Case Brief: Bonifacio v. RTC of Makati, Br.

149

JANUARY 11, 2017JEFF REY

GR 184800 May 5, 2010
Bonifacio
v
RTC of Makati, Br. 149
Facts:
Petitioners Bonifacio et al were charged with the crime of libel after private respondent Gimenez, on
behalf of Yuchengco family and Malayan Insurance Co., filed a criminal complaint before the Makati
City Prosecutor for libel under Article 355 in relation to Article 353 of the Revised Penal Code .

The complaint alleged that petitioners, together with several John Does, publicly and maliciously with
intention of attacking the honesty, virtue, honor and integrity, character and reputation of Malayan
Insurance Co. Inc., and Yuchengco family for exposing them to public hatred and contempt, and
published in the said websitehttp://www.pepcoalition.com a defamatory article persuading the public to
remove their investments and policies from the said company. This is after the petitioners filed to seek
their redress for their pecuniary loss under the policies they obtained from the company. Makati City
Prosecutor, after finding probable cause to indict the petitioners, filed separate information against them .
Petitioners filed before the respondent RTC of Makati a Motion to Quash on the grounds that it failed to
vest jurisdiction on the Makati RTC; the acts complained of in the Information are not punishable by law
since internet libel is not covered by Article 353 of the RPC. Petitioners maintained that the Information
failed to allege a particular place within the trial courts jurisdiction where the subject article was printed
and first published or that the offended parties resided in Makati at the time the alleged defamatory
material was printed and first published, and the prosecution erroneously laid the venue of the case in the
place where the offended party accessed the internet-published article.

Issue:
Whether petitioners Motion to Quash due to lack of jurisdiction is valid.

Held:
Yes. Venue is jurisdictional in criminal actions such that the place where the crime was committed
determines not only the venue of the action but constitutes an essential element of jurisdiction. The venue
of libel cases where the complainant is a private individual is limited to only either of two places, namely:
1) where the complainant actually resides at the time of the commission of the offense; or 2) where the
alleged defamatory article was printed and first published.
The Amended Information in the case opted to lay the venue by stating that the offending article was first
published and accessed by the private complainant in Makati City. In other words, it considered the
phrase to be equivalent to the requisite allegation of printing and first publication. This is wrong. For the
court to hold that the Amended Information sufficiently vested jurisdiction in the courts of Makati simply
because the defamatory article was accessed therein would open the floodgates to the libel suit being filed
in all other locations where the pepcoalition website is likewise accessed or capable of being accessed.
This goes against the purpose as to why Republic Act No. 4363 was enacted. It lays down specific rules
as to the venue of the criminal action so as to prevent the offended party in written defamation cases from
inconveniencing the accused by means of out-of-town libel suits, meaning complaints filed in remote
municipal courts (

IN FINE, the public respondent committed grave abuse of discretion in denying petitioners .R. No.
133535 September 9, 1999
LILIA B. ORGANO, petitioner,
vs.
THE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

DECISION
PARDO, J.:
The case before the Court is a special civil action for certiorari with preliminary injunction or
temporary restraining order assailing the resolutions of the Sandiganbayan, Fourth
Division, 1 that denied petitioners motion to quash the information in the case below, for lack of
merit.
We grant the petition.
The facts are as follows:
On August 15, 1997, Special Prosecution Officer Jose T. de Jesus, Jr., filed with the
Sandiganbayan an Information against petitioner, together with others, for the crime of plunder
or violation of R.A. No. 7080, as amended by R.A. No. 7659. 2
The Information reads as follows:
That on or about 05 November 1996, or sometime prior or subsequent thereto, in Quezon City,
Philippines and within the jurisdiction of this Honorable Court, accused Dominga S. Manalili,
Teopisto A. Sapitula, Jose dP. Marcelo, Lilia B. Organo, being then public officers and taking
advantage of their official positions as employees of the Bureau of Internal Revenue, Region 7,
Quezon City, and Gil R. Erencio, Reynaldo S. Enriquez and Luis S. Se, Jr., conspiring,
confabulating and confederating with one another, did then and there wilfully, unlawfully and
criminally amass and acquire funds belonging to the National Government by opening an
unauthorized bank account with the Landbank of the Philippines, West Triangle Branch,
Diliman, Quezon City, for and in behalf of the Bureau of Internal Revenue and deposit therein
money belonging to the government of the Philippines, consisting of revenue tax payments,
then withdraw therefrom the total sum of Pesos: One Hundred Ninety Three Million Five
Hundred Sixty Five Thousand Seventy Nine & 64/100 (P193,565,079.64) Philippine Currency,
between November, 1996 to February, 1997, without proper authority, through checks made
payable to themselves and/or the sole proprietorship firms of the above named private persons,
thereby succeeding in misappropriating, converting, misusing and/or malversing said public
finds tantamount to a raid on the public treasury, to their own personal gains, advantages and
benefits, to the damage and prejudice of the government in the aforestated amount. 3
On August 20, 1997, petitioner filed with the Sandiganbayan a motion to quash information for
lack of jurisdiction, contending that the Sandiganbayan no longer had jurisdiction over the case
under R.A. 8249, approved on February 5, 1997.
On September 29, 1997, without first resolving petitioners motion to quash information, the
Sandiganbayan issued a warrant of arrest against all the accused in the case.
On November 28, 1997, the Sandiganbayan issued a resolution denying petitioners motion to
quash the information for lack of merit.
On December 9, 1997, petitioner filed with the Sandiganbayan a motion for reconsideration,
reiterating the ground of lack of jurisdiction over the case pursuant to Republic Act No. 8249,
approved on February 5, 1997.
On April 28, 1998, after one hundred forty (140) days from its filing, the Sandiganbayan issued a
resolution denying petitioners motion for reconsideration ruling that she should first surrender to
the court before she may file any further pleading with the court.
Hence, this petition.
On June 23, 1998, the Court resolved to require the respondents to comment on the petition,
not to file a motion to dismiss, within ten (10) days from notice. 4
On September 14, 1998, the Office of the Special Prosecutor, representing the People of the
Philippines, filed its comment. 5
On January 4, 1999, the Solicitor General filed his comment. 6
We give due course to the petition.
At issue is whether the Sandiganbayan at the time of the filing of the information on August 15,
1997 had jurisdiction over the case, in view of the enactment on February 5, 1997 of Republic
Act No. 8249, vesting in the Sandiganbayan jurisdiction over offenses and felonies whether
simple or complexed with other crimes committed by public officers and employees mentioned
in subsection (a) of Section 4 in relation to their office where the accused holds a position with
salary grade 27 and higher under the Compensation and Position Classification Act of 1989.
Petitioner contends that since none of the accused holds a position with Salary Grade 27 and
higher, jurisdiction over the case falls with the Regional Trial Court. 7 On the other hand,
respondent Sandiganbayans position is that Republic Act No. 7080 which defines and
penalizes the crime of plunder vests in the Sandiganbayan jurisdiction thereof, and since it is a
special law, it constitutes an exception to the general law, Republic Act No. 8249. 8
Republic Act No. 7080, Section 3 provides:
Until otherwise provided by law, all pro-sections under this Act shall be within the original
jurisdiction of the Sandiganbayan.
This law was enacted on September 23, 1991, and was effective on October 7, 1991.
On February 5, 1997, Republic Act No. 8249 was approved, further defining the jurisdiction of
the Sandiganbayan.
Sec. 4 of the law provides:
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:
xxx xxx xxx
b. Other offenses or felonies whether simple or complexed with other crimes committed by the
public officials and employees mentioned in sub-section a of this section in relation to their
office.
xxx xxx xxx
In cases where none of the accused are occupying positions corresponding to Salary Grade
27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers
mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional
trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the
case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129,
as amended. 9
This latest enactment collated the provisions on the exclusive jurisdiction of the Sandiganbayan.
It is a special law enacted to declog the Sandiganbayan of small fry cases. In an unusual
manner, the original jurisdiction of the Sandiganbayan as a trial court was made to depend not
on the penalty imposed by law on the crimes and offenses within its jurisdiction but on the rank
and salary grade of accused government officials and employees.
However, the crime of plunder defined in Republic Act No. 7080, as amended by Republic Act
No. 7659, was provisionally placed within the jurisdiction of the Sandiganbayan until otherwise
provided by law. 10 Republic Act No. 8429, enacted on February 5, 1997 is the special law that
provided for the jurisdiction of the Sandiganbayan otherwise than that prescribed in Republic
Act No. 7080.
Consequently, we rule that the Sandiganbayan has no jurisdiction over the crime of plunder
unless committed by public officials and employees occupying the positions with Salary Grade
27 or higher, under the Compensation and Position Classification Act of 1989 (Republic Act
No. 6758) in relation to their office.
In ruling in favor of its jurisdiction, even though none of the accused occupied positions with
Salary Grade 27 or higher under the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), the Sandiganbayan incurred in serious error of jurisdiction, entitling
petitioner to the relief prayed for.
WHEREFORE, the Court hereby GRANTS the petition, for certiorari and ANNULS the
resolutions of the Sandiganbayan, dated November 20, 1997, and April 28, 1998, in Criminal
Case No. 24100.
The Court orders the Sandiganbayan to forthwith refer the case to the court of proper
jurisdiction.
No costs.

G.R. No. 167304 August 25, 2009

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
SANDIGANBAYAN (third division) and VICTORIA AMANTE, Respondents.
 DECISION

PERALTA, J.:

Before this Court is a petition1 under Rule 45 of the Rules of Court seeking to reverse and set
aside the Resolution2 of the Sandiganbayan (Third Division) dated February 28, 2005
dismissing Criminal Case No. 27991, entitled People of the Philippines v. Victoria Amante for
lack of jurisdiction.

The facts, as culled from the records, are the following:

Victoria Amante was a member of the Sangguniang Panlungsod of Toledo City, Province of
Cebu at the time pertinent to this case. On January 14, 1994, she was able to get hold of a cash
advance in the amount of 71,095.00 under a disbursement voucher in order to defray seminar
expenses of the Committee on Health and Environmental Protection, which she headed. As of
December 19, 1995, or after almost two years since she obtained the said cash advance, no
liquidation was made. As such, on December 22, 1995, Toledo City Auditor Manolo V. Tulibao
issued a demand letter to respondent Amante asking the latter to settle her unliquidated cash
advance within seventy-two hours from receipt of the same demand letter. The Commission on
Audit, on May 17, 1996, submitted an investigation report to the Office of the Deputy
Ombudsman for Visayas (OMB-Visayas), with the recommendation that respondent Amante be
further investigated to ascertain whether appropriate charges could be filed against her under
Presidential Decree (P.D.) No. 1445, otherwise known as The Auditing Code of the Philippines.
Thereafter, the OMB-Visayas, on September 30, 1999, issued a Resolution recommending the
filing of an Information for Malversation of Public Funds against respondent Amante. The Office
of the Special Prosecutor (OSP), upon review of the OMB-Visayas' Resolution, on April 6, 2001,
prepared a memorandum finding probable cause to indict respondent Amante.

On May 21, 2004, the OSP filed an Information3 with the Sandiganbayan accusing Victoria
Amante of violating Section 89 of P.D. No. 1445, which reads as follows:

That on or about December 19, 1995, and for sometime prior or subsequent thereto at Toledo
City, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused VICTORIA AMANTE, a high-ranking public officer, being a member of
the Sangguniang Panlungsod of Toledo City, and committing the offense in relation to office,
having obtained cash advances from the City Government of Toledo in the total amount of
SEVENTY-ONE THOUSAND NINETY-FIVE PESOS (71,095.00), Philippine Currency, which
she received by reason of her office, for which she is duty-bound to liquidate the same within
the period required by law, with deliberate intent and intent to gain, did then and there, wilfully,
unlawfully and criminally fail to liquidate said cash advances of 71,095.00, Philippine Currency,
despite demands to the damage and prejudice of the government in aforesaid amount.

CONTRARY TO LAW.

The case was raffled to the Third Division of the Sandiganbayan. Thereafter, Amante filed with
the said court a MOTION TO DEFER ARRAIGNMENT AND MOTION FOR
REINVESTIGATION4 dated November 18, 2004 stating that the Decision of the Office of the
Ombudsman (Visayas) dated September 14, 1999 at Cebu City from of an incomplete
proceeding in so far that respondent Amante had already liquidated and/or refunded the
unexpected balance of her cash advance, which at the time of the investigation was not
included as the same liquidation papers were still in the process of evaluation by the Accounting
Department of Toledo City and that the Sandiganbayan had no jurisdiction over the said criminal
case because respondent Amante was then a local official who was occupying a position of
salary grade 26, whereas Section 4 of Republic Act (R.A.) No. 8249 provides that the
Sandiganbayan shall have original jurisdiction only in cases where the accused holds a position
otherwise classified as Grade 27 and higher, of the Compensation and Position Classification
Act of 1989, R.A. No. 6758.

The OSP filed its Opposition5 dated December 8, 2004 arguing that respondent Amante's claim
of settlement of the cash advance dwelt on matters of defense and the same should be
established during the trial of the case and not in a motion for reinvestigation. As to the assailed
jurisdiction of the Sandiganbayan, the OSP contended that the said court has jurisdiction over
respondent Amante since at the time relevant to the case, she was a member of the
Sangguniang Panlungsod of Toledo City, therefore, falling under those enumerated under
Section 4 of R.A. No. 8249. According to the OSP, the language of the law is too plain and
unambiguous that it did not make any distinction as to the salary grade of city local
officials/heads.

The Sandiganbayan, in its Resolution6 dated February 28, 2005, dismissed the case against
Amante, the dispositive portion of which reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, this case is hereby dismissed for lack of
jurisdiction. The dismissal, however, is without prejudice to the filing of this case to the proper
court.

The Motion for Reinvestigation filed by the movant is hereby considered moot and academic.

SO ORDERED.

Hence, the present petition.

Petitioner raises this lone issue:

WHETHER OR NOT THE SANDIGANBAYAN HAS JURISDICTION OVER A CASE

INVOLVING A SANGGUNIANG PANLUNGSOD MEMBER WHERE THE CRIME CHARGED IS
ONE COMMITTED IN RELATION TO OFFICE, BUT NOT FOR VIOLATION OF RA 3019, RA
1379 OR ANY OF THE FELONIES MENTIONED IN CHAPTER II, SECTION 2, TITLE VII OF
THE REVISED PENAL CODE.

In claiming that the Sandiganbayan has jurisdiction over the case in question, petitioner
disputes the former's appreciation of this Court's decision in Inding v.
Sandiganbayan.7 According to petitioner, Inding did not categorically nor implicitly constrict or
confine the application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606,
as amended, exclusively to cases where the offense charged is either a violation of R.A. No.
3019, R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. Petitioner
adds that the enumeration in Section (a)(1) of P.D. No. 1606, as amended by R.A. No. 7975
and R.A. No. 8249, which was made applicable to cases concerning violations of R.A. No. 3019,
R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code, equally applies to
offenses committed in relation to public office.
Respondent Amante, in her Comment8 dated January 16, 2006, averred that, with the way the
law was phrased in Section 4 of P.D. No. 1606, as amended, it is obvious that the jurisdiction of
the Sandiganbayan was defined first, enumerating the several exceptions to the general rule,
while the exceptions to the general rule are provided in the rest of the paragraph and sub-
paragraphs of Section 4. Therefore, according to respondent Amante, the Sandiganbayan was
correct in ruling that the latter has original jurisdiction only over cases where the accused is a
public official with salary grade 27 and higher; and in cases where the accused is public official
below grade 27 but his position is one of those mentioned in the enumeration in Section
4(a)(1)(a) to (g) of P.D. No. 1606, as amended and his offense involves a violation of R.A. No.
3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised Penal Code; and if the
indictment involves offenses or felonies other than the three aforementioned statutes, the
general rule that a public official must occupy a position with salary grade 27 and higher in order
that the Sandiganbayan could exercise jurisdiction over him must apply. The same respondent
proceeded to cite a decision9 of this Court where it was held that jurisdiction over the subject
matter is conferred only by the Constitution or law; it cannot be fixed by the will of the parties; it
cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the
parties, neither is it conferred by acquiescence of the court.1avvphi1

In its Reply10 dated March 23, 2006, the OSP reiterated that the enumeration of public officials
in Section 4(a)(1) to (a) to (g) of P.D. No. 1606 as falling within the original jurisdiction of the
Sandiganbayan should include their commission of other offenses in relation to office under
Section 4(b) of the same P.D. No. 1606. It cited the case ofEsteban v. Sandiganbayan, et
al.11 wherein this Court ruled that an offense is said to have been committed in relation to the
office if the offense is "intimately connected" with the office of the offender and perpetrated while
he was in the performance of his official functions.

The petition is meritorious.

The focal issue raised in the petition is the jurisdiction of the Sandiganbayan. As a background,
this Court had thoroughly discussed the history of the conferment of jurisdiction of the
Sandiganbayan in Serana v. Sandiganbayan, et al.,12 thus:

x x x The Sandiganbayan was created by P.D. No. 1486, promulgated by then President
Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of
official conduct required of public officers and employees, based on the concept that public
officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and
efficiency and shall remain at all times accountable to the people.13

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December
10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.14

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the
Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding
amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No.
8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. x x x

Specifically, the question that needs to be resolved is whether or not a member of

the Sangguniang Panlungsodunder Salary Grade 26 who was charged with violation of The
Auditing Code of the Philippines falls within the jurisdiction of the Sandiganbayan.
This Court rules in the affirmative.

The applicable law in this case is Section 4 of P.D. No. 1606, as amended by Section 2 of R.A.
No. 7975 which took effect on May 16, 1995, which was again amended on February 5, 1997 by
R.A. No. 8249. The alleged commission of the offense, as shown in the Information was on or
about December 19, 1995 and the filing of the Information was on May 21, 2004. The
jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the
action, not at the time of the commission of the offense.15 The exception contained in R.A. 7975,
as well as R.A. 8249, where it expressly provides that to determine the jurisdiction of the
Sandiganbayan in cases involving violations of R.A. No. 3019, as amended, R.A. No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal Code is not applicable in the present case
as the offense involved herein is a violation of The Auditing Code of the Philippines. The last
clause of the opening sentence of paragraph (a) of the said two provisions states:

Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying the following positions in
the government, whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:

The present case falls under Section 4(b) where other offenses and felonies committed by
public officials or employees in relation to their office are involved. Under the said provision, no
exception is contained. Thus, the general rule that jurisdiction of a court to try a criminal case is
to be determined at the time of the institution of the action, not at the time of the commission of
the offense applies in this present case. Since the present case was instituted on May 21, 2004,
the provisions of R.A. No. 8249 shall govern. Verily, the pertinent provisions of P.D. No. 1606 as
amended by R.A. No. 8249 are the following:

Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all cases
involving:

A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code, where one or more of the principal accused are officials
occupying the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as grade "27" and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:

(a) Provincial governors, vice-governors, members of the sangguniang

panlalawigan and provincial treasurers, assessors, engineers, and other
city department heads;
 (b) City mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads.

(c) Officials of the diplomatic service occupying the position of consul and
higher;

(d) Philippine army and air force colonels, naval captains, and all officers
of higher rank;

(e) PNP chief superintendent and PNP officers of higher rank;

(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and Special Prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned

or controlled corporations, state universities or educational institutions or
foundations;

(2) Members of Congress and officials thereof classified as Grade "27" and up
under the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the

Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to

the provisions of the Constitution; and

(5) All other national and local officials classified as Grade "27" and higher under
the Compensation and Position Classification Act of 1989.

B. Other offenses or felonies, whether simple or complexed with other crimes committed
by the public officials and employees mentioned in subsection (a) of this section in
relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos.
1, 2, 14 and 14-A.

