business in cash
so as not to jeopardize her annulment case.31 She did not
ask for a receipt for the US$100,000.00 she gave to
respondent as it was for the operational expenses of a
business which will be for their future, as all they needed to
do was to get married.32She further testified that after the
US$100,000.00 was not returned, she still deposited the
amount ofP500,000.00 in respondents UCPB bank
account33 and also to Ramons bank accounts.34 And while
respondent was in the United States in August 2003, she
still gave him US$2,000.00as evidenced by a Prudential
Telegraphic Transfer Application35 dated August 27, 2003.
Petitioners mother, Zenaida, corroborated her daughters
testimony that she was with her and Ramon when they went
to Hong Kong in December 2001 to register the freight and
remittance business.36 She heard Charlie Chau, her
daughter's friend, that a part of his office building will be
used for the said remittance business.37 Enrico Tan, also
corroborated her sister's claim that she handed the money
to respondent in his presence.38
Respondent testified that he and petitioner became close
friends and eventually fell in love and had an affair.39They
traveled to Hong Kong and Bangkok where petitioner saw
how popular he was among the Filipino domestic

helpers,40 which led her to suggest a remittance business.

Although hesitant, he has friends with such business.41He
denied that petitioner gave him US$10,000.00 whenhe went
to Hong Kong and Bangkok.42 In July 2001, after he came
back from the United States, petitioner had asked him and
his brother Ramon for a meeting.43 During the meeting,
petitioner brought up the money remittance business, but
Ramon told her that they should make a study of it
first.44 He was introduced to Roy Singun, owner of a money
remittance business in Pasay City.45 Upon the advise of Roy,
respondent and petitioner, her husband and Ramon went to
Palau in August 2001.46 He denied receiving US$20,000.00
from petitioner but admitted that it was petitioner who paid
for the plane tickets.47 After their Palau trip, they went into
training at Western Union at the First World Center in Makati
City.48 It was only in December 2001 that Ramon, petitioner
and her mother went to Hong Kong to register the business,
while he took care of petitioners children here. 49 In May
2002, he and Ramon went back to Hong Kong but
deniedhaving received the amount of US$100,000.00 from
petitioner but then admitted receipt of the amount
of P100,000.00 which petitioner asked him to give to Charlie
Chau as payment for the pieces of diamond jewelry she got
from him,50 which Chau had duly acknowledged. 51 He denied
Enricos testimony that petitioner gave him the amount of
US$100,000.00 in his mothers house.52 He claimed that no
remittance business was started in Hong Kong as they had
no license, equipment, personnel and money to operate the
same.53 Upon his return to the Philippines, petitioner never
asked him about the business as she never gave him such
amount.54 In October 2002, he intimated that he and
petitioner even went to Hong Kong again to buy some goods
for the latters boutique.55 He admitted that he loved
petitioner and her children very much as there was a time
when petitioners finances were short, he gave
her P600,000.00 for the enrollment of her children in very

57

expensive schools.56 It is also not true that he and Ramon

initiated the Hong Kong and Bangkok trips.57
Ramon testified that it was his brother respondent who
introduced petitioner to him.58 He learned of petitioners
plan of a remittance business in July 2001 and even told her
that they should study it first.59 He was introduced to Roy
Singun who operates a remittancebusiness in Pasay and
who suggested that their group observehis remittance
business in Palau. After their Palau trip, petitioner decided to
put up a similar business in Hong Kong and it was him who
suggested to use respondents name because of name
recall.60 It was decided thathe would manage the operation
in Manila and respondent would be in charge of promotion
and marketing in Hong Kong, while petitioner would be in
charge of all the business finances.61 He admitted that he
wentto Hong Kong with petitioner and her mother to register
said business and also to buy goods for petitioners
boutique.62 He said that it was also impossible for Chau to
offer a part of his office building for the remittance business
because there was no more space to accommodate it.63 He
and respondent went to Hong Kong in May 2002 to examine
the office recommended by Chau and the warehouse of
Rudy Fernandez thereatwho also offered to help.64 He then
told Chau that the remittance office should be in Central
Park, Kowloon, because majority of the Filipinos in Hong
Kong live there.65 He concluded that it was impossible for
the business to operate immediately because they had no
office, no personnel and no license permit.66 He further
claimed that petitioner never mentioned to him about the
US$100,000.00 she gave to respondent,67 and that he even
traveled again with petitioner to Bangkok in October 2002,
and in August 2003.68 He denied Enricos allegation that he
saw him at his mothers house as he only saw Enrico for the
first time in court.69

On April 21, 2006, the RTC rendered a Decision, 70 the

dispositive portion of which reads: WHEREFORE, accused
PHILLIP SALVADOR is found GUILTY beyond reasonable doubt
of the crime ofEstafa under Article 315, par. 2 (a) of the
Revised Penal Code and is hereby sentenced to suffer the
indeterminate sentence of four (4) years, two (2) months
and one (1) day of prisyon (sic) correctional (sic)maximum
as minimum to twenty (20) years of reclusion temporal
maximumas maximum and to indemnify the private
complainant in the amount of ONE HUNDRED THOUSAND
DOLLARS (US$100,000.00) or its equivalent in Philippine
currency. With respect to accused RAMON SALVADOR, he is
ACQUITTED for insufficiency of evidence. SO ORDERED.71
Respondent appealed his conviction to the CA. The parties
filed their respective pleadings, after which, the case was
submitted for decision.
On February 11, 2010, the CA rendered its Decision
reversing the decision of the RTC, the decretal portion of
which reads:
WHEREFORE, premises considered, the appealed decision of
Branch 202 of the RTC of Las Pias City, dated April 21,
2006, is hereby REVERSED AND SET ASIDE and accused
appellant PHILLIP R. SALVADOR is ACQUITTED of the crime of
Estafa.72
Petitioner files the instant petition onthe civil aspect of the
case alleging that:
THE TRIAL COURT WAS CORRECT IN CONVICTING THE
RESPONDENT SO THAT EVEN IF THE COURT OF APPEALS
DECIDED TO ACQUIT HIM IT SHOULD HAVE AT LEAST
RETAINED THE AWARD OF DAMAGES TO THE PETITIONER.73

58

We find no merit in the petition.

To begin with, in Manantan v. CA,74 we discussed the
consequences of an acquittal on the civil liability of the
accused as follows:
Our law recognizes two kinds of acquittal, with different
effects on the civil liability of the accused. First is an
acquittal on the ground that the accused is not the author of
the actor omission complained of. This instance closes the
door to civil liability, for a person who has been found to be
not the perpetrator of any act or omission cannot and can
never be held liable for such act oromission. There being no
delict, civil liability ex delictois out of the question, and the
civil action, if any, which may be instituted must be based
on grounds other than the delict complained of. This is the
situation contemplated in Rule III of the Rules of Court. The
second instance is an acquittal based on reasonable doubt
on the guilt of the accused. In this case, even if the guilt of
the accused has not been satisfactorily established, he is
not exempt from civil liability which may be proved by
preponderance of evidence only. This is the situation
contemplated in Article 29 of the Civil Code, where the civil
action for damages is "for the same act or omission." x x x.75
A reading of the CA decision would show that respondent
was acquitted because the prosecution failed to prove his
guilt beyond reasonable doubt. Said the CA:
The evidence for the prosecution being insufficient to prove
beyond reasonable doubt that the crime as charged had
been committed by appellant, the general presumption,
"that a person is innocent of the crime or wrong, stands in
his favor. The prosecution failed to prove that all the
elements of estafa are present in this case as would
overcome the presumption of innocence in favor of

appellant. For in fact, the prosecution's primary witness

herself could not even establish clearly and precisely how
appellant committed the alleged fraud. She failed to
convince us that she was deceived through
misrepresentations and/or insidious actions, in venturing
into a remittance business. Quite the contrary, the obtaining
circumstance inthis case indicate the weakness of her
submissions.76
Thus, since the acquittal is based on reasonable doubt,
respondent is not exempt from civil liability which may be
proved by preponderance of evidence only. In Encinas v.
National Bookstore, Inc.,77 we explained the concept of
preponderance of evidence as follows:
x x x Preponderance of evidence is the weight, credit, and
value of the aggregate evidence on either side and is
usually considered to be synonymous with the term "greater
weight of the evidence" or "greater weight of the credible
evidence." Preponderance of evidence is a phrase which, in
the last analysis, means probability of the truth. It is
evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto.78
The issue of whether petitioner gave respondent the amount
of US$100,000.00 is factual. While we are not a trier of
facts, there are instances, however, when we are called
upon to re-examine the factual findings of the trial court and
the Court of Appeals and weigh, after considering the
records of the case, which of the conflicting findings is more
in accord with law and justice.79 Such is the case before us.
In discrediting petitioners allegation that she gave
respondent US$100,000.00 in May 2002, the CA found that:
(1) petitioner failed to show how she was able to raise the
money in such a short period of time and even gave

59

conflicting versions on the source of the same; (2) petitioner

failed to require respondent to sign a receipt so she could
have a record of the transaction and offered no plausible
reason why the money was allegedly hand-carried toHong
Kong; (3) petitioners claim of trust as reason for not
requiring respondent to sign a receipt was inconsistent with
the way she conducted her previous transactions with him;
and (4) petitioners behavior after the alleged fraud
perpetrated against her was inconsistent with the actuation
ofsomeone who had been swindled.

the freight and remittance business like any of her

businesses;86 that she, respondent, and the latters brother
even agreed to divide whatever profits they would have
from the business;87 and that giving US$100,000.00 to
respondent was purely business to her.88 She also said that
she kept records of all her business, such that, if there are
no records, there are no funds entrusted89 . Since petitioner
admitted that giving the money to respondent was for
business, there must be some records ofsuch transaction as
what she did in her other businesses.

We find no reversible error committed by the CA in its

findings.

In fact, it was not unusual for petitioner to ask respondent

for some documents evidencing the latter's receipt of
money for the purpose of business as this was done in her
previous business dealings with respondent. She had asked
respondent to execute a real estate mortgage on his
condominium unit90 for the P5 million she loaned him in
August 2001. Also, when petitioner gave respondent an
additional loan of P10 million in December 2001, for the
latter to redeem the title to his condominium unit from the
bank, she had asked him to sign an acknowledgment receipt
for the total amount of P15 million he got from her.91 She
had done all these despite her testimony that she trusted
respondent from the day they met in December 2000 until
the day he ran away from her in August 2003.92

Petitioner failed to prove on how she raised the money

allegedly given to respondent. She testified that from
December 2001 to May 2002, she was raising the amount of
US$100,000.00 as the capital for the actual operation of the
Phillip Salvador Freight and Remittance International Limited
in Hong Kong,80 and that she was ableto raise the same in
May 2002.81 She did so by selling82 or pawning83 her pieces
of diamond jewelry. However, there was no documentary
evidence showing those transactions within the period
mentioned. Upon further questioning on cross-examination
on where she got the money, she then said that she had
plenty of dollars as she is a frequent traveler to Hong Kong
and Bangkok to shop for her boutique in Glorietta and Star
Mall.84 Such testimony contradicts her claim that she was
still raising the money for 5 months and that she was only
able to formally raise the money in May 2002.
There was also no receipt that indeed US$100,000.00 was
given by petitioner to respondent.1wphi1 Petitioner in her
testimony, both in the direct and cross examinations, said
that the US$100,000.00 given to respondent was for the
actual expenses for setting up the office and the operation
of the business in Hong Kong.85 She claimed that she treated

Petitioner insists that she did not ask for any

acknowledgment receipt from respondent, because the
latter told her not to have traces that she was giving money
to him as it might jeopardize her then ongoing annulment
proceedings. However, petitioner's testimony would belie
such claim of respondent being cautious of the annulment
proceedings. She declared that when she and her husband
separated, respondent stood as a father to her
children.93 Respondent attended school programs of her
children,94 and fetched them from school whenever the
driver was not around.95 In fact, at the time the annulment

60

case was already pending, petitioner registered the freight

and remittance business under respondents name and the
local branch office of the business would be in petitioner's
condominium unit in Makati.96 Also, when petitioner went
with her mother and Ramon to Hong Kong to register the
business, it was respondent who tookcare of her children.
She intimated that it was respondent who was insistent in
going to their house.
Worthy to mention is that petitioner deposited the amount
of P500,000.00 to respondent's account with United Coconut
Planters Bank (UCPB) in July 2003.97 Also, when respondent
was in New York in August 2003, petitioner sent him the
amount of US$2,000.00 by telegraphic transfer.98 Petitioner's
act ofdepositing money to respondent's account
contradicted her claim that there should be no traces that
she was giving money to respondent during the pendency of
the annulment case.

witnessed the giving of the money to respondent as

petitioner told him that he could just testify for the other
case. However, when the other case was dismissed, it was
then that petitioner told him to be a witness in this case.
Enrico should have been considered at the first opportunity
if he indeed had personal knowledge of the alleged giving of
money to respondent. Thus, presenting Enrico as a witness
only after the other case was dismissed would create doubt
as to the veracity of his testimony.
WHEREFORE, the petition for review is DENIED. The Decision
dated February 11, 2010, of the Court of Appeals in CA-G.R.
CR No. 30151, is hereby AFFIRMED.
SO ORDERED.

