RULE 120 – JUDGMENT
reconsideration.
G.R. No. 149588 September 29, 2009
FRANCISCO R. LLAMAS and CARMELITA C. LLAMAS, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS, BRANCH 66 OF THE REGIONAL
TRIAL COURT IN MAKATI CITY and THE PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
NACHURA, J.:
In this petition captioned as "Annulment of Judgment and Certiorari, with
Preliminary Injunction," petitioners assail, on the ground of lack of jurisdiction,
the trial court’s decision convicting them of "other form of swindling" penalized
by Article 316, paragraph 2, of the Revised Penal Code (RPC).
The antecedent facts and proceedings that led to the filing of the instant petition
are pertinently narrated as follows:
On August 16, 1984, petitioners were charged before the Regional Trial Court
(RTC) of Makati with, as aforesaid, the crime of "other forms of swindling" in the
Information,1 docketed as Criminal Case No. 11787, which reads:
That on or about the 20th day of November, 1978, in the municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding one another, well knowing that their
parcel of land known as Lot No. 11, Block No. 6 of the Subdivision Plan (LRC)
Psd 67036, Cadastral Survey of Parañaque, LRC Record No. N-26926, Case
No. 4869, situated at Barrio San Dionisio, Municipality of Parañaque, Metro
Manila, was mortgaged to the Rural Bank of Imus, did then and there willfully,
unlawfully and feloniously sell said property to one Conrado P. Avila, falsely
representing the same to be free from all liens and encumbrances whatsoever,
and said Conrado P. Avila bought the aforementioned property for the sum of
₱12,895.00 which was paid to the accused, to the damage and prejudice of said
Conrado P. Avila in the aforementioned amount of ₱12,895.00.
Contrary to law.2
After trial on the merits, the RTC rendered its Decision3 on June 30, 1994,
finding petitioners guilty beyond reasonable doubt of the crime charged and
sentencing them to suffer the penalty of imprisonment for two months and to
pay the fine of ₱18,085.00 each.
On appeal, the Court of Appeals, in its February 19, 1999 Decision4 in CA-G.R.
CR No. 18270, affirmed the decision of the trial court. In its December 22, 1999
Resolution,5 the appellate court further denied petitioners’ motion for
Assailing the aforesaid issuances of the appellate court, petitioners filed before
this Court, on February 11, 2000, their petition for review, docketed as G.R. No.
141208.6 The Court, however, on March 13, 2000, denied the same for
petitioners’ failure to state the material dates. Since it subsequently denied
petitioners’ motion for reconsideration on June 28, 2000,7 the judgment of
conviction became final and executory.
With the consequent issuance by the trial court of the April 19, 2001 Warrant of
Arrest,8 the police arrested, on April 27, 2001, petitioner Carmelita C. Llamas for
her to serve her 2-month jail term. The police, nevertheless, failed to arrest
petitioner Francisco R. Llamas because he was nowhere to be found.9
On July 16, 2001, petitioner Francisco moved for the lifting or recall of the
warrant of arrest, raising for the first time the issue that the trial court had no
jurisdiction over the offense charged.10
There being no action taken by the trial court on the said motion, petitioners
instituted, on September 13, 2001, the instant proceedings for the annulment of
the trial and the appellate courts’ decisions.
The Court initially dismissed on technical grounds the petition in the September
24, 2001 Resolution,11 but reinstated the same, on motion for reconsideration, in
the October 22, 2001 Resolution.12
After a thorough evaluation of petitioners’ arguments vis-à-vis the applicable law
and jurisprudence, the Court denies the petition.
In People v. Bitanga,13 the Court explained that the remedy of annulment of
judgment cannot be availed of in criminal cases, thus —
Section 1, Rule 47 of the Rules of Court, limits the scope of the remedy of
annulment of judgment to the following:
Section 1. Coverage. — This Rule shall govern the annulment by the Court of
Appeals of judgments or final orders and resolutions in civil actions of Regional
Trial Courts for which the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of
the petitioner.a1f
The remedy cannot be resorted to when the RTC judgment being questioned
was rendered in a criminal case. The 2000 Revised Rules of Criminal Procedure
itself does not permit such recourse, for it excluded Rule 47 from the
enumeration of the provisions of the 1997 Revised Rules of Civil Procedure
which have suppletory application to criminal cases. Section 18, Rule 124
thereof, provides:
Sec. 18. Application of certain rules in civil procedure to criminal cases. – The
provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court
of Appeals and in the Supreme Court in original and appealed civil cases shall
be applied to criminal cases insofar as they are applicable and not inconsistent
with the provisions of this Rule.
jurisdiction where the imposable fine does not exceed twenty thousand
pesos.
Article 316(2) of the RPC, the provision which penalizes the crime charged in
the information, provides that —

There is no basis in law or the rules, therefore, to extend the scope of Rule 47 to Article 316. Other forms of swindling.—The penalty of arresto mayor in its
criminal cases. As we explained in Macalalag v. Ombudsman, when there is no minimum and medium periods and a fine of not less than the value of the
law or rule providing for this remedy, recourse to it cannot be allowed x x x.14 damage caused and not more than three times such value, shall be imposed
upon:
Here, petitioners are invoking the remedy under Rule 47 to assail a decision in a
criminal case. Following Bitanga, this Court cannot allow such recourse, there xxxx
being no basis in law or in the rules. 2. Any person who, knowing that real property is encumbered, shall dispose of
In substance, the petition must likewise fail. The trial court which rendered the the same, although such encumbrance be not recorded.
assailed decision had jurisdiction over the criminal case. The penalty for the crime charged in this case is arresto mayor in its minimum
Jurisdiction being a matter of substantive law, the established rule is that the and medium periods, which has a duration of 1 month and 1 day to 4 months,
statute in force at the time of the commencement of the action determines the and a fine of not less than the value of the damage caused and not more than
15
jurisdiction of the court. In this case, at the time of the filing of the information, three times such value. Here, as alleged in the information, the value of the
16
the applicable law was Batas Pambansa Bilang 129, approved on August 14, damage caused, or the imposable fine, is ₱12,895.00. Clearly, from a reading of
1981, which pertinently provides: the information, the jurisdiction over the criminal case was with the RTC and not
the Metropolitan Trial Court (MeTC). The MeTC could not have acquired
Section 20. Jurisdiction in criminal cases. — Regional Trial Courts shall exercise jurisdiction over the criminal action because at the time of the filing of the
exclusive original jurisdiction in all criminal cases not within the exclusive information, its jurisdiction was limited to offenses punishable with a fine of not
jurisdiction of any court, tribunal or body, except those now falling under the more than ₱4,000.00.17
exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter
be exclusively taken cognizance of by the latter. WHEREFORE, premises considered, the petition is DENIED.

xxxx SO ORDERED.

Section 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in criminal cases. — Except in cases falling within
the exclusive original jurisdiction of Regional Trial Courts and of the
Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction; and
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment of not exceeding four years and two months, or a fine of
not more than four thousand pesos, or both such fine and
imprisonment, regardless of other imposable accessory or other
penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value, or amount
thereof: Provided, however, That in offenses involving damage to
property through criminal negligence they shall have exclusive original
G.R. No. 181084 June 16, 2009
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BARTOLOME TAMPUS1 and IDA MONTESCLAROS, Defendants.
IDA MONTESCLAROS, Appellant.