The above law is clear as to the composition of the original jurisdiction of the Sandiganbayan.
Under Section 4(a), the following offenses are specifically enumerated: violations of R.A. No.
3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal
Code. In order for the Sandiganbayan to acquire jurisdiction over the said offenses, the latter
must be committed by, among others, officials of the executive branch occupying positions of
regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation
and Position Classification Act of 1989. However, the law is not devoid of exceptions. Those
that are classified as Grade 26 and below may still fall within the jurisdiction of the
Sandiganbayan provided that they hold the positions thus enumerated by the same law.
Particularly and exclusively enumerated are provincial governors, vice-governors, members of
the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads; city mayors, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers , and other city department heads; officials of
the diplomatic service occupying the position as consul and higher; Philippine army and air force
colonels, naval captains, and all officers of higher rank; PNP chief superintendent and PNP
officers of higher rank; City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor; and presidents, directors
or trustees, or managers of government-owned or controlled corporations, state universities or
educational institutions or foundations. In connection therewith, Section 4(b) of the same law
provides that other offenses or felonies committed by public officials and employees mentioned
in subsection (a) in relation to their office also fall under the jurisdiction of the Sandiganbayan.

By simple analogy, applying the provisions of the pertinent law, respondent Amante, being a
member of the Sangguniang Panlungsod at the time of the alleged commission of an offense in
relation to her office, falls within the original jurisdiction of the Sandiganbayan.

However, the Sandiganbayan, in its Resolution, dismissed the case with the following
ratiocination:

x x x the ruling of the Supreme Court in the Inding case, stating that the Congress' act of
specifically including the public officials therein mentioned, "obviously intended cases
mentioned in Section 4 (a) of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, when
committed by the officials enumerated in (1)(a) to (g) thereof, regardless of their salary grades,
to be tried by the Sandiganbayan." Obviously, the Court was referring to cases involving
violation of R.A. No. 3019, R.A. No. 1379 and Chapter II, Section 2, Title VII of the Revised
Penal Code only because they are the specific cases mentioned in Section 4 (a) of P.D. No.
1606 as amended, so that when they are committed even by public officials below salary grade
'27', provided they belong to the enumeration, jurisdiction would fall under the Sandiganbayan.
When the offense committed however, falls under Section 4(b) or 4(c) of P.D. No. 1606 as
amended, it should be emphasized that the general qualification that the public official must
belong to grade '27' is a requirement so that the Sandiganbayan could exercise original
jurisdiction over him. Otherwise, jurisdiction would fall to the proper regional or municipal trial
court.

In the case at bar, the accused is a Sangguniang Panlungsod member, a position with salary
grade '26'. Her office is included in the enumerated public officials in Section 4(a) (1) (a) to (g) of
P.D. No. 1606 as amended by Section 2 of R.A. No. 7975. However, she is charged with
violation of Section 89 of The Auditing Code of the Philippines which is not a case falling under
Section 4(a) but under Section 4(b) of P.D. No. 1606 as amended. This being the case, the
principle declared in Inding is not applicable in the case at bar because as stated, the charge
must involve a violation of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the
Revised Penal Code. Therefore, in the instant case, even if the position of the accused is one of
those enumerated public officials under Section 4(a)(1)(a) to (g), since she is being prosecuted
of an offense not mentioned in the aforesaid section, the general qualification that accused must
be a public official occupying a position with salary grade '27' is a requirement before this Court
could exercise jurisdiction over her. And since the accused occupied a public office with salary
grade 26, then she is not covered by the jurisdiction of the Sandiganbayan.1avvphi1

Petitioner is correct in disputing the above ruling of the Sandiganbayan. Central to the
discussion of the Sandiganbayan is the case of Inding v. Sandiganbayan16 where this Court
ruled that the officials enumerated in (a) to (g) of Section 4(a)(1) of P. D. No. 1606, as amended
are included within the original jurisdiction of the Sandiganbayan regardless of salary grade.
According to petitioner, the Inding case did not categorically nor implicitly constrict or confine the
application of the enumeration provided for under Section 4(a)(1) of P.D. No. 1606, as
amended, exclusively to cases where the offense charged is either a violation of R.A. No. 3019,
R.A. No. 1379, or Chapter II, Section 2, Title VII of the Revised Penal Code. This observation is
true in light of the facts contained in the said case. In the Inding case, the public official involved
was a member of the Sangguniang Panlungsod with Salary Grade 25 and was charged with
violation of R.A. No. 3019. In ruling that the Sandiganbayan had jurisdiction over the said public
official, this Court concentrated its disquisition on the provisions contained in Section 4(a)(1) of
P.D. No. 1606, as amended, where the offenses involved are specifically enumerated and not
on Section 4(b) where offenses or felonies involved are those that are in relation to the public
officials' office. Section 4(b) of P.D. No. 1606, as amended, provides that:

b. Other offenses or felonies committed by public officials and employees mentioned in

subsection (a) of this section in relation to their office.

A simple analysis after a plain reading of the above provision shows that those public officials
enumerated in Section 4(a) of P.D. No. 1606, as amended, may not only be charged in the
Sandiganbayan with violations of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII
of the Revised Penal Code, but also with other offenses or felonies in relation to their office. The
said other offenses and felonies are broad in scope but are limited only to those that are
committed in relation to the public official or employee's office. This Court had ruled that as long
as the offense charged in the information is intimately connected with the office and is alleged to
have been perpetrated while the accused was in the performance, though improper or irregular,
of his official functions, there being no personal motive to commit the crime and had the
accused not have committed it had he not held the aforesaid office, the accused is held to have
been indicted for "an offense committed in relation" to his office.17Thus, in the case of Lacson v.
Executive Secretary,18 where the crime involved was murder, this Court held that:

The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided
it was committed in relation to the accuseds official functions. Thus, under said paragraph b,
what determines the Sandiganbayans jurisdiction is the official position or rank of the offender
that is, whether he is one of those public officers or employees enumerated in paragraph a of
Section 4. x x x.

Also, in the case Alarilla v. Sandiganbayan,19 where the public official was charged with grave
threats, this Court ruled:

x x x In the case at bar, the amended information contained allegations that the accused,
petitioner herein, took advantage of his official functions as municipal mayor of Meycauayan,
Bulacan when he committed the crime of grave threats as defined in Article 282 of the Revised
Penal Code against complainant Simeon G. Legaspi, a municipal councilor. The Office of the
Special Prosecutor charged petitioner with aiming a gun at and threatening to kill Legaspi during
a public hearing, after the latter had rendered a privilege speech critical of petitioners
administration. Clearly, based on such allegations, the crime charged is intimately connected
with the discharge of petitioners official functions. This was elaborated upon by public
respondent in its April 25, 1997 resolution wherein it held that the "accused was performing his
official duty as municipal mayor when he attended said public hearing" and that "accuseds
violent act was precipitated by complainants criticism of his administration as the mayor or chief
executive of the municipality, during the latters privilege speech. It was his response to private
complainants attack to his office. If he was not the mayor, he would not have been irritated or
angered by whatever private complainant might have said during said privilege speech." Thus,
based on the allegations in the information, the Sandiganbayan correctly assumed jurisdiction
over the case.

Proceeding from the above rulings of this Court, a close reading of the Information filed against
respondent Amante for violation of The Auditing Code of the Philippines reveals that the said
offense was committed in relation to her office, making her fall under Section 4(b) of P.D. No.
1606, as amended.

According to the assailed Resolution of the Sandiganbayan, if the intention of the law had been
to extend the application of the exceptions to the other cases over which the Sandiganbayan
could assert jurisdiction, then there would have been no need to distinguish between violations
of R.A. No. 3019, R.A. No. 1379 or Chapter II, Section 2, Title VII of the Revised Penal Code on
the one hand, and other offenses or felonies committed by public officials and employees in
relation to their office on the other. The said reasoning is misleading because a distinction
apparently exists. In the offenses involved in Section 4(a), it is not disputed that public office is
essential as an element of the said offenses themselves, while in those offenses and felonies
involved in Section 4(b), it is enough that the said offenses and felonies were committed in
relation to the public officials or employees' office. In expounding the meaning of offenses
deemed to have been committed in relation to office, this Court held:

In Sanchez v. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the scope and reach
of the term "offense committed in relation to [an accuseds] office" by referring to the principle
laid down in Montilla v. Hilario[90 Phil 49 (1951)], and to an exception to that principle which
was recognized in People v. Montejo [108 Phil 613 (1960)]. The principle set out in Montilla v.
Hilario is that an offense may be considered as committed in relation to the accuseds office if
"the offense cannot exist without the office" such that "the office [is] a constituent element of the
crime x x x." In People v. Montejo, the Court, through Chief Justice Concepcion, said that
"although public office is not an element of the crime of murder in [the] abstract," the facts in a
particular case may show that

x x x the offense therein charged is intimately connected with [the accuseds] respective offices
and was perpetrated while they were in the performance, though improper or irregular, of their
official functions. Indeed, [the accused] had no personal motive to commit the crime and they
would not have committed it had they not held their aforesaid offices. x x x20

Moreover, it is beyond clarity that the same provision of Section 4(b) does not mention any
qualification as to the public officials involved. It simply stated, public officials and employees
mentioned in subsection (a) of the same section. Therefore, it refers to those public officials with
Salary Grade 27 and above, except those specifically enumerated. It is a well-settled principle of
legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary
acceptation and signification,21 unless it is evident that the legislature intended a technical or
special legal meaning to those words.22 The intention of the lawmakers who are, ordinarily,
untrained philologists and lexicographers to use statutory phraseology in such a manner is
always presumed.23

WHEREFORE, the Petition dated April 20, 2005 is hereby GRANTED and the Resolution of the
Sandiganbayan (Third Division) dated February 28, 2005 is NULLIFIED and SET ASIDE.
Consequently, let the case beREMANDED to the Sandiganbayan for further proceedings.
SO ORDERED.

1996, an Information was filed with the Sandiganbayan against Lilia Organo for the crime of
plunder as it was alleged that she and some other government officials stole P193 million from
the government.
Organo filed a motion to quash alleging that the Sandiganbayan has no jurisdiction over the
case pursuant to Republic Act No. 8249 which provides that the Sandiganbayan has no
jurisdiction over government employees who do not belong to Salary Grade 27. Organo was
able to prove that her position in the Bureau of Internal Revenue does not belong to Salary
Grade 27.
The Sandiganbayan denied her motion. It insisted that under the Plunder Law (Republic Act No.
7080, as amended), the Sandiganbayan was vested with the jurisdiction over plunder cases and
since RA 8249 is a general law and that RA 7080 is a special law, RA 7080 should prevail.
ISSUE: Whether or not the Sandiganbayan can try plunder cases where the accused is below
Salary Grade 27.
HELD: No. The Plunder Law itself provides:
Until otherwise provided by law, all pro-sections under this Act shall be within the original
jurisdiction of the Sandiganbayan.
The Sandiganbayan only had provisional jurisdiction over all plunder cases. In 1997, when RA
8249 was passed which further defined the jurisdiction of the Sandiganbayan, there is already
no question as to which plunder cases are within the exclusive jurisdiction of the
Sandiganbayan. The said law finally prescribed that the Sandiganbayan has no jurisdiction over
government employees which are below Salary Grade 27. RA 8249 is a special law the
intention of which was to declog the dockets of the Sandiganbayan. As such, the
Sandiganbayan has no jurisdiction over Organo. The case should be filed in the appropriate co

.R. No. 168662 February 19, 2008

SANRIO COMPANY LIMITED, petitioner,

vs.
EDGAR C. LIM, doing business as ORIGNAMURA TRADING, respondent.

DECISION

CORONA, J.:

This petition for review on certiorari1 seeks to set aside the decision of the Court of Appeals
(CA) in CA-G.R. CV No. 746602 and its resolution3 denying reconsideration.

Petitioner Sanrio Company Limited, a Japanese corporation, owns the copyright of various
animated characters such as "Hello Kitty," "Little Twin Stars," "My Melody," "Tuxedo Sam" and
"Zashikibuta" among others.4 While it is not engaged in business in the Philippines, its products
are sold locally by its exclusive distributor, Gift Gate Incorporated (GGI).5
As such exclusive distributor, GGI entered into licensing agreements with JC Lucas Creative
Products, Inc., Paper Line Graphics, Inc. and Melawares Manufacturing Corporation.6 These
local entities were allowed to manufacture certain products (bearing petitioner's copyrighted
animated characters) for the local market.

Sometime in 2001, due to the deluge of counterfeit Sanrio products, GGI asked IP Manila
Associates (IPMA) to conduct a market research. The research's objective was to identify those
factories, department stores and retail outlets manufacturing and/or selling fake Sanrio
items.7 After conducting several test-buys in various commercial areas, IPMA confirmed that
respondent's Orignamura Trading in Tutuban Center, Manila was selling imitations of
petitioner's products.8

Consequently, on May 29, 2000, IPMA agents Lea A. Carmona and Arnel P. Dausan executed
a joint affidavit attesting to the aforementioned facts.9 IPMA forwarded the said affidavit to the
National Bureau of Investigation (NBI) which thereafter filed an application for the issuance of a
search warrant in the office of the Executive Judge of the Regional Trial Court of Manila.10

After conducting the requisite searching inquiry, the executive judge issued a search warrant on
May 30, 2000.11On the same day, agents of the NBI searched the premises of Orignamura
Trading. As a result thereof, they were able to seize various Sanrio products.12

On April 4, 2002, petitioner, through its attorney-in-fact Teodoro Y. Kalaw IV of the Quisumbing
Torres law firm, filed a complaint-affidavit13 with the Task-Force on Anti-Intellectual Property
Piracy (TAPP) of the Department of Justice (DOJ) against respondent for violation of Section
217 (in relation to Sections 17714 and 17815) of the Intellectual Property Code (IPC) which
states:

Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by
provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty of a
crime punishable by:

(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty
thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the first
offense.

(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging
from One hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos
(P500,000) for the second offense.

(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging
from Five hundred thousand pesos (P500,000) to One million five hundred thousand
pesos (P1,500,000) for the third and subsequent offenses.

(d) In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine, the
court shall consider the value of the infringing materials that the defendant has produced
or manufactured and the damage that the copyright owner has suffered by reason of
infringement.
 217.3. Any person who at the time when copyright subsists in a work has in
his possession an article which he knows, or ought to know, to be an
infringing copy of the work for the purpose of:

(a) Selling, letting for hire, or by way of trade offering or exposing for sale,
or hire, the article;

(b) Distributing the article for purpose of trade or any other purpose to an
extent that will prejudice the rights of the copyright of the owner in the
work; or

(c) Trade exhibit of the article in public, shall be guilty of an offense and shall be
liable on conviction to imprisonment and fine as above mentioned. (emphasis
supplied)

Respondent asserted in his counter-affidavit16 that he committed no violation of the provisions of

the IPC because he was only a retailer.17 Respondent neither reproduced nor manufactured any
of petitioner's copyrighted item; thus, he did not transgress the economic rights of
petitioner.18 Moreover, he obtained his merchandise from authorized manufacturers of
petitioner's products.19

On September 25, 2002, the TAPP found that:

Evidence on record would show that respondent bought his merchandise from legitimate
sources, as shown by official receipts issued by JC Lucas Creative Products, Inc., Paper
Line Graphics, Inc. and Melawares Manufacturing Corporation. In fact, in her letter dated
May 23, 2002, Ms. Ma. Angela S. Garcia certified that JC Lucas Creative Products, Inc.,
Paper Line Graphics, Inc. and Melawares Manufacturing Corporation are authorized to
produce certain Sanrio products. While it appears that some of the items seized
during the search are not among those products which [GGI] authorized these
establishments to produce, the fact remains that respondent bought these from
the abovecited legitimate sources. At this juncture, it bears stressing that respondent
relied on the representations of these manufacturers and distributors that the
items they sold were genuine. As such, it is not incumbent upon respondent to verify
from these sources what items [GGI] only authorized them to produce. Thus, as far as
respondent is concerned, the items in his possession are not infringing copies of
the original [petitioner's] products. (emphasis supplied)20

Thus, in a resolution dated September 25, 2002, it dismissed the complaint due to insufficiency
of evidence.21

Petitioner moved for reconsideration but it was denied.22 Hence, it filed a petition for review in
the Office of the Chief State Prosecutor of the DOJ.23 In a resolution dated August 29,
2003,24 the Office of the Chief State Prosecutor affirmed the TAPP resolution. The petition was
dismissed for lack of reversible error.

Aggrieved, petitioner filed a petition for certiorari in the CA. On May 3, 2005, the appellate court
dismissed the petition on the ground of prescription. It based its action on Act 3326 which
states:
 Section 1. Violations penalized by special acts shall, unless otherwise provided in such
acts, prescribe in accordance with the following rules: (a) after a year for offenses
punished only by a fine or by imprisonment for not more than one month, or both;
(b) after four years for those punished by imprisonment for more than one month,
but less than two years; (c) after eight years for those punished by imprisonment
for two years or more, but less than six years; and (d) after twelve years for any other
offense punished by imprisonment for six years or more, except the crime of treason,
which shall prescribe after twenty years; Provided, however, That all offenses against
any law or part of law administered by the Bureau of Internal Revenue shall prescribe
after five years. Violations penalized by municipal ordinances shall prescribe after two
months.

Section 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same may not be known at the time, from the discovery
thereof and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for reasons
not constituting jeopardy. (emphasis supplied)

According to the CA, because no complaint was filed in court within two years after the
commission of the alleged violation, the offense had already prescribed.25

On the merits of the case, the CA concluded that the DOJ did not commit grave abuse of
discretion in dismissing the petition for review.26 To be criminally liable for violation of Section
217.3 of the IPC, the following requisites must be present:

1. possession of the infringing copy and

2. knowledge or suspicion that the copy is an infringement of the genuine article.

The CA agreed with the DOJ that petitioner failed to prove that respondent knew that the
merchandise he sold was counterfeit. Respondent, on the other hand, was able to show that he
obtained these goods from legitimate sources.27

Petitioner moved for reconsideration but it was denied. Hence, this petition.

Petitioner now essentially avers that the CA erred in concluding that the alleged violations of the
IPC had prescribed. Recent jurisprudence holds that the pendency of a preliminary investigation
suspends the running of the prescriptive period.28 Moreover, the CA erred in finding that the
DOJ did not commit grave abuse of discretion in dismissing the complaint. Respondent is liable
for copyright infringement (even if he obtained his merchandise from legitimate sources)
because he sold counterfeit goods.29

Although we do not agree wholly with the CA, we deny the petition.

Filing Of The Complaint In the DOJ Tolled The Prescriptive Period

Section 2 of Act 3326 provides that the prescriptive period for violation of special laws starts on
the day such offense was committed and is interrupted by the institution of proceedings against
respondent (i.e., the accused).

Petitioner in this instance filed its complaint-affidavit on April 4, 2002 or one year, ten months
and four days after the NBI searched respondent's premises and seized Sanrio merchandise
therefrom. Although no information was immediately filed in court, respondent's alleged violation
had not yet prescribed.30

In the recent case of Brillantes v. Court of Appeals,31 we affirmed that the filing of the complaint
for purposes of preliminary investigation interrupts the period of prescription of criminal
responsibility.32 Thus, the prescriptive period for the prosecution of the alleged violation of the
IPC was tolled by petitioner's timely filing of the complaint-affidavit before the TAPP.

In The Absence Of Grave Abuse Of Discretion, The Factual Findings Of The DOJ In
Preliminary Investigations Will Not Be Disturbed

In a preliminary investigation, a public prosecutor determines whether a crime has been

committed and whether there is probable cause that the accused is guilty thereof.33 Probable
cause is defined as such facts and circumstances that will engender a well-founded belief that a
crime has been committed and that the respondent is probably guilty thereof and should be held
for trial.34 Because a public prosecutor is the one conducting a preliminary investigation, he
determines the existence of probable cause.35 Consequently, the decision to file a criminal
information in court or to dismiss a complaint depends on his sound discretion.36

As a general rule, a public prosecutor is afforded a wide latitude of discretion in the conduct of a
preliminary investigation. For this reason, courts generally do not interfere with the results of
such proceedings. A prosecutor alone determines the sufficiency of evidence that will establish
probable cause justifying the filing of a criminal information against the respondent.37 By way of
exception, however, judicial review is allowed where respondent has clearly established that the
prosecutor committed grave abuse of discretion.38 Otherwise stated, such review is appropriate
only when the prosecutor has exercised his discretion in an arbitrary, capricious, whimsical or
despotic manner by reason of passion or personal hostility, patent and gross enough to amount
to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law. 39

The prosecutors in this case consistently found that no probable cause existed against
respondent for violation of the IPC. They were in the best position to determine whether or not
there was probable cause. We find that they arrived at their findings after carefully evaluating
the respective evidence of petitioner and respondent. Their conclusion was not tainted with
grave abuse of discretion.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

G.R. No. 167571 November 25, 2008

LUIS PANAGUITON, JR., petitioner
vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G.
CAWILI, respondents.