Petitioner conceded that she could have either bought a

manager's check in US dollars from the bank orsend the
money by bank transfer, but she did not do so on the claim
that there might be traces of the transaction.99However, the
alleged US$100,000.00was supposed to be given to
respondent because of the freight and remittance business;
thus, there is nothing wrong to have a record of the same,
specially since respondent had to account for the valid
expenseshe incurred with the money.100
The testimony of Enrico, petitioner's brother, declaring that
he was present when petitioner gave respondent the
US$100,000.00 did not help. Enrico testified that when
petitioner filed the instant case in September 2004, another
case was also filed by petitioner against respondent and his
brother Ramon in the same City Prosecutor's office in Las
Pias where Enrico had submitted his affidavit. Enrico did
not submit an affidavit in this case even when he allegedly

61

Republic of the Philippines

SUPREME COURT
Manila

Before the Court are consolidated Petitions for Review

assailing the separate Decisions of the Second and
Seventeenth Divisions of the Court of Appeals (CA) on the
above issue.

FIRST DIVISION
G.R. No. 175256

August 23, 2012

LILY LIM, Petitioner,

vs.
KOU CO PING a.k.a. CHARLIE CO, Respondent.
x-----------------------x

Lily Lims (Lim) Petition for Review1 assails the October 20,
2005 Resolution2 of the Second Division in CA-G.R. CV No.
85138, which ruled on the above issue in the affirmative:
Due to the filing of the said civil complaint (Civil Case No.
5112396), Charlie Co filed the instant motion to dismiss [Lily
Lims] appeal, alleging that in filing said civil case, Lily Lim
violated the rule against forum shopping as the elements
of litis pendentia are present.

G.R. No. 179160

This Court agrees.3

KOU CO PING a.k.a. CHARLIE CO, Petitioner,

vs.
LILY LIM, Respondent.
LEONARDO-DE CASTRO,

xxxx
IN VIEW OF THE FOREGOING, the appeal is
DISMISSED.

SO ORDERED.4

PERLAS-BERNABE,**
DECISION
DEL CASTILLO, J.:
Is it forum shopping for a private complainant to pursue a
civil complaint for specific performance and damages, while
appealing the judgment on the civil aspect of a criminal
case for estafa?

On the other hand, Charlie Cos (Co) Petition for

Review5 assails the April 10, 2007 Decision6 of the
Seventeenth Division in CA-G.R. SP No. 93395 for ruling on
the same issue in the negative:
We find no grave abuse of discretion committed by
respondent judge. The elements of litis pendentiaand forumshopping were not met in this case.7
xxxx

62

WHEREFORE, in view of the foregoing, the instant petition

is DENIED. This case is REMANDED to the court of origin
for further proceedings.
SO ORDERED.8

Lim objected and maintained that the withdrawal authorities

she bought were not subject to price fluctuations. Lim
sought legal recourse after her demands for Co to resolve
the problem with the plant or for the return of her money
had failed.

Factual Antecedents

The criminal case

In February 1999, FR Cement Corporation (FRCC),

owner/operator of a cement manufacturing plant, issued
several withdrawal authorities9 for the account of cement
dealers and traders, Fil-Cement Center and Tigerbilt. These
withdrawal authorities state the number of bags that the
dealer/trader paid for and can withdraw from the plant. Each
withdrawal authority contained a provision that it is valid for
six months from its date of issuance, unless revoked by
FRCC Marketing Department.

An Information for Estafa through Misappropriation or

Conversion was filed against Co before Branch 154 of the
Regional Trial Court (RTC) of Pasig City. The accusatory
portion thereof reads:

Fil-Cement Center and Tigerbilt, through their administrative

manager, Gail Borja (Borja), sold the withdrawal authorities
covering 50,000 bags of cement to Co for the amount
of P 3.15 million or P 63.00 per bag.10 On February 15, 1999,
Co sold these withdrawal authorities to Lim allegedly at the
price of P 64.00 per bag or a total of P 3.2 million.11
Using the withdrawal authorities, Lim withdrew the cement
bags from FRCC on a staggered basis. She successfully
withdrew 2,800 bags of cement, and sold back some of the
withdrawal authorities, covering 10,000 bags, to Co.
Sometime in April 1999, FRCC did not allow Lim to withdraw
the remaining 37,200 bags covered by the withdrawal
authorities. Lim clarified the matter with Co and Borja, who
explained that the plant implemented a price increase and
would only release the goods once Lim pays for the price
difference or agrees to receive a lesser quantity of cement.

On or about between the months of February and April

1999, in San Juan, Metro Manila and within the jurisdiction of
this Honorable Court, the accused, with intent to defraud
Lily Lim, with grave abuse of confidence, with
unfaithfulness, received in trust from Lily Lim cash money in
the amount of P2,380,800.00 as payment for the 37,200
bags of cement, under obligation to deliver the 37,200 bags
of cement to said Lily Lim, but far from complying with his
obligation, misappropriated, misapplied and converted to his
own personal use and benefit the said amount
of P 2,300,800.00 [sic] and despite demands, the accused
failed and refused to return said amount, to the damage and
prejudice of Lily Lim in the amount of P 2,380,800.00.
Contrary to Law.12
The private complainant, Lily Lim, participated in the
criminal proceedings to prove her damages. She prayed for
Co to return her money amounting to P 2,380,800.00,
foregone profits, and legal interest, and for an award of
moral and exemplary damages, as well as attorneys fees.13

63

On November 19, 2003, the RTC of Pasig City, Branch 154,

rendered its Order14 acquitting Co of the estafa charge for
insufficiency of evidence. The criminal courts Order reads:

WHEREFORE, premises considered, judgment is hereby

rendered holding the accused CHARLIE CO not civilly liable
to the private complainant Lily Lim.

The first and second elements of the crime of estafa [with

abuse of confidence under Article 315, paragraph 1(b)] for
which the accused is being charged and prosecuted were
not established by the prosecutions evidence.

SO ORDERED.18
Lim sought a reconsideration of the above Order, arguing
that she has presented preponderant evidence that Co
committed estafa against her.19

xxxx
In view of the absence of the essential requisites of the
crime of estafa for which the accused is being charged and
prosecuted, as above discussed, the Court has no
alternative but to dismiss the case against the accused for
insufficiency of evidence.15
WHEREFORE, in view of the foregoing, the Demurrer to
Evidence is GRANTED, and the accused is
hereby ACQUITTED of the crime of estafa charged against
him under the present information for insufficiency of
evidence.
Insofar as the civil liability of the accused is concerned,
however, set this case for the reception of his evidence on
the matter on December 11, 2003 at 8:30 oclock [sic] in the
morning.

The trial court denied the motion in its Order20 dated

February 21, 2005.
On March 14, 2005, Lim filed her notice of appeal 21 on the
civil aspect of the criminal case. Her appeal was docketed as
CA-G.R. CV No. 85138 and raffled to the Second Division of
the CA.
The civil action for specific performance
On April 19, 2005, Lim filed a complaint for specific
performance and damages before Branch 21 of the RTC of
Manila. The defendants in the civil case were Co and all
other parties to the withdrawal authorities, Tigerbilt, FilCement Center, FRCC, Southeast Asia Cement, and La Farge
Corporation. The complaint, docketed as Civil Case No. 05112396, asserted two causes of action: breach of contract
and abuse of rights. Her allegations read:

SO ORDERED.16
After the trial on the civil aspect of the criminal case, the
Pasig City RTC also relieved Co of civil liability to Lim in its
December 1, 2004 Order.17 The dispositive portion of the
Order reads as follows:

ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION
xxxx
23. Charlie Co obligated himself to deliver to Lily Lim 50,000
bags of cement of P 64.00 per bag on an x-plant basis within

64

3 months from the date of their transaction, i.e. February

15, 1999. Pursuant to said agreement, Lily Lim paid Charlie
Co P 3.2 Million while Charlie Co delivered to Lily Lim FR
Cement Withdrawal Authorities representing 50,000 bags of
cement.
24. The withdrawal authorities issued by FR Cement Corp.
allowed the assignee or holder thereof to withdraw within a
six-month period from date a certain amount of cement
indicated therein. The Withdrawal Authorities given to Lily
Lim were dated either 3 February 1999 or 23 February 1999.
The Withdrawal Authorities were first issued to Tigerbilt and
Fil-Cement Center which in turn assigned them to Charlie
Co. Charlie Co then assigned the Withdrawal Authorities to
Lily Lim on February 15, 1999. Through these series of
assignments, Lily Lim acquired all the rights (rights to
withdraw cement) granted in said Withdrawal Authorities.
25. That these Withdrawal Authorities are valid is
established by the fact that FR Cement earlier allowed Lily
Lim to withdraw 2,800 bags of cement on the basis thereof.
26. However, sometime 19 April 1999 (within the three (3)month period agreed upon by Charlie Co and Lily Lim and
certainly within the six (6)-month period indicated in the
Withdrawal Authorities issued by FR Cement Corp.), Lily Lim
attempted but failed to withdraw the remaining bags of
cement on account of FR Cements unjustified refusal to
honor the Withdrawal Authorities. x x x
xxxx
FIRST CAUSE OF ACTION:
BREACH OF CONTRACT

30. Charlie Co committed and is therefore liable to deliver to

Lily Lim 37,200 bags of cement. If he cannot, then he must
pay her the current fair market value thereof.
31. FR Cement Corporation is also liable to deliver to Lily
Lim the amount of cement as indicated in the Withdrawal
Authorities it issued. xxx FR Cement Corporation has no
right to impose price adjustments as a qualification for
honoring the Withdrawal Authorities.
32. Fil-Cement Center, Tigerbilt and Gail Borja as the original
holders/ assignees of the Withdrawal Authorities repeatedly
assured Lily Lim that the same were valid and would be
honored. They are liable to make good on their assurances.
SECOND CAUSE OF ACTION:
ABUSE OF RIGHTS AND UNJUST ENRICHMENT
33. Charlie Cos acts of falsely representing to Lily Lim that
she may be able to withdraw the cement from FR Cement
Corp. caused Lily Lim to incur expenses and losses. Such act
was made without justice, without giving Lily Lim what is
due her and without observing honesty and good faith, all
violative of the law, more specifically Articles 19 and 20 of
the Civil Code. Such willful act was also made by Charlie Co
in a manner contrary to morals, good customs or public
policy, in violation of Article 21 of the Civil Code.
34. FR Cement Corporations unjust refusal to honor the
Withdrawal Authorities they issued also caused damage to
Lily Lim. Further, FR Cement Corporations act of withholding
the 37,200 bags of cement despite earning income therefor
constitutes as an unjust enrichment because FR Cement
Corporation acquired income through an act or performance
by another or any other means at the expense of another

65

without just or legal ground in violation of Article 22 of the

Civil Code.

Ruling of the Court of Appeals Second Division in CAG.R CV No. 85138

35. Fil-Cement Center, Tigerbilt and Gail Borjas false

assurances that Lily Lim would be able to withdraw the
remaining 37,200 bags of cement caused Lily Lim to incur
expenses and losses. x x x Moreover, Fil-Cement Center
admitted receiving payment for said amount of cement,
thus they are deemed to have come into possession of
money at the expense of Lily Lim without just or legal
ground, in violation of Article 22 of the Civil Code.

The appellate court (Second Division) favorably resolved

Cos motion and dismissed Lims appeal from the civil
aspect of the estafa case. In its Resolution dated October
20, 2005, the CA Second Division held that the parties,
causes of action, and reliefs prayed for in Lims appeal and
in her civil complaint are identical. Both actions seek the
same relief, which is the payment of the value of the 37,200
bags of cement.27 Thus, the CA Second Division dismissed
Lims appeal for forum shopping.28 The CA denied29 Lims
motion for reconsideration.30

THIRD CAUSE OF ACTION:

MORAL AND EXEMPLARY DAMAGES and
ATTORNEYS FEES AND COSTS OF SUIT22
Lim prayed for Co to honor his contractual commitments
either by delivering the 37,200 bags of cement, making
arrangements with FRCC to allow Lim to withdraw the
cement, or to pay for their value. She likewise asked that
the defendants be held solidarily liable to her for the
damages she incurred in her failed attempts to withdraw the
cement and for the damages they inflicted on her as a result
of their abuse of their rights.23
Motions to dismiss both actions
In reaction to the filing of the civil complaint for specific
performance and damages, Co filed motions to dismiss the
said civil case24 and Lims appeal in the civil aspect of the
estafa case or CA-G.R. CV No. 85138.25 He maintained that
the two actions raise the same issue, which is Cos liability
to Lim for her inability to withdraw the bags of
cement,26 and should be dismissed on the ground of lis
pendens and forum shopping.