DECISION
PUNO, C.J.:
On appeal is the decision2 of the Court of Appeals, Visayas Station, dated
September 29, 2006 in CA-G.R. CR-HC No. 00215. The Court of Appeals
affirmed, with modification, the decision3 of the Regional Trial Court of Lapu-
lapu City in Criminal Case No. 013324-L, finding appellant Ida Montesclaros
(Ida) guilty as an accomplice in the commission of rape.
The present appeal stems from two criminal cases: (1) Criminal Case No.
013324-L charging Bartolome Tampus (Tampus) and Ida as conspirators in the
rape of ABC4 on April 1, 1995 at 4:30 p.m.; and (2) Criminal Case No. 013325-L
charging Tampus of raping ABC on April 4, 1995 at 1:00 a.m.
The Information5 in each case reads as follows:
CRIM. CASE NO. 013324-L6
That on the 1st day of April 1995, at about 4:30 o’clock [sic] in the afternoon, in
Looc, Lapulapu City, Philippines, within the jurisdiction of this Honorable Court,
accused Bartolome Tampus, taking advantage that [ABC] was in deep slumber
due to drunkenness, did then and there willfully, unlawfully and feloniously have
carnal knowledge with [sic] the latter, who was at that time thirteen (13) years
old, against her will, in conspiracy with the accused Ida Montesclaros who gave
permission to Bartolome Tampus to rape [ABC].
CONTRARY TO LAW.
CRIM. CASE NO. 013325-L7
That on the 3rd day of April, 1995,8 at about 1:00 o’clock [sic] dawn, in Looc,
Lapulapu City, Philippines, within the jurisdiction of this Honorable Court, the
above-named accused, armed with a wooden club (poras), by means of threat
and intimidation, did then and there willfully, unlawfully and feloniously have
carnal knowledge with [sic] [ABC], who was at that time thirteen (13) years old,
against her will.
CONTRARY TO LAW.
The offended party, ABC, is the daughter of appellant Ida, and was 13 years old
at the time of the incident. Ida worked as a waitress in Bayanihan Beer House in
Mabini, Cebu City. On February 19, 1995, Ida and ABC started to rent a room in
a house owned by Tampus, a barangay tanod. On April 1, 1995, about 4:30
p.m., ABC testified that she was in the house with Ida and Tampus9 who were
both drinking beer at that time. They forced her to drink beer10 and after
consuming three and one-half (3 ½) glasses of beer, she became intoxicated
and very sleepy.11While ABC was lying on the floor of their room, she overheard
Tampus requesting her mother, Ida, that he be allowed to "remedyo"12 or have
sexual intercourse with her.13 Appellant Ida agreed and instructed Tampus to
leave as soon as he finished having sexual intercourse with ABC. Ida then went
to work, leaving Tampus alone with ABC. ABC fell asleep and when she woke
up, she noticed that the garter of her panties was loose and rolled down to her
knees. She suffered pain in her head, thighs, buttocks, groin and vagina, and
noticed that her panties and short pants were stained with blood which was
coming from her vagina.14 When her mother arrived home from work the
following morning, she kept on crying but appellant Ida ignored her. 15
ABC testified that on April 4, 1995 around 1:00 a.m., she was left alone in the
room since her mother was at work at the beer house.16 Tampus went inside
their room and threatened to kill her if she would report the previous sexual
assault to anyone.17 He then forcibly removed her panties. ABC shouted but
Tampus covered her mouth and again threatened to kill her if she shouted.18 He
undressed himself, spread ABC’s legs, put saliva on his right hand and he
applied this to her vagina; he then inserted his penis into ABC’s vagina and
made a push and pull movement.19After consummating the sexual act, he left
the house. When ABC told appellant Ida about the incident, the latter again
ignored her.20
On May 4, 1995, after being maltreated by her mother, ABC sought the help of
her aunt, Nellie Montesclaros (Nellie). She told Nellie about the rape and that
her mother sold her.21 ABC, together with Nellie and Norma Andales, a traffic
enforcer, reported the incident of rape to the police. On May 9, 1995, Nestor A.
Sator , M.D. (Dr. Sator), head of the Medico-Legal Branch of the Philippine
National Crime Laboratory Services, Regional Unit 7, conducted a physical
examination of ABC and issued a Medico-Legal Report.22 Dr. Sator testified that
the result of his examination of ABC revealed a deep healed laceration at the
seven (7) o’clock position and a shallow healed laceration at the one (1) o’clock
position on ABC’s hymen.
On September 22, 1995, ABC filed two Complaints. She accused Tampus of
taking advantage of her by having carnal knowledge of her, against her will,
while she was intoxicated and sleeping on April 1, 1995 at 4:30 p.m. She
declared in her Complaint that this was done in conspiracy with accused Ida
who gave permission to Tampus to rape her. And again, she stated that on April
3, 1995, she was threatened with a wooden club by Tampus, who then
succeeded in having sexual intercourse with her, against her will.
Tampus denied raping ABC on April 1, 1995. He claimed that at 4:00 p.m. of
April 1, 1995, he left the house to go to the public market of Lapu-lapu City.
When he arrived home at 6:00 p.m., ABC and Ida were not there as they usually
go to the beer house at 4:00 p.m. or 5:00 p.m.23 He denied forcing ABC to drink
beer. He also denied asking Ida to allow him to have sexual intercourse with
ABC.24 Appellant Ida also testified that she and ABC left for the beer house at
4:00 p.m. of April 1, 1995 and they came back at 6:00 a.m. the following
day.25 She said that she always brought her daughter to the beer house with her
and there was never an instance when she left her daughter alone in the
house.26 She denied forcing ABC to drink beer at 4:30 p.m. of April 1, 1995, and
she denied giving permission to Tampus to have sexual intercourse with ABC. 27
Tampus also denied raping ABC on April 4, 1995. He testified that he arrived at
the Barangay Tanod Headquarters between 7:00 p.m. and 8:00 p.m. of April 3,
199528 and that his actual duty time shift was from midnight to 5:00 a.m. of April
4, 1995. Guillermo Berdin (Berdin), a defense witness, testified that on April 3,
1995, Tampus reported for duty at the police outpost at 8:00 p.m. and left at
5:00 a.m. of April 4, 1995, as reflected in the attendance logbook. However, on
cross-examination, Berdin could not tell whether the signature appearing on the
logbook really belonged to Tampus. It was noted by the trial court that the
handwriting used by Tampus in the logbook entry on April 2, 1995 is different
from his handwriting appearing on April 3, 1995.29 It was also revealed that the
house of Tampus is just 500 meters away or just a three-minute walk from the
barangay tanod outpost and that the barangay tanod on duty could leave the
outpost unnoticed or without permission.30
Agustos B. Costas, M.D.31 (Dr. Costas), the Head of the Department of
Psychiatry of the Vicente Sotto Memorial Medical Center, issued a Medical
Certification,32 which showed that appellant Ida was treated as an outpatient at
the Vicente Sotto Memorial Medical Center Psychiatry Department from
November 11, 1994 to January 12, 1995 and was provisionally diagnosed with
Schizophrenia, paranoid type.
The trial court convicted Tampus of two counts of rape, as principal in Criminal
Case No. 013324-L and Criminal Case No. 013325-L. Appellant Ida was found
guilty as an accomplice in Criminal Case No. 013324-L. The trial court
appreciated in Ida’s favor the mitigating circumstance of illness which would
diminish the exercise of will-power without depriving her of the consciousness of
her acts, pursuant to Article 13(9) of the Revised Penal Code.33 The dispositive
portion of the trial court’s decision states, viz.:
WHEREFORE, in the light of the foregoing considerations, the Court finds
accused Bartolome Tampus GUILTY BEYOND REASONABLE DOUBT of two
counts of rape, as principals [sic], in Criminal Case No. 013324-L and Criminal
Case No. 013325-L and he is hereby sentenced to suffer the penalty of
Reclusion Perpetua in each of the aforementioned cases.