This is a Petition for Review1 of the resolutions of the Court of Appeals dated 29 October 2004
and 21 March 2005 in CA G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s
(petitioner's) petition for certiorari and his subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1,979,459.00
from petitioner. On 8 January 1993, Cawili and his business associate, Ramon C. Tongson
(Tongson), jointly issued in favor of petitioner three (3) checks in payment of the said loans.
Significantly, all three (3) checks bore the signatures of both Cawili and Tongson. Upon
presentment for payment on 18 March 1993, the checks were dishonored, either for
insufficiency of funds or by the closure of the account. Petitioner made formal demands to pay
the amounts of the checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995,
but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and Tongson4 for violating Batas
Pambansa Bilang 22 (B.P. Blg. 22)5 before the Quezon City Prosecutor's Office. During the
preliminary investigation, only Tongson appeared and filed his counter-affidavit.6 Tongson
claimed that he had been unjustly included as party-respondent in the case since petitioner had
lent money to Cawili in the latter's personal capacity. Moreover, like petitioner, he had lent
various sums to Cawili and in appreciation of his services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business
associate; in fact, he himself had filed several criminal cases against Cawili for violation of B.P.
Blg. 22. Tongson denied that he had issued the bounced checks and pointed out that his
signatures on the said checks had been falsified.

To counter these allegations, petitioner presented several documents showing Tongson's

signatures, which were purportedly the same as the those appearing on the checks.7 He also
showed a copy of an affidavit of adverse claim wherein Tongson himself had claimed to be
Cawili's business associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara found probable
cause only against Cawili and dismissed the charges against Tongson. Petitioner filed a partial
appeal before the Department of Justice (DOJ) even while the case against Cawili was filed
before the proper court. In a letter-resolution dated 11 July 1997,10 after finding that it was
possible for Tongson to co-sign the bounced checks and that he had deliberately altered his
signature in the pleadings submitted during the preliminary investigation, Chief State Prosecutor
Jovencito R. Zuo directed the City Prosecutor of Quezon City to conduct a reinvestigation of
the case against Tongson and to refer the questioned signatures to the National Bureau of
Investigation (NBI).

Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of
merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga)
dismissed the complaint against Tongson without referring the matter to the NBI per the Chief
State Prosecutor's resolution. In her resolution,11 ACP Sampaga held that the case had already
prescribed pursuant to Act No. 3326, as amended,12 which provides that violations penalized by
B.P. Blg. 22 shall prescribe after four (4) years. In this case, the four (4)-year period started on
the date the checks were dishonored, or on 20 January 1993 and 18 March 1993. The filing of
the complaint before the Quezon City Prosecutor on 24 August 1995 did not interrupt the
running of the prescriptive period, as the law contemplates judicial, and not administrative
proceedings. Thus, considering that from 1993 to 1998, more than four (4) years had already
elapsed and no information had as yet been filed against Tongson, the alleged violation of B.P.
Blg. 22 imputed to him had already prescribed.13 Moreover, ACP Sampaga stated that the order
of the Chief State Prosecutor to refer the matter to the NBI could no longer be sanctioned under
Section 3, Rule 112 of the Rules of Criminal Procedure because the initiative should come from
petitioner himself and not the investigating prosecutor.14 Finally, ACP Sampaga found that
Tongson had no dealings with petitioner.15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee,
dismissed the same, stating that the offense had already prescribed pursuant to Act No.
3326.16Petitioner filed a motion for reconsideration of the DOJ resolution. On 3 April 2003,17 the
DOJ, this time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and
declared that the offense had not prescribed and that the filing of the complaint with the
prosecutor's office interrupted the running of the prescriptive period citing Ingco v.
Sandiganbayan.18 Thus, the Office of the City Prosecutor of Quezon City was directed to file
three (3) separate informations against Tongson for violation of B.P. Blg. 22.19 On 8 July 2003,
the City Prosecutor's Office filed an information20 charging petitioner with three (3) counts of
violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting on a motion for
reconsideration filed by Tongson, ruled that the subject offense had already prescribed and
ordered "the withdrawal of the three (3) informations for violation of B.P. Blg. 22" against
Tongson. In justifying its sudden turnabout, the DOJ explained that Act No. 3326 applies to
violations of special acts that do not provide for a prescriptive period for the offenses
thereunder. Since B.P. Blg. 22, as a special act, does not provide for the prescription of the
offense it defines and punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal
Code which governs the prescription of offenses penalized thereunder.23The DOJ also cited the
case of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled that the proceedings referred
to in Act No. 3326, as amended, are judicial proceedings, and not the one before the
prosecutor's office.

Petitioner thus filed a petition for certiorari25 before the Court of Appeals assailing the 9 August
2004 resolution of the DOJ. The petition was dismissed by the Court of Appeals in view of
petitioner's failure to attach a proper verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached
to the petition is a mere photocopy.26 Petitioner moved for the reconsideration of the appellate
court's resolution, attaching to said motion an amended Verification/Certification of Non-Forum
Shopping.27Still, the Court of Appeals denied petitioner's motion, stating that subsequent
compliance with the formal requirements would not per se warrant a reconsideration of its
resolution. Besides, the Court of Appeals added, the petition is patently without merit and the
questions raised therein are too unsubstantial to require consideration.28
In the instant petition, petitioner claims that the Court of Appeals committed grave error in
dismissing his petition on technical grounds and in ruling that the petition before it was patently
without merit and the questions are too unsubstantial to require consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err in dismissing the petition
for non-compliance with the Rules of Court. It also reiterates that the filing of a complaint with
the Office of the City Prosecutor of Quezon City does not interrupt the running of the
prescriptive period for violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law
which does not provide for its own prescriptive period, offenses prescribe in four (4) years in
accordance with Act No. 3326.

Cawili and Tongson submitted their comment, arguing that the Court of Appeals did not err in
dismissing the petition for certiorari. They claim that the offense of violation of B.P. Blg. 22 has
already prescribed per Act No. 3326. In addition, they claim that the long delay, attributable to
petitioner and the State, violated their constitutional right to speedy disposition of cases. 30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before the Court of Appeals
substantially complies with the rules, the verification being intended simply to secure an
assurance that the allegations in the pleading are true and correct and not a product of the
imagination or a matter of speculation. He points out that this Court has held in a number of
cases that a deficiency in the verification can be excused or dispensed with, the defect being
neither jurisdictional nor always fatal. 31

Indeed, the verification is merely a formal requirement intended to secure an assurance that
matters which are alleged are true and correctthe court may simply order the correction of
unverified pleadings or act on them and waive strict compliance with the rules in order that the
ends of justice may be served,32 as in the instant case. In the case at bar, we find that by
attaching the pertinent verification to his motion for reconsideration, petitioner sufficiently
complied with the verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground
that there was failure to attach a certified true copy or duplicate original of the 3 April 2003
resolution of the DOJ. We agree. A plain reading of the petition before the

Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9 August
2004,33 a certified true copy of which was attached as Annex "A."34 Obviously, the Court of
Appeals committed a grievous mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving the violation of a
municipal ordinance, in declaring that the prescriptive period is tolled only upon filing of the
information in court. According to petitioner, what is applicable in this case is Ingco v.
Sandiganbayan,36 wherein this Court ruled that the filing of the complaint with the fiscal's office
for preliminary investigation suspends the running of the prescriptive period. Petitioner also
notes that the Ingco case similarly involved the violation of a special law, Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner notes.37 He
argues that sustaining the DOJ's and the Court of Appeals' pronouncements would result in
grave injustice to him since the delays in the present case were clearly beyond his control.38

There is no question that Act No. 3326, appropriately entitled An Act to Establish Prescription
for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall
Begin,is the law applicable to offenses under special laws which do not provide their own
prescriptive periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless otherwise provided in such
acts, prescribe in accordance with the following rules: (a) x x x; (b) after four years for
those punished by imprisonment for more than one month, but less than two years; (c) x
xx

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of
the law, and if the same be not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty
person, and shall begin to run again if the proceedings are dismissed for reasons not
constituting jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under
B.P. Blg. 22 merits the penalty of imprisonment of not less than thirty (30) days but not
more than one year or by a fine, hence, under Act No. 3326, a violation of B.P. Blg. 22
prescribes in four (4) years from the commission of the offense or, if the same be not
known at the time, from the discovery thereof. Nevertheless, we cannot uphold the
position that only the filing of a case in court can toll the running of the prescriptive
period.

It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary
investigation of criminal offenses was conducted by justices of the peace, thus, the phraseology
in the law, "institution of judicial proceedings for its investigation and punishment,"39 and the
prevailing rule at the time was that once a complaint is filed with the justice of the peace for
preliminary investigation, the prescription of the offense is halted.40

The historical perspective on the application of Act No. 3326 is illuminating.41 Act No. 3226 was
approved on 4 December 1926 at a time when the function of conducting the preliminary
investigation of criminal offenses was vested in the justices of the peace. Thus, the prevailing
rule at the time, as shown in the cases of U.S. v. Lazada42 and People v. Joson,43 is that the
prescription of the offense is tolled once a complaint is filed with the justice of the peace for
preliminary investigation inasmuch as the filing of the complaint signifies the

institution of the criminal proceedings against the accused.44 These cases were followed by our
declaration in People v. Parao and Parao45 that the first step taken in the investigation or
examination of offenses partakes the nature of a judicial proceeding which suspends the
prescription of the offense.46Subsequently, in People v. Olarte,47 we held that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or
investigation, should, and does, interrupt the period of prescription of the criminal responsibility,
even if the court where the complaint or information is filed cannot try the case on the merits. In
addition, even if the court where the complaint or information is filed may only proceed to
investigate the case, its actuations already represent the initial step of the proceedings against
the offender,48 and hence, the prescriptive period should be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which involved violations of
the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code
(R.A. No. 8293), which are both special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for preliminary investigation

against the accused. In the more recent case of Securities and Exchange Commission v.
Interport Resources Corporation, et al.,51 the Court ruled that the nature and purpose of the
investigation conducted by the Securities and Exchange Commission on violations of the
Revised Securities Act,52 another special law, is equivalent to the preliminary investigation
conducted by the DOJ in criminal cases, and thus effectively interrupts the prescriptive period.

The following disquisition in the Interport Resources case53 is instructive, thus:

While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326
appears before "investigation and punishment" in the old law, with the subsequent
change in set-up whereby the investigation of the charge for purposes of prosecution
has become the exclusive function of the executive branch, the term "proceedings"
should now be understood either executive or judicial in character: executive when it
involves the investigation phase and judicial when it refers to the trial and judgment
stage. With this clarification, any kind of investigative proceeding instituted against the
guilty person which may ultimately lead to his prosecution should be sufficient to toll
prescription.54

Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on
account of delays that are not under his control.55 A clear example would be this case, wherein
petitioner filed his complaint-affidavit on 24 August 1995, well within the four (4)-year
prescriptive period. He likewise timely filed his appeals and his motions for reconsideration on
the dismissal of the charges against

Tongson. He went through the proper channels, within the prescribed periods. However, from
the time petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August
1995) up to the time the DOJ issued the assailed resolution, an aggregate period of nine (9)
years had elapsed. Clearly, the delay was beyond petitioner's control. After all, he had already
initiated the active prosecution of the case as early as 24 August 1995, only to suffer setbacks
because of the DOJ's flip-flopping resolutions and its misapplication of Act No. 3326. Aggrieved
parties, especially those who do not sleep on their rights and actively pursue their causes,
should not be allowed to suffer unnecessarily further simply because of circumstances beyond
their control, like the accused's delaying tactics or the delay and inefficiency of the investigating
agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-
affidavit before the Office of the City Prosecutor on 24 August 1995 signified the
commencement of the proceedings for the prosecution of the accused and thus effectively
interrupted the prescriptive period for the offenses they had been charged under B.P. Blg. 22.
Moreover, since there is a definite finding of probable cause, with the debunking of the claim of
prescription there is no longer any impediment to the filing of the information against petitioner.
 WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29
October 2004 and 21 March 2005 are REVERSED and SET ASIDE. The resolution of the
Department of Justice dated 9 August 2004 is also ANNULLED and SET ASIDE. The
Department of Justice is ORDERED to REFILE the information against the petitioner.

No costs.

SO ORDERED.

SHEALA P. MATRIDO, G.R. No. 179061

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES,
CHICO-NAZARIO,*
LEONARDO-DE CASTRO,** and
PEOPLE OF THEPHILIPPINES, BRION, JJ.
Respondent. Promulgated:
July 13, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Sheala Matrido (petitioner) assails the May 31, 2007 Decision and August 1, 2007 Resolution of the
Court of Appeals,[1] which affirmed the trial courts Decision of December 13, 2004 convicting her of
qualified theft.

As a credit and collection assistant of private complainant Empire East Land Holdings, Inc., petitioner
was tasked to collect payments from buyers of real estate properties such as Laguna Bel-Air developed by
private complainant, issue receipts therefor, and remit the payments to private complainant
in Makati City.
On June 10, 1999, petitioner received amortization payment from one Amante dela Torre in the amount
of P22,470.66 as evidenced by the owners copy[2] of Official Receipt No. 36547, but petitioner remitted
only P4,470.66 to private complainant as reflected in the treasury departments copy[3] of Official Receipt
No. 36547 submitted to private complainant, both copies of which bear the signature of petitioner and
reflect a difference of P18,000.

On private complainants investigation, petitioner was found to have failed to remit payments
received from its clients, prompting it to file various complaints, one of which is a Complaint-Affidavit
of September 21, 2000[4] for estafa, docketed as I.S. No. 2000-I-32381 in the Makati Prosecutors Office.
In the meantime or in October 2000, petitioner paid private complainant the total amount
of P162,000,[5] drawing private complainant to desist from pursuing some related complaints. A few other
cases including I.S. No. 2000-I-32381 pushed through, however, since the amount did not sufficiently
cover petitioners admitted liability of P400,000.[6]

By Resolution of November 15, 2000,[7] the City Prosecution Office of Makati dismissed the Complaint
for estafa for insufficiency of evidence but found probable cause to indict petitioner for qualified theft
under an Information which reads:

That on or about the 10th day of June 1999, in the City of Makati, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, being then a Credit
and Collection Assistant employed by complainant, EMPIRE EAST LAND HOLDINGS,
INC., herein represented by Leilani N. Cabuloy, and as such had access to the payments
made by complainants clients, with grave abuse of confidence, intent of gain and without
the knowledge and consent of the said complainant company, did then and there
willfully, unlawfully and feloniously take, steal and carry away the amount ofP18,000.00
received from Amante Dela Torre, a buyer of a house and lot being marketed by
complainant company, to the damage and prejudice of the said complainant in the
aforementioned amount ofP18,000.00.

CONTRARY TO LAW.[8]

On arraignment, petitioner entered a plea of not guilty.[9] After trial, Branch 56 of the Regional Trial
Court (RTC) of Makati, by Decision of December 13, 2004 which was promulgated on April 28, 2005,
convicted petitioner of qualified theft, disposing as follows:

WHEREFORE, accused SHEALA P. MATRIDO is hereby sentenced to suffer the

indeterminate penalty of ten (10) years and one (1) day to twelve (12) years[,] five (5)
months and ten (10) days.

Accused is further ordered to pay complainant EMPIRE EAST LAND HOLDINGS,

INC., the amount of P18,000.00.

SO ORDERED.[10]

By the challenged Decision of May 31, 2007,[11] the Court of Appeals affirmed the trial courts decision,
hence, the present petition which raises the sole issue of whether the appellate court gravely erred in
affirming the decision of the trial [court] convicting the petitioner of the crime of qualified theft despite
the fact that the prosecution tried to prove during the trial the crime of estafa thus denying the petitioner
the right to be informed of the nature and cause of accusation against her[12]

Petitioner posits that despite her indictment for qualified theft, the prosecution was trying to prove estafa
during trial, thus violating her right to be informed of the nature and cause of the accusation against her.
The petition fails.

In Andaya v. People,[13] the Court expounded on the constitutional right to be informed of the nature and
cause of the accusation against the accused.

x x x As early as the 1904 case of U.S. v. Karelsen, the rationale of this fundamental
right of the accused was already explained in this wise:

The object of this written accusation was First. To furnish the accused
with such a description of the charge against him as will enable him to
make his defense; and second, to avail himself of his conviction or
acquittal for protection against a further prosecution for the same cause;
and third, to inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction, if one should
be had. In order that this requirement may be satisfied, facts must be
stated, not conclusions of law. Every crime is made up of certain acts
and intent; these must be set forth in the complaint with reasonable
particularity of time, place, names (plaintiff and defendant), and
circumstances. In short, the complaint must contain a specific allegation
of every fact and circumstances necessary to constitute the crime
charged.

It is fundamental that every element constituting the offense must be alleged in the
information. The main purpose of requiring the various elements of a crime to be set out
in the information is to enable the accused to suitably prepare his defense because he is
presumed to have no independent knowledge of the facts that constitute the offense. The
allegations of facts constituting the offense charged are substantial matters and an
accuseds right to question his conviction based on facts not alleged in the information
cannot be waived. No matter how conclusive and convincing the evidence of guilt may
be, an accused cannot be convicted of any offense unless it is charged in the information
on which he is tried or is necessarily included therein. To convict him of a ground not
alleged while he is concentrating his defense against the ground alleged would plainly be
unfair and underhanded. The rule is that a variance between the allegation in the
information and proof adduced during trial shall be fatal to the criminal case if it is
material and prejudicial to the accused so much so that it affects his substantial
rights.[14] (Citations omitted; underscoring supplied)

It is settled that it is the allegations in the Information that determine the nature of the offense, not the
technical name given by the public prosecutor in the preamble of the Information. 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. 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.[15]
Gauging such standard against the wording of the Information in this case, the Court finds no violation of
petitioners rights. The recital of facts and circumstances in the Information sufficiently constitutes the
crime of qualified theft.

As alleged in the Information, petitioner took, intending to gain therefrom and without the use of force
upon things or violence against or intimidation of persons, a personal property consisting of money in the
amount P18,000 belonging to private complainant, without its knowledge and consent, thereby gravely
abusing the confidence reposed on her as credit and collection assistant who had access to payments from
private complainants clients, specifically from one Amante Dela Torre.

As defined, theft is committed by any person who, with intent to gain, but without violence against, or
intimidation of persons nor force upon things, shall take the personal property of another without the
latters consent.[16] If committed with grave abuse of confidence, the crime of theft becomes qualified.[17]

In prcis, the elements of qualified theft punishable under Article 310 in relation to Articles 308 and 309 of
the Revised Penal Code (RPC) are as follows:

1. There was a taking of personal property.

2. The said property belongs to another.
3. The taking was done without the consent of the owner.
4. The taking was done with intent to gain.
5. The taking was accomplished without violence or intimidation against person, or force
upon things.
6. The taking was done under any of the circumstances enumerated in Article 310 of the
RPC, i.e., with grave abuse of confidence.[18]
In the present case, both the trial court and the appellate court noted petitioners testimonial admission of
unlawfully taking the fund belonging to private complainant and of paying a certain sum to exculpate
herself from liability. That the money, taken by petitioner without authority and consent, belongs to
private complainant, and that the taking was accomplished without the use of violence or intimidation
against persons, nor force upon things, there is no issue.