Lim filed the instant petition for review, which was docketed
as G.R. No. 175256.
Ruling of the Manila Regional Trial Court in Civil Case
No. 05-112396
Meanwhile, the Manila RTC denied Cos Motion to Dismiss in
an Order31 dated December 6, 2005. The Manila RTC held
that there was no forum shopping because the causes of
action invoked in the two cases are different. It observed
that the civil complaint before it is based on an obligation
arising from contract and quasi-delict, whereas the civil
liability involved in the appeal of the criminal case arose
from a felony.
Co filed a petition for certiorari,32 docketed as CA-G.R. SP No.
93395, before the appellate court. He prayed for the
nullification of the Manila RTCs Order in Civil Case No. 05112396 for having been issued with grave abuse of
discretion.33

66

Ruling of the Court of Appeals Seventeenth Division

in CA-G.R. SP No. 93395
The CA Seventeenth Division denied Cos petition and
remanded the civil complaint to the trial court for further
proceedings. The CA Seventeenth Division agreed with the
Manila RTC that the elements of litis pendentia and forum
shopping are not met in the two proceedings because they
do not share the same cause of action.34
The CA denied35 Cos motion for reconsideration.36
Co filed the instant Petition for Review, which was docketed
as G.R. No. 179160.
Upon Cos motion,37 the Court resolved to consolidate the
two petitions.38
Kou Co Pings arguments
Co maintains that Lim is guilty of forum shopping because
she is asserting only one cause of action in CA-G.R. CV No.
85138 (the appeal from the civil aspect of Criminal Case No.
116377) and in Civil Case No. 05-112396, which is for Cos
violation of her right to receive 37,200 bags of cement.
Likewise, the reliefs sought in both cases are the same, that
is, for Co to deliver the 37,200 bags of cement or its value to
Lim. That Lim utilized different methods of presenting her
case a criminal action for estafa and a civil complaint for
specific performance and damages should not detract from
the fact that she is attempting to litigate the same cause of
action twice.39
Co makes light of the distinction between civil liability ex
contractu and ex delicto. According to him, granting that the
two civil liabilities are independent of each other,

nevertheless, the two cases arising from them would have

to be decided using the same evidence and going over the
same set of facts. Thus, any judgment rendered in one of
these cases will constitute res judicata on the other.40
In G.R. No. 179160, Co prays for the annulment of the CA
Decision and Resolution in CA-G.R. SP No. 93395, for a
declaration that Lim is guilty of forum shopping, and for the
dismissal of Civil Case No. 05-112396.41
In G.R. No. 175256, Co prays for the affirmation of the CA
Decision in CA-G.R. CV No. 85138 (which dismissed Lims
appeal from the trial courts decision in Criminal Case No.
116377).42
Lily Lims arguments
Lim admits that the two proceedings involve substantially
the same set of facts because they arose from only one
transaction.43 She is quick to add, however, that a single act
or omission does not always make a single cause of
action.44 It can possibly give rise to two separate civil
liabilities on the part of the offender (1) ex delicto or civil
liability arising from crimes, and (2) independent civil
liabilities or those arising from contracts or intentional torts.
The only caveat provided in Article 2177 of the Civil Code is
that the offended party cannot recover damages twice for
the same act or omission.45 Because the law allows her two
independent causes of action, Lim contends that it is not
forum shopping to pursue them.46
She then explains the separate and distinct causes of action
involved in the two cases. Her cause of action in CA-G.R CV
No. 85138 is based on the crime of estafa. Co violated Lims
right to be protected against swindling. He represented to
Lim that she can withdraw 37,200 bags of cement using the

67

authorities she bought from him. This is a fraudulent

representation because Co knew, at the time that they
entered into the contract, that he could not deliver what he
promised.47 On the other hand, Lims cause of action in Civil
Case No. 05-112396 is based on contract. Co violated Lims
rights as a buyer in a contract of sale. Co received payment
for the 37,200 bags of cement but did not deliver the goods
that were the subject of the sale.48
In G.R. No. 179160, Lim prays for the denial of Cos
petition.49 In G.R. No. 175256, she prays for the reversal of
the CA Decision in CA-G.R. CV No. 85138, for a declaration
that she is not guilty of forum shopping, and for the
reinstatement of her appeal in Criminal Case No. 116377 to
the CA.50
Issue
Did Lim commit forum shopping in filing the civil case for
specific performance and damages during the pendency of
her appeal on the civil aspect of the criminal case for
estafa?
Our Ruling
A single act or omission that causes damage to an offended
party may give rise to two separate civil liabilities on the
part of the offender51 - (1) civil liability ex delicto, that is,
civil liability arising from the criminal offense under Article
100 of the Revised Penal Code,52 and (2) independent civil
liability, that is, civil liability that may be pursued
independently of the criminal proceedings. The independent
civil liability may be based on "an obligation not arising from
the act or omission complained of as a felony," as provided
in Article 31 of the Civil Code (such as for breach of contract
or for tort53). It may also be based on an act or omission that

may constitute felony but, nevertheless, treated

independently from the criminal action by specific provision
of Article 33 of the Civil Code ("in cases of defamation, fraud
and physical injuries").
The civil liability arising from the offense or ex delicto is
based on the acts or omissions that constitute the criminal
offense; hence, its trial is inherently intertwined with the
criminal action. For this reason, the civil liability ex delicto is
impliedly instituted with the criminal offense.54 If the action
for the civil liability ex delicto is instituted prior to or
subsequent to the filing of the criminal action, its
proceedings are suspended until the final outcome of the
criminal action.55 The civil liability based on delict is
extinguished when the court hearing the criminal action
declares that "the act or omission from which the civil
liability may arise did not exist."56
On the other hand, the independent civil liabilities are
separate from the criminal action and may be pursued
independently, as provided in Articles 31 and 33 of the Civil
Code, which state that:
ART. 31. When the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter.
(Emphasis supplied.)
ART. 33. In cases of defamation, fraud, and physical injuries
a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance
of evidence. (Emphasis supplied.)

68

Because of the distinct and independent nature of the two

kinds of civil liabilities, jurisprudence holds that the offended
party may pursue the two types of civil liabilities
simultaneously or cumulatively, without offending the rules
on forum shopping, litis pendentia, or res judicata.57 As
explained in Cancio, Jr. v. Isip:58
One of the elements of res judicata is identity of causes of
action. In the instant case, it must be stressed that the
action filed by petitioner is an independent civil action,
which remains separate and distinct from any criminal
prosecution based on the same act. Not being deemed
instituted in the criminal action based on culpa criminal, a
ruling on the culpability of the offender will have no bearing
on said independent civil action based on an entirely
different cause of action, i.e., culpa contractual.
In the same vein, the filing of the collection case after the
dismissal of the estafa cases against the offender did not
amount to 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. Although the
cases filed by [the offended party] arose from the same act
or omission of [the offender], they are, however, based on
different causes of action. The criminal cases for estafa are
based on culpa criminal while the civil action for collection is
anchored on culpa contractual. Moreover, there can be no
forum-shopping in the instant case because the law
expressly allows the filing of a separate civil action which
can proceed independently of the criminal action.59
Since civil liabilities arising from felonies and those arising
from other sources of obligations are authorized by law to
proceed independently of each other, the resolution of the
present issue hinges on whether the two cases herein
involve different kinds of civil obligations such that they can

proceed independently of each other. The answer is in the

affirmative.
The first action is clearly a civil action ex delicto, it having
been instituted together with the criminal action.60
On the other hand, the second action, judging by the
allegations contained in the complaint,61 is a civil action
arising from a contractual obligation and for tortious
conduct (abuse of rights). In her civil complaint, Lim
basically alleges that she entered into a sale contract with
Co under the following terms: that she bought 37,200 bags
of cement at the rate of P 64.00 per bag from Co; that, after
full payment, Co delivered to her the withdrawal authorities
issued by FRCC corresponding to these bags of cement; that
these withdrawal authorities will be honored by FRCC for six
months from the dates written thereon. Lim then maintains
that the defendants breached their contractual obligations
to her under the sale contract and under the withdrawal
authorities; that Co and his co-defendants wanted her to
pay more for each bag of cement, contrary to their
agreement to fix the price at P 64.00 per bag and to the
wording of the withdrawal authorities; that FRCC did not
honor the terms of the withdrawal authorities it issued; and
that Co did not comply with his obligation under the sale
contract to deliver the 37,200 bags of cement to Lim. From
the foregoing allegations, it is evident that Lim seeks to
enforce the defendants contractual obligations, given that
she has already performed her obligations. She prays that
the defendants either honor their part of the contract or pay
for the damages that their breach has caused her.
Lim also includes allegations that the actions of the
defendants were committed in such manner as to cause
damage to Lim without regard for morals, good customs and
public policy. These allegations, if proven, would constitute

69

tortious conduct (abuse of rights under the Human Relations

provisions of the Civil Code).
Thus, Civil Case No. 05-112396 involves only the obligations
arising from contract and from tort, whereas the appeal in
the estafa case involves only the civil obligations of Co
arising from the offense charged. They present different
causes of action, which under the law, are considered
"separate, distinct, and independent"62 from each other.
Both cases can proceed to their final adjudication, subject to
the prohibition on double recovery under Article 2177 of the
Civil Code.63
WHEREFORE, premises considered, Lily Lims Petition in
G.R. No. 175256 is GRANTED. The assailed October 20,
2005 Resolution of the Second Division of the Court of
Appeals in CA-G.R. CV No. 85138 is REVERSED and SET
ASIDE. Lily Lims appeal in CA-G.R. CV No. 85138 is
ordered REINSTATED and the Court of Appeals
isDIRECTED to RESOLVE the same with DELIBERATE
DISPATCH.
Charlie Cos Petition G.R. No. 179160 is DENIED. The
assailed April 10, 2007 Decision of the Seventeenth Division
of the Court of Appeals in CA-G.R. SP No. 93395
is AFFIRMED in toto.
SO ORDERED.

70

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 145391

August 26, 2002

AVELINO CASUPANAN and ROBERTO

CAPITULO, petitioners,
vs.
MARIO LLAVORE LAROYA, respondent.
CARPIO, J.:
The Case
This is a petition for review on certiorari to set aside the
Resolution1 dated December 28, 1999 dismissing the
petition for certiorari and the Resolution2 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. 002-99. On the
other hand, Casupanan and Capitulo filed a civil case

against Laroya for quasi-delict, docketed as Civil Case No.

2089.
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
MCTCs Order of dismissal.
The Trial Courts 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.
Casupanan and Capitulo filed a Motion for Reconsideration
but the Capas RTC denied the same in the Resolution of
August 24, 2000.

71

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. x x x
[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 Courts 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 forumshopping 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 dismissal5 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 MCTCs dismissal,
being silent on the matter, is a dismissal without prejudice.
Section 1 of Rule 417 provides that an order dismissing an
action without prejudice is not appealable. The remedy of

72

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 RTCs 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 Forum-shopping 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 forumshopping 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. 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) x x x.
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." (Emphasis supplied)

73

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.

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.

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.

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.
x x x." (Emphasis 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.
The reservation of the right to institute separately
the civil action shall be made before the prosecution

74

starts presenting its evidence and under

circumstances affording the offended party a
reasonable opportunity to make such reservation.
xxx
(b) x x x
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." (Emphasis 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

75

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.

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:

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.

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."

x x x." (Emphasis 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 damagesexdelicto.
When civil action may proceed independently

"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 offendedparty. 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." (Emphasis supplied)

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.

76

Casupanan and Capitulo, however, invoke the ruling

in Cabaero vs. Cantos12 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
thelacuna 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 actiosn 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.
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 quasidelict. 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 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

77

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 quasi-delict is filed.

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."

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.

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.

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 forumshopping 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:
"x x x. 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

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 "x x x 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
isREINSTATED.
SO ORDERED.

78

79

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 112985 April 21, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
MARTIN L. ROMERO and ERNESTO C.
RODRIGUEZ, accused-appellants.