The Court also finds accused Ida Montesclaros GUILTY BEYOND
REASONABLE DOUBT as an accomplice in Criminal Case No. 013324-L, and
she is hereby sentenced to suffer the penalty of twelve (12) years and one (1)
day to fourteen (14) years, and eight (8) months of Reclusion Temporal.
Both accused are hereby ordered, jointly and severally, to indemnify the
offended party, [ABC], the sum of P50,000.00 in Criminal Case No. 013324-L.
With costs against the accused.
SO ORDERED. 34
Pending resolution of the appeal before the Court of Appeals, accused Tampus
died on November 16, 200035 and his appeal was dismissed by the Third
Division of this Court.36 Thus, the appeal before the Court of Appeals dealt only
with that of appellant Ida. The appellate court gave credence to the testimony of
ABC and affirmed the trial court’s decision with modification. It appreciated the
mitigating circumstance of illness in favor of Ida, but found that Ida failed to
prove that she was completely deprived of intelligence on April 1, 1995. On the
basis of the medical report and the testimony of the attending physician, Ida’s
schizophrenia was determined by both the trial court and the Court of Appeals
to have diminished the exercise of her will-power though it did not deprive her of
the consciousness of her acts. The dispositive portion of the decision of the
Court of Appeals states:
WHEREFORE, the instant appeal is DISMISSED for lack of merit. The assailed
decision is AFFIRMED with MODIFICATION. Appellant Ida Montesclaros is
guilty beyond reasonable doubt as accomplice in the commission of rape and
hereby sentenced to suffer the indeterminate penalty of ten (10) years and one
(1) day of prision mayor as minimum, to twelve (12) years and one (1) day of
reclusion temporal as maximum. Further, she is ORDERED to pay moral
damages in the amount of fifty thousand pesos (Php 50,000.00) and exemplary
damages in the amount of twenty-five thousand pesos (Php 25,000.00).37
We find the findings of the lower courts to be well-taken.
The finding of guilt of Ida as an accomplice in the rape of ABC is dependent on
proving the guilt of the principal accused. Upon examination of the records of
the case, we agree with the ruling of the trial and appellate courts that the
testimony of ABC is clear and straightforward, and is sufficient to conclude that
Tampus is guilty beyond reasonable doubt as principal in the rape of ABC, in
Criminal Case No. 013324-L, as well as to convict appellant Ida as an
accomplice in the same criminal case.
The findings of the trial courts carry great weight and respect and, generally,
appellate courts will not overturn said findings unless the trial court overlooked,
misunderstood or misapplied some facts or circumstances of weight and
substance which will alter the assailed decision or affect the result of the
case.38 The rule finds an even more stringent application where the said findings
are sustained by the Court of Appeals.39
The trial court has carefully scrutinized the testimony of complainant ABC and bloodstained pants, the pain and blood in complainant’s vagina and the pain in
has given full faith and credence to her testimony. Both the trial and appellate her head, groin and buttocks; (5) The threat made by accused Tampus on the
courts found that the rape of ABC by Tampus on April 1, 1995 has been complainant in the dawn of April 4, 1995 that he would kill her if she would tell
established beyond reasonable doubt. Indeed, it is highly inconceivable for a about the previous incident on April 1, 1995; and (6) The second incident of
young girl to impute the crime of rape, implicate her own mother in such a vile rape that immediately ensued. These circumstances form a chain that points to
act, allow an examination of her private parts and subject herself to public trial if accused Bartolome Tampus as the person who had carnal knowledge of [ABC]
she has not been a victim of rape and was impelled to seek justice for the when she was asleep in an inebriated condition. 43
defilement of her person. Testimonies of child-victims are normally given full
credit.40 After establishing the guilt of Tampus as principal, the trial court then
determined the guilt of Ida. Although Ida was charged as a conspirator, the trial
Tampus was positively identified by ABC as the person who had carnal court found her liable as an accomplice. The trial court ruled that her act of
knowledge of her against her will on April 1, 1995. The denial of Tampus cannot forcing or intimidating ABC to drink beer and then acceding to the request of co-
prevail over the positive and direct identification by the victim, ABC. Although accused Tampus to be allowed to have sexual intercourse with ABC did not
ABC was asleep and unconscious at the time the sexual debasement was prove their conspiracy.44 Hence, it held that, "[u]ndoubtedly, Ida Montesclaros
committed by Tampus, circumstantial evidence established beyond doubt that it participated in the commission of the crime by previous acts but her
is Tampus who raped ABC. Circumstantial evidence is sufficient for conviction if: participation, not being indispensable, was not that of a principal. She is liable
(a) there is more than one circumstance; (b) the facts from which the inferences as an accomplice."45
are derived are proven; and (c) the combination of all the circumstances is such
as to produce a conviction beyond reasonable doubt.41 In cases like the one at In her appeal, appellant Ida argued that it is against human nature for a mother
bar, the Court takes into consideration the events that transpired before and to allow her daughter to be raped. She maintained that there was no instance
after the victim lost consciousness in order to establish the commission of the when she left ABC alone in the house. The Court of Appeals dismissed
act of coitus.42 appellant Ida’s appeal as it also gave credence to the testimony of ABC.

The trial court correctly determined, thus:
The prosecution has clearly established by its evidence that accused Bartolome
Tampus had carnal knowledge of [ABC] on April 1, 1995 under the
circumstance set forth in Article 335 (2) of the Revised Penal Code, as
amended; that is, when the woman is deprived of reason or otherwise
unconscious.
xxxx
In her appeal brief filed before this Court, Ida raises the following assignment of
errors:
I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED
BARTOLOME TAMPUS OF THE CRIMES OF RAPE DESPITE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.

The Court cannot accept accused Bartolome Tampus’ defense of denial and
alibi. His denial pales in effect against the positive evidence given by [ABC] that
he ravished her [on] two occasions.
xxxx
It is true that in the first incident on April 1, 1995, [ABC] did not see Tampus lie
down with her. What she saw was the aftermath of her deflowering upon waking
up. Nevertheless, the Court has taken note of the following circumstances: (1)
The drinking session where the complainant was forced to drink beer by both
accused; (2) The conversation between the two accused when accused
Tampus requested accused Ida Montesclaros, and was granted by the latter,
permission to have sexual intercourse with the complainant; (3) Accused
Tampus and the complainant were the only persons left in the house when Ida
Montesclaros went to work after acceding to the request of Tampus; (4) The
II
THE TRIAL COURT ERRED IN CONVICTING IDA MONTESCLAROS
AS ACCOMPLICE TO THE CRIME OF RAPE DESPITE FAILURE OF
THE PROSECUTION TO PROVE HER GUILT BEYOND
REASONABLE DOUBT.46
We affirm the trial and appellate courts in ruling that Ida is liable as an
accomplice in the rape of her daughter, ABC.