Intent to gain or animus lucrandi is an internal act that is presumed from the unlawful taking by the
offender of the thing subject of asportation. Actual gain is irrelevant as the important consideration is the
intent to gain.[19]

The taking was also clearly done with grave abuse of confidence. As a credit and collection assistant of
private complainant, petitioner made use of her position to obtain the amount due to private
complainant. As gathered from the nature of her functions, her position entailed a high degree of
confidence reposed by private complainant as she had been granted access to funds collectible from
clients. Such relation of trust and confidence was amply established to have been gravely abused when
she failed to remit the entrusted amount of collection to private complainant.

The Court finds no rhyme or reason in petitioners contention that what the prosecution tried to prove
during trial was estafa through misappropriation under Article 315(1)(b) of the RPC.

x x x The principal distinction between the two crimes is that in theft the thing is taken
while in estafa the accused receives the property and converts it to his own use or
benefit. However, there may be theft even if the accused has possession of the property.
If he was entrusted only with the material or physical (natural) or de facto possession of
the thing, his misappropriation of the same constitutes theft, but if he has the juridical
possession of the thing, his conversion of the same constitutes embezzlement or
estafa.[20] (Underscoring supplied)

The appellate court correctly explained that conversion of personal property in the case of an employee
having material possession of the said property constitutes theft, whereas in the case of an agent to whom
both material and juridical possession have been transferred, misappropriation of the same property
constitutes estafa.[21] Notably, petitioners belated argument that she was not an employee but an agent of
private complainant[22] grants her no respite in view of her stipulation[23] during pre-trial and her
admission[24] at the witness stand of the fact of employment. Petitioners reliance on estafa cases involving
factual antecedents of agency transactions is thus misplaced.

That petitioner did not have juridical possession over the amount or, in other words, she did not have a
right over the thing which she may set up even against private complainant is clear.[25] In fact, petitioner
never asserted any such right, hence, juridical possession was lodged with private complainant and,
therefore, estafa was not committed.

Petitioners view that there could be no element of taking since private complainant had no actual
possession of the money fails. The argument proceeds from the flawed premise that there could be no
theft if the accused has possession of the property. The taking away of the thing physically from the
offended party is not elemental,[26] as qualified theft may be committed when the personal property is in
the lawful possession of the accused prior to the commission of the alleged felony.[27]

A sum of money received by an employee in behalf of an employer is considered to be only in the

material possession of the employee.[28] The material possession of an employee is adjunct, by reason of
his employment, to a recognition of the juridical possession of the employer. So long as the juridical
possession of the thing appropriated did not pass to the employee-perpetrator, the offense committed
remains to be theft, qualified or otherwise.[29]
 x x x When the money, goods, or any other personal property is received by the offender
from the offended party (1) in trust or (2) on commission or (3) for administration, the
offender acquires both material or physical possession and juridical possession of the
thing received. Juridical possession means a possession which gives the transferee a
right over the thing which the transferee may set up even against the owner. In this case,
petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her
possession of the cash belonging to the bank is akin to that of a bank teller, both being
mere bank employees.[30] (Italics in the original omitted; underscoring and emphasis
supplied)

That the transaction occurred outside the company premises of private complainant is of no moment,
given that not all business deals are transacted by employees within the confines of an office, and that
field operations do not define an agency. What is of consequence is the nature of possession by petitioner
over the property subject of the unlawful taking.

On the penalty imposed by the trial court, which was affirmed by the appellate court indeterminate
penalty of 10 years and 1 day to 12 years, 5 months and 10 days:

The penalty for qualified theft is two degrees higher than the applicable penalty for simple
theft. The amount stolen in this case was P18,000.00. In cases of theft, if the value of the personal
property stolen is more than P12,000.00 but does not exceed P22,000.00, the penalty shall be prision
mayor in its minimum and medium periods. Two degrees higher than this penalty is reclusion temporal in
its medium and maximum periods or 14 years, 8 months and 1 day to 20 years.

Applying the Indeterminate Sentence Law, the minimum shall be prision mayor in its maximum
period to reclusion temporal in its minimum period or within the range of 10 years and 1 day to 14 years
and 8 months.[31] The mitigating circumstance of voluntary surrender being present, the maximum penalty
shall be the minimum period of reclusion temporal in its medium and maximum periods or within the
range of 14 years, 8 months and 1 day to 16 years, 5 months and 20 days.

The Court thus affirms the minimum penalty, but modifies the maximum penalty imposed.

WHEREFORE, the Decision of May 31, 2007 and Resolution of August 1, 2007 of the Court of Appeals
in CA-G.R. CR No. 29593 is AFFIRMED with MODIFICATION as to the imposed penalty, such that
petitioner, Sheala P. Matrido, is sentenced to suffer the indeterminate penalty of 10 years and 1 day
of prision mayor, as minimum, to 14 years, 8 months and 1 day of reclusion temporal, as maximum.
SO ORDERED.
MICHAEL JOHN Z. MALTO, G.R. No. 164733
Petitioner,
Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:
September 21, 2007

x---------------------------------------------------x

DECISION
CORONA, J.:

Whereas, mankind owes to the child the best it has to

give. (Final preambular clause of the Declaration of the
Rights of the Child)

This is a petition for review[1] of the decision[2] dated July 30, 2004 of the Court of Appeals (CA)
in CA-G.R. CR No. 25925 affirming with modification the decision[3] of Branch 109 of the Regional Trial
Court of Pasay City in Criminal Case No. 00-0691 which found petitioner Michael John Z. Malto guilty
for violation of paragraph 3, Section 5(a), Article III of RA 7610,[4] as amended.
Petitioner was originally charged in an information which read:
The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z.
MALTO of VIOLATION OF SECTION 5(b), ARTICLE III, REPUBLIC ACT 7610,
AS AMENDED, committed as follows:

That on or about and sometime during the month of November 1997 up to 1998,
in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there
willfully, unlawfully and feloniously induce and/or seduce his student at Assumption
College, complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse for
several times with him as in fact said accused had carnal knowledge.

Contrary to law.[5]
 This was subsequently amended as follows:

The undersigned Assistant City Prosecutor accuses MICHAEL JOHN Z.

MALTO of VIOLATION OF SECTION 5(a), ARTICLE III, REPUBLIC ACT 7610,
AS AMENDED, committed as follows:

That on or about and sometime during the month of November 1997 up to 1998,
in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, Michael John. Z. Malto, a professor, did then and there
willfully, unlawfully and feloniously take advantage and exert influence, relationship
and moral ascendancy and induce and/or seduce his student at Assumption College,
complainant, AAA, a minor of 17 years old, to indulge in sexual intercourse and
lascivious conduct for several times with him as in fact said accused has carnal
knowledge.

Contrary to law.[6]
Petitioner did not make a plea when arraigned; hence, the trial court entered for him a plea of not
guilty. After the mandatory pre-trial, trial on the merits proceeded.
The prosecution established the following:

At the time of the incident, private complainant AAA was 17 years old.[7] She was a college
student at the Assumption College in San Lorenzo Village, Makati City. Petitioner, then 28, was her
professor in her Philosophy II class in the first semester of the school year 1997 to 1998.
On July 18, 1997, AAA was having lunch with her friends when petitioner joined their group. He
told them to address him simply as Mike. He handed them his organizer and asked them to list down their
names and contact numbers.
On October 3, 1997, while AAA and her friends were discussing the movie Kama Sutra,
petitioner butted in and bragged that it was nothing compared to his collection of xxx-rated films. To the
shock of AAAs group, he lectured on and demonstrated sexual acts he had already experienced. He then
invited the group to view his collection.

On October 10, 1997, petitioner reiterated his invitation to AAA and her friends to watch his
collection of pornographic films. Afraid of offending petitioner, AAA and two of her friends went with
him. They rode in his car and he brought them to the Anito Lodge on Harrison St. in Pasay City. They
checked in at a calesa room. Petitioner was disappointed when he found out there was neither a video
cassette player (on which he could play his video tapes) nor an x-rated show on the closed-circuit
television. He suggested that they just cuddle up together. AAA and her friends ignored him but he pulled
each of them towards him to lie with him in bed. They resisted until he relented.

AAA and her friends regretted having accepted petitioners invitation. For fear of embarrassment
in case their classmates got wind of what happened, they agreed to keep things a secret. Meanwhile,
petitioner apologized for his actuations.
Thereafter, petitioner started to show AAA amorous attention. He called her on the phone and
paged[8] her romantic messages at least thrice a day. When semestral break came, his calls and messages
became more frequent. Their conversation always started innocently but he had a way of veering the
subject to sex. Young, naive and coming from a broken family, AAA was soon overwhelmed by
petitioners persistence and slowly got attracted to him. He was the first person to court her. Soon, they
had a mutual understanding and became sweethearts.
When AAA secured her class card in Philosophy II at the start of the second semester, petitioner
told her that he gave her a final grade of 3. She protested, stating that her mid-term grade was 1.2. He
gave her a grade of 1.5 when she promised not to disclose his intimate messages to her to anyone. He also
cautioned her not to tell anyone about their affair as it could jeopardize his job.

On November 19, 1997, at around 11:00 a.m., AAA agreed to have lunch with petitioner outside
the premises of the college. Since she was not feeling well at that time, he asked her to lie down in the
backseat of his car. She was surprised when he brought her to Queensland Lodge [9] on Harrison St. in
Pasay City. Once inside the motel room, he kissed her at the back and neck, touched her breasts and
placed his hand inside her blouse. She resisted his advances but he was too strong for her. He stopped
only when she got angry at him.
On November 26, 1997, petitioner asked AAA to come with him so that they could talk in
private. He again brought her to Queensland Lodge. As soon as they were inside the room, he took off his
shirt, lay down in bed and told her, halika na, dito na tayo mag-usap. She refused but he dragged her
towards the bed, kissed her lips, neck and breasts and unsnapped her brassiere. She struggled to stop him
but he overpowered her. He went on top of her, lowered her pants and touched her private part. He tried
to penetrate her but she pushed him away forcefully and she sat up in bed. He hugged her tightly
saying, Sige na, AAA, pumayag ka na, I wont hurt you. She refused and said, Mike, ayoko. He angrily
stood up saying, Fine, hindi na tayo mag-uusap. Dont come to the faculty room anymore. You know I
need this and if you will not give in or give it to me, let us end this. She replied, Mike, hindi pa ako ready
and it was you who said it will be after my debut on December 3, 1997. He insisted that there was no
difference between having sex then and after her debut. He told her, kung hindi ko makukuha ngayon,
tapusin na natin ngayon. Pressured and afraid of his threat to end their relationship, she hesitantly replied
Fine. On hearing this, he quickly undressed while commenting ibibigay mo rin pala, pinahirapan mo pa
ako and laughed. They had sexual intercourse.
In July 1999, AAA ended her relationship with petitioner. She learned that he was either
intimately involved with or was sexually harassing his students in Assumption College and in other
colleges where he taught. In particular, he was dismissed from the De La Salle University-Aguinaldo for
having sexual relations with a student and sexually harassing three other students. His employment was
also terminated by Assumption College for sexually harassing two of his students. It was then that AAA
realized that she was actually abused by petitioner. Depressed and distressed, she confided all that
happened between her and petitioner to her mother, BBB.

On learning what her daughter underwent in the hands of petitioner, BBB filed an administrative
complaint in Assumption College against him. She also lodged a complaint in the Office of the City
Prosecutor of Pasay City which led to the filing of Criminal Case No. 00-0691.
In his defense, petitioner proffered denial and alibi. He claimed that the alleged incidents on
October 3, 1997 and October 10, 1997 did not happen. He spent October 3, 1997 with his colleagues
Joseph Hipolito and AJ Lagaso while he was busy checking papers and computing grades on October 10,
1997. The last time he saw AAA during the first semester was when she submitted her final paper on
October 18, 1997.
On November 19, 1997, between 10:30 a.m. and 1:00 p.m., he sorted out conflicts of class
schedules for the second semester at the Assumption College. On November 26, 1997, he was at St.
Scholasticas College (where he was also teaching) preparing a faculty concert slated on December 12,
1997. At lunch time, he attended the birthday treat of a colleague, Evelyn Bancoro.

On November 29, 1997, he attended AAAs 18th birthday party. That was the last time he saw her.
According to petitioner, AAA became his sweetheart when she was already 19 years old and after he was
dismissed from Assumption College. On December 27 and 28, 1998, they spent time together, shared
their worries, problems and dreams and kissed each other. On January 3, 1999, he brought her to
Queensland Lodge where they had sexual intercourse for the first time. It was repeated for at least 20
times from January 1999 until they broke up in July 1999, some of which were done at either his or her
house when no one was around.

The trial court found the evidence for the prosecution sufficient to sustain petitioners conviction.
On March 7, 2001, it rendered a decision finding petitioner guilty.[10] The dispositive portion read:

In view of the foregoing, the Court finds the accused Michael John Malto y Zarsadias
guilty beyond reasonable doubt for violation of Article III, Section 5(a)[,] paragraph 3 of
RA 7610[,] as amended and hereby sentences him to reclusion temporal in its medium
period or an imprisonment of seventeen (17) years, four (4) months and one (1) day to
twenty (20) years and to pay civil indemnity in the amount of Php 75,000.00 and moral
and exemplary damages of Php 50,000.00 to minor complainant with subsidiary
imprisonment in case of insolvency.[11]

Petitioner questioned the trial courts decision in the CA. In a decision dated July 30, 2004, [12] the
appellate court affirmed his conviction even if it found that his acts were not covered by paragraph (a) but
by paragraph (b) of Section 5, Article III of RA 7610. It further observed that the trial court failed to fix
the minimum term of indeterminate sentence imposed on him. It also ruled that the trial court erred in
awarding P75,000 civil indemnity in favor of AAA as it was proper only in a conviction for rape
committed under the circumstances under which the death penalty was authorized by law. [13] Hence, the
CA modified the decision of the trial court as follows:

WHEREFORE, the appealed Decision of conviction is AFFIRMED, with

the MODIFICATION that (1) appellant MICHAEL JOHN MALTO y ZARSADIAS is
hereby sentenced to an indeterminate penalty of Eight (8) Years and One (1) Day
of prision mayor as minimum, to Seventeen (17) Years, Four (4) Months and One (1)
Day of reclusion temporal as maximum; and (2) the sum of P75,000.00 as civil
indemnity is DELETED.[14]

Hence, this petition.

 Petitioner contends that the CA erred in sustaining his conviction although it found that he did not
rape AAA. For him, he should have been acquitted since there was no rape. He also claims that he and
AAA were sweethearts and their sexual intercourse was consensual.

Petitioner is wrong.

THE OFFENSE STATED IN THE

INFORMATION WAS
WRONGLY DESIGNATED

In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the
accusation against him.[15] Pursuant thereto, the complaint or information against him should be sufficient
in form and substance. A complaint or information is sufficient if it states the name of the accused; the
designation of the offense by the statute; the acts or omissions complained of as constituting the offense;
the name of the offended party; the approximate date of the commission of the offense and the place
where the offense was committed.[16]

The complaint or information shall state the designation of the offense given by the statute, aver
the acts or omissions constituting the offense and specify its qualifying and aggravating
circumstances.[17] If there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.[18] The acts or omissions constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.[19]

The designation of the offense in the information against petitioner was changed from violation of
Section 5(b), Article III of RA 7610 to violation of Section 5(a), Article III thereof. Paragraphs (a) and (b)
of Section 5, Article III of RA 7610 provide:
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male
or female, who, for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which
include, but are not limited to, the following:

1. Acting as a procurer of a child prostitute;

2. Inducing a person to be a client of a child prostitute by means of

written or oral advertisements or other similar means;

3. Taking advantage of influence or relationship to procure a child as a

prostitute;

4. Threatening or using violence towards a child to engage him as a

prostitute; or

5. Giving monetary consideration, goods or other pecuniary benefit to

a child with intent to engage such child in prostitution.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: Provided, That
when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the
case may be: Provided, that the penalty for lascivious conduct when the victim is
under twelve (12) years of age shall be reclusion temporal in its medium period;
and

xxx xxx xxx (emphasis supplied)

The elements of paragraph (a) are:

1. the accused engages in, promotes, facilitates or induces child prostitution;
2. the act is done through, but not limited to, the following means:
a. acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute by means of written or

oral advertisements or other similar means;

c. taking advantage of influence or relationship to procure a child as a

prostitute;

d. threatening or using violence towards a child to engage him as a prostitute

or

e. giving monetary consideration, goods or other pecuniary benefit to a child

with intent to engage such child in prostitution;
 3. the child is exploited or intended to be exploited in prostitution and
4. the child, whether male or female, is below 18 years of age.

On the other hand, the elements of paragraph (b) are:

1. the accused commits the act of sexual intercourse or lascivious conduct;
2. the act is performed with a child exploited in prostitution or subjected to other
sexual abuse and
3. the child, whether male or female, is below 18 years of age.

Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It
contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a), the
child is abused primarily for profit.

On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct not only with
a child exploited in prostitution but also with a child subjected to other sexual abuse. It covers not only a
situation where a child is abused for profit but also one in which a child, through coercion, intimidation or
influence, engages in sexual intercourse or lascivious conduct.[20]

The information against petitioner did not allege anything pertaining to or connected with child
prostitution. It did not aver that AAA was abused for profit. What it charged was that petitioner had carnal
knowledge or committed sexual intercourse and lascivious conduct with AAA; AAA was induced and/or
seduced by petitioner who was her professor to indulge in sexual intercourse and lascivious conduct and
AAA was a 17-year old minor. These allegations support a charge for violation of paragraph (b), not
paragraph (a), of Section 5, Article III, RA 7610.

THE REAL NATURE OF THE OFFENSE

IS DETERMINED BY FACTS ALLEGED
IN THE INFORMATION, NOT BY THE
DESIGNATION

The designation in the information of the specific statute violated is imperative to avoid surprise
on the accused and to afford him the opportunity to prepare his defense accordingly. However, the failure
to designate the offense by statute,[21] or to mention the specific provision penalizing the act,[22] or an
erroneous specification of the law violated[23] does not vitiate the information if the facts alleged clearly
recite the facts constituting the crime charged.[24] What controls is not the title of the information or the
designation of the offense but the actual facts recited in the information.[25] In other words, it is the recital
of facts of the commission of the offense, not the nomenclature of the offense, that determines the crime
being charged in the information.[26]

The facts stated in the amended information against petitioner correctly made out a charge for
violation of Section 5(b), Article III, RA 7610. Thus, even if the trial and appellate courts followed the
wrong designation of the offense, petitioner could be convicted of the offense on the basis of the facts
recited in the information and duly proven during trial.

PETITIONER VIOLATED SECTION

5(B), ARTICLE III
OF RA 7610, AS AMENDED

The first element of Section 5(b), Article III of RA 7610 pertains to the act or acts committed by
the accused. The second element refers to the state or condition of the offended party. The third element
corresponds to the minority or age of the offended party.

The first element was present in this case. Petitioner committed lascivious conduct against and
had sexual intercourse with AAA in the following instances: (1) on November 19, 1997, when he kissed
her at the back and neck, touched her breasts and placed his hand inside her blouse to gratify his lust; (2)
on November 26, 1997, when, with lewd designs, he dragged her towards the bed of the motel room and
forcibly kissed her on the lips, neck and breasts and (3) when he exerted moral influence on her and
pressured her until she surrendered herself to him on November 26, 1997. His acts were covered by the
definitions of sexual abuse and lascivious conduct under Section 2(g) and (h) of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the
provisions of RA 7610, particularly on child abuse:

(g) Sexual abuse includes the employment, use, persuasion, inducement,

enticement or coercion of a child to engage in, or assist another person to engage
 in, sexual intercourse or lascivious conduct or the molestation, prostitution, or
incest with children;

(h) Lascivious conduct means the intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or public area of a person. (emphasis supplied)

The second element was likewise present here. The following pronouncement in People v.
Larin[27] is significant:

A child is deemed exploited in prostitution or subjected to other sexual abuse,

when the child indulges in sexual intercourse or lascivious conduct (a) for money,
profit, or any other consideration; or (b) under the coercion or influence of any adult,
syndicate or group. (emphasis supplied)

On November 19, 1997, due to the influence of petitioner, AAA indulged in lascivious acts with
or allowed him to commit lascivious acts on her. This was repeated on November 26, 1997 on which date
AAA also indulged in sexual intercourse with petitioner as a result of the latters influence and moral
ascendancy. Thus, she was deemed to be a child subjected to other sexual abuse as the concept is defined
in the opening paragraph of Section 5, Article III of RA 7610 and in Larin.
The third element of the offense was also satisfied. Section 3 (a), Article I of RA 7610 provides:

SECTION 3. Definition of Terms.