PARDO, J

That on or about September 14, 1989, at

Butuan City, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused being the General
Manager and Operation Manager which solicit
funds from the general public for investment,
conspiring, confederating together and
mutually helping, one another, by means of
deceit and false pretense, did then and there
willfully, unlawfully and feloniously
deliberately defraud one Ernesto A. Ruiz by
convincing the latter to invest his money in
the amount of P150,000.00 with a promise
return of 800 % profit within 21 days and in
the process caused the issuance of Butuan
City Rural [sic] Bank Check No. 158181
postdated to October 5, 1989 in the amount
of One Million Two Hundred Thousand Pesos
(P1,200,000.00) Philippine Currency, that
upon presentation of said check to the drawee
bank for payment the same was dishonored
and that notwithstanding repeated demands
made on said accused to pay and/or change
the check to cash, they consistently failed and
refused and still fail and refuse to pay or
redeem the check, to the damage and
prejudice of the complainant in the
aforestated amount of P1,200,000.00. 3

The case before the Court is an appeal of accused Martin L.

Romero and Ernesto C. Rodriguez from the Joint
Judgment 1 of the Regional Trial Court, Branch 2, Butuan
City, convicting each of them of estafa under Article 315,
par. 2 (d) of the Revised Penal Code, in relation to
Presidential Decree No. 1689, for widescale swindling, and
sentencing each of them to suffer the penalty of life
imprisonment and to jointly and severally pay Ernesto A.
Ruiz the amount of one hundred fifty thousand pesos
(P150,000.00), with interest at the rate of twelve percent
(12%) per annum, starting September 14, 1989, until fully
paid, and to pay ten thousand pesos (P10,000.00), as moral
damages.

On the same day, the city fiscal filed with the same court
another information against the two (2) accused for violation
of Batas Pambansa Bilang 22, arising from the issuance of
the same check. 4

On October 25, 1989, Butuan City acting fiscal Ernesto M.

Brocoy filed with the Regional Trial Court, Butuan City, in
Information against the two (2) accused estafa, 2 as follows:

On January 11, 1990, both accused were arraigned before

the Regional Trial Court, Branch 5, 5 Butuan City, where they
plead not guilty to both informations.

80

The prosecution presented its evidence on January 10, 1991,

with complainant, Ernesto A. Ruiz, and Daphne Parrocho, the
usher/collector of the corporation being managed by
accused, testifying for the prosecution.
On August 12, 1991, the defense presented its only witness,
accused Martin L. Romero.
On November 13, 1992, the parties submitted a joint
stipulation of facts, signed only by their respective counsels.
Thereafter, the case was submitted for decision.
On March 30, 1993, the trail court promulgated a Joint
Judgment dated March 25, 1993. The trial court acquitted
the accused in Criminal Case No. 3806 6 based on
reasonable doubt, but convicted them in Criminal Case No.
3808 7and accordingly sentenced each of them, as follows:
IN VIEW OF THE FOREGOING, the Court
hereby renders judgments, finding or
declaring
(a) Accused Martin L. Romero and Ernesto C.
Rodriguez innocent on reasonable doubt in
Criminal Case No. 3806, for violation of Batas
Pambansa Bilang 22;
(b) Accused Martin L. Romero and Ernesto C.
Rodriguez guilty beyond reasonable doubt in
Criminal Case No. 3808 for estafa under P.D.
1689 for wide scale [sic] swindling and
accordingly sentences them to suffer life
imprisonment (Section 1 P.D. 1689) and
ordered jointly and severally to return to
Ernesto A. Ruiz the amount of One Hundred
Fifty Thousand Pesos (P150,000.00) with

interest thereon at the rate of Twelve percent

(12%) per annum starting from September 14,
1989 until fully paid and to pay the amount Of
Ten Thousand Pesos (P10,000.00) as moral
damages.
In the service of their sentence, the accused
pursuant to R.A. 6127, shall be credited for
the preventive imprisonment they have
undergone (PP vs. Ortencio, 38 Phil 941; PP
vs. Gabriel, No. L-13750, October 30, 1959,
cited in Gregorio's "Fundamentals of Criminal
Law Review", P. 178, Seventh Edition, 1985). 8
On March 31, 1993, accused filed their notice of appeal,
which the trial court gave due course on April 5, 1993. On
March 16, 1994, this Court ordered the, accused to file their
appellants' brief.
Accused-appellants filed their brief on October 30, 1995,
while the Solicitor General filed the appellee's brief on March
8, 1996.
During the pendency of the appeal, on November 12, 1997,
accused Ernesto Rodriguez died. 9 As a consequence of his
death before final judgment, his criminal and civil liability ex
delicto, were extinguished. 10
Complainant Ernesto A. Ruiz was a radio commentator of
Radio DXRB, Butuan City. In August, 1989, he came to know
the business of Surigao San Andres Industrial Development
Corporation (SAIDECOR), when he interviewed accused
Martin Romero and Ernesto Rodriguez regarding the
corporation's investment operations in Butuan City and
Agusan del Norte. Romero was the president and general

81

manager of SAIDECOR, while Rodriguez was the operations

manager.
SAIDECOR started its operation on August 24, 1989 as a
marketing business. Later, it engaged in soliciting funds and
investments from the public. The corporation guaranteed an
800% return on investment within fifteen (15) or twenty one
(21) days. Investors were given coupons containing the
capital and the return on the capital collectible on the date
agreed upon. It stopped operations in September, 1989.
On September 14, 1989, complainant Ernesto A. Ruiz went
to SAIDECOR office in Butuan City to make an investment,
accompanied by his friend Jimmy Acebu, and SAIDECOR
collection agent Daphne Parrocho. After handing over the
amount of one hundred fifty thousand pesos (P150,000.00)
to Ernesto Rodriguez, complainant received a postdated
Butuan City Rural Bank check instead of the usual
redeemable coupon. The check indicated P1,000,200.00 as
the amount in words, but the amount in figures was for
P1,200,000.00, as the return on the investment. Compliant
did not notice the discrepancy.
When the check was presented to the bank for payment on
October 5, 1989, it was dishonored for insufficiency of funds,
as evidenced by the check return slip issued by the
bank. 11 Both accused could not be located and demand for
payment was made only sometime in November 1989
during the preliminary investigation of this case. Accused
responded that they had no money.

of SAIDECOR at Ong Yiu District, Butuan City. Accused

Ernesto Rodriguez accepted the investment and issued the
check signed by him and Martin Romero.
For their defense, accused Martin Romero 13 testified that on
September 14, 1989, he issued a check in the amount of
P1,2000,000.00 corresponding to the total of the
P150,000.00 investment and the 800% return thereon. He
claimed that the corporation had a deposit of fourteen
million pesos (P14,000,000.00) at the time of the issuance
of the check and four million pesos (P4,000,000.00) at the
time SAIDDECOR stopped operations. Romero knew these
things because he used to monitor the funds of the
corporation with the bank. He was not aware that the check
he issued was dishonored because he never had the
occasion to meet the complainant again after the
September 14, 1989 transaction. He only came to know
about this when the case was already filed in court
sometime in the second or third week of January 1990.
In this appeal, both accused did not deny that complainant
made an investment with SAIDECOR in the amount of
P150,000.00. However, they denied that deceit was
employed in the transaction. They assigned as errors: (1)
their conviction under P.D. 1689 due to the prosecution's
failure to establish their guilt beyond reasonable doubt; and
(2) the trial court's failure to consider the joint stipulation of
facts in their favor. 15
There is no merit in this appeal. We sustain accusedappellant's conviction.

Daphne Parrocho, 12 testified that on September 14, 1989,

complainant, with his friend Jimmy Acebu, approached her
to invest the amount of P150,000.00 at SAIDECOR. As she
has reached her quota, and therefore, no longer authorized
to receive the amount, she accompanied them to the office

82

Under paragraph 2 (d) of Article 315, as amended by R.A.

4885, 16 the elements of estafa are: (1) a check was
postdated or issued in payment of an obligation contracted
at the time it was issued; (2) lack or insufficiency of funds to
cover the check; (3) damage to the payee thereof. 17 The
prosecution has satisfactorily established all these elements.
Fraud, in its general sense, is deemed to comprise anything
calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal equitable duty,
trust, or confidence justly reposed, resulting in damage to
another, or by which an undue and unconscientious
advantage is taken of another. 18 It is a generic term
embracing all multifarious means which human ingenuity
can device, and which are resorted to by one individual to
secure an advantage over another by false suggestions or
by suppression of truth and includes all surprise, trick,
cunning, dissembling and any unfair way by which another
is cheated. 19
Deceit is a specific of fraud. It is actual fraud, and consists in
any false representation or contrivance whereby one person
overreaches and misleads another, to his hurt. Deceit
excludes the idea of mistake. 20 There is deceit when one is
misled, either by guide or trickery or by other means, to
believe to be true what is really false. 21 In this case, there
was deception when accused fraudulently represented to
complainant that his investment with the corporation would
have an 800% return in 15 or 21 days.

Upon receipt of the money, accused-appellant Martin

Romero issued a postdated check. Although accusedappellant contends that sufficient funds were deposited in
the bank when the check was issued, he presented no
officer of the bank to substantiate the contention. The check
was dishonored when presented for payment, and the check
return slip submitted in evidence indicated that it was
dishonored due to insufficiency of funds.
Even assuming for the sake of argument that the check was
dishonored without any fraudulent pretense or fraudulent
act of the drawer, the latter's failure to cover the amount
within three days after notice creates a rebuttable
presumption of fraud. 22
Admittedly (1) the check was dishonored for insufficiency of
funds as evidenced by the check return slip; (2) complainant
notified accused of the dishonor; and (3) accused failed to
make good the check within three days. Presumption of
deceit remained since accused failed to prove otherwise.
Complainant sustained damage in the amount of
P150,000.00.
Accused-appellant also contends that had the trial court
admitted the Admission and Stipulaion of Facts of November
9, 1992, it would prove that SAIDECOR had sufficient funds
in the bank.
Accused-appellant relies on the fact that there was a
discrepancy between the amount in words and the amount
in figures in the check that was dishonored. The amount in
words was P1,000,200.00, while the amount in figures was
P1,200,000.00. It is admitted that the corporation had in the
bank P1,144,760.00 on September 28, 1989, and
P1,124,307.14 on April 2, 1990. The check was presented
for payment on October 5, 1989. The rule in the Negotiable

83

Instruments Law is that when there is ambiguity in the

amount in words and the amount in figures, it would be the
amount in words that would prevail. 23
However, this rule of interpretation finds no application in
the case. The agreement was perfectly clear that at the end
of twenty one (21) days, the investment of P150,000.00
would become P1,200,000.00. Even if the trial court
admitted the stipulation of facts, it would not be favorable to
accused-appellant.
The factual narration in this case established a kind of Ponzi
scheme. 24 This is "an investment swindle in which high
profits are promised from fictitious sources and early
investors are paid off with funds raised from later ones." It is
sometimes called a pyramid scheme because a broader
base of gullible investors must support the structure as time
passes.
In the recent case of People vs. Priscilla Balasa, 25 this Court
held that a transaction similar to the case at hand is not an
investment strategy but a gullibility scheme, which works
only as long as there is an ever increasing number of new
investors joining the scheme. It is difficult to sustain over a
long period of time because the operator needs an ever
larger pool of later investors to continue paying the
promised profits to early investors. The idea behind this type
of swindle is that the "con-man" collects his money from his
second or third round of investors and then absconds before
anyone else shows up to collect. Necessarily, these schemes
only last weeks, or months at most, just like what happened
in this case.
The Court notes that one of the accused-appellants, Ernesto
Rodriguez, died pending appeal. Pursuant to the doctrine
established in People vs. Bayotas, 26 the death of the

accused pending appeal of his conviction extinguishes his

criminal liability as well as the civil liability ex delicto. The
criminal action is extinguished inasmuch as there is no
longer a defendant to stand as the accused, the civil action
instituted therein for recovery of civil liability ex
delicto is ipso factoextinguished, grounded as it is on the
criminal case. Corollarily, the claim for civil liability survives
notwithstanding the death of the accused, if the same may
also be predicted on a source of obligation other than
delicit. 27
Thus, the outcome of this appeal pertains only remaining
accused-appellant, Martin L. Romero. The trail court
considered the swindling involved in this case as having
been committed by a syndicate 28 and sentenced the
accused to life imprisonment based on the provisions of
Presidential Decree 1689, which increased the penalty for
certain forms of swindling or estafa. 29 However, the
prosecution failed to clearly establish that the corporation
was a syndicate, as defined under the law. The penalty of
life imprisonment cannot be imposed. What would be
applicable in the present case is the second paragraph of a
Presidential Decree No. 1689, Section 1, which provides
that:
When not committed by a syndicate as above
defined, the penalty imposable shall
be reclusion temporal to reclusion perpetua if
the amount of the fraud exceeds 100.000
pesos.
Art. 77 of the Revised Penal Code on complex penalties
provides that "whenever the penalty prescribed does not
have one of the forms specially provided for in this Code,
the periods shall be distributed, applying by analogy the
prescribed rules," that is, those in Articles 61 and
76. 30 Hence, where as in this case, the penalty provided by

84

Section 1 of Presidential Decree No. 1689 for estafa under

Articles 315 and 316 of the Code is reclusion
temporal to reclusion perpetua, the minimum period thereof
is twelve (12) year and one (1) day to sixteen (16) years
of reclusion temporal; the medium period is sixteen (16)
years and one (1) day to twenty (20) years of reclusion
temporal; and the maximum period isreclusion perpetua.
In the case at bar, no mitigating or aggravating
circumstance has been alleged or proved. Applying the rules
in the Revised Penal Code for graduating penalties by
degreses 31 to determine the proper period, 32 the penalty
for the offense of estafa under Article 315, 2(d) as amended
by P.D. 1689 involving the amount of P150,000.00 is the
medium of the period of the complex penalty in said Section
1, that is, sixteen (16) years and one (1) day to twenty (20)
years. This penalty, being that which is to be actually
imposed in accordance with the therefor and not merely
imposable as a general prescription under the law, shall be
the maximum range of the indeterminate sentence. 33 The
minimum thereof shall be taken, as aforesaid, from any
period of the penalty next lower in degree which is prision
mayor.

indeterminate penalty of ten (10) years and one (1) day

of prision mayor, as minimum, to sixteen (16) years and one
(1) day of reclusion temporal, as maximum, to indemnify
Ernesto A. Ruiz in the amount of one hundred fifty thousand
pesos (P150,000.00) with interest thereon at six (6%) per
centrum per annum from September 14, 1989, until fully
paid, to pay twenty thousand pesos (P20,000.00) as moral
damages and fifteen thousand pesos (P15,000.00), as
exemplary damages, and the costs.1wphi1.nt
SO ORDERED.