Accomplices are persons who, not being included in Article 17 of the Revised
Penal Code, cooperate in the execution of the offense by previous or
simultaneous acts.47 The following requisites must be proved in order that a
person can be considered an accomplice:
 (a) community of design, i.e., knowing that criminal design of the
principal by direct participation, he concurs with the latter in his purpose;
(b) he cooperates in the execution of the offense by previous or
simultaneous acts; and,
(c) there must be a relation between the acts done by the principal and
those attributed to the person charged as accomplice. 48
The testimony of ABC establishes that Ida cooperated in the execution of the
rape by Tampus when prior to the act of rape by Tampus, she forced ABC to
drink beer and she agreed to Tampus’ request for him to have sexual
intercourse with ABC. Ida’s acts show that she had knowledge of and even gave
her permission to the plan of Tampus to have sexual intercourse with her
daughter.1avvphi1
During the cross-examination by the defense counsel, Atty. Paulito Cabrera, of
witness ABC, she testified that:
Q Before this date, April 1, 1995, did you already usually drink beer?
A No, sir.
Q So, you are telling the Honorable Court that it was only on April 1,
1995 that you first drank beer?
A Yes, sir.
Q What did you say, you were forced to drink beer?
A Yes, sir.
Q Who forced you to drink beer in that afternoon of April 1, 1995?
A Bartolome Tampus and "Nanay", my mother.49
xxxx
Q By the way, your mother proposed to you to drink beer?
A Yes, sir.
Q Before you concede to her proposition, did you not complain that you
had not been used to drinking beer and then, why suddenly, she would
let you drink beer at that time?
A No, sir.
Q Did you not tell her that, "I am not used to drinking beer, so, I would
not drink beer"?
A Because the beer was mixed with Coke.
Q So, you mean that you also agreed to drink beer at that time?
A I just agreed to the proposal of my mother.
Q But you never voiced any complaint or any refusal to her at that time?
A No, sir because I was afraid that she might maltreat me.
Q At that time when she proposed to you to drink beer, was she already
threatening to maltreat you if you would not drink that beer?
A Not yet.
Q And how were you able to conclude that she might maltreat you if you in the rape of ABC. The testimony of ABC shows that there was community of
would not drink that beer that she proposed for you to drink?
A Because "Nanay" stared at me sharply and she had a wooden stick
prepared.
Q Are you sure that she was doing that while she was offering the glass
of beer to you?
A Yes, sir.50
xxxx
Q While you were drinking beer, your mother and Bartolome went out of
the house and you overheard Bartolome asking or proposing to your
mother that he would have sexual intercourse with you which you term
in the Visayan dialect "remedyo", Bartolome would want to have a
"remedyo" with you. When [sic], particular moment did you allegedly
hear this statement, while you were drinking beer or after you had
finished drinking beer?
A When I was already lying on the floor of the room we were renting.51
xxxx
Q And, of course, as you have stated now, it was you, you were quite
sure that it was you who was being referred by Bartolome Tampus
when he said to your mother in the Visayan dialect that "gusto siya
moremedyo nimo", he wants to have sexual intercourse with you?
A Yes, sir, but I don’t know the meaning of "remedyo".
Q At that time, you did not know the meaning of "remedyo"?
A Not yet, sir.52
xxxx
Q Was that the very first time that you ever heard of the word
"remedyo"?
A Yes, sir53
xxxx
Q And when your mother came back from work at about 7:00 o’clock
[sic] in the morning of April 2, 1995, did you not also bother to tell her of
what you suspected that something serious or bad had happened to
you in the previous day?
A Because she already knew, sir.
Q How did you know that she already knew?
A Because I heard her telling Omeng,54 "After you have sexual
intercourse with her, leave her immediately!"55
xxxx
Q Considering that you never knew what is the meaning of the word,
"remedyo", when your mother arrived in the morning of April 2, 1995,
did you not confront your mother, did you not tell her that, "Is this what
you mean by "remedyo", as what you had agreed with Bartolome
Tampus that he would do something to my genitals?
A No sir, because when she arrived, she kept on laughing.56
All the requisites concur in order to find Ida guilty as an accomplice to Tampus
design between Ida and Tampus to commit the rape of ABC. Ida had knowledge
of and assented to Tampus’ intention to have sexual intercourse with her
daughter. She forced ABC to drink beer, and when ABC was already drunk, she
left ABC alone with Tampus, with the knowledge and even with her express
consent to Tampus’ plan to have sexual intercourse with her daughter.
It is settled jurisprudence that the previous acts of cooperation by the
accomplice should not be indispensable to the commission of the crime;
otherwise, she would be liable as a principal by indispensable cooperation. The
evidence shows that the acts of cooperation by Ida are not indispensable to the
commission of rape by Tampus. First, because it was both Ida and Tampus who
forced ABC to drink beer, and second because Tampus already had the
intention to have sexual intercourse with ABC and he could have consummated
the act even without Ida’s consent.
The acts of Ida are closely related to the eventual commission of rape by
Tampus. They both forced ABC to drink beer; when ABC was already drunk,
Tampus asked Ida if he could have sexual intercourse with ABC and Ida gave
her consent; and lastly, Ida left ABC alone with Tampus so that he proceed with
his plan to rape ABC.
Circumstances affecting the liability of the Appellant as an Accomplice
We agree with both the trial and appellate courts in their appreciation of the
mitigating circumstance of illness as would diminish the exercise of willpower of
Ida without depriving her of the consciousness of her acts, pursuant to Article
13(9) of the Revised Penal Code.
Dr. Costas testified that Ida was provisionally treated for schizophrenia a few
months before the incident, from November 11, 1994 to January 12, 1995.
Based on his expert opinion, Ida was not totally deprived of intelligence at the
time of the incident; but, she may have poor judgment. On Direct Examination of
Dr. Costas by City Prosecutor Celso V. Espinosa, he testified as follows:
Q Doctor, taking into consideration your diagnosis, as you said, is
provisional, would you say that the patient [sic] totally deprived of
intelligence or reason?
A Not totally.
Q She will be conscious of her acts?
A She may be, that is possible, for certain cause.
Q And there will be loss of intelligence?
A There could be.
Q Now, Doctor, she is charged her [sic] as one of the principals in the
commission of the crime of rape for having given her daughter to be
sexually abused by her co-accused, allegedly convinced by her co-
accused on the first day of April, 1995. Now, if she was then under
treatment, Doctor, from November 11, 1994 to January 12, 1995, would
you say, Doctor, that having taken this diagnosis for [sic] schizophrenic
patient, at the time, after January 12, 1995, she must have acted with
discernment?
A It is possible because you are this kind of mental illness even with the
treatment, and even without any medication, it may be what we called
spontaneous, really it will get back.
Q At that time it will loss the intelligence? [sic]
A I think because it might be back, the treatment should be yearly.
Q Doctor, in your opinion, since our office is very much concern [sic] on
this, if a person is totally deprived of intelligence, he has still
discernment, she is unconscious of her act, she or he may be exempted
from any criminal liability, please tell, Doctor, in your personal opinion
for the purpose of this proceedings she may be acting with discernment
and with certain degree of intelligence?
A It is possible but I think of a mother feeding her own daughter to
somebody, I think there is a motive, she wants to gain financial or
material things from the daughter if no material gain, then perhaps it
was borne out of her illness. This is my opinion. 57
xxxx
Q Doctor, is this schizophrenic person can distinguish the right or
wrong? [sic]
A If they are in the [sic] state of illness, judgment is impaired to discern
between right or wrong.
Q In the case of this particular accused, what would you say at the state
of her ailment?
A When she was brought to the hospital, Your Honor, I think, although
the mother alleged that the sickness could be more than one year
duration, it is in acute stage because she was allegedly destroying
everything in the house according to the mother, so she was in acute
stage.58
On cross-examination by Atty. Paulito Cabrera, Dr. Costas testified
thus:
Q Would you say, Doctor, that that particular ailment of Ida
Montesclaros affected her sense of judgment?