(a) Children refers [to] persons below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or
condition; (emphasis supplied)

On November 19, 2007 and November 26, 2007, AAA was a child as she was below 18 years of
age. She was therefore within the protective mantle of the law.

Since all three elements of the crime were present, the conviction of petitioner was proper.
VIOLATION OF SECTION 5(B),
ARTICLE III OF RA 7610 AND RAPE
ARE SEPARATE
AND DISTINCT CRIMES

Petitioner was charged and convicted for violation of Section 5(b), Article III of RA 7610, not
rape. The offense for which he was convicted is punished by a special law while rape is a felony under the
Revised Penal Code.[28] They have different elements.[29] The two are separate and distinct crimes. Thus,
petitioner can be held liable for violation of Section 5(b), Article III of RA 7610 despite a finding that he
did not commit rape.

CONSENT OF THE CHILD IS

IMMATERIAL IN CRIMINAL
CASES INVOLVING VIOLATION
OF SECTION 5, ARTICLE III OF RA
7610

Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual
intercourse with him. They engaged in these acts out of mutual love and affection. But may the
sweetheart theory be invoked in cases of child prostitution and other sexual abuse prosecuted under
Section 5, Article III of RA 7610? No.

The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or
without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires
proof that the accused and the victim were lovers and that she consented to the sexual relations.[30]

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610,
the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual
abuse cannot validly give consent to sexual intercourse with another person.

The language of the law is clear: it seeks to punish

[t]hose who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse.
 Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III
of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child who
is exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum,
an evil that is proscribed.

A child cannot give consent to a contract under our civil laws.[31] This is on the rationale that she
can easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or
import of her actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to
those who, because of their minority, are as yet unable to take care of themselves fully. [32] Those of tender
years deserve its protection.[33]

The harm which results from a childs bad decision in a sexual encounter may be infinitely more
damaging to her than a bad business deal. Thus, the law should protect her from the harmful
consequences[34] of her attempts at adult sexual behavior.[35] For this reason, a child should not be deemed
to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical
intimacy under a law which seeks to afford her special protection against abuse, exploitation and
discrimination. (Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted
by the law, to view her as fair game and vulnerable prey.) In other words, a child is presumed by law to
be incapable of giving rational consent to any lascivious act or sexual intercourse.[36]

This must be so if we are to be true to the constitutionally enshrined State policy to promote the
physical, moral, spiritual, intellectual and social well-being of the youth.[37]This is consistent with the
declared policy of the State
[T]o provide special protection to children from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination.[38] (emphasis supplied)

as well as to
intervene on behalf of the child when the parents, guardian, teacher or person having
care or custody of the child fails or is unable to protect the child against abuse,
exploitation, and discrimination or when such acts against the child are committed by
the said parent, guardian, teacher or person having care and custody of the
same.[39] (emphasis supplied)
 This is also in harmony with the foremost consideration of the childs best interests in all actions
concerning him or her.
The best interest of children shall be the paramount consideration in all actions
concerning them, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities, and legislative bodies, consistent with the
principles of First Call for Children as enunciated in the United Nations Convention on
the Rights of the Child. Every effort shall be exerted to promote the welfare of
children and enhance their opportunities for a useful and happy life.[40] (emphasis
supplied)

PETITIONER MAY ENJOY THE

BENEFITS OF THE INDETERMINATE
SENTENCE LAW

The penalty prescribed for violation of the provisions of Section 5, Article III of RA 7610
is reclusion temporal in its medium period to reclusion perpetua. In the absence of any mitigating or
aggravating circumstance, the proper imposable penalty is reclusion temporal in its maximum period, the
medium of the penalty prescribed by the law.[41]Notwithstanding that RA 7610 is a special law, petitioner
may enjoy the benefits of the Indeterminate Sentence Law.[42] Since the penalty provided in RA 7610 is
taken from the range of penalties in the Revised Penal Code, it is covered by the first clause of Section 1
of the Indeterminate Sentence Law.[43] Thus, he is entitled to a maximum term which should be within the
range of the proper imposable penalty of reclusion temporal in its maximum period (ranging from 17
years, 4 months and 1 day to 20 years) and a minimum term to be taken within the range of the penalty
next lower to that prescribed by the law: prision mayor in its medium period to reclusion temporal in its
minimum period (ranging from 8 years and 1 day to 14 years and 8 months).

THE AWARD OF DAMAGES

SHOULD BE MODIFIED

The trial court awarded AAA P75,000 as civil indemnity, P50,000 as moral and exemplary
damages. The CA deleted the award for civil indemnity. It correctly reasoned that the award was proper
only in a conviction for rape committed under the circumstances under which the death penalty is
authorized by law. Consistent, however, with the objective of RA 7610 to afford children special
protection against abuse, exploitation and discrimination and with the principle that every person who
contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the
same,[44] civil indemnity to the child is proper in a case involving violation of Section 5(b), Article III of
RA 7610. Every person criminally liable is civilly liable.[45] The rule is that, in crimes and quasi-delicts,
the defendant shall be liable for all damages which are the natural and probable consequences of the act or
omission complained of.[46] Thus, P50,000 civil indemnity ex delicto shall be awarded in cases of
violation of Section 5(b), Article III of RA 7610.[47]

Moreover, the CA erred in affirming the grant of P50,000 as moral and exemplary damages. The
rule is that, in every case, trial courts must specify the award of each item of damages and make a finding
thereon in the body of the decision.[48] Thus, moral damages and exemplary damages should be separate
items of award.

AAA testified that she was emotionally devastated and lost touch of her inner self as a result of
what petitioner did to her. Because of the mental anxiety and wounded feelings caused by petitioner to
her, she had several sessions with the dean for student affairs[49] and the guidance counselor of
Assumption College as well as with a psychiatrist. This was corroborated by her mother and the dean of
student affairs of Assumption College. Thus, she is entitled to moral damages of P50,000. However, in
the absence of an aggravating circumstance, the grant of exemplary damages is unwarranted.[50]

Accordingly, the petition is hereby DENIED. Petitioner Michael John Z. Malto is hereby found
guilty of violating Section 5(b), Article III of RA 7610, as amended, for which he is sentenced to 14 years
and 8 months of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. He is
further ordered to pay AAA P50,000 as civil indemnity and P50,000 for moral damages.

Costs against petitioner.

SO ORDERED.

BERTO LICYAYO, G.R. No. 169425

Petitioner,
 Present:

-versus YNARES-SANTIAGO, J.
Chairperson,
AUSTRIA-MARTINEZ,

CHICO-NAZARIO,
PEOPLE OF THE PHILIPPINES,
Respondent. NACHURA, and

REYES, JJ.

Promulgated:

March 4, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,[1] petitioner Roberto Licyayo
prays for the reversal of the Decision dated 6 May 2005[2] and Resolution dated 12 August 2005[3] of the
Court of Appeals in CA-G.R. CR No. 27359, affirming with modification the Decision[4] dated 20 February
2003 of the Regional Trial Court (RTC) of Lagawe, Ifugao, Branch 14, in Criminal Cases No. 819 and
820, convicting petitioner of Homicide under Article 249 of the Revised Penal Code in Criminal Case No.
819 while dismissing Criminal Case No. 820 for Direct Assault as regards him.[5]

The factual antecedents are as follows:

 On 1 February 1993, an Information[6] in Criminal Case No. 819 was filed before the RTC charging
petitioner, his brother Aron Licyayo (Aron), Paul Baguilat (Paul) and Oliver Buyayo (Oliver) with Homicide
under Article 249 of the Revised Penal Code quoted as follows:

The undersigned Provincial Prosecutor, hereby accuses ROBERTO LICYAYO,

OLIVER BUYAYO, ARON LICYAYO, and PAUL BAGUILAT, of the crime of HOMICIDE and
committed as follows:

That on or about the 16th day of February, 1992, in the

Municipality of Kiangan, Ifugao, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another and with intent to kill, DID then and
there willfully, unlawfully and feloniously attack, assault one Rufino
Guay, stabbing him with the use of a double bladed weapon, thereby
inflicting upon the victim several stab wounds which directly caused his
death.

On 11 May 1993, an Amended Information[7] in Criminal Case No. 820 was filed before the RTC
accusing petitioner of Direct Assault under Article 148 of the Revised Penal Code, viz:

That on or about the 16th of February 1992, in the Municipality of Kiangan,

Ifugao, and within the jurisdiction of this Honorable Court, the above-named accused,
DID then and there willfully, unlawfully and feloniously attack and assault PO3 Miguel
Buyayo with the use of a bladed weapon while the victim was in the performance of his
official duties as a policeman which fact was known to the accused.

Subsequently, these cases were consolidated for joint trial. In Criminal Case No. 819, petitioner,
Aron and Paul pleaded Not Guilty to the charge of homicide,[8] while the other accused, Oliver, was not
arraigned.[9] With respect to Criminal Case No. 820, petitioner was not arraigned.[10] Thereafter, trial on
the merits ensued.

The prosecution presented as witnesses three members of the Philippine National Police (PNP),
Kiangan, Ifugao, namely, Joseph Danglay (Officer Danglay), Miguel Buyayo (Officer Buyayo) and Alfonso
Baguilat (Officer Baguilat); and three other persons namely, Jeffrey Malingan (Jeffrey), Jimmy Guay
(Jimmy), and Jose Guay (Jose). Their testimonies, woven together, bear the following:

On 16 February 1992, victim Rufino Guay (Rufino), along with his friends, Jeffrey and a certain
Joel Dumangeng (Joel) attended a wedding at Mabbalat, Kiangan, Ifugao.Petitioner, together with his
friends, Paul and Oliver, were also present at the same wedding. After the wedding reception, Rufino,
Jeffrey and Joel went to Natamas Store at the Kiangan Public Market and ordered two bottles of
gin. While the three were drinking gin at the said store, petitioner, Paul and Oliver arrived and likewise
ordered bottles of gin.Later, petitioner, Paul and Oliver left the store. Subsequently, Rufino, Jeffrey and
Joel likewise adjourned their drinking session and left the store.[11]

Rufino, Jeffrey and Joel dropped by at Famorcas Store. Petitioner and his brother, Aron, as well
as Paul and Oliver, were also present therein. While Jeffrey was talking to the stores owner, Larry
Famorca (Larry), a brawl suddenly occurred between Rufino and Aron. As a consequence thereof, Rufino
fell to the ground. Aron thereafter placed himself on top of Rufino and punched the latter several
times. Jeffrey approached the two and tried to pacify them. Paul entered the scene and punched Jeffrey
on the head.Thereupon, a scuffle followed.[12]

Officers Danglay, Buyayo and Baguilat were on their way home from the Kiangan Police Station
when they heard some individuals calling for police assistance regarding the commotion. The three
officers rushed to the scene. Upon arriving thereat, they saw petitioner holding a six-inch double-bladed
knife and walking towards Rufino and Aron who were then wrestling with each other. Officer Buyayo,
then wearing only civilian clothes and unarmed, approached petitioner and held the latters back collar
to prevent him from joining the fray. Petitioner turned around, faced Officer Buyayo, and tried to stab
the latter but he missed. Officer Buyayo retreated. The officers introduced themselves to petitioner as
policemen and pleaded with him to put down the knife. Petitioner ignored the officers pleas.[13]
 Afterwards, petitioner approached Rufino, who was then wrestling with Paul, and stabbed
Rufino in different parts of the body.[14] Officer Baguilat fired a warning shot while Officer Danglay
immediately pounced on petitioner and disarmed the latter.[15] Petitioner was brought to the Kiangan
Police Station while Rufino was taken to a nearby hospital where he later died due to stab wounds.[16]

The prosecution also presented documentary and object evidence to bolster the testimonies of
its witnesses, to wit: (1) sworn statements of Officer Danglay, Officer Buyayo, Officer Baguilat, Jeffrey,
Jimmy, Jose and Arsenio;[17] (2) death certificate of Rufino;[18] (3) certification from the Ifugao General
Hospital stating that Rufino sustained several stab wounds which directly caused his death;[19] and (4)
the knife used by the petitioner in stabbing Rufino.[20]

For its part, the defense proffered the testimonies of petitioner and his corroborating witnesses
-- Daniel Cayong (Daniel), Aron, and Paul -- to refute the foregoing accusations. Their version of the
incident is as follows:

On the morning of 16 February 1992, petitioner attended a wedding at Mabbalat, Kiangan,

Ifugao. After the wedding, petitioner met Paul and they proceeded to the Kiangan Public Market where
they chanced on Oliver, a certain Kimayong and Fernando who invited them for a drink in one of the
stores near the market. Later, Rufino, Jeffrey and Joel entered the store where petitioners group was
drinking and occupied a separate table. Jeffrey and Joel approached petitioners group and sat at their
table. Jeffrey shook and pressed hard the hand of Oliver. The storeowner signalled petitioners group to
pay its bills and leave. Petitioner brought out his wallet to pay their bills but Jeffrey, who was still
holding and pressing Olivers hand, told him to buy another bottle. Petitioner pleaded with Jeffrey to let
go of Olivers hand because the latter is his friend. Jeffrey, however, warned him not to interfere if he did
not want to get involved. Petitioner glanced at the stores door and saw Rufino standing
therein. Thereafter, Jimmy passed by in front of the store and made a signal to Rufino, Jeffrey and Joel.
Petitioner, Paul and Oliver paid their bills, left the store and proceeded to Sakai Store.[21]

Subsequently, Jeffrey and a companion went to Famorcas Store and saw Aron and Daniel seated
in one of the benches outside the store. Jeffrey then told his companionCan you tackle his
brother? Sensing that he was the brother being referred to by Jeffrey and a trouble might occur, Aron
went inside the store but Jeffrey followed him. Thus, Aron went outside the store and sat on one of the
benches nearby. Afterwards, Rufino arrived at the store and approached Aron. Rufino held the collar of
Arons shirt and punched the latter on the left cheek. Jeffrey also approached Aron and grabbed the
latters arm. Aron fought back but he fell to the ground.[22]

Daniel immediately proceeded to Sakai Store and told petitioner that Aron was being
mauled. Petitioner went to the scene and saw Rufino and Jeffrey punching Aron who was sprawled on
the ground. Petitioner pushed Jeffrey away but the latters other companions suddenly arrived and
started hitting him. Petitioner fought back but he was overpowered. Petitioner cannot recall anymore
the subsequent events that transpired.[23]

After trial, the RTC rendered a Decision dated 20 February 2003, finding petitioner guilty of
homicide in Criminal Case No. 819. It acquitted Aron and Paul because the prosecution failed to prove
the existence of conspiracy. It did not rule on the liability of Oliver because he was not arraigned in the
said case. Further, it dismissed Criminal Case No. 820 for direct assault because petitioner was not
arraigned therein.[24]

The dispositive portion of the decision in Criminal Case No. 819 reads:

WHEREFORE, premises considered, accused Roberto Licyayo is hereby found

GUILTY beyond reasonable doubt of the crime of Homicide under Article 249 of the
Revised Penal Code.Applying the provisions of the Indeterminate Sentence Law and
there being no aggravating circumstances, he is hereby sentenced to suffer the penalty
of 8 years of prision mayor as minimum to 15 years ofreclusion temporal medium as
maximum.

Further, accused is hereby ordered to pay the victims heirs the amount of P50,000.00 as
civil indemnity for the death of Rufino Guay. Per prevailing jurisprudence, death
indemnity is fixed in the sum ofP50,000.00. This kind of civil indemnity is separate and
distinct from other forms of indemnity for damages and is automatically awarded
without need of further proof other than the fact of death and that the accused is
 responsible therefore. (People v. Julius Kinok, G.R. No. 104629, November 13, 2001;
Case Digest of Supreme Court Decisions; vol. 53, No. 2).

Likewise, accused is ordered to pay the victims heirs another P50,000.00 as moral
damages. This award is mandatory and does not require proof other than the death of
the victim. (People v. Mariano Pascua, Jr., G.R. No. 130963, November 27, 2001; Case
Digest of Supreme Court Decisions; vol. 53, No. 2).

But the Court cannot award actual damages as testified to by the victims father, Jose
Guay, in the amount of P12,000.00 since the same were not covered by receipts. The
same goes true with the alleged annual income of the deceased in the amount
of P30,000.00. Well-entrenched is the doctrine that actual, compensatory and
consequential damages must be proved, and cannot be presumed. (Ibid.).[25]

Petitioner appealed to the Court of Appeals. On 6 May 2005, the appellate court promulgated
its Decision affirming with modifications the RTC decision. In addition to the civil indemnity and moral
damages awarded by the RTC, the appellate court also ordered petitioner to pay for the loss of earning
capacity of Rufino in the amount of P580,050.00 and temperate damages in the amount of P25,000.00.
Thus:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court,
Branch 14 of Lagawe, Ifugao in Criminal Cases Nos. 819 and 820 is hereby AFFIRMED
with MODIFICATION as to the award of damages, in that accused-appellant is also
ordered to pay the victims heirs the following:

(a) the amount of P25,000.00 as temperate damages; and

(b) the amount of P580,050.00 for lost earnings.[26]

 Petitioner filed a Motion for Reconsideration which the appellate court denied. Hence,
petitioner elevated the instant case before us on the following grounds:

I.

THE INFORMATION FILED IS NOT SUFFICIENT AS IT DID NOT SPECIFICALLY CHARGED

PETITIONER FOR THE CRIME OF HOMICIDE DEFINED AND PENALIZED UNDER ARTICLE
249 OF THE REVISED PENAL CODE; HENCE, PETITIONER COULD NOT BE VALIDLY
CONVICTED FOR SAID CRIME.

II.

GRANTING THAT THE INFORMATION IS SUFFICIENT, PETITIONER IS ENTITLED TO THE

MITIGATING CIRCUMSTANCES OF SUFFICIENT PROVOCATION AND INTOXICATION.[27]

Anent the first issue, petitioner points out that the Information does not specifically mention
the law which he allegedly violated and for which he was charged. Although the information accuses
him of the crime of homicide, it does not categorically state that he is being charged with homicide, as
defined and penalized under Article 249 of the Revised Penal Code. According to him, the information
should have been more explicit by stating that he is being indicted for homicide as defined and penalized
under Article 249 of the Revised Penal Code. He argues that the specification in the information of the
law violated is necessary to enable him to adequately prepare for his defense, and that to convict him
under such defective information would violate his constitutional and statutory right to be informed of
the nature and cause of the accusation against him.[28]

Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that an information is
sufficient if it states the name of the accused; the designation of the offense given by the statute; the
acts or omissions complained of as constituting the offense; the name of the offended party; the
approximate date of the commission of the offense; and the place where the offense was committed.
 With particular reference to the designation of the offense, Section 8, Rule 110 of the Revised
Rules of Criminal Procedure merely directs that the information must state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances.

The information in the instant case contains the foregoing required statements. The information
mentions the name of petitioner as the accused, the name of Rufino as the offended party, the date and
place of the commission of the crime, and designates the crime committed by petitioner as homicide. It
also alleges the act of petitioner constituting homicide which is the unlawful stabbing of Rufino with the
use of a bladed weapon.[29]

The fact that the information does not specifically mention Article 249 of the Revised Penal
Code as the law which defines and penalizes homicide, does not make it defective. There is nothing in
the afore-quoted Rules which specifically requires that the information must state the particular law
under which the accused is charged in order for it to be considered sufficient and valid. What the Rules
merely require, among other things, is that the information must designate the offense charged and
aver the acts constituting it, which in this case, were obviously done. People v.
[30]
Gatchalian categorically stated that there is no law which requires that in order that an accused may
be convicted, the specific provision which penalizes the act charged be mentioned in the information.