To enable the complainant to obtain means, diversion or

amusements that will serve to alleviate the moral sufferings
undergone by him, by reason of the failure of the accused to
return his money, moral damages are imposed against
accused-appellant Martin L. Romero in the amount of twenty
thousand pesos (P20,000.00), 34To serve as an example for
the public good, exemplary damages are awarded against
him in the amount of fifteen thousand pesos (P15,000.
00). 35
WHEREFORE, the Court hereby AFFIRMS WITH
MODIFICATION the appealed judgment. The Court hereby
sentences accused-appellant Martin Romero to suffer an

85

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 148072

July 10, 2007

FRANCISCO MAGESTRADO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and ELENA M.
LIBROJO Respondents.
DECISION
CHICO-NAZARIO, J.:
This Petition for Review on Certiorari seeks to reverse the (1)
Resolution1 dated 5 March 2001 of the Court of Appeals in
CA-G.R. SP No. 63293 entitled, "Francisco Magestrado v.
Hon. Estrella T. Estrada, in her capacity as the Presiding
Judge of Regional Trial Court, Branch 83 of Quezon City,
People of the Philippines and Elena M. Librojo," which
dismissed petitioner Francisco Magestrados Petition for
Certiorari for being the wrong remedy; and (2)
Resolution2 dated 3 May 2001 of the same Court denying
petitioners motion for reconsideration.
Private respondent Elena M. Librojo filed a criminal
complaint3 for perjury against petitioner with the Office of
the City Prosecutor of Quezon City, which was docketed as
I.S. No. 98-3900.
After the filing of petitioners counter-affidavit and the
appended pleadings, the Office of the City Prosecutor
recommended the filing of an information for perjury against

petitioner. Thus, Assistant City Prosecutor Josephine Z.

Fernandez filed an information for perjury against petitioner
with the Metropolitan Trial Court (MeTC) of Quezon City.
Pertinent portions of the information are hereby quoted as
follows:
That on or about the 27th day of December, 1997, in
Quezon City, Philippines, the said accused, did then and
there willfully, unlawfully and feloniously and knowingly
make an untruthful statement under oath upon a material
matter before a competent officer authorized to receive and
administer oath and which the law so require, to wit: the
said accused subscribe and swore to an Affidavit of Loss
before Notary Public Erlinda B. Espejo of Quezon City, per
Doc. No. 168, Page No. 35, Book No. CLXXIV of her notarial
registry, falsely alleging that he lost Owners Duplicate
Certificate of TCT No. N-173163, which document was used
in support of a Petition For Issuance of New Owners
Duplicate Copy of Certificate of Title and filed with the
Regional Trial Court of Quezon City, docketed as LRC# Q10052 (98) on January 28, 1998 and assigned to Branch 99
of the said court, to which said Francisco M. Mag[e]strado
signed and swore on its verification, per Doc. 413 Page 84
Book No. CLXXV Series of 1998 of Notary Public Erlinda B.
Espejo of Quezon City; the said accused knowing fully well
that the allegations in the said affidavit and petition are
false, the truth of the matter being that the property subject
of Transfer Certificate of Title No. N-173163 was mortgaged
to complainant Elena M. Librojo as collateral for a loan in the
amount of P758,134.42 and as a consequence of which said
title to the property was surrendered by him to the said
complainant by virtue of said loan, thus, making untruthful
and deliberate assertions of falsehoods, to the damage and
prejudice of the said Elena M. Librojo. 4

86

The case was raffled to the MeTC of Quezon City, Branch 43,
where it was docketed as Criminal Case No. 90721 entitled,
"People of the Philippines v. Francisco Magestrado."
On 30 June 1999, petitioner filed a motion5 for suspension of
proceedings based on a prejudicial question. Petitioner
alleged that Civil Case No. Q-98-34349, a case for recovery
of a sum of money pending before the Regional Trial Court
(RTC) of Quezon City, Branch 84, and Civil Case No. Q-9834308, a case for Cancellation of Mortgage, Delivery of Title
and Damages, pending before the RTC of Quezon City,
Branch 77, must be resolved first before Criminal Case No.
90721 may proceed since the issues in the said civil cases
are similar or intimately related to the issues raised in the
criminal action.
On 14 July 1999, MeTC-Branch 43 issued an Order6 denying
petitioners motion for suspension of proceedings, thus:
Acting on the "Motion for Suspension of Proceedings" filed
by the [herein petitioner Magestrado], thru counsel, and the
"Comment and Opposition thereto, the Court after an
evaluation of the same, finds the aforesaid motion without
merit, hence, is hereby DENIED, it appearing that the
resolution of the issues raised in the civil actions is not
determinative of the guilt or innocence of the accused.
Hence, the trial of this case shall proceed as previously
scheduled on July 19 and August 2, 1993 at 8:30 in the
morning.
On 17 August 1999, a motion7 for reconsideration was filed
by petitioner but was denied by the MeTC in an Order 8 dated
19 October 1999.

Aggrieved, petitioner filed a Petition for Certiorari 9 under

Rule 65 of the Revised Rules of Court, with a prayer for
Issuance of a Writ of Preliminary Injunction before the RTC of
Quezon City, Branch 83, docketed as Civil Case No. Q-9939358, on the ground that MeTC Judge Billy J. Apalit
committed grave abuse of discretion amounting to lack or
excess of jurisdiction in denying his motion to suspend the
proceedings in Criminal Case No. 90721.
On 14 March 2000, RTC-Branch 83 dismissed the petition
and denied the prayer for the issuance of a writ of
preliminary injunction, reasoning thus:
Scrutinizing the complaints and answers in the civil cases
abovementioned, in relation to the criminal action for
PERJURY, this Court opines and so holds that there is no
prejudicial question involved as to warrant the suspension of
the criminal action to await the outcome of the civil cases.
The civil cases are principally for determination whether or
not a loan was obtained by petitioner and whether or not he
executed the deed of real estate mortgage involving the
property covered by TCT No. N-173163, whereas the
criminal case is for perjury which imputes upon petitioner
the wrongful execution of an affidavit of loss to support his
petition for issuance of a new owners duplicate copy of TCT
No. 173163. Whether or not he committed perjury is the
issue in the criminal case which may be resolved
independently of the civil cases. Note that the affidavit of
loss was executed in support of the petition for issuance of a
new owners duplicate copy of TCT No. N-173163 which
petition was raffled to Branch 99 of the RTC. x x x.10
Again, petitioner filed a motion for reconsideration11 but this
was denied by RTC- Branch 83 in an Order12 dated 21
December 2000.

87

Dissatisfied, petitioner filed with the Court of Appeals a

Petition for Certiorari13 under Rule 65 of the Revised Rules of
Court, which was docketed as CA-G.R. SP No. 63293.
Petitioner alleged that RTC Judge Estrella T. Estrada
committed grave abuse of discretion amounting to lack or
excess of jurisdiction in denying the Petition for Certiorari in
Civil Case No. Q-99-39358, and in effect sustaining the
denial by MeTC-Branch 43 of petitioners motion to suspend
the proceedings in Criminal Case No. 90721, as well as his
subsequent motion for reconsideration thereof.
On 5 March 2001, the Court of Appeals dismissed14 the
Petition in CA-G.R. SP No. 63293 on the ground that
petitioners remedy should have been an appeal from the
dismissal by RTC-Branch 83 of his Petition for Certiorari in Q99-39358. The Court of Appeals ruled that:
Is this instant Petition for Certiorari under Rule 65 the
correct and appropriate remedy?
We rule negatively.
The resolution or dismissal in special civil actions, as in the
instant petition, may be appealed x x x under Section 10,
Rule 44 of the 1997 Rules of Civil Procedure and not by
petition for certiorari under Rule 65 of the same rules. Thus,
the said rule provides:
Section 10. Time for filing memoranda on special cases. In
certiorari, prohibition, mandamus, quo warranto and habeas
corpus cases, the parties shall file in lieu of briefs, their
respective memoranda within a non-extendible period of
thirty (30) days from receipt of the notice issued by the clerk
that all the evidence, oral and documentary, is already
attached to the record x x x.

WHEREFORE, in consideration of the foregoing premises, the

instant Petition for Certiorari under Rule 65 of the 1997
Rules of Civil Procedure is hereby DISMISSED.15
The Court of Appeals denied petitioners Motion for
Reconsideration16 in a Resolution17 dated 3 May 2001.
Hence, petitioner comes before us via a Petition for Review
on Certiorari under Rule 45 of the Revised Rules of Court
raising the following issues:
1. Whether or not the Orders of Judge Estrella T.
Estrada dated March 14, 2000 denying petitioners
Petition for Certiorari under Rule 65 of the Rules of
Court, and her subsequent Order dated December
21, 2000, denying the Motion for Reconsideration
thereafter filed can only be reviewed by the Court of
Appeals thru appeal under Section 10, Rule 44 of the
1997 Rules of Civil Procedure.
2. Whether or not Judge Estrella T. Estrada of the
Regional Trial Court, Branch 83, Quezon City, had
committed grave abuse of discretion amounting to
lack or in excess of her jurisdiction in denying the
Petition for Certiorari and petitioners subsequent
motion for reconsideration on the ground of a
prejudicial question pursuant to the Rules on Criminal
Procedure and the prevailing jurisprudence.
After consideration of the procedural and substantive issues
raised by petitioner, we find the instant petition to be
without merit.
The procedural issue herein basically hinges on the proper
remedy which petitioner should have availed himself of
before the Court of Appeals: an ordinary appeal or a petition

88

for certiorari. Petitioner claims that he correctly questioned

RTC-Branch 83s Order of dismissal of his Petition for
Certiorari in Civil Case No. Q-99-39358 through a Petition
for Certiorari before the Court of Appeals. Private
respondent and public respondent People of the Philippines
insist that an ordinary appeal was the proper remedy.
We agree with respondents. We hold that the appellate court
did not err in dismissing petitioners Petition for Certiorari,
pursuant to Rule 41, Section 2 of the Revised Rules of Court
(and not under Rule 44, Section 10, invoked by the Court of
Appeals in its Resolution dated 5 March 2001).
The correct procedural recourse for petitioner was appeal,
not only because RTC-Branch 83 did not commit any grave
abuse of discretion in dismissing petitioners Petition for
Certiorari in Civil Case No. Q-99-39358 but also because
RTC-Branch 83s Order of dismissal was a final order from
which petitioners should have appealed in accordance with
Section 2, Rule 41 of the Revised Rules of Court.
An order or a judgment is deemed final when it finally
disposes of a pending action, so that nothing more can be
done with it in the trial court. In other words, the order or
judgment ends the litigation in the lower court. Au
contraire, an interlocutory order does not dispose of the
case completely, but leaves something to be done as
regards the merits of the latter.18 RTC-Branch 83s Order
dated 14 March 2001 dismissing petitioners Petition for
Certiorari in Civil Case No. Q-99-39358 finally disposes of
the said case and RTC-Branch 83 can do nothing more with
the case.
Under Rule 41 of the Rules of Court, an appeal may be taken
from a judgment or final order that completely disposes of
the case, or of a particular matter therein when declared by

the Revised Rules of Court to be appealable. The manner of

appealing an RTC judgment or final order is also provided in
Rule 41 as follows:
Section 2. Modes of appeal.
(a) Ordinary appeal. The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of
its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except
in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in
like manner.
Certiorari generally lies only when there is no appeal nor
any other plain, speedy or adequate remedy available to
petitioners. Here, appeal was available. It was adequate to
deal with any question whether of fact or of law, whether of
error of jurisdiction or grave abuse of discretion or error of
judgment which the trial court might have committed. But
petitioners instead filed a special civil action for certiorari.
We have time and again reminded members of the bench
and bar that a special civil action for certiorari under Rule 65
of the Revised Rules of Court lies only when "there is no
appeal nor plain, speedy and adequate remedy in the
ordinary course of law."19 Certiorari cannot be allowed when
a party to a case fails to appeal a judgment despite the
availability of that remedy,20 certiorari not being a substitute
for lost appeal.21
As certiorari is not a substitute for lost appeal, we have
repeatedly emphasized that the perfection of appeals in the