A I think, so.
Q And that being scizophronic [sic] somehow, it has, while in that stage,
the patient lost contact with reality?
A Yes, that is possible.
Q In your opinion, Doctor, granting, for the sake of argument, the
alleged accusation against her is true, being an expert on scizophrania,
could you tell the Honorable Court as a mother, who would allegedly do
such an offense to her daughter, is it still in her sound mind or proper
mental sane [sic]?
A I think, as I said, one thing to be considered is the motivation if she
want [sic] to gain some material things, if not, it is because of her
judgment.
Q If she would not gain anything from allowing her daughter allegedly to
be rubbished by another person, then there must be something wrong?
A There must be something wrong and it came up from scizpphrania.
 A It is the judgment, in the case of the schizophrenic.59
We have previously held that Schizophrenia may be considered mitigating
under Art. 13(9) if it diminishes the exercise of the willpower of the accused. 60 In
this case, the testimony of Dr. Costas shows that even though Ida was
diagnosed with schizophrenia, she was not totally deprived of intelligence but
her judgment was affected. Thus, on the basis of the Medical Certification that
Ida suffered from and was treated for schizophrenia a few months prior to the
incident, and on the testimony of Dr. Costas, Ida’s schizophrenia could be
considered to have diminished the exercise of her willpower although it did not
deprive her of the consciousness of her acts.
We note that in the case at bar, the undisputed fact that Ida is the mother of
ABC—who was 13 years old at the time of the incident—could have been
considered as a special qualifying circumstance which would have increased
the imposable penalty to death, under Article 266-B of the Revised Penal Code,
viz.:
ARTICLE 266-B. Penalties. —
xxxx
The death penalty shall also be imposed if the crime of rape is committed with
any of the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim;
xxxx
Both the circumstances of the minority and the relationship of the offender to the
victim, either as the victim’s parent, ascendant, step-parent, guardian, relative
by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim, must be alleged in the information and
proved during the trial in order for them to serve as qualifying circumstances
under Article 266-B of the Revised Penal Code.61
In the case at bar, although the victim's minority was alleged and established,
her relationship with the accused as the latter's daughter was not properly
alleged in the Information, and even though this was proven during trial and not
refuted by the accused, it cannot be considered as a special qualifying
circumstance that would serve to increase the penalty of the offender. Under the
2000 Rules of Criminal Procedure, which should be given retroactive effect
following the rule that statutes governing court proceedings will be construed as
applicable to actions pending and undetermined at the time of their
passage,62 every Information must state the qualifying and the aggravating
circumstances attending the commission of the crime for them to be considered
in the imposition of the penalty.63Since in the case at bar, the Information in
Criminal Case No. 013324-L did not state that Ida is the mother of ABC, this
circumstance could not be appreciated as a special qualifying circumstance. Ida
may only be convicted as an accomplice in the crime of simple rape, which is
punishable by reclusion perpetua. In any event, Republic Act No. 9346, entitled
an "An Act Prohibiting the Imposition of Death Penalty in the Philippines," which
was signed into law on June 24, 2006 prohibits the imposition of the death
penalty.
Civil indemnity imposed against the appellant
The dispositive portion of the trial court's decision ordered Tampus and Ida
"jointly and severally, to indemnify the offended party, [ABC], the sum of
P50,000.00 in Criminal Case No. 013324-L."64 The Court of Appeals, however,
did not award any civil indemnity to ABC, and only awarded moral and
exemplary damages. We deem it necessary and proper to award ABC civil
indemnity of P50,000.00. Civil indemnity ex delicto is mandatory upon finding of
the fact of rape. This is distinct from moral damages awarded upon such finding
without need of further proof, because it is assumed that a rape victim has
actually suffered moral injuries entitling the victim to such award.65
Consistent with prevailing jurisprudence, the victim in simple rape cases is
entitled to an award of P50,000.00 as civil indemnity ex delicto and another
P50,000.00 as moral damages. 66 However, Tampus’ civil indemnity ex delicto
has been extinguished by reason of his death before the final judgment, in
accordance with Article 89 of the Revised Penal Code. 67 Thus, the amount of
civil indemnity which remains for accomplice Ida to pay is put at issue.
It becomes relevant to determine the particular amount for which each accused
is liable when they have different degrees of responsibility in the commission of
the crime and, consequently, differing degrees of liability. When a crime is
committed by many, each one has a distinct part in the commission of the crime
and though all the persons who took part in the commission of the crime are
liable, the liability is not equally shared among them. Hence, an accused may be
liable either as principal, accomplice or accessory.
The particular liability that each accused is responsible for depends on the
nature and degree of his participation in the commission of the crime. The
penalty prescribed by the Revised Penal Code for a particular crime is imposed
upon the principal in a consummated felony.68 The accomplice is only given the
penalty next lower in degree than that prescribed by the law for the crime
committed69 and an accessory is given the penalty lower by two
degrees.70However, a felon is not only criminally liable, he is likewise civilly
liable. 71 Apart from the penalty of imprisonment imposed on him, he is also
ordered to indemnify the victim and to make whole the damage caused by his
act or omission through the payment of civil indemnity and damages.
Civil liability arising from the crime is shared by all the accused. Although, unlike
criminal liability—in which the Revised Penal Code specifically states the
corresponding penalty imposed on the principal, accomplice and accessory—
the share of each accused in the civil liability is not specified in the Revised
Penal Code. The courts have the discretion to determine the apportionment of
the civil indemnity which the principal, accomplice and accessory are
respectively liable for, without guidelines with respect to the basis of the
allotment.
Article 109 of the Revised Penal Code provides that "[i]f there are two or more
persons civilly liable for a felony, the courts shall determine the amount for
which each must respond." Notwithstanding the determination of the respective
liability of the principals, accomplices and accessories within their respective
class, they shall also be subsidiarily liable for the amount of civil liability
adjudged in the other classes. Article 110 of the Revised Penal Code provides
that "[t]he principals, accomplices, and accessories, each within their respective
class, shall be liable severally (in solidum) among themselves for their quotas,
and subsidiarily for those of the other persons liable."72
As courts are given a free hand in determining the apportionment of civil liability,
previous decisions dealing with this matter have been grossly inconsistent.
In People v. Galapin,73 People v. Continente,74 United States v.
Lasada,75 People v. Mobe,76 People v. Irinea,77People v. Rillorta,78 People v.
Cagalingan,79 People v. Villanueva,80 People v. Magno,81 People v. del
Rosario,82People v. Yrat,83 People v. Saul,84 and People v. Tamayo,85 the
principal and accomplice were ordered to pay jointly and severally the entire
amount of the civil indemnity awarded to the victim. In People v. Sotto, 86 the
accomplice was ordered to pay half of the amount of civil indemnity imposed by
the trial court, while the principal was liable for the other half. In People v.
Toring,87 the principal, accomplice and the accessory were made jointly and
severally liable for the entire amount of the civil indemnity.
In the cases mentioned above, the principal and accomplice were made to pay
equal shares of the civil indemnity. This makes the accomplice who had less
participation in the commission of the crime equally liable with the principal for
the civil indemnity. The degree of their participation in the crime was not taken
into account in the apportionment of the amount of the civil indemnity. This is
contrary to the principle behind the treble division of persons criminally
responsible for felonies, i.e., that the liability must be commensurate with the
degree of participation of the accused in the crime committed. In such a
situation, the accomplice who just cooperated in the execution of the offense but
whose participation is not indispensable to the commission of the crime is made
to pay the same amount of civil indemnity as the principal by direct participation
who took a direct part in the execution of the criminal act. It is an injustice when
the penalty and liability imposed are not commensurate to the actual
responsibility of the offender; for criminal responsibility is individual and not
collective, and each of the participants should be liable only for the acts actually
committed by him.88 The proportion of this individual liability must be graduated
not only according to the nature of the crime committed and the circumstances
attending it, but also the degree and nature of participation of the individual
offender.