Besides, it should be stressed that the character of the crime is determined neither by the
caption or preamble of the information nor by the specification of the provision of law alleged to have
been violated, they being conclusions of law, but by the recital of the ultimate facts and circumstances
in the information.[31] The sufficiency of an information is not negated by an incomplete or defective
designation of the crime in the caption or other parts of the information but by the narration of facts
and circumstances which adequately depicts a crime and sufficiently apprises the accused of the nature
and cause of the accusation against him.[32]

Although the information herein does not specifically mention Article 249 of the Revised Penal
Code as the law which defines and penalizes homicide, it, nonetheless, narrates that petitioner stabbed
Rufino with a bladed weapon during the incident which caused the latters death. The foregoing
allegation unmistakably refers to homicide under Article 249 of the Revised Penal Code which is the
unlawful killing of any person without any attendant circumstance that will qualify it as murder,
parricide or infanticide.

Apropos the second issue, petitioner alleges that Rufino started the scuffle by punching Aron on
the left cheek; that by such act, Rufino had given him sufficient provocation; and that it was the pitiful
sight of Aron lying on the ground and being beaten by Rufino and Jeffrey which caused him to stab
Rufino.[33] Petitioner further claims that he was intoxicated during the incident; that this fact was
affirmed by Officers Danglay and Baguilat in their court testimonies; that his intoxication was not
subsequent to any plan to commit a felony because the encounter between him and Rufino was merely
accidental and there was no previous agreement to harm Rufino; that prior to the incident, he met old
friends and had a drink with them; that such is a mere custom or practice among Filipinos; and that his
intoxication is not habitual.[34]

Under paragraph 4, Article 13 of the Revised Penal Code, a criminal liability may be mitigated if
there was sufficient provocation on the part of the offended party which immediately preceded the act
complained of. To avail oneself of this mitigating circumstance, it must be duly proven that the alleged
provocation originated from the offended party.[35]

The records do not sufficiently establish who between Rufino and Aron started the brawl which
resulted in the stabbing of Rufino by petitioner. What is evident is that Rufino and Aron suddenly and
unexpectedly grappled during the incident.[36] As aptly observed by the RTC:

From the facts of the case earlier discussed, the fight between Rufino Guay and Aron
Licyayo was so sudden. In his defense, Aron Licyayo in his direct examination testified
though self-serving, that it was victim Rufino Guay who punched him first and so he
fought back.

Nevertheless, this claim of unlawful aggression is belied during his cross-examination:

Q. You claim, Mr.Witness, that on February 16, 1992, you did not know the late Rufino
Guay?
A. Yes, Sir.

Q. You therefore cannot imagine why he should assault you since you did not know each
other?

A. None.

Q. You never had any misunderstanding or altercation prior to February 16, 1992?

A. None.

Q. And all of a sudden, in the afternoon of February 16, 1992 you fought each other and
you being bigger than Rufino Guay, you are on top of him, is that right?

A. Yes, sir.

Q. And you delivered several blows when you were on top of him?

A. No because they were already many and they held me.

Q. How many blows did you deliver when you were on top of him before the others
came?

A. I do not know how many.

Q. Was it more than ten?

A. No.

Q. Was it more than fifteen?

A. I do not know.

Q. Why do you not know, Mr. Witness, were you drunk at that time?

A. No, I was not. (TSN, pp. 82-83, Crim. Case No. 820).

Granting arguendo that there was unlawful aggression on the part of the victim, it is
obvious that immediately he became the underdog, literally even. He was easily
overpowered by the bigger and sober Aron Licyayo, who unfortunately, does not know
how to count. With this development, the situation changed. The aggressor became the
attacked and the attacked, the aggressor.

But even from the testimonies of both the prosecution and the defense witnesses, the
former (prosecution) prevailed in convincing this Court that unlawful aggression was
not started by any of the protagonists but that a sudden fight was started by Rufino
Guay and accused Aron Licyayo. This is verifiable from the testimony of the fourth
prosecution witness, Jeffrey Malingan.

Defense on the other hand, tried to show that it was the victim who started the
unlawful aggression through witnesses Daniel Cayong and accused Aron Licyayo. They
failed miserably, however, to show this.Daniel Cayong, in his direct examination
narrated that it was not only Rufino Guay who started the trouble but rather he and his
two companions Joel Dumangeng and Jeffrey Malingan took hold of Aron Licyayo and
started punching him. The latter witness, as shown earlier, showed his bias by
inculpating the deceased only to contradict himself that the fight suddenly started when
he and the deceased grappled.[37]
 The rule is that the findings of the trial court, its calibration of the testimonies of the witnesses
and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings
are accorded respect if not conclusive effect. This is more true if such findings were affirmed by the
appellate court. When the trial courts findings have been affirmed by the appellate court, said findings
are generally binding upon this Court.[38]

Since it was not convincingly shown that the alleged provocation originated from Rufino, the
mitigating circumstance of sufficient provocation should not be appreciated in favor of petitioner. We
have held that where there is no evidence as to how the quarrel arose, the accused is not entitled to the
mitigating circumstance of sufficient provocation.[39]

For intoxication to be considered as a mitigating circumstance, it must be shown that the

intoxication impaired the willpower of the accused and that he did not know what he was doing or could
not comprehend the wrongfulness of his acts.[40] The person pleading intoxication must prove that he
took such quantity of alcoholic beverage, prior to the commission of the crime, as would blur his
reason.[41]

In the case at bar, there is no plausible evidence showing that the quantity of liquor taken by
petitioner was of such quantity as to affect his mental faculties. On the contrary, the fact that petitioner
could recall the details that transpired during and after his drinking session with friends is the best proof
that he knew what he was doing during the incident.His vivid narration that he had a confrontation with
Rufino, Jeffrey and Joel during the drinking session; that Daniel approached and told him that Aron was
being mauled; that he immediately went to the scene and saw Aron being beaten by Rufino and Jeffrey;
that he pushed Jeffrey away from Aron; that he was allegedly beaten by the companions of Jeffrey; and
that he fought back but was allegedly overpowered --- all point to the conclusion that petitioner had
complete control of his mind during the incident.[42]

Petitioner cannot avail himself of the mitigating circumstance of intoxication merely on the
testimonies of the prosecution witnesses that he was drunk during the incident.[43]Such testimonies do not
warrant a conclusion that the degree of petitioners intoxication had affected his faculties.[44] There must be
convincing proof of the nature and effect of his intoxication which petitioner failed to adduce in the
present case.[45]

We now go to the propriety of the sentence imposed on petitioner and the damages awarded to
the heirs of Rufino.

Homicide is punishable by reclusion temporal.[46] There being no mitigating or aggravating

circumstance proven in the case at bar, the penalty should be applied in its medium period of 14 years,
8 months and 1 day to 17 years and 4 months.[47] Applying the Indeterminate Sentence Law, the
maximum penalty will be selected from the above range, with the minimum penalty being selected from
the range of the penalty one degree lower than reclusion temporal, which is prision mayor (six years and
one day to 12 years). We found the indeterminate sentence of eight years of prision mayor as
minimum, to 15 years of reclusion temporal as maximum, imposed by the RTC, and affirmed by the
Court of Appeals, sufficient.

The Court of Appeals correctly awarded civil indemnity in the amount of P50,000.00 and moral
damages amounting to P50,000.00 in line with prevailing jurisprudence.[48]

As to actual damages, Jose testified that his family incurred expenses for the hospitalization and
funeral of Rufino.[49] However, since no documentary evidence was proffered to support this claim, it
cannot be awarded.[50] Nonetheless, the award of P25,000.00 in temperate damages in homicide or
murder cases is proper when no evidence of the said expenses is presented in the trial court.[51] Under
Article 2224 of the Civil Code,[52] temperate damages may be recovered as it cannot be denied that the
heirs of the victim suffered pecuniary loss although the exact amount was not proved.[53] Thus, the
award of temperate damages in the amount of P25,000.00 by the Court of Appeals is in order.

We also agree with the Court of Appeals that the heirs of Rufino should be indemnified for loss
of earning capacity pursuant to Article 2206 of the New Civil Code[54] in the amount of P580,050.00. In
accordance with current jurisprudence,[55] the formula for the indemnification for loss of earning capacity
is:

Net Earning Capacity = Life Expectancy x Gross Annual Income (GAI) Living Expenses
 = 2/3(80 age of deceased) x (GAI 50% of GAI)

Generally, documentary evidence is necessary for the purpose of proving the victims annual
income. As an exception, testimonial evidence suffices if the victim was either: (1) self-employed,
earning less than the minimum wage under current labor laws, and judicial notice may be taken of the
fact that in the victims line of work, no documentary evidence is available; or (2) employed as a daily-
wage worker earning less than the minimum wage under current labor laws.[56]

Rufino falls under these exceptions. Jose testified that Rufino was earning an average annual
gross income of P30,000.00 from gardening and cultivating ricefields.[57]Rufino was 22 years old at the
time of his death.[58]

We have held that in the absence of proof as regards the victims living expenses, his net income
is deemed to be 50 percent of his gross income.[59]

Applying the above-stated formula, the indemnity for the loss of earning capacity of Rufino
is P580,050.00, computed as follows:

Net earning capacity = 2/3 (58) x (30,000.00 P15,000.00)

= 38.67 x P15,000.00

= P580,050.00

WHEREFORE, the petition is hereby DENIED. The Decision dated 6 May 2005 and Resolution
dated 12 August 2005 of the Court of Appeals in CA-G.R. CR No. 27359 is hereby AFFIRMED in toto. No
costs.
 SO ORDERED.

SGT. JOSE M. PACOY, G.R. NO. 157472

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

HON. AFABLE E. CAJIGAL,

PEOPLE OF THE PHILIPPINES
and OLYMPIO L. ESCUETA, Promulgated:
Respondents. September 28, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose
M. Pacoy[1] (petitioner) seeking to annul and set aside the Orders dated October 25, 2002[2] and December
18, 2002[3] issued by Presiding Judge Afable E. Cajigal (respondent judge) of the Regional Trial Court
(RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.

On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as
follows:

That on or about the 18th day of March 2002, in the Municipality of Mayantoc,
Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the
said accused with intent to kill, did then and there wilfully, unlawfully and feloniously
shot his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and
sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on his body which caused
his instantaneous death.
With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard
of his rank.[4]

On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de parte, pleaded not
guilty to the charge of Homicide. Respondent Judge set the pre-trial conference and trial on October 8,
2002.[5]
However, on the same day and after the arraignment, the respondent judge issued another
Order,[6] likewise dated September 12, 2002, directing the trial prosecutor to correct andamend the
Information to Murder in view of the aggravating circumstance of disregard of rank alleged in the
Information which public respondent registered as having qualified the crime to Murder.

Acting upon such Order, the prosecutor entered his amendment by crossing out the word Homicide and
instead wrote the word Murder in the caption and in the opening paragraph of the Information. The
accusatory portion remained exactly the same as that of the original Information for Homicide, with the
correction of the spelling of the victims name from Escuita to Escueta.[7]

On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was to be re-arraigned
for the crime of Murder. Counsel for petitioner objected on the ground that the latter would be placed in
double jeopardy, considering that his Homicide case had been terminated without his express consent,
resulting in the dismissal of the case. As petitioner refused to enter his plea on the amended Information
for Murder, the public respondent entered for him a plea of not guilty.[8]

On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings Pending
the Resolution of the Instant Motion[9] on the ground of double jeopardy. Petitioner alleged that in the
Information for Homicide, he was validly indicted and arraigned before a competent court, and the case
was terminated without his express consent; that when the case for Homicide was terminated without his
express consent, the subsequent filing of the Information for Murder in lieu of Homicide placed him in
double jeopardy.

In an Order[10] dated October 25, 2002,[11] the respondent judge denied the Motion to Quash. He ruled that
a claim of former acquittal or conviction does not constitute double jeopardy and cannot be sustained
unless judgment was rendered acquitting or convicting the defendant in the former prosecution; that
petitioner was never acquitted or convicted of Homicide, since the Information for Homicide was merely
corrected/or amended before trial commenced and did not terminate the same; that the Information for
Homicide was patently insufficient in substance, so no valid proceedings could be taken thereon; and that
with the allegation of aggravating circumstance of disregard of rank, the crime ofHomicide is qualified to
Murder.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion to Inhibit, he
alleged that the respondent judge exercised jurisdiction in an arbitrary, capricious and partial manner in
mandating the amendment of the charge from Homicide to Murder in disregard of the provisions of the
law and existing jurisprudence.

In his Motion for Reconsideration, petitioner reiterated that the case against him was dismissed or
otherwise terminated without his express consent, which constitutes a ground to quash the information for
murder; and that to try him again for the same offense constitutes double jeopardy. Petitioner stated that
contrary to respondent judge's conclusion that disregard of rank qualifies the killing to Murder, it is a
generic aggravating circumstance which only serves to affect the imposition of the period of the penalty.
Petitioner also argued that the amendment and/or correction ordered by the respondent judge was
substantial; and under Section 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be
done, since petitioner had already been arraigned and he would be placed in double jeopardy.

In his Order dated December 18, 2002,[12] the respondent judge denied the Motion to Inhibit and granted
the Motion for Reconsideration, thus:

WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED

while the Motion for Reconsideration is hereby GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge shall continue
hearing this case. Further, the Order dated October 25, 2002 is reconsidered and the
original information charging the crime of homicide stands.[13]
In granting the Motion for Reconsideration, respondent judge found that a close scrutiny of Article 248 of
the Revised Penal Code shows that disregard of rank is merely a generic mitigating[14] circumstance
which should not elevate the classification of the crime of homicide to murder.

On April 30, 2003, petitioner filed herein petition for certiorari on the following grounds:

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND

EXCEEDED HIS JURISDICTION IN ORDERING THE AMENDMENT OF THE
INFORMATION FROM HOMICIDE TO MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND

VIOLATED THE LAW IN DENYING THE MOTION TO QUASH THE
INFORMATION FOR MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND

EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW IN ORDERING THE
REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH WAS
ALREADY TERMINATED.[15]

Petitioner alleges that despite having entered his plea of not guilty to the charge of Homicide, the public
respondent ordered the amendment of the Information from Homicide to Murder because of the presence
of the aggravating circumstance of disregard of rank, which is in violation of Section 14, Rule 110 of the
Revised Rules of Criminal Procedure; that the public respondents ruling that disregard of rank is a
qualifying aggravating circumstance which qualified the killing of 2Lt. Escueta to murder is erroneous
since, under paragraph 3, Article 14 of the Revised Penal Code, disregard of rank is only a generic
aggravating circumstance which serves to affect the penalty to be imposed upon the accused and does not
qualify the offense into a more serious crime; that even assuming that disregard of rank is a qualifying
aggravating circumstance, such is a substantial amendment which is not allowed after petitioner has
entered his plea.

Petitioner next contends that the respondent judge gravely abused his discretion when he denied the
Motion to Quash the Information for Murder, considering that the original Information for Homicide filed
against him was terminated without his express consent; thus, prosecuting him for the same offense
would place him in double jeopardy.

Petitioner further argues that although the respondent judge granted his Motion for Reconsideration, he
did not in fact grant the motion, since petitioner's prayer was for the respondent judge to grant the Motion
to Quash the Information for Murder on the ground of double jeopardy; that his Motion for
Reconsideration did not seek the reinstatement of the Information for Homicide upon the dismissal of the
Information for Murder, as he would again be placed in double jeopardy; thus, the respondent judge
committed grave abuse of discretion in reinstating the Homicide case.

In his Comment, the Solicitor General argues that the respondent judge's Order reinstating the
Information to Homicide after initially motu proprio ordering its amendment to Murder renders herein
petition moot and academic; that petitioner failed to establish the fourth element of double jeopardy,
i.e., the defendant was acquitted or convicted, or the case against him was dismissed or otherwise
terminated without his consent; that petitioner confuses amendment with substitution of Information; that
the respondent judge's Order dated September 12, 2002 mandated an amendment of the Information as
provided under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and that amendments
do not entail dismissal or termination of the previous case.

Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment alleging that no grave
abuse of discretion was committed by the respondent judge when he denied petitioner's Motion to Quash
the Amended Information, as petitioner was not placed in double jeopardy; that the proceedings under the
first Information for homicide has not yet commenced, and the case was not dismissed or terminated
when the Information was amended.

In his Reply, petitioner reiterates his contention that the amendment of the charge of Homicide to Murder
after his arraignment would place him in double jeopardy, considering that said amendment was without
his express consent; and that such amendment was tantamount to a termination of the charge of
Homicide.

The parties filed their respective Memoranda.

Generally, a direct resort to us in a petition for certiorari is highly improper, for it violates the established
policy of strict observance of the judicial hierarchy of courts. However, the judicial hierarchy of courts is
not an iron-clad rule.[16] A strict application of the rule of hierarchy of courts is not necessary when the
cases brought before the appellate courts do not involve factual but legal questions.[17]

In the present case, petitioner submits pure questions of law involving the proper legal interpretation of
the provisions on amendment and substitution of information under the Rules of Court. It also involves
the issue of double jeopardy, one of the fundamental rights of the citizens under the Constitution which
protects the accused not against the peril of second punishment but against being tried for the same
offense. These important legal questions and in order to prevent further delay in the trial of the case
warrant our relaxation of the policy of strict observance of the judicial hierarchy of courts.

The Courts Ruling

The petition is not meritorious.

We find no merit in petitioner's contention that the respondent judge committed grave abuse of discretion
in amending the Information after petitioner had already pleaded not guilty to the charge in the
Information for Homicide. The argument of petitioner --

Considering the fact that the case for Homicide against him was already terminated
without his express consent, he cannot anymore be charged and arraigned for Murder
which involve the same offense. The petitioner argued that the termination of the
information for Homicide without his express consent is equivalent to his acquittal. Thus,
to charge him again, this time for Murder, is tantamount to placing the petitioner in
Double Jeopardy.[18]

is not plausible. Petitioner confuses the procedure and effects of amendment or substitution under Section
14, Rule 110 of the Rules of Court, to wit --

SEC. 14. Amendment or substitution. A complaint or information may be

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

xxx

If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense in accordance with Rule 119, Section 11,
provided the accused would not be placed thereby in double jeopardy, and may also
require the witnesses to give bail for their appearance at the trial.
with Section 19, Rule 119 of which provides:
 SEC. 19. When mistake has been made in charging the proper offense. - When it
becomes manifest at any time before judgment that a mistake has been made in charging
the proper offense and the accused cannot be convicted of the offense charged or any
other offense necessarily included therein, the accused shall not be discharged if there
appears good cause to detain him. In such case, the court shall commit the accused to
answer for the proper offense and dismiss the original case upon the filing of the proper
information.
First, a distinction shall be made between amendment and substitution under Section 14, Rule 110. For
this purpose, Teehankee v. Madayag[19] is instructive, viz:

The first paragraph provides the rules for amendment of the information or
complaint, while the second paragraph refers to the substitution of the information or
complaint.

It may accordingly be posited that both amendment and substitution of the

information may be made before or after the defendant pleads, but they differ in the
following respects:

1. Amendment may involve either formal or substantial changes, while

substitution necessarily involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of
court, but substitution of information must be with leave of court as the original
information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another

preliminary investigation and the retaking of the plea of the accused; in substitution of
information, another preliminary investigation is entailed and the accused has to plead
anew to the new information; and

4. An amended information refers to the same offense charged in the original

information or to an offense which necessarily includes or is necessarily included in the
original charge, hence substantial amendments to the information after the plea has been
taken cannot be made over the objection of the accused, for if the original information
would be withdrawn, the accused could invoke double jeopardy.On the other hand,
substitution requires or presupposes that the new information involves a different offense
which does not include or is not necessarily included in the original charge, hence the
accused cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first

paragraph of Section 14, Rule 110, or a substitution of information under the second
paragraph thereof, the rule is that where the second information involves the same
offense, or an offense which necessarily includes or is necessarily included in the first
information, an amendment of the information is sufficient; otherwise, where the new
information charges an offense which is distinct and different from that initially charged,
a substitution is in order.