89

manner and within the period permitted by law is not only

mandatory but jurisdictional, and that the failure to perfect
an appeal renders the decision of the trial court final and
executory. This rule is founded upon the principle that the
right to appeal is not part of due process of law but is a
mere statutory privilege to be exercised only in the manner
and in accordance with the provisions of the law. Neither can
petitioner invoke the doctrine that rules of technicality must
yield to the broader interest of substantial justice. While
every litigant must be given the amplest opportunity for the
proper and just determination of his cause, free from
constraints of technicalities, the failure to perfect an appeal
within the reglementary period is not a mere technicality. It
raises a jurisdictional problem as it deprives the appellate
court of jurisdiction over the appeal.22
The remedies of appeal and certiorari are mutually exclusive
and not alternative or successive.23 A party cannot
substitute the special civil action of certiorari under Rule 65
of the Rules of Court for the remedy of appeal. The
existence and availability of the right of appeal are
antithetical to the availability of the special civil action for
certiorari.24 As this Court held in Fajardo v. Bautista25 :
Generally, an order of dismissal, whether right or wrong, is a
final order, and hence a proper subject of appeal, not
certiorari. The remedies of appeal and certiorari are
mutually exclusive and not alternative or successive.
Accordingly, although the special civil action of certiorari is
not proper when an ordinary appeal is available, it may be
granted where it is shown that the appeal would be
inadequate, slow, insufficient, and will not promptly relieve a
party from the injurious effects of the order complained of,
or where appeal is inadequate and ineffectual. Nevertheless,
certiorari cannot be a substitute for the lost or lapsed
remedy of appeal, where such loss is occasioned by the
petitioners own neglect or error in the choice of remedies.

On 21 December 2000, petitioner received a copy of the

Order of the RTC-Branch 83 denying his motion for
reconsideration of the dismissal of his Petition for Certiorari
in Civil Case No. Q-99-39358; hence, he had until 18 January
2001 within which to file an appeal with the Court of
Appeals. The Petition for Certiorari filed by petitioner on 19
February 2001 with the Court of Appeals cannot be a
substitute for the lost remedy of appeal. As petitioner failed
to file a timely appeal, RTC-Branch 83s dismissal of his
Petition for Certiorari had long become final and executory.
For this procedural lapse, the Court of Appeals correctly
denied outright the Petition for Certiorari filed by petitioner
before it.
Moreover, there are even more cogent reasons for denying
the instant Petition on the merits.
In the Petition at bar, petitioner raises several substantive
issues. Petitioner harps on the need for the suspension of
the proceedings in Criminal Case No. 90721 for perjury
pending before MeTC-Branch 43 based on a prejudicial
question still to be resolved in Civil Case No. Q-98-34308
(for cancellation of mortgage) and Civil Case No. Q-9834349 (for collection of a sum of money) which are pending
before other trial courts.1avvphi1
For clarity, we shall first discuss the allegations of petitioner
in his complaint in Civil Case No. Q-98-34308 (for
cancellation of mortgage) and that of private respondent in
her complaint in Civil Case No. Q-98-34349 (for collection of
a sum of money).
Civil Case No. Q-98-34308 is a complaint for Cancellation of
Mortgage, Delivery of Title and Damages filed on 8 May
1988 by petitioner against private respondent with RTC-

90

Branch 77. Petitioner alleges that he purchased a parcel of

land covered by Transfer Certificate of Title No. N-173163
thru private respondent, a real estate broker. In the process
of negotiation, petitioner was pressured to sign a Deed of
Sale prepared by private respondent. Upon signing the Deed
of Sale, he noticed that the Deed was already signed by a
certain Cristina Gonzales as attorney-in-fact of vendor
Spouses Guillermo and Amparo Galvez. Petitioner demanded
from private respondent a special power of attorney and
authority to sell, but the latter failed to present one.
Petitioner averred that private respondent refused to deliver
the certificate of title of the land despite execution and
signing of the Deed of Sale and payment of the
consideration. Petitioner was thus compelled to engage the
services of one Modesto Gazmin, Jr. who agreed,
for P100,000.00 to facilitate the filing of cases against
private respondent; to deliver to petitioner the certificate of
title of the land; and/or to cancel the certificate of title in
possession of private respondent. However, Mr. Gazmin, Jr.,
did nothing upon receipt of the amount of P100,000.00 from
petitioner. In fact, petitioner was even charged with perjury
before the Office of the City Prosecutor, all because of Mr.
Gazmin, Jr.s wrongdoing. Petitioner further alleged that he
discovered the existence of a spurious Real Estate Mortgage
which he allegedly signed in favor of private respondent.
Petitioner categorically denied signing the mortgage
document and it was private respondent who falsified the
same in order to justify her unlawful withholding of TCT No.
N-173163 from petitioner. Thus, petitioner prayed for:
1. The cancellation of Real Estate Mortgage dated
August 2, 1997 as null and void;
2. As well as to order [herein private respondent] to
DELIVER the Owners Duplicate Copy of Transfer
Certificate of Title No. N-173163 to [herein
petitioner];

3. Condemning [private respondent] to pay

[petitioner] the sums of
a) P100,000.00 as MORAL DAMAGES;
b) P50,000.00 as EXEMPLARY DAMAGES;
c) P50,000.00 as Attorneys fees and
d) Cost of suit.
4. A general relief is likewise prayed for (sic) just and
equitable under the premises.
Civil Case No. Q-98-34349,26 on the other hand, is a
complaint for a sum of money with a motion for issuance of
a writ of attachment filed by private respondent against
petitioner on 14 May 1988 before RTC-Branch 84. Private
respondent alleges that petitioner obtained a loan from her
in the amount of P758,134.42 with a promise to pay on or
before 30 August 1997. As security for payment of the loan,
petitioner executed a Deed of Real Estate Mortgage
covering a parcel of land registered under TCT No. N173163. Petitioner pleaded for additional time to pay the
said obligation, to which respondent agreed. But private
respondent discovered sometime in February 1998 that
petitioner executed an affidavit of loss alleging that he lost
the owners duplicate copy of TCT No. N-173163, and
succeeded in annotating said affidavit on the original copy
of TCT No. N-173163 on file with the Registry of Deeds of
Quezon City. Private respondent further alleges that she also
discovered that petitioner filed a petition for issuance of a
new owners duplicate copy of TCT No. N-173163 with the
RTC of Quezon City, Branch 98, docketed as LRC Case No. Q10052. Private respondent demanded that petitioner pay his

91

obligation, but the latter refused to do so. Resultantly,

private respondent prayed for the following:
A. That upon filing of this Complaint as well as the
Affidavit of attachment and a preliminary hearing
thereon, as well as bond filed, a writ of preliminary
attachment is (sic) by the Honorable Court ordering
the Sheriff to levy [herein petitioner] property
sufficient to answer [herein private respondents]
claim in this action;
B. That after due notice and hearing, judgment be
rendered in [private respondents] favor as against
[petitioner], ordering the latter to pay the former the
sum of P758,134.42 plus interest thereon at 5% per
month from September 1997 up to the date of actual
payment; actual damages in the sums of P70,000.00
each under paragraphs 11 and 12 of the
complaint; P200,000.00 as moral
damages; P100,000.00 as exemplary damages;
twenty (20%) of the principal claim as attorneys fees
plus P2,500.00 per appearance honorarium;
and P60,000.00 as litigation expense before this
Honorable Court.
[Petitioner] prays for such further relief in law, justice and
equity.
As to whether it is proper to suspend Criminal Case No.
90721 for perjury pending final outcome of Civil Case No. Q98-34349 and Civil Case No. Q-98-34308, we take into
consideration Sections 6 and 7, Rule 111 of the Revised
Rules of Court, which read:
Sec. 6. Suspension by reason of prejudicial question. A
petition for suspension of the criminal action based upon the

pendency of a prejudicial question in a civil action may be

filed in the office of the prosecutor or the court conducting
the preliminary investigation. When the criminal action has
been filed in court for trial, the petition to suspend shall be
filed in the same criminal action at any time before the
prosecution rests.
Sec. 7. Elements of prejudicial question. The elements of a
prejudicial question are: (a) the previously instituted civil
action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action; and (b) the
resolution of such issue determines whether or not the
criminal action may proceed.
The rationale behind the principle of suspending a criminal
case in view of a prejudicial question is to avoid two
conflicting decisions.27
A prejudial question is defined as that which arises in a case
the resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to
another tribunal. The prejudicial question must be
determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged
in another court or tribunal. It is a question based on a fact
distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence of
the accused.28
For a prejudicial question in a civil case to suspend criminal
action, it must appear not only that said case involves facts
intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of
the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined.

92

Thus, for a civil action to be considered prejudicial to a

criminal case as to cause the suspension of the criminal
proceedings until the final resolution of the civil case, the
following requisites must be present: (1) the civil case
involves facts intimately related to those upon which the
criminal prosecution would be based; (2) in the resolution of
the issue or issues raised in the civil action, the guilt or
innocence of the accused would necessarily be determined;
and (3) jurisdiction to try said question must be lodged in
another tribunal.29
If the resolution of the issue in the civil action will not
determine the criminal responsibility of the accused in the
criminal action based on the same facts, or there is no
necessity "that the civil case be determined first before
taking up the criminal case," therefore, the civil case does
not involve a prejudicial question.30 Neither is there a
prejudicial question if the civil and the criminal action can,
according to law, proceed independently of each other.31
However, the court in which an action is pending may, in the
exercise of sound discretion, and upon proper application for
a stay of that action, hold the action in abeyance to abide by
the outcome of another case pending in another court,
especially where the parties and the issues are the same,
for there is power inherent in every court to control the
disposition of cases on its dockets with economy of time and
effort for itself, for counsel, and for litigants. Where the
rights of parties to the second action cannot be properly
determined until the questions raised in the first action are
settled, the second action should be stayed.32
The power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the
cases on its dockets, considering its time and effort, those of
counsel and the litigants. But if proceedings must be stayed,
it must be done in order to avoid multiplicity of suits and

prevent vexatious litigations, conflicting judgments,

confusion between litigants and courts. It bears stressing
that whether or not the trial court would suspend the
proceedings in the criminal case before it is submitted to its
sound discretion.33
Indeed, a judicial order issued pursuant to the courts
discretionary authority is not subject to reversal on review
unless it constitutes an abuse of discretion. As the United
States Supreme Court aptly declared in Landis v. North
American Co., "the burden of making out the justice and
wisdom from the departure from the beaten truck lay
heavily on the petitioner, less an unwilling litigant is
compelled to wait upon the outcome of a controversy to
which he is a stranger. It is, thus, stated that only in rare
circumstances will a litigant in one case is compelled to
stand aside, while a litigant in another, settling the rule of
law that will define the rights of both is, after all, the parties
before the court are entitled to a just, speedy and plain
determination of their case undetermined by the pendency
of the proceedings in another case. After all, procedure was
created not to hinder and delay but to facilitate and promote
the administration of justice."34
As stated, the determination of whether the proceedings
may be suspended on the basis of a prejudicial question
rests on whether the facts and issues raised in the pleadings
in the civil cases are so related with the issues raised in the
criminal case such that the resolution of the issues in the
civil cases would also determine the judgment in the
criminal case.
A perusal of the allegations in the complaints show that Civil
Case No. Q-98-34308 pending before RTC-Branch 77, and
Civil Case No. Q-98-34349, pending before RTC-Branch 84,
are principally for the determination of whether a loan was
obtained by petitioner from private respondent and whether