In Garces v. People,89 People v. Flores,90 People v. Barbosa,91 People v.
Ragundiaz,92 People v. Bato,93 and People v. Garalde,94 the accomplice was
held to be solidarily liable with the principal for only one-half (1/2) of the amount
adjudged as civil indemnity. In Garces, the accomplice was held solidarily liable
for half of the civil indemnity ex delicto but was made to pay the moral damages
of P50,000.00 separately from the principal. In Flores, Ragundiaz, Bato, and
Garalde, the accomplice was held solidarily liable for half of the combined
amounts of the civil indemnity ex delicto and moral damages. In Ragundiaz, the
accomplice was also made solidarily liable with the principal for half of the actual
damages, and in Garalde the accomplice was also held solidarily liable with the
principal for half of the exemplary damages, aside from the civil and moral
damages.
In these cases, the accomplice was made jointly and severally liable with the
principal for only half of the amount of the civil indemnity and moral damages,
only for purposes of the enforcement of the payment of civil indemnity to the
offended party. When the liability in solidum has been enforced, as when
payment has been made, the person by whom payment has been made shall
have a right of action against the other persons liable for the amount of their
respective shares.95 As against each other, whoever made the payment may
claim from his co-debtors only the share that corresponds to each, with interest
for the payment already made.96 In these cases, therefore, payment is made by
either the principal or the accomplice, the one who made the payment to the
victim could demand payment of the part of the debt corresponding to his co-
debtor. If for example the principal paid the victim the entire amount of the civil
indemnity, he could go against the accomplice for one-fourth (1/4) of the total
amount of civil indemnity and damages. The principal was primarily liable for
only one-half (1/2) of the total amount of civil indemnity and he was solidarily
liable with the accomplice for the other half. Since the principal paid for the half
which the accomplice is solidarily liable with, he could claim one-half (1/2) of
that amount from the accomplice. Thus, the principal would have become
ultimately liable for three-fourths (3/4) of the total amount of the civil indemnity
and damages, while the accomplice would have become liable for one-fourth
(1/4) of such amount.
In People v. Cortes,97 People v. Budol,98 People v. Nulla,99 and People v.
Madali,100 the principal was ordered to pay twice the share of the accomplice in
the civil indemnity. In Nulla, the Court determined the respective amounts for
which the principal, accomplice and accessory were liable for. The principal was
ordered to pay P20,000.00, the accomplice was ordered to pay P10,000.00, and
the accessory was ordered to pay P2,000.00. Unlike the cases cited above
where the principal and accomplice were held solidarily liable for the entire
amount of the civil indemnity or half of it, in Nulla, the court particularly
determined the amount for which each shall respond. This is consistent with
Article 109 and Article 110 of the Revised Penal Code, which require that the
courts should determine the amount for which the principals, accomplices and
accessories must respond to and upon specifying this amount, the principals are
solidarily liable within their class for their quota, the accomplices are solidarily
liable among themselves for their quota and the accessories are solidarily liable
for their quota. If any one of the classes is unable to pay for its respective quota,
it becomes subsidiarily liable for the quota of the other classes, which shall be
enforced first against the property of the principals; next, against that of the
accomplices; and lastly, against that of the accessories.101
There are also cases where the principal was ordered to pay more than double
the amount that the accomplice is liable for. In Lumiguis v. People,102 the civil
liability of P6,000.00 was apportioned as follows: the sole principal was primarily
liable for P3,000.00, the four accomplices were primarily liable in solidum
among themselves for the other half of the indemnity, or P3,000.00. Thus, each
accomplice was answerable for one-fourth (1/4) of P3,000.00 or one-eighth (1/8)
of the entire amount of civil indemnity, which is P750.00.
Similarly in People v. Bantagan,103 the principal was required to indemnify the
heirs of the deceased in the amount of P500.00. In case of his insolvency, his
three accomplices should be jointly and severally liable. The three accomplices
were jointly and severally liable for the other P500 and in case of their
insolvency the principal was secondarily liable for such amount.
In People v. Castillo,104 the accomplice was ordered to pay one-fourth (1/4) of
the amount of the civil indemnity, while the principal was liable for the remaining
three-fourths (3/4).
In People v. Cariaga,105 the total amount of indemnity and damages due to the
heirs of the victim amounted to P601,000.00. The sole accomplice was ordered
to pay P101,000.00 which is roughly one-sixth (1/6) of the entire civil indemnity,
while the two principals were ordered to pay the rest of the indemnity and
damages amounting to P500,000.00.
The cases cited above demonstrate the ad hoc method by which the ratio of
shares of the civil indemnity and damages among the principal, accomplice and
accessory is determined. Though the responsibility to decide the respective
shares of persons liable for a felony is left to the courts, this does not mean that
this amount can be decided arbitrarily or upon conjecture. The power of the
courts to grant indemnity and damages demands factual, legal and equitable
justification, and cannot be left to speculation and caprice.
The entire amount of the civil indemnity, together with the moral and actual
damages, should be apportioned among the persons who cooperated in the
commission of the crime according to the degree of their liability, respective
responsibilities and actual participation in the criminal act. Salvador Viada, an
authority in criminal law, is of the opinion that there are no fixed rules which are
applicable in all cases in order to determine the apportionment of civil liability
among two or more persons civilly liable for a felony, either because there are
different degrees of culpability of offenders, or because of the inequality of their
financial capabilities.106 On this note, he states in his commentaries on the 1870
Penal Code of Spain that the law should leave the determination of the amount
of respective liabilities to the discretion of the courts. 107 The courts have the
competence to determine the exact participation of the principal, accomplice,
and accessory in the commission of the crime relative to the other classes
because they are able to directly consider the evidence presented and the
unique opportunity to observe the witnesses.
We must stress, however, that the courts’ discretion should not be untrammelled
and must be guided by the principle behind differing liabilities for persons with
varying roles in the commission of the crime. The person with greater
participation in the commission of the crime should have a greater share in the
civil liability than those who played a minor role in the crime or those who had
no participation in the crime but merely profited from its effects. Each principal
should shoulder a greater share in the total amount of indemnity and damages
than every accomplice, and each accomplice should also be liable for a greater
amount as against every accessory. Care should also be taken in considering
the number of principals versus that of accomplices and accessories. If for
instance, there are four principals and only one accomplice and the total of the
civil indemnity and damages is P6,000.00, the court cannot assign two-thirds
(2/3) of the indemnity and damages to the principals and one-third (1/3) to the
accomplice. Even though the principals, as a class, have a greater share in the
liability as against the accomplice-- since one-third (1/3) of P6,000.00 is
P2,000.00, while two-thirds (2/3) of P6,000.00 is P4,000.00-- when the civil
liability of every person is computed, the share of the accomplice ends up to be
greater than that of each principal. This is so because the two-thirds (2/3) share
of the principals—or P4,000.00—is still divided among all the four principals,
and thus every principal is liable for only P1,000.00.