There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the other, or
when the second offense is exactly the same as the first, or when the second offense is an
 attempt to commit or a frustration of, or when it necessarily includes or is necessarily
included in, the offense charged in the first information. In this connection, an offense
may be said to necessarily include another when some of the essential elements or
ingredients of the former, as this is alleged in the information, constitute the latter. And,
vice-versa, an offense may be said to be necessarily included in another when the
essential ingredients of the former constitute or form a part of those constituting the
latter.[20]

In the present case, the change of the offense charged from Homicide to Murder is merely a
formal amendment and not a substantial amendment or a substitution as defined in Teehankee.

While the amended Information was for Murder, a reading of the Information shows that the only change
made was in the caption of the case; and in the opening paragraph or preamble of the Information, with
the crossing out of word Homicide and its replacement by the word Murder. There was no change in the
recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. The
averments in the amended Information for Murder are exactly the same as those already alleged in the
original Information for Homicide, as there was not at all any change in the act imputed to petitioner, i.e.,
the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made
in the caption and preamble from Homicide to Murder as purely formal.[21]

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has
already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of
whether the rights of an accused are prejudiced by the amendment of a complaint or information is
whether a defense under the complaint or information, as it originally stood, would no longer be available
after the amendment is made; and when any evidence the accused might have would be inapplicable to
the complaint or information.[22] Since the facts alleged in the accusatory portion of the amended
Information are identical with those of the original Information for Homicide, there could not be any
effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights
or defense of petitioner.

While the respondent judge erroneously thought that disrespect on account of rank qualified the crime to
murder, as the same was only a generic aggravating circumstance,[23] we do not find that he committed
any grave abuse of discretion in ordering the amendment of the Information after petitioner had already
pleaded not guilty to the charge of Homicide, since the amendment made was only formal and did not
adversely affect any substantial right of petitioner.

Next, we determine whether petitioner was placed in double jeopardy by the change of the charge from
Homicide to Murder; and subsequently, from Murder back to Homicide. Petitioner's claim that the
respondent judge committed grave abuse of discretion in denying his Motion to Quash the Amended
Information for Murder on the ground of double jeopardy is not meritorious.
Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which provides:

SEC. 3. Grounds. - The accused may move to quash the complaint

or information on any of the following grounds:

xxxx

(i) That the accused has been previously convicted or acquitted of the offense charged, or
the case against him was dismissed or otherwise terminated without his express consent.
Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy may
prosper, to wit:

SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has

been convicted or acquitted, or the case against him dismissed or otherwise terminated
without his express consent by a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and substance to sustain a conviction
and after the accused had pleaded to the charge, the conviction or acquittal of the accused
or the dismissal of the case shall be a bar to another prosecution for the offense charged, or
for any attempt to commit the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the former
complaint or information.
Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy
attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy
is for the same offense as in the first.[24]

As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused
was acquitted or convicted, or the case was dismissed or otherwise terminated without his express
consent.[25]

It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars further
prosecution for the same offense or any attempt to commit the same or the frustration
thereof; or prosecution for any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.[26]

Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide without his
express consent, which is tantamount to an acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional dismissal
which terminates the case.[27] And for the dismissal to be a bar under the jeopardy clause, it must have the
effect of acquittal.
The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and amend
the Information but not to dismiss the same upon the filing of a newInformation charging the proper
offense as contemplated under the last paragraph of Section 14, Rule 110 of the Rules of Court -- which,
for convenience, we quote again --

If it appears at anytime before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense in accordance with section 19, Rule 119,
provided the accused shall not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial.

and Section 19, Rule 119, which provides:

SEC. 19.- When mistake has been made in charging the proper offense - When it
becomes manifest at any time before judgment that a mistake has been made in charging
the proper offense and the accused cannot be convicted of the offense charged or any other
offense necessarily included therein, the accused shall not be discharged if there appears
good cause to detain him. In such case, the court shall commit the accused to answer for
the proper offense and dismiss the original case upon the filing of the proper information.

Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is wholly
different from the offense proved, i.e., the accused cannot be convicted of a crime with which he was not
charged in the information even if it be proven, in which case, there must be a dismissal of the charge and
a substitution of a new information charging the proper offense. Section 14 does not apply to a
second information, which involves the same offense or an offense which necessarily includes or is
necessarily included in the first information. In this connection, the offense charged necessarily includes
the offense proved when some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is necessarily included in the
offense proved when the essential ingredients of the former constitute or form a part of those constituting
the latter.[28]

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the
amendment of the Information and not the dismissal of the original Information. To repeat, it was the
same original information that was amended by merely crossing out the word Homicide and writing the
word Murder, instead, which showed that there was no dismissal of the homicide case.

Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in ordering
that the original Information for Homicide stands after realizing that disregard of rank does not qualify the
killing to Murder. That ruling was again a violation of his right against double jeopardy, as he will be
prosecuted anew for a charge of Homicide, which has already been terminated earlier.
We are not convinced. Respondent judge did not commit any grave abuse of discretion.

A reading of the Order dated December 18, 2002 showed that the respondent judge granted petitioner's
motion for reconsideration, not on the ground that double jeopardy exists, but on his realization that
disregard of rank is a generic aggravating circumstance which does not qualify the killing of the victim to
murder. Thus, he rightly corrected himself by reinstating the original Information for Homicide. The
requisite of double jeopardy that the first jeopardy must have attached prior to the second is not present,
considering that petitioner was neither convicted nor acquitted; nor was the case against him dismissed or
otherwise terminated without his express consent.[29]
WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed
by respondent Judge.

SO ORDERED.

G.R. No. 179962 June 11, 2014

DR. JOEL C. MENDEZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and COURT OF TAX APPEALS, Respondents.

DECISION

BRION, J.:

Before the Court is a petition for certiorari and prohibition under Rule 651 filed by Dr. Joel C.
Mendez (petitioner) assailing the June 12, 2007 and August 13, 2007 resolutions2 of the Court
of Tax Appeals (CTA)3 The assailed resolutions granted the prosecution's Motion to Amend
Information with Leave of Court and denied the petitioner's motion for reconsideration.

ANTECEDENTS

The Bureau of Internal Revenue (BIR) filed a complaint-affidavit4 with the Department of Justice
against the petitioner. The BIR alleged that the petitioner had been operating as a single
proprietor doing business and/or exercising his profession for taxable years 2001 to 2003 under
the following trade names and registration addresses:5

1. Mendez Body and Face Salon and Spa

Registered with Revenue District Office (RDO) No. 39 South Quezon City

2. Mendez Body and Face Salon and Spa

Registered with RDO No. 39 South Quezon City

 3. Mendez Body and Face Salon and Spa

Registered with RDO No. 40 Cubao

4. Mendez Body and Face Skin Clinic

Registered with RDO No. 47 East Makati

5. Weigh Less Center

Registered with RDO No. 21

6. Mendez Weigh Less Center

Registered with RDO No. 4 Calasiao Pangasinan

Based on these operations, the BIR alleged that petitioner failed to file his income tax returns for
taxable years 2001 to 2003 and, consequently evaded his obligation to pay the correct amount
of taxes due the government.6

In his defense, the petitioner admitted that he has been operating as a single proprietor under
these trade names in Quezon City, Makati, Dagupan and San Fernando. However, he
countered that he did not file his income tax returns in these places because his business
establishments were registered only in 2003 at the earliest; thus, these business establishments
were not yet in existence at the time of his alleged failure to file his income tax return. 7

After a preliminary investigation, State Prosecutor Juan Pedro Navera found probable cause
against petitioner for non-filing of income tax returns for taxable years 2001 and 2002 and for
failure to supply correct and accurate information as to his true income for taxable year 2003, in
violation of the National Internal Revenue Code.8Accordingly an Information9 was filed with the
CTA charging the petitioner with violation of Section 255 of Republic Act No. 8424 (Tax Reform
Act of 1997). The Information reads:

That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the
CTA] the above named accused, a duly registered taxpayer, and sole proprietor of "Weigh Less
Center" with principal office at No. 31 Roces Avenue, Quezon City, and with several branches in
Quezon City, Makati, San Fernando and Dagupan City, did then and there, wilfully, unlawfully
and feloniously fail to file his Income Tax Return (ITR) with the Bureau of Internal Revenue for
the taxable year 2001, to the damage and prejudice of the Government in the estimated amount
of 1,089,439.08, exclusive of penalties, surcharges and interest.

CONTRARY TO LAW.10

The accused was arraigned11 and pleaded not guilty on March 5, 2007.12 On May 4, 2007, the
prosecution filed a "Motion to Amend Information with Leave of Court."13 The amended
information reads:

That on or about the 15th day of April, 2002, at Quezon City, and within the jurisdiction of [the
CTA] the above named accused, doing business under the name and style of "Weigh Less
Center"/Mendez Medical Group", with several branches in Quezon City, Muntinlupa City,
Mandaluyong City and Makati City, did then and there, wilfully, unlawfully and feloniously fail to
file his income tax return (ITR) with the Bureau of Internal Revenue for income earned for the
taxable year 2001, to the damage and prejudice of the Government in the estimated amount of
1,089,439.08, exclusive of penalties, surcharges and interest (underscoring and boldfacing in
the original).14

The petitioner failed to file his comment to the motion within the required period; thus on June
12, 2007,the CTA First Division granted the prosecutions motion.15 The CTA ruled that the
prosecutions amendment is merely a formal one as it "merely states with additional precision
something already contained in the original information."16The petitioner failed to show that the
defenses applicable under the original information can no longer be used under the amended
information since both the original and the amended information charges the petitioner with the
same offense (violation of Section 255). The CTA observed:

the change in the name of his business to include the phrase "Mendez Medical Group" does not
alter the fact the [petitioner] is being charged with failure to file his Income Tax Return... The
change in the branches of his business, likewise did not relieve [the petitioner] of his duty to file
an ITR. In addition, the places where the accused conducts business does not affect the Courts
jurisdiction... nor ... change the nature of the offense charged, as only one [ITR] is demanded of
every taxpayer. We likewise see no substantial difference on the information with the insertion
of the phrase for income earned for it merely stated the normal subject matter found in every
income tax return.

The petitioner filed the present petition after the CTA denied his motion for
reconsideration.17 THE PETITION

The petitioner claims in his petition that the prosecutions amendment is a substantial
amendment prohibited under Section 14, Rule 110 of the Revised Rules of Criminal Procedure.
It is substantial in nature because its additional allegations alter the prosecutions theory of the
case so as to cause surprise to him and affect the form of his defense.18 Thus, he was not
properly informed of the nature and cause of the accusation against him.

Adopting the observation of a dissenting CTA justice, he claims that to change the allegation on
the locations of his business from San Fernando, Pampanga and Dagupan City to Muntinlupa
and Mandaluyong cities would cause surprise to him on the form of defense he would have to
assume.

The petitioner adds that the change in the date of the commission of the crime from 2001 to
2002 would also alter his defense considering that the difference in taxable years would mean
requiring a different set of defense evidence. The same is true with the new allegation of
"Mendez Medical Group" since it deprived him of the right, during the preliminary investigation,
to present evidence against the alleged operation and or existence of this entity.19 In sum, the
amendments sought change the subject of the offense and thus substantial.20RESPONDENTS
COMMENT

The respondents claim that the petitioner availed of the wrong remedy in questioning the CTA
resolutions. Under Rule 9, Section 9 of the Revised Rules of CTA, the remedy of appeal to the
CTA en banc is the proper remedy, to be availed of within fifteen days from receipt of the
assailed resolution. The filing of the present petition was clearly a substitute for a lost appeal.
Even assuming that certiorari is the proper remedy, the CTA did not commit an error of
jurisdiction or act with grave abuse of discretion. On the contrary, the assailed resolutions were
in accord with jurisprudence. The amended information could not have caused surprise to the
petitioner since the amendments do not change the nature and cause of accusation against
him. The offense the petitioner probably committed and the acts or omissions involved remain
the same under the original and the amended information, i.e., his failure to file his ITR in 2002
for income earned in 2001 from the operation of his businesses.21

Neither would the change in the date of the commission of the crime nor the inclusion of the
phrase "Mendez Medical Group" cause surprise to the petitioner since he was fully apprised of
these facts during the preliminary investigation. Likewise, the original information already
alleged that the petitioners failure to file an ITR refers to "taxable year 2001."

Contrary to the petitioners contention, the preparation of the defense contemplated in the law
does not strictly include the presentation of evidence during the preliminary investigation
because this stage is not the occasion for the full and exhaustive display of the parties
evidence. ISSUES:

1. Is the remedy of certiorari proper?

2. Whether the prosecutions amendments made after the petitioners arraignment are
substantial in nature and must perforce be denied?

COURTS RULING

We resolve to dismiss the petition.

Preliminary consideration

The petitioner correctly availed of the remedy of certiorari. Under Rule 65 of the Rules of Court,
certiorari is available when there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. After failing in his bid for the CTA to reconsider its admission of the
amended information, the only remedy left to the petitioner is to file a petition for certiorari with
this Court.

Contrary to the prosecutions argument, the remedy of appeal to the CTA en banc is not
available to the petitioner. In determining the appropriate remedy or remedies available, a party
aggrieved by a court order, resolution or decision must first correctly identify the nature of the
order, resolution or decision he intends to assail. What Section 9 Rule 922 of the Rules of the
CTA provides is that appeal to the CTA en banc may be taken from a decision or resolution of
the CTA division in criminal cases by filing a petition for review under Rule 43 of the Rules of
Court. Under Section 1, Rule 43, the remedy of a petition for review is available only against a
judgments or a final order.

A judgment or order is considered final if it disposes of the action or proceeding completely, or

terminates a particular stage of the same action; in such case, the remedy available to an
aggrieved party is appeal. If the order or resolution, however, merely resolves incidental matters
and leaves something more to be done to resolve the merits of the case, as in the present case,
the order is interlocutory and the aggrieved partys only remedy after failing to obtain a
reconsideration of the ruling is a petition for certiorari under Rule 65.
Nonetheless, while we rule that the petitioner availed of the correct remedy, we resolve to
dismiss the petition for failure to establish that the CTA abused its discretion, much less gravely
abused its discretion.

Amendment of information

Section 14, Rule 110 of the Revised Rules of Criminal Procedure governs the matter of
amending the information:

Amendment or substitution. A complaint or information may be amended, in form or in

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

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

There is no precise definition of what constitutes a substantial amendment. According to

jurisprudence, substantial matters in the complaint or information consist of the recital of facts
constituting the offense charged and determinative of the jurisdiction of the court. 23 Under
Section 14, however, the prosecution is given the right to amend the information, regardless of
the nature of the amendment, so long as the amendment is sought before the accused enters
his plea, subject to the qualification under the second paragraph of Section 14.

Once the accused is arraigned and enters his plea, however, Section 14 prohibits the
prosecution from seeking a substantial amendment, particularly mentioning those that may
prejudice the rights of the accused.24 One of these rights is the constitutional right of the
accused to be informed of the nature and cause of accusation against him, a right which is
given life during the arraignment of the accused of the charge of against him. The theory in law
is that since the accused officially begins to prepare his defense against the accusation on the
basis of the recitals in the information read to him during arraignment, then the prosecution must
establish its case on the basis of the same information.

To illustrate these points, in Almeda v. Judge Villaluz,25 the prosecution wanted to additionally
alleged recidivism and habitual delinquency in the original information. In allowing the
amendment, the Court observed that the amendment sought relate only to the range of the
penalty that the court might impose in the event of conviction. Since they do not have the effect
of charging an offense different from the one charged (qualified theft of a motor vehicle) in the
information, nor do they tend to correct any defect in the trial courts jurisdiction over the
subject-matter, the amendment sought is merely formal.

In Teehankee, Jr. v. Madayag,26 the prosecution sought during trial to amend the information
from frustrated to consummated murder since the victim died after the information for frustrated
murder was filed. The accused refused to be arraigned under the amended information without
the conduct of a new preliminary investigation. In sustaining the admission of the amended
information, the Court reasoned that the additional allegation, that is, the supervening fact of the
death of the victim was merely supplied to aid the trial court in determining the proper penalty
for the crime. Again, there is no change in the nature of offense charged; nor is there a change
in the prosecutions theory that the accused committed a felonious act with intent to kill the
victim; nor does the amendment affect whatever defense the accused originally may have.

In short, amendments that do not charge another offense different from that charged in the
original one;27 or do not alter the prosecution's theory of the case so as to cause surprise to the
accused and affect the form of defense he has or will assume are considered merely as formal
amendments.

In the present case, the amendments sought by the prosecution pertains to (i) the alleged
change in the date in the commission of the crime from 2001 to 2002; (ii) the addition of the
phrase "doing business under the name and style of Mendez Medical Group;" (iii) the change
and/or addition of the branches of petitioners operation; and (iv) the addition of the phrase "for
income earned." We cannot see how these amendments would adversely affect any substantial
right of the petitioner as accused.

The "change" in the date from 2001 to 2002 and the addition of the phrase "for income earned"

At the outset we note that the actual year of the commission of the offense has escaped both
the petitioner and prosecution. In its Motion to Amend the Information, the prosecution
mistakenly stated that the information it originally filed alleged the commission of the offense as
"on or about the 15th day of April, 2001" even if the record is clear that that the actual year of
commission alleged is 2002. The petitioner makes a similar erroneous allegation in its petition
before the Court.

Interestingly, in its August 13, 2007 resolution, denying the petitioners motion for
reconsideration, the CTA implicitly ruled that there was in fact no amendment of the date in the
information by correctly citing what the original information alleges. This, notwithstanding, the
petitioner still baselessly belaboured the point in its present petition by citing the erroneous
content of the prosecutions motion to amend instead of the original information itself.28 This
kind of legal advocacy obviously added nothing but confusion to what is otherwise a simple
case and another docket to the High Courts overwhelming caseload.

That the actual date of the commission of the offense pertains to the year 2002 is only
consistent with the allegation in the information on the taxable year it covers, i.e., for the taxable
year 2001. Since the information alleges that petitioner failed to file his income tax return for the
taxable year 2001, then the offense could only possibly be committed when petitioner failed to
file his income tax return before the due date of filing, which is on April of the succeeding year,
2002. Accordingly, the addition of the phrase "for the income earned" before the phrase "for the
taxable year 2001" cannot but be a mere formal amendment since the added phrase merely
states with additional precision something that is already contained in the original information,
i.e., the income tax return is required to be filed precisely for the income earned for the
preceding taxable year.

The nature of the remaining two items of amendment would be better understood, not only in
the context of the nature of the offense charged under the amended information, but likewise in
the context of the legal status of the "Mendez Medical Group."

The addition of the phrase "doing business

under the name and style of Mendez
Medical Group and the change and/or
addition of the branches of petitioners
operation

Under the National Internal Revenue Code (NIRC), a resident citizen who is engaged in the
practice of a profession within the Philippines is obligated to file in duplicate an income tax
return on his income from all sources, regardless of the amount of his gross income. 29 In
complying with this obligation, this type of taxpayer ought to keep only two basic things in mind:
first is where to file the return; and second is when to file the return. Under Section 51 B of the
NIRC, the return should "be filed with an authorized agent bank, Revenue District Officer,
Collection Agent or duly authorized Treasurer of the city or municipality in which such person
has his legal residence or principal place of business in the Philippines."

On the other hand, under Section 51 C of the NIRC, the same taxpayer is required to file his
income tax return on or before the fifteenth (15th) day of April of each year covering income for
the preceding taxable year.30 Failure to comply with this requirement would result in a violation
of Section 255 of the NIRC which reads:

Section 255. Failure to File Return, Supply Correct and Accurate Information, Pay Tax Withhold
and Remit Tax and Refund Excess Taxes Withheld on Compensation. - Any person required
under this Code or by rules and regulations promulgated thereunder to pay any tax, make a
return, keep any record, or supply any correct and accurate information, who wilfully fails to pay
such tax, make such return, keep such record, or supply correct and accurate information, or
withhold or remit taxes withheld, or refund excess taxes withheld on compensation, at the time
or times required by law or rules and regulations shall, in addition to other penalties provided by
law, upon conviction thereof, be punished by a fine of not less than Ten thousand pesos
(10,000) and suffer imprisonment of not less than one (1) year but not more than ten (10)
years. [emphasis supplied]

Since the petitioner operates as a sole proprietor from taxable years 2001 to 2003, the petitioner
should have filed a consolidated return in his principal place of business, regardless of the
number and location of his other branches. Consequently, we cannot but agree with the CTA
that the change and/or addition of the branches of the petitioners operation in the information
does not constitute substantial amendment because it does not change the prosecutions theory
that the petitioner failed to file his income tax return.