93

petitioner executed a real estate mortgage involving the

property covered by TCT No. N-173163. On the other hand,
Criminal Case No. 90721 before MeTC-Branch 43, involves
the determination of whether petitioner committed perjury
in executing an affidavit of loss to support his request for
issuance of a new owners duplicate copy of TCT No. N173163.
It is evident that the civil cases and the criminal case can
proceed independently of each other. Regardless of the
outcome of the two civil cases, it will not establish the
innocence or guilt of the petitioner in the criminal case for
perjury. The purchase by petitioner of the land or his
execution of a real estate mortgage will have no bearing
whatsoever on whether petitioner knowingly and
fraudulently executed a false affidavit of loss of TCT No. N173163.
MeTC-Branch 43, therefore, did not err in ruling that the
pendency of Civil Case No. Q-98-34308 for cancellation of
mortgage before the RTC-Branch 77; and Civil Case No. Q98-34349 for collection of a sum of money before RTCBranch 84, do not pose a prejudicial question in the
determination of whether petitioner is guilty of perjury in
Criminal Case No. 90721. RTC-Branch 83, likewise, did not
err in ruling that MeTC-Branch 43 did not commit grave
abuse of discretion in denying petitioners motion for
suspension of proceedings in Criminal Case No. 90721.
WHEREFORE, premises considered, the assailed
Resolutions dated 5 March 2001 and 3 May 2001of the Court
of Appeals in CA-G.R. SP No. 63293 are hereby AFFIRMED
and the instant petition is DISMISSED for lack of merit.
Accordingly, the Metropolitan Trial Court of Quezon City,
Branch 43, is hereby directed to proceed with the hearing
and trial on the merits of Criminal Case No. 90721, and to

expedite proceedings therein, without prejudice to the right

of the accused to due process. Costs against petitioner.
SO ORDERED
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172060

September 13, 2010

JOSELITO R. PIMENTEL, Petitioner,

vs.
MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF
THE PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the
Decision2 of the Court of Appeals, promulgated on 20 March
2006, in CA-G.R. SP No. 91867.
The Antecedent Facts
The facts are stated in the Court of Appeals decision:
On 25 October 2004, Maria Chrysantine Pimentel y Lacap
(private respondent) filed an action for frustrated parricide
against Joselito R. Pimentel (petitioner), docketed as

94

Criminal Case No. Q-04-130415, before the Regional Trial

Court of Quezon City, which was raffled to Branch 223 (RTC
Quezon City).
On 7 February 2005, petitioner received summons to appear
before the Regional Trial Court of Antipolo City, Branch 72
(RTC Antipolo) for the pre-trial and trial of Civil Case No. 047392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito
Pimentel) for Declaration of Nullity of Marriage under
Section 36 of the Family Code on the ground of
psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion to
suspend the proceedings before the RTC Quezon City on the
ground of the existence of a prejudicial question. Petitioner
asserted that since the relationship between the offender
and the victim is a key element in parricide, the outcome of
Civil Case No. 04-7392 would have a bearing in the criminal
case filed against him before the RTC Quezon City.
The Decision of the Trial Court
The RTC Quezon City issued an Order dated 13 May
20053 holding that the pendency of the case before the RTC
Antipolo is not a prejudicial question that warrants the
suspension of the criminal case before it. The RTC Quezon
City held that the issues in Criminal Case No. Q-04-130415
are the injuries sustained by respondent and whether the
case could be tried even if the validity of petitioners
marriage with respondent is in question. The RTC Quezon
City ruled:
WHEREFORE, on the basis of the foregoing, the Motion to
Suspend Proceedings On the [Ground] of the Existence of a
Prejudicial Question is, for lack of merit, DENIED.

SO ORDERED.4
Petitioner filed a motion for reconsideration. In its 22 August
2005 Order,5 the RTC Quezon City denied the motion.
Petitioner filed a petition for certiorari with application for a
writ of preliminary injunction and/or temporary restraining
order before the Court of Appeals, assailing the 13 May 2005
and 22 August 2005 Orders of the RTC Quezon City.
The Decision of the Court of Appeals
In its 20 March 2006 Decision, the Court of Appeals
dismissed the petition. The Court of Appeals ruled that in
the criminal case for frustrated parricide, the issue is
whether the offender commenced the commission of the
crime of parricide directly by overt acts and did not perform
all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance. On the
other hand, the issue in the civil action for annulment of
marriage is whether petitioner is psychologically
incapacitated to comply with the essential marital
obligations. The Court of Appeals ruled that even if the
marriage between petitioner and respondent would be
declared void, it would be immaterial to the criminal case
because prior to the declaration of nullity, the alleged acts
constituting the crime of frustrated parricide had already
been committed. The Court of Appeals ruled that all that is
required for the charge of frustrated parricide is that at the
time of the commission of the crime, the marriage is still
subsisting.
Petitioner filed a petition for review before this Court
assailing the Court of Appeals decision.
The Issue

95

The only issue in this case is whether the resolution of the

action for annulment of marriage is a prejudicial question
that warrants the suspension of the criminal case for
frustrated parricide against petitioner.
The Ruling of this Court
The petition has no merit.
Civil Case Must be Instituted
Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal
Procedure6 provides:
Section 7. Elements of Prejudicial Question. - The elements
of a prejudicial question are: (a) the previously instituted
civil action involves an issue similar or intimately related to
the issue raised in the subsequent criminal action and (b)
the resolution of such issue determines whether or not the
criminal action may proceed.

The rule is clear that the civil action must be instituted first
before the filing of the criminal action. In this case, the
Information7 for Frustrated Parricide was dated 30 August
2004. It was raffled to RTC Quezon City on 25 October 2004
as per the stamped date of receipt on the Information. The
RTC Quezon City set Criminal Case No. Q-04-130415 for pretrial and trial on 14 February 2005. Petitioner was served
summons in Civil Case No. 04-7392 on 7 February
2005.8 Respondents petition9 in Civil Case No. 04-7392 was
dated 4 November 2004 and was filed on 5 November 2004.
Clearly, the civil case for annulment was filed after the filing
of the criminal case for frustrated parricide. As such, the
requirement of Section 7, Rule 111 of the 2000 Rules on
Criminal Procedure was not met since the civil action was
filed subsequent to the filing of the criminal action.
Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide
Further, the resolution of the civil action is not a prejudicial
question that would warrant the suspension of the criminal
action.
There is a prejudicial question when a civil action and a
criminal action are both pending, and there exists in the civil
action an issue which must be preemptively resolved before
the criminal action may proceed because howsoever the
issue raised in the civil action is resolved would be
determinative of the guilt or innocence of the accused in the
criminal case.10 A prejudicial question is defined as:
x x x one that arises in a case the resolution of which is a
logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal. It is a
question based on a fact distinct and separate from the
crime but so intimately connected with it that it determines

96

the guilt or innocence of the accused, and for it to suspend

the criminal action, it must appear not only that said case
involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the
guilt or innocence of the accused would necessarily be
determined.11
The relationship between the offender and the victim is a
key element in the crime of parricide,12 which punishes any
person "who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants or
descendants, or his spouse."13 The relationship between the
offender and the victim distinguishes the crime of parricide
from murder14 or homicide.15 However, the issue in the
annulment of marriage is not similar or intimately related to
the issue in the criminal case for parricide. Further, the
relationship between the offender and the victim is not
determinative of the guilt or innocence of the accused.
The issue in the civil case for annulment of marriage under
Article 36 of the Family Code is whether petitioner is
psychologically incapacitated to comply with the essential
marital obligations. The issue in parricide is whether the
accused killed the victim. In this case, since petitioner was
charged with frustrated parricide, the issue is whether he
performed all the acts of execution which would have killed
respondent as a consequence but which, nevertheless, did
not produce it by reason of causes independent of
petitioners will.16 At the time of the commission of the
alleged crime, petitioner and respondent were married. The
subsequent dissolution of their marriage, in case the petition
in Civil Case No. 04-7392 is granted, will have no effect on
the alleged crime that was committed at the time of the
subsistence of the marriage. In short, even if the marriage
between petitioner and respondent is annulled, petitioner
could still be held criminally liable since at the time of the

commission of the alleged crime, he was still married to

respondent.1avvphi1
We cannot accept petitioners reliance on Tenebro v. Court
of Appeals17 that "the judicial declaration of the nullity of a
marriage on the ground of psychological incapacity retroacts
to the date of the celebration of the marriage insofar as
the vinculum between the spouses is concerned x x x." First,
the issue in Tenebro is the effect of the judicial declaration
of nullity of a second or subsequent marriage on the ground
of psychological incapacity on a criminal liability for bigamy.
There was no issue of prejudicial question in that caRepublic
of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 208587

July 29, 2015

JM DOMINGUEZ AGRONOMIC COMPANY, INC., HELEN

D. DAGDAGAN, PATRICK PACIS, KENNETH PACIS, and
SHIRLEY DOMINGUEZ, Petitioners,
vs.
CECILIA LICLICAN, NORMA D. ISIP, and PURITA
DOMINGUEZ, Respondents.
DECISION
VELASCO, JR., J.:
Nature of the Case
Petitioners, through the instant Petition for Review on
Certiorari under Rule 45 of the Rules of Court, seek the
reversal of the Court of Appeals (CA) Decision1 dated August

97

30, 2012 and its Resolution2 dated July 15, 2013 in CA-G.R.
SP No. 108617. Said rulings nullified the Orders authorizing
the issuance of the assailed warrants of arrest against
respondents for allegedly having been issued in grave abuse
of discretion.
The Facts
During the annual stockholders meeting of petitioner JM
Dominguez Agronomic Company, Inc. (JMD) held on
December 29, 2007 at the Baguio City Country Club, the
election for its new set of directors was conducted. This
event was presided by then company president, and herein
respondent, Cecilia Liclican (Liclican), and attended by her
co-respondents Norma Isip (Isip) and Purita Rodriguez, and
by petitioners Helen Dagdagan (Dagdagan), Patrick Pacis,
Kenneth Pacis, and Shirley Dominguez (Dominguez) as well.
Conflict ensued when petitioners Patrick and Kenneth Pacis
were allegedly not allowed to vote on the ground that they
are not registered stockholders of JMD. As pointed out, it
was their mother and grandmother, both deceased, who are
the stockholders in JMD, and that there is still no settlement
of their respective estates to effectively transfer their shares
in the company to Patrick and Kenneth Pacis.3

3. Kenneth D. Pacis as Secretary

4. Shirley C. Dominguez as Treasurer
After staging the walk-out, respondents, on even date,
executed a Board Resolution certifying that in the
stockholders meeting, the following were elected directors
and officers of JMD:5 Board of Directors:
1. Cecilia D. Liclican Chairman and Presiding Officer
2. Norma D. Isip
3. Purita C. Dominguez
4. Tessie C. Dominguez, and
5. Shirley C. Dominguez
Officers:
1. Cecilia D. Liclican as President and Presiding
Officer

Tensions rose and respondents, allegedly, walked out of the

meeting. But since the remaining stockholders with
outstanding shares constituted a quorum, the election of
officers still proceeded, which yielded the following result: 4

2. Norma D. Isip as Vice-President

Officers:

4. Oscar Aquino Financial Consultant Auditor

1. Helen D. Dagdagan as President

2. Patrick D. Pacis as Vice-President

3. Gerald B. Cabrera as Corporate

Secretary/Treasurer and

In reaction to the foregoing developments, petitioners

Dagdagan, Patrick and Kenneth Pacis, and Dominguez filed a
Complaint against respondents before the Regional Trial
Comi of Baguio City (RTC) for nullification of meetings,

98

election and acts of directors and officers, injunction and

other reliefs, raffled to Branch 59 of the court. Docketed as
Civil Case No. 6623-R, the case, after a failed mediation,
was referred for appropriate Judicial Dispute Resolution (JDR)
to Branch 7 of the RTC. Meanwhile, petitioner stockholders
immediately took hold of corporate properties, represented
themselves to JMD's tenants as the true and lawful directors
of the company, and collected and deposited rents due the
company to its bank account.6
Subsequently, JMD, represented by petitioners Dagdagan
and Patrick Pacis, executed an Affidavit-Complaint7 dated
December 15, 2008 charging respondents Liclican and Isip
with qualified theft. Petitioners alleged in the complaint,
docketed as I.S. No. 3011 with the Office of the City
Prosecutor in Baguio City, that on January 2, 2008, Liclican
and Isip, without any authority whatsoever, conspired to
withdraw the amount of P852,024.19 from the corporation's
savings account with the Equitable-PCI Bank; and that the
following day, they issued Check No. C0002489901 8 in the
amount of P200,000, payable to cash, and to be drawn
against JMD's account with Robinson's Savings Bank.9
In a separate complaint,10 docketed as I.S. No. 3118, the
corporation claimed that respondents Liclican and Isip
likewise issued Equitable-PCI Bank Check No.
32095311 payable to one Atty. Francisco Lava, Jr.
for P200,000 to be debited from the corporation's account.
After due proceedings, the Office of the City Prosecutor of
Baguio City, by Joint Resolution of February 2, 2009,
recommended the filing of informations as follows:12