In the case at bar, the trial court ruled that the accomplice is solidarily liable with
the principal for the entire amount of the civil indemnity of P50,000.00. This is an
erroneous apportionment of the civil indemnity. First, because it does not take
into account the difference in the nature and degree of participation between the
principal, Tampus, versus the accomplice, Ida. Ida’s previous acts of
cooperation include her acts of forcing ABC to drink beer and permitting
Tampus to have sexual intercourse with her daughter. But even without these
acts, Tampus could have still raped ABC. It was Tampus, the principal by direct
participation, who should have the greater liability, not only in terms of criminal
liability, but also with respect to civil liability. Second, Article 110 of the Revised
Penal Code states that the apportionment should provide for a quota amount for
every class for which members of such class are solidarily liable within their
respective class, and they are only subsidiarily liable for the share of the other
classes. The Revised Penal Code does not provide for solidary liability among proved during the trial in order to be appreciated as an aggravating/qualifying
the different classes, as was held by the trial court in the case at bar.lavvphi1 circumstance.113 While the information in the instant case alleged that ABC was
a minor during the incident, there was no allegation that Ida was her parent.
Thus, taking into consideration the difference in participation of the principal and Since the relationship between ABC and appellant was not duly established, the
accomplice, the principal, Tampus, should be liable for two-thirds (2/3) of the award of exemplary damages is not warranted.
total amount of the civil indemnity and moral damages and appellant Ida should
be ordered to pay one-third (1/3) of the amount. Civil indemnity for simple rape IN VIEW WHEREOF, the Decision of the Court of Appeals, Visayas Station,
was correctly set at P50,000.00 and moral damages at P50,000.00. The total dated September 29, 2006, in CA-G.R. CR-HC No. 00215, finding appellant Ida
amount of damages to be divided between Tampus and Ida is P100,000.00, Montesclaros guilty beyond reasonable doubt as accomplice in the crime of
where Tampus is liable for P66,666.67 (which is two-thirds [2/3] of P100,000.00) rape and sentencing her to suffer the indeterminate penalty of ten (10) years
and Ida is liable for P33,333.33 (which is one-third [1/3] of P100,000.00). This is and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1)
broken down into civil indemnity of P16,666.67 and moral damages of day of reclusion temporal, as maximum, is AFFIRMED with MODIFICATION.
P16,666.67. However, since the principal, Tampus, died while the case was Appellant Ida Montesclaros is ORDERED to pay civil indemnity in the amount of
pending in the Court of Appeals, his liability for civil indemnity ex delicto is sixteen thousand, six hundred sixty-six pesos and sixty-seven centavos
extinguished by reason of his death before the final judgment.108 His share in (P16,666.67), and moral damages in the amount of sixteen thousand, six
the civil indemnity and damages cannot be passed over to the accomplice, Ida, hundred sixty-six pesos and sixty-seven centavos (P16,666.67). The award of
because Tampus’ share of the civil liability has been extinguished. And even if exemplary damages is DELETED.
Tampus were alive upon the promulgation of this decision, Ida would only have
been subsidiarily liable for his share of the civil indemnity of P66,666.67. SO ORDERED.
However, since Tampus’ civil liability ex delicto is extinguished, Ida’s subsidiary
liability with respect to this amount is also eliminated, following the principle that
the accessory follows the principal. Tampus’ obligation to pay P66,666.67 — his
quota of the civil indemnity — is the principal obligation, for which Ida is only
subsidiarily liable. Upon the extinguishment of the principal obligation, there is
no longer any accessory obligation which could attach to it; thus, the subsidiary
liability of Ida is also extinguished.
On the matter of exemplary damages, we find that exemplary damages were
incorrectly awarded by the Court of Appeals.
In criminal cases, exemplary damages are imposed on the offender as part of
the civil liability when the crime was committed with one or more aggravating
circumstances.109 Also known as "punitive" or "vindictive" damages, exemplary
or corrective damages are intended to serve as a deterrent to serious
wrongdoings, and as a vindication of undue sufferings and wanton invasion of
the rights of an injured or a punishment for those guilty of outrageous
conduct.110 Exemplary damages may be awarded only when one or more
aggravating circumstances are alleged in the information and proved during the
trial.111
In the case at bar, no qualifying or aggravating circumstance was appreciated
against Ida. Although, the minority of the victim coupled with the fact that the
offender is the parent of the victim could have served to qualify the crime of
rape, the presence of these concurring circumstances cannot justify the award
of exemplary damages since the relationship of the offender, Ida, to the victim,
ABC, was not alleged in the Information.112 The minority of the rape victim and
her relationship with the offender must both be alleged in the information and
G.R. Nos. 174813-15 March 17, 2009
NILO HIPOS, SR. REPRESENTING DARRYL HIPOS, BENJAMIN CORSIÑO
REPRESENTING JAYCEE CORSIÑO, and ERLINDA VILLARUEL
REPRESENTING ARTHUR VILLARUEL, Petitioners,
vs.
HONORABLE RTC JUDGE TEODORO A. BAY, Presiding Judge, RTC, Hall
of Justice, Quezon City, Branch 86, Respondent.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Mandamus under Rule 65 of the Rules of Court seeking a
reversal of the Order dated 2 October 2006 of respondent Judge Teodoro A.
Bay of Branch 86 of the Regional Trial Court (RTC) of Quezon City, which
denied the Motion to Withdraw Informations of the Office of the City Prosecutor
of Quezon City.
The facts of the case are as follows.
On 15 December 2003, two Informations for the crime of rape and one
Information for the crime of acts of lasciviousness were filed against petitioners
Darryl Hipos, Jaycee Corsiño, Arthur Villaruel and two others before Branch 86
of the Regional Trial Court of Quezon City, acting as a Family Court, presided
by respondent Judge Bay. The cases were docketed as Criminal Cases No. Q-
03-123284, No. Q-03-123285 and No. Q-03-123286. The Informations were
signed by Assistant City Prosecutor Ronald C. Torralba.
On 23 February 2004, private complainants AAA1 and BBB filed a Motion for
Reinvestigation asking Judge Bay to order the City Prosecutor of Quezon City to
study if the proper Informations had been filed against petitioners and their co-
accused. Judge Bay granted the Motion and ordered a reinvestigation of the
cases.
On 19 May 2004, petitioners filed their Joint Memorandum to Dismiss the
Case[s] before the City Prosecutor. They claimed that there was no probable
cause to hold them liable for the crimes charged.
On 10 August 2004, the Office of the City Prosecutor issued a Resolution on the
reinvestigation affirming the Informations filed against petitioners and their co-
accused in Criminal Cases No. Q-03-123284-86. The Resolution was signed by
Assistant City Prosecutor Raniel S. Cruz and approved by City Prosecutor Claro
A. Arellano.
On 3 March 2006, 2nd Assistant City Prosecutor Lamberto C. de Vera, treating
the Joint Memorandum to Dismiss the Case as an appeal of the 10 August 2004
Resolution, reversed the Resolution dated 10 August 2004, holding that there
was lack of probable cause. On the same date, the City Prosecutor filed a
Motion to Withdraw Informations before Judge Bay.
On 2 October 2006, Judge Bay denied the Motion to Withdraw Informations in
an Order of even date.