Still, the petitioner cites the case of Matalam v. Sandiganbayan, Second Division31 in claiming
that the deletion of San Fernando (Pampanga City) and Dagupan City deprives him of the
defenses he raised in his counter-affidavit.

In Matalam, the prosecution charged the accused with violation of RA No. 3019 for "[c]ausing
undue injury to several [government employees] thru evident bad faith xxx by illegally and
unjustifiably refusing to pay [their] monetary claims xxx in the nature of unpaid salaries during
the period when they have been illegally terminated, including salary differentials and other
benefits." After a reinvestigation, the prosecution sought to amend the information to allege that
the accused

[c]ause[d] undue injury by illegally dismissing from the service [several government] employees,
xxx to their damage and prejudice amounting to 1,606,788.50 by way of unpaid salaries during
the period when they have been illegally terminated including salary differentials and other
benefits.32

The accused moved to dismiss the amended information for charging an entirely new cause of
action and asked for preliminary investigation on this new charge of illegal dismissal.

The Sandiganbayan observed that (i) there is a clear change in the cause of action (from refusal
to pay to illegal dismissal); and (ii) the main defense of all the accused in the original information
the lack of a corresponding appropriation for the payment of the monetary claims of the
complaining witnesses would no longer be available under the amendment. After finding,
however, that the complainants demand for monetary claim actually arose from their alleged
illegal dismissal, the Sandiganbayan allowed the amendment because an "inquiry to the
allegations in the original information will certainly and necessarily elicit substantially the same
facts to the inquiry of the allegations in the Amended Information."33

As to when the rights of an accused are prejudiced by an amendment made after he had
pleaded to the original information, Montenegroruled34 that prejudice exists when a defense
under the original information would no longer be available after the amendment is made, and
when any evidence the accused might have, would be inapplicable to the Information as
amended.35 Applying this test, the Court disallowed the amendment for being substantial in
nature as the recital of facts constituting the offense charged was altered.36

The inapplicability of Matalam to the present case is obvious. Here, the prosecutions theory of
the case, i.e., that petitioner failed to file his income tax return for the taxable year 2001 did not
change. The prosecutions cause for filing an information remained the same as the cause in
the original and in the amended information. For emphasis, the prosecutions evidence during
the preliminary investigation of the case shows that petitioner did not file his income tax return in
his place of legal residence37 or principal place of business in Quezon City or with the
Commissioner. In short, the amendment sought did not alter the crime charged.

At first, a change in the location of branches alleged in the information may appear to deprive
the petitioner of his defense in the original information, i.e., the petitioners branches in Dagupan
and San Fernando were registered only in 2003 and were therefore "in existent" in 2001.
However, this is not the kind of defense contemplated under the Rules of Criminal Procedure,
and broadly under the due process of law.

Contrary to the petitioners claim, the opportunity given to the accused to present his defense
evidence during the preliminary investigation is not exhaustive. In the same manner that the
complainants evidence during preliminary investigation is only required to establish the minimal
evidentiary threshold of probable cause, the evidence that the respondent may present during
trial is not limited to what he had presented during the preliminary investigation, so long as the
evidence for both parties supports or negates the elements of the offense charged.

To be sure, the jurisprudential test on whether a defendant is prejudiced by the amendment of

an information pertains to the availability of the same defense and evidence that the accused
previously had under the original information. This test, however, must be read together with the
characteristic thread of formal amendments, which is to maintain the nature of the crime or the
essence of the offense charged.38
In the present case, this thread remained consistently under the amended information, alleging
the petitioners failure to file his return and consequently to pay the correct amount of taxes.
Accordingly, the petitioner could not have been surprised at all.

We also reject for lack of merit petitioners claim that the inclusion of the phrase "doing business
under the name and style of Mendez Medical Group" after his preliminary investigation and
arraignment deprives him of the right to question the existence of this "entity."

The petitioner however has not drawn our attention to any of his related operations that actually
possesses its own juridical personality. In the original information, petitioner is described as
"sole proprietor of Weigh Less Center." A sole proprietorship is a form of business organization
conducted for profit by a single individual, and requires the proprietor or owner thereof, like the
petitioner-accused, to secure licenses and permits, register the business name, and pay taxes
to the national government without acquiring juridical or legal personality of its own.39

In the amended information, the prosecution additionally alleged that petitioner is "doing
business under the name and style of Weigh Less Center/Mendez Medical Group." Given the
nature of a sole proprietorship, the addition of the phrase "doing business under the name and
style" is merely descriptive of the nature of the business organization established by the
petitioner as a way to carry out the practice of his profession. As a phrase descriptive of a sole
proprietorship, the petitioner cannot feign ignorance of the "entity" "Mendez Medical Group"
because this entity is nothing more than the shadow of its business owner - petitioner himself.

At any rate, we agree with the prosecution that petitioner has no reason to complain for the
inclusion of the phrase "Mendez Medical Group." In the Reply-Affidavit it submitted during the
preliminary investigation, the prosecution has attached copies of petitioner's paid
advertisements making express reference to "Mendez Medical Group."40

WHEREFORE, premises considered, we DISMISS the petition for lack of merit, with costs
against the petitioner.

SO ORDERED.

G.R. No. 103102 March 6, 1992

CLAUDIO J. TEEHANKEE, JR., petitioner,

vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:

In this special civil action for certiorari, prohibition and mandamus, petitioner principally seeks:
(1) to nullify the order 1 of respondent judge admitting the amended information for murder filed
in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent
judge when petitioner refused to be arraigned on the amended information for lack of
preliminary investigation therefor; (3) to nullify the appointment of a counsel de oficio/PAO
lawyer to represent petitioner; (4) to prohibit respondent judge from "over-speedy and
preferential scheduling of the trial of the aforementioned criminal case;" and (5) to compel
respondent judge to order preliminary investigation of the crime charged in the amended
information.

Petitioner was originally charged on July 19, 1991 in an information 2 for the crime of frustrated
murder allegedly committed as follows:

That on or about the 13th day of July 1991, in the Municipality of Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, while armed with a handgun, with intent to kill, treachery and
evident premeditation, did then and there willfully, unlawfully, and feloniously
attack, assault and shoot one Maureen Navarro Hultman on the head, thereby
inflicting gunshot wounds, which ordinarily would have caused the death of said
Maureen Navarro Hultman, thereby performing all the acts of execution which
would have produced the crime of Murder as a consequence, but nevertheless
did not produce it by reason of cause or causes independent of her will, that is,
due to the timely and able medical assistance rendered to said Maureen Navarro
Hultman which prevented her death.

After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file
a demurrer to evidence. However, before the said motion could be filed, Maureen Navarro
Hultman died.

Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion 3 for leave of court
to file an amended information and to admit said amended information. The amended
information, 4 filed on October 31, 1991, reads:

That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the said
Claudio Teehankee, Jr. y. Javier, armed with a handgun, with intent to kill and
evident premeditation and by means of treachery, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with the said
handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting
mortal wounds which directly caused the death of said Maureen Hultman.

Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the prosecution.
On November 13, 1991, the trial court issued the questioned order admitting the amended
information.

At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the
amended information for lack of a preliminary investigation thereon. By reason of such refusal,
respondent judge ordered that a plea of "not guilty" be entered for petitioner.

Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's
counsel manifested that he would not take part in the proceedings because of the legal issue
raised, the trial court appointed a counsel de oficio to represent herein petitioner.

Petitioner now raises the following issues before us:

 (a) Whether or not an amended information involving a substantial amendment,
without preliminary investigation, after the prosecution has rested on the original
information, may legally and validly be admitted;

(b) Whether or not a counsel de oficio may legally and validly be appointed to
represent an accused who is represented by counsel of choice who refuses to
participate in the proceedings because of a perceived denial of due process and
after a plea for appellate remedies within a short period is denied by the trial
court; and

(c) Whether or not a particular criminal case may legally and validly be rushed
and preferentially scheduled for trial over and at the expense and sacrifice of
other, specially older, criminal cases. 8

In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the
basic petition. It appearing from a further review of the record that the operative facts and
determinant issues involved in this case are sufficiently presented in the petition and the
annexes thereto, both in regard to the respective positions of petitioner and respondents, the
Court has decided to dispense with the aforesaid comment to obviate needless delay in fairness
to petitioner.

I. Petitioner avers that the additional allegation in the amended information, as herein
underscored, that the accused ". . . did then and there willfully, unlawfully and feloniously attack,
assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman . . ."
constitutes a substantial amendment since it involves a change in the nature of the offense
charged, that is, from frustrated to consummated murder. Petitioner further submits that "(t)here
is a need then to establish that the same mortal wounds, which were initially frustrated (sic) by
timely and able medical assistance, ultimately caused the death of the victim, because it could
have been caused by a supervening act or fact which is not imputable to the offender." 9 From
this, he argues that there being a substantial amendment, the same may no longer be allowed
after arraignment and during the trial.

Corollary thereto, petitioner then postulates that since the amended information for murder
charges an entirely different offense, involving as it does a new fact, that is, the fact of death
whose cause has to be established, it is essential that another preliminary investigation on the
new charge be conducted before the new information can be admitted.

We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the
orders of the trial court.

Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:

Sec. 14. Amendment. The information or complaint may be amended, in

substance or form, without leave of court, at any time before the accused pleads;
and thereafter and during the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without prejudice to the rights
of the accused.
 If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
placed thereby in double jeopardy and may also require the witnesses to give
bail for their appearance at the trial.

The first paragraph provides the rules for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint.

It may accordingly be posited that both amendment and substitution of the information may be
made before or after the defendant pleaded, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily
involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but
substitution of information must be with leave of court as the original information has to be
dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary
investigation and the retaking of the plea of the accused; in substitution of information, another
preliminary investigation is entailed and the accused has to plead anew to the new information;
and

4. An amended information refers to the same offense charged in the original information or to
an offense which necessarily includes or is necessarily included in the original charge, hence
substantial amendments to the information after the plea has been taken cannot be made over
the objection of the accused, for if the original information would be withdrawn, the accused
could invoke double jeopardy. On the other hand, substitution requires or presupposes that the
new information involves a different offense which does not include or is not necessarily
included in the original charge, hence the accused cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the
rule is that where the second information involves the same offense, or an offense which
necessarily includes or is necessarily included in the first information, and amendment of the
information is sufficient; otherwise, where the new information charges an offense which is
distinct and different from that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction for one
offense would be sufficient to warrant a conviction for the other, or when the second offense is
exactly the same as the first, or when the second offense is an attempt to commit or a
frustration of, or when it necessarily includes or is necessarily included in, the offense charged
in the first information. In this connection, an offense may be said to necessarily include another
when some of the essential elements or ingredients of the former, as this is alleged in the
information, constitute the latter. And, vice-versa, an offense may be said to be necessarily
included in another when the essential ingredients of the former constitute or form a part of
those constituting the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution
of the crime of murder, hence the former is necessarily included in the latter. It is indispensable
that the essential element of intent to kill, as well as qualifying circumstances such as treachery
or evident premeditation, be alleged in both an information for frustrated murder and for murder,
thereby meaning and proving that the same material allegations are essential to the sufficiency
of the informations filed for both. This is because, except for the death of the victim, the
essential elements of consummated murder likewise constitute the essential ingredients to
convict herein petitioner for the offense of frustrated murder.

In the present case, therefore, there is an identity of offenses charged in both the original and
the amended information. What is involved here is not a variance in the nature of different
offenses charged, but only a change in the stage of execution of the same offense from
frustrated to consummated murder. This is being the case, we hold that an amendment of the
original information will suffice and, consequent thereto, the filing of the amended information for
murder is proper.

Petitioner would insist, however, that the additional allegation on the fact of death of the victim
Maureen Navarro Hultman constitutes a substantial amendment which may no longer be
allowed after a plea has been entered. The proposition is erroneous and untenable.

As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or
substance, may be made at any time before the accused enters a plea to the charge and,
thereafter, as to all matters of form with leave of court.

A substantial amendment consists of the recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of form. 11 Thus, the
following have been held to be merely formal amendments, viz: (1) new allegations which relate
only to the range of the penalty that the court might impose in the event of conviction; 12 (2) an
amendment which does not charge another offense different or distinct from that charged in the
original one; 13 (3) additional allegations which do not alter the prosecution's theory of the case
so as to cause surprise to the accused and affect the form of defense he has or will assume;
and (4) an amendment which does not adversely affect any substantial right of the accused,
such as his right to invoke prescription. 14

We repeat that after arraignment and during the trial, amendments are allowed, but only as to
matters of form andprovided that no prejudice is caused to the rights of the accused. 15 The test
of whether an amendment is only of form and an accused is not prejudiced by such amendment
has been said to be whether or not a defense under the information as it originally stood would
be equally available after the amendment is made, and whether or not any evidence the
accused might have would be equally applicable to the information in the one form as in the
other; if the answer is in the affirmative, the amendment is one of form and not of substance. 16

Now, an objective appraisal of the amended information for murder filed against herein
petitioner will readily show that the nature of the offense originally charged was not actually
changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim
was merely supplied to aid the trial court in determining the proper penalty for the crime. That
the accused committed a felonious act with intent to kill the victim continues to be the
prosecution's theory. There is no question that whatever defense herein petitioner may adduce
under the original information for frustrated murder equally applies to the amended information
for murder. Under the circumstances thus obtaining, it is irremissible that the amended
information for murder is, at most, an amendment as to form which is allowed even during the
trial of the case.

It consequently follows that since only a formal amendment was involved and introduced in the
second information, a preliminary investigation is unnecessary and cannot be demanded by the
accused. The filing of the amended information without the requisite preliminary investigation
does not violate petitioner's right to be secured against hasty, malicious and oppressive
prosecutions, and to be protected from an open and public accusation of a crime, as well as
from the trouble, expenses and anxiety of a public trial. The amended information could not
conceivably have come as a surprise to petitioner for the simple and obvious reason that it
charges essentially the same offense as that charged under the original information.
Furthermore, as we have heretofore held, if the crime originally charged is related to the
amended charge such that an inquiry into one would elicit substantially the same facts that an
inquiry into the other would reveal, a new preliminary investigation is not necessary. 17

We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein
petitioner whose counsel of record refused to participate in the proceedings because of an
alleged legal issue. Such issue having been demonstrated herein as baseless, we apprehend
his refusal to participate in the trial as causative of or contributive to the delay in the disposition
of the case. And, finally, for as long as the substantial rights of herein petitioner and other
persons charged in court are not prejudiced, the scheduling of cases should be left to the sound
discretion of the trial court.

WHEREFORE, it being clearly apparent that respondent judge did not commit the errors
speciously attributed to him, the extraordinary writs prayed for are hereby DENIED and the
instant petition is DISMISSED for lack of merit.

SO ORDERED.
SUSAN FRONDA-BAGGAO, G.R. No. 151785
Petitioner,

Present:

PUNO, C.J., Chairperson,

*
YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

- versus - CORONA, and

AZCUNA, JJ.

Promulgated:

PEOPLE OF THE PHILIPPINES,

Respondent. December 10, 2007

x --------------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, assailing the Decision[1] dated August 29, 2001and Resolution dated January 15,
2002 of the Court of Appeals in CA-G.R. SP No. 58270.

The facts are:

Sometime in 1989, the Provincial Prosecutor of Abra filed with the Regional Trial Court, Branch 1,
Bangued, same province, four separate Informations for illegal recruitment against Susan Fronda-
Baggao, petitioner, and Lawrence Lee, docketed as Criminal Cases Nos. 744, 745, 746 and 749.

Petitioner eluded arrest for more than a decade; hence, the cases against her were archived. On July 25,
1999, petitioner was finally arrested.[2]

On July 26, 1999, the prosecutor filed with the trial court a motion to amend the Informations.
He prayed that the four separate Informations for illegal recruitment be amended so that there would
only be one Information for illegal recruitment in large scale. On the same day, the trial court denied the
motion for lack of merit.

On August 6, 1999, the prosecutor filed a motion for reconsideration. In its Order dated January 26,
2000, the trial court granted the motion and admitted the Information for Illegal Recruitment in Large
Scale, thus:

Accordingly, the Order dated July 26, 1999 denying the motion to amend
Information is hereby set aside and the Information for Illegal Recruitment in Large
Scale is hereby admitted in substitution of the other four Informations.

Moreover, considering that illegal recruitment when committed by a syndicate

or in a large scale shall be considered an offense involving economic sabotage, let this
case be forwarded to RTC, Branch 2, a Special Criminal Court.

SO ORDERED.

Petitioner filed a motion for reconsideration, but it was denied by the trial court in its Order
dated March 21, 2000.
 On April 11, 2000, petitioner filed with the Court of Appeals a petition for certiorari and
prohibition with prayer for the issuance of a preliminary injunction and/or temporary restraining order,
docketed as CA-G.R. SP No. 58270.

In its Decision dated August 29, 2001, the Court of Appeals denied the petition. Likewise, in its
Resolution dated January 15, 2002, petitioners motion for reconsideration was denied.

Hence, the present petition.

The issue for our resolution is whether the four Informations for illegal recruitment could be
amended and lumped into one Information for illegal recruitment in large scale.

Petitioner contends that (a) Section 14, Rule 110 of the Revised Rules on Criminal Procedure
refers to an amendment of one Information only, not four, which cannot be joined in only one
Information; and that (b) the amendment of the four Informations for illegal recruitment into a single
Information for a graver offense violates her substantial rights.

Respondent, on the other hand, prays that the petition be denied for lack of merit.

Section 14, Rule 110 of the Revised Rules on Criminal Procedure provides:

Section 14. Amendment or substitution. A complaint or information may be

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

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

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in accordance with
section 19, Rule 119, provided the accused would not be placed in double jeopardy. The
court may require the witnesses to give bail for their appearance at the trial. (Emphasis
ours)

Simply stated, before the accused enters his plea, a formal or substantial amendment of the
complaint or information may be made without leave of court. After the entry of a plea, only a formal
amendment may be made but with leave of court and only if it does not prejudice the rights of the
accused. After arraignment, a substantial amendment is proscribed except if the same is beneficial to
the accused.[3]

Following the above provisions and considering that petitioner has not yet entered her
plea, the four Informations could still be amended.

Petitioner also contends that the above Rule refers to an amendment of one Information only,
not four or multiple Informations which cannot be joined into only one Information.

We disagree.

A careful scrutiny of the above Rule shows that although it uses the singular
word complaint or information, it does not mean that two or more complaints or Informations cannot
be amended into only one Information. Surely, such could not have been intended by this Court.
Otherwise, there can be an absurd situation whereby two or more complaints or Informations could no
longer be amended into one or more Informations. On this point, Section 6, Rule 1 of the Revised Rules
of Court is relevant, thus:
 SEC. 6. Construction. - These Rules shall be liberally construed in order to
promote their objective of securing a just, speedy and inexpensive disposition of every
action and proceeding.

In fact, in Galvez v. Court of Appeals,[4] before the accused were arraigned, this Court allowed
the amendment of three original Informations for homicide and frustrated homicide into four
Informations for murder, frustrated murder and illegal possession of firearms.

Petitioner contends that the amendment of the four Informations for illegal recruitment into a
single Information for illegal recruitment in large scale violates her substantial rights as this would
deprive her of the right to bail which she already availed of. Such contention is misplaced. Obviously,
petitioner relies on Section 14 of the same Rule 110 which provides that after the plea and during the
trial, a formal amendment may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused. As stated earlier, petitioner has not yet been
arraigned. Hence, she cannot invoke the said provision.

WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 58270 are AFFIRMED. Costs against petitioner.

SO ORDERED.