WHEREFORE, premises considered. the undersigned

recommends for approval the attached Informations for
Qualified Theft against LICLICAN and ISIP in LS. No. 3011
and another against LICLICAN in LS. No. 3118.
When filed, the informations were eventually raffled to
Branch 7 of the RTC, the same court overseeing the
JDR,13presided over by Judge Mona Lisa V. Tiongson-Tabora
(Judge Tiongson-Tabora). The criminal cases for qualified
theft were then docketed as Criminal Case Nos. 29176-R
(based on I.S. No. 3118) and 29175-R (based on I.S. No.
3111).
On March 10, 2009, Judge Tiongson-Tabora issued an
Order14 in Criminal Case No. 29176-R, finding probable
cause for the issuance of a warrant of arrest against Liclican,
thus: WHEREFORE. the Information filed herein is hereby
given due course. Let the corresponding warrant of arrest be
issued against the accused. As recommended, the bail is
hereby fixed as Php 80,000.00.
SO ORDERED.
A similar Order,15 also dated March 10, 2009, was issued in
Criminal Case No. 29175-R likewise finding probable cause
against respondents Liclican and Isip, viz:
WHEREFORE, the Information filed herein is hereby given
due course. Let the corresponding warrant of arrest be
issued against the accused. As recommended, the bail is
hereby fixed at Php 80,000.00 each.
Considering that the address provided for accused Norma
Isip is Washington, U.S.A., the private complainants are
hereby given fifteen ( 15) days from receipt hereof to

99

provide the Court with a local address for the said accused if
she may be found in the Philippines.
SO ORDERED.
Consequently, the corresponding warrants were issued for
the arrests of Isip and Liclican.16 In due time, respondents
lodged a petition for certiorari with the CA, docketed as CAG.R. SP No. 108617, to annul and set aside the two (2)
March I 0, 2009 Orders by the RTC Branch 7, anchored,
among others, on the alleged existence of a prejudicial
question. According to respondents, petitioner stockholders,
by filing the complaint-affidavit, are already assuming that
they are the legitimate directors of JMD, which is the very
issue in the intra-corporate dispute pending in the RTC,
Branch 59.

The CA further noted that even as corporate officers, as they

claim to be, petitioners Dagdagan and Patrick Pacis cannot
file the Complaint-Affidavit in the exercise of corporate
powers without authority from the board of directors under
Sec. 23,18 in relation to Sec. 2519 of the Corporation
Code.20 Any doubt cast on the validity of the board elections
would then necessarily extend to the authority of the
officers to act.
As further held by the CA:
x x x Since there is doubt in the instant case as to the
sufficiency of the authority of a corporate officer, Judge
Tiongson-Tabora should have exercised prudence by holding
the criminal cases in abeyance pending resolution of the
intra-corporate dispute which private respondents
themselves instituted.21

Ruling of the Court of Appeals

In its assailed Decision, the CA granted the petition for
certiorari, disposing as follows: WHEREFORE, the challenged
Orders both dated March 10. 2009 are hereby ANNULLED
and SET ASIDE for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
SO ORDERED.
The appellate court held that Judge Tiongson-Tabora should
have refrained from determining probable cause since she is
well aware of the pendency of the issue on the validity of
JMD's elections in Civil Case No. 6623-R. As the judge
overseeing the JDR of the said intra-corporate dispute, she
knew that there was still doubt as to who the rightfully
elected directors of JMD are and, corollarily, who would have
the authority to initiate the criminal proceedings for
qualified theft.17

Aggrieved, individual petitioners moved for reconsideration,

on the main contention that their election as officers and
directors of JMD has already been sustained by the trial
court via its Judgment in Civil Case No. 6623-R dated May 6,
2011. They likewise claimed that the issue on whether or
not the R TC, Branch 7 committed grave abuse of discretion
is already rendered moot and academic by the judge's
inhibition in Criminal Case Nos. 29175-R and 29176-R, and
the termination of the JDR proceedings in Civil Case No.
6623-R. Petitioners' motion, however, proved futile as the
appellate court denied the same in its July 15, 2013
Resolution.22 Hence, the instant recourse.
The Issues
Plainly, the resolution of the extant case depends on
whether or not there exists a prejudicial question that could
affect the criminal proceedings for qualified theft against

100

respondents. In the concrete, the issues are (i) whether or

not Civil Case No. 6623-R constituted a prejudicial question
warranting the suspension of the proceedings in Criminal
Case Nos. 29175-R and 29176-R; and (ii) whether or not
grave abuse of discretion attended the issuance of the two
assailed March 10, 2009 Orders in Criminal Case Nos.
29175-R and 29176-R.
The Court's Ruling
The petition lacks merit.
The challenged Orders of the trial court
were issued in grave abuse of discretion
We have previously ruled that grave abuse of discretion may
arise when a lower court or tribunal violates or contravenes
the Constitution, the law or existing jurisprudence. By grave
abuse of discretion is meant, such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction.
The abuse of discretion must be grave as where the power
is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility and must be so patent and
gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all
in contemplation of law. The word "capricious," usually used
in tandem with the term "arbitrary," conveys the notion of
willful and unreasoning action. Thus, when seeking the
corrective hand of certiorari, a clear showing of caprice and
arbitrariness in the exercise of discretion is imperative.23
In the case at bar, the CA correctly ruled that Judge
Tiongson-Tabora acted with grave abuse of discretion when
she ordered the arrests of respondents Isip and Liclican
despite the existence of a prejudicial question.

As jurisprudence elucidates, a prejudicial question generally

exists in a situation where a civil action and a criminal action
are both pending, and there exists in the former an issue
that must be pre-emptively resolved before the latter may
proceed, because howsoever the issue raised in the civil
action is resolved would be determinative Juris et de Jure of
the guilt or innocence of the accused in the criminal
case.24 The rationale behind the principle is to avoid two
conflicting decisions,25 and its existence rests on the
concurrence of two essential elements: (i) the civil action
involves an issue similar or intimately related to the issue
raised in the criminal action; and (ii) the resolution of such
issue determines whether or not the criminal action may
proceed.26
Here, the CA aptly observed that Civil Case No. 6623-R, the
intra-corporate dispute, posed a prejudicial question to
Criminal Case Nos. 29175-R and 29176-R. To be sure, Civil
Case No. 6623-R involves the same parties herein, and is for
nullification of JMD's meetings, election and acts of its
directors and officers, among others. Court intervention was
sought to ascertain who between the two contesting group
of officers should rightfully be seated at the company's
helm. Without Civil Case No. 6623-R's resolution, petitioners'
authority to commence and prosecute Criminal Case Nos.
29175-R and 29176-R against respondents for qualified theft
in JMD's behalf remained questionable, warranting the
suspension of the criminal proceedings.
Judge Tiongson-Tabora cannot deny knowledge of the
pendency of Civil Case No. 6623-R as the judge presiding
over its JDR. As correctly held by the CA:
Judge Tiongson-Tabora is well-aware of the existence of said
prejudicial question that should have barred the filing of the
criminal complaint against petitioners Liclican and Isip, for
the simple reason that a juridical person can only act

101

through its officers, and the issue in the main case

submitted for JDR before Judge Tiongson-Tabora is one for
nullification of meetings, election and act of directors and
officers, injunction and other reliefs Thus, she knows for a
fact that there is a question as to who are the legitimate
directors of JMD such that there is doubt as to whether
private respondents are in a position to act for JMD.
(emphasis added)
Verily, the RTC ought to have suspended the proceedings,
instead of issuing the challenged Orders issued by the RTC.
The subsequent resolution of the prejudicial
question did not cure the defect
It may be, as the petitioners pointed out in their motion for
reconsideration filed before the CA, that Civil Case No. 6623R was eventually resolved in their favor through a
Judgment27 dated May 6, 2011 rendered by the RTC, Branch
59, the dispositive portion of which reads: WHEREFORE,
from all the foregoing disquisitions, the Court hereby
declares that the plaintiffs [petitioners herein] are the duly
elected board of directors and officers of the JM Dominguez
Agronomic Company, Inc. for the year 2008 and hold-over
capacity unless here had already been an election of new
officers.
Consequently, all Corporate Acts which the defendants
[herein respondents and one Gerald Cabrera and one Oscar
Aquino] have done and performed and all documents they
have executed and issued have no force and effect.
Considering that the amount of Php850,000.00 which
defendants have withdrawn under the account of JM
Dominguez Agronomic Company, Inc. from the Equitable
PCI Bank (now Banco de Oro) is the same subject in CC no.

29175-R entitled Pp. vs. Cecilia Liclican and Norma D. Isip

for Qualified Theft, the Court will no longer dwell on the
same.
xxxx
SO ORDERED. (emphasis and words in bracket added)
This Judgment has, on June 6, 2011, become final and
executory, as per the Notice of Entry of Judgment issued by
the same trial court.28 Evidently, whatever cloud of doubt
loomed over petitioners' actuations has already been
dispelled. Petitioners then postulate that the question on
whether or not the challenged Orders were issued in grave
abuse of discretion has already been rendered moot and
academic by the June 6, 2011 ruling and by Judge TiongsonTabora's subsequent inhibition in the criminal proceedings.
Consequently, they argue that their motion for
reconsideration should have been granted by the appellate
court.
We are not convinced.
The resolution of the prejudicial question did not, in context,
cure the grave abuse of discretion already committed. The
fact remains that when the RTC, Branch 7 issued its
challenged Orders on March 10, 2009, the Judg1pent in
favor of petitioners was not yet rendered. Consequently,
there was still, at that time, a real dispute as to who the
rightful set of officers were. Plainly, Judge Tiongson-Tabora
should not have issued the challenged Orders and should
have, instead, suspended the proceedings until Civil Case
No. 6623-R was resolved with finality.
To grant the instant petition and rule that the procedural
infirmity has subsequently been cured either by the

102

Judgment or by Judge Tiongson-Tabora's inhibition would

mean condoning the continuation of the criminal
proceedings despite, at that time, the existence of a
prejudicial question. Such condonation would create a
precedent that renders inutile the doctrine on prejudicial
question, such that the court trying the criminal case will be
permitted to proceed with the trial in the aberrant
assumption that the resolution of the prior instituted civil
case would benefit the private complainant in the criminal
proceedings. To reiterate, there was no certainty yet on how
the RTC, Branch 59 would rule; thus, no assumption on Civil
Case No. 6623-R's resolution can be made when the
challenged Orders were issued. Indeed, had the RTC, Branch
59 not given credence to petitioners' arguments, it would
have led to an awkward situation wherein much time and
effort is wasted by the RTC, Branch 7 in trying criminal cases
it should not have entertained.
The foregoing notwithstanding, it should be made clear that
the nullification of the March 10, 2009 Orders does not,
under the premises.1wphi1 entail the dismissal of the
instituted criminal cases, but would merely result in the
suspension of the proceedings in view of the prejudicial
question. However, given the resolution of the prejudicial
question and Judge Tiongson-Tabora's inhibition, Criminal
Case Nos. 29175-R and 29176-R may already proceed, and
ought to be re-raffled to re-determine the existence of
probable cause for the issuance of warrants of arrest against
respondents.

Criminal Case Nos. 29175-R and 29176-R are hereby

REMANDED to the Executive Judge of the Regional Trial
Court of Baguio City to be re-raffled to one of its branches
other than Branch 7.
SO ORDERED.
se. Second, the Court ruled inTenebro that "[t]here is x x x a
recognition written into the law itself that such a marriage,
although void ab initio, may still produce legal
consequences."18 In fact, the Court declared in that case
that "a declaration of the nullity of the second marriage on
the ground of psychological incapacity is of absolutely no
moment insofar as the States penal laws are concerned."19
In view of the foregoing, the Court upholds the decision of
the Court of Appeals. The trial in Criminal Case No. Q-04130415 may proceed as the resolution of the issue in Civil
Case No. 04-7392 is not determinative of the guilt or
innocence of petitioner in the criminal case.
WHEREFORE, we DENY the petition. We AFFIRM the 20
March 2006 Decision of the Court of Appeals in CA-G.R. SP
No. 91867.
SO ORDERED.

WHEREFORE, premises considered, the petition is hereby

DENIED for lack of merit. The Court of Appeals' August 30,
2012 Decision and July 15, 2013 Resolution in CA-G.R. SP
No. 108617 are hereby AFFIRMED.

103