Without moving for a reconsideration of the above assailed Order, petitioners
filed the present Petition for Mandamus, bringing forth this lone issue for our
consideration:
CAN THE HON. SUPREME COURT COMPEL RESPONDENT JUDGE BAY
TO DISMISS THE CASE THROUGH A WRIT OF MANDAMUS BY VIRTUE OF
THE RESOLUTION OF THE OFFICE OF THE CITY PROSECUTOR OF
QUEZON CITY FINDING NO PROBABLE CAUSE AGAINST THE ACCUSED
AND SUBSEQUENTLY FILING A MOTION TO WITHDRAW INFORMATION?2
Mandamus is an extraordinary writ commanding a tribunal, corporation, board,
officer or person, immediately or at some other specified time, to do the act
required to be done, when the respondent unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station; or when the respondent excludes another from the use and
enjoyment of a right or office to which the latter is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of law. 3
As an extraordinary writ, the remedy of mandamus lies only to compel an officer
to perform a ministerial duty, not a discretionary one; mandamus will not issue
to control the exercise of discretion by a public officer where the law imposes
upon him the duty to exercise his judgment in reference to any manner in which
he is required to act, because it is his judgment that is to be exercised and not
that of the court.4
In the case at bar, the act which petitioners pray that we compel the trial court to
do is to grant the Office of the City Prosecutor’s Motion for Withdrawal of
Informations against petitioners. In effect, petitioners seek to curb Judge Bay’s
exercise of judicial discretion.
There is indeed an exception to the rule that matters involving judgment and
discretion are beyond the reach of a writ of mandamus, for such writ may be
issued to compel action in those matters, when refused.5 However, mandamus
is never available to direct the exercise of judgment or discretion in a particular
way or the retraction or reversal of an action already taken in the exercise of
either.6 In other words, while a judge refusing to act on a Motion to Withdraw
Informations can be compelled by mandamus to act on the same, he cannot be
compelled to act in a certain way, i.e., to grant or deny such Motion. In the case
at bar, Judge Bay did not refuse to act on the Motion to Withdraw Informations;
he had already acted on it by denying the same. Accordingly, mandamus is not
available anymore. If petitioners believed that Judge Bay committed grave
abuse of discretion in the issuance of such Order denying the Motion to
Withdraw Informations, the proper remedy of petitioners should have been to file
a Petition for Certiorari against the assailed Order of Judge Bay.
Petitioners counter that the above conclusion, which has been argued by the
Solicitor General, is contrary to a ruling of this Court, which allegedly states that
the proper remedy in such cases is a Petition for Mandamus and not Certiorari.
Petitioners cite the following excerpt from our ruling in Sanchez v. Demetriou7:
The appreciation of the evidence involves the use of discretion on the part of the
prosecutor, and we do not find in the case at bar a clear showing by the
petitioner of a grave abuse of such discretion.
The decision of the prosecutor may be reversed or modified by the Secretary of
Justice or in special cases by the President of the Philippines. But even this
Court cannot order the prosecution of a person against whom the prosecutor
does not find sufficient evidence to support at least a prima facie case. The
courts try and absolve or convict the accused but as a rule have no part in the
initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of grave
abuse of discretion that will justify a judicial intrusion into the precincts of the
executive. But in such a case the proper remedy to call for such exception is a
petition for mandamus, not certiorari or prohibition.8 (Emphases supplied.)
Petitioners have taken the above passage way out of its context. In the case of
Sanchez, Calauan Mayor Antonio Sanchez brought a Petition for Certiorari
before this Court, challenging the order of the respondent Judge therein denying
his motion to quash the Information filed against him and six other persons for
alleged rape and homicide. One of the arguments of Mayor Sanchez was that
there was discrimination against him because of the non-inclusion of two other
persons in the Information. We held that even this Court cannot order the
prosecution of a person against whom the prosecutor does not find sufficient
evidence to support at least a prima facie case. However, if there was an
unmistakable showing of grave abuse of discretion on the part of the
prosecutors in that case, Mayor Sanchez should have filed a Petition for
Mandamus to compel the filing of charges against said two other persons.
In the case at bar, the Petition for Mandamus is directed not against the
prosecution, but against the trial court, seeking to compel the trial court to grant
the Motion to Withdraw Informations by the City Prosecutor’s Office. The
prosecution has already filed a case against petitioners. Recently, in Santos v.
Orda, Jr.,9 we reiterated the doctrine we established in the leading case of
Crespo v. Mogul,10 that once a criminal complaint or an information is filed in
court, any disposition or dismissal of the case or acquittal or conviction of the
accused rests within the jurisdiction, competence, and discretion of the trial
court. Thus, we held:
In Crespo v. Mogul, the Court held that once a criminal complaint or information
is filed in court, any disposition of the case or dismissal or acquittal or conviction
of the accused rests within the exclusive jurisdiction, competence, and
discretion of the trial court. The trial court is the best and sole judge on what to
do with the case before it. A motion to dismiss the case filed by the public
prosecutor should be addressed to the court who has the option to grant or deny
the same. Contrary to the contention of the petitioner, the rule applies to a
motion to withdraw the Information or to dismiss the case even before or after
arraignment of the accused. The only qualification is that the action of the court
must not impair the substantial rights of the accused or the right of the People or
the private complainant to due process of law. When the trial court grants a
motion of the public prosecutor to dismiss the case, or to quash the Information,
or to withdraw the Information in compliance with the directive of the Secretary
of Justice, or to deny the said motion, it does so not out of subservience to or
defiance of the directive of the Secretary of Justice but in sound exercise of its
judicial prerogative.
Petitioners also claim that since Judge Bay granted a Motion for
Reinvestigation, he should have "deferred to the Resolution of Asst. City
Prosecutor De Vera withdrawing the case."11 Petitioners cite the following
portion of our Decision in People v. Montesa, Jr.12:
In the instant case, the respondent Judge granted the motion for reinvestigation
and directed the Office of the Provincial Prosecutor of Bulacan to conduct the
reinvestigation. The former was, therefore, deemed to have deferred to the
authority of the prosecution arm of the Government to consider the so-called
new relevant and material evidence and determine whether the information it
had filed should stand.13
Like what was done to our ruling in Sanchez, petitioners took specific
statements from our Decision, carefully cutting off the portions which would
expose the real import of our pronouncements. The Petition for Certiorari in
Montesa, Jr. was directed against a judge who, after granting the Petition for
Reinvestigation filed by the accused, proceeded nonetheless to arraign the
accused; and, shortly thereafter, the judge decided to dismiss the case on the
basis of a Resolution of the Assistant Provincial Prosecutor recommending the
dismissal of the case. The dismissal of the case in Montesa, Jr. was done
despite the disapproval of the Assistant Provincial Prosecutor’s Resolution by
the Provincial Prosecutor (annotated in the same Resolution), and despite the
fact that the reinvestigation the latter ordered was still ongoing, since the
Resolution of the Assistant Provincial Prosecutor had not yet attained finality.
We held that the judge should have waited for the conclusion of the Petition for
Reinvestigation he ordered, before acting on whether or not the case should be
dismissed for lack of probable cause, and before proceeding with the
arraignment. Thus, the continuation of the above paragraph of our Decision in
Montesa, Jr. reads:
Having done so, it behooved the respondent Judge to wait for a final resolution
of the incident. In Marcelo vs. Court of Appeals, this Court ruled:
Accordingly, we rule that the trial court in a criminal case which takes
cognizance of an accused's motion for review of the resolution of the
investigating prosecutor or for reinvestigation and defers the arraignment until
resolution of the said motion must act on the resolution reversing the
investigating prosecutor's finding or on a motion to dismiss based thereon only
upon proof that such resolution is already final in that no appeal was taken
thereon to the Department of Justice.
The resolution of Assistant Provincial Prosecutor Rutor recommending the
dismissal of the case never became final, for it was not approved by the
Provincial Prosecutor. On the contrary, the latter disapproved it. As a
consequence, the final resolution with respect to the reinvestigation is that of the
Provincial Prosecutor, for under Section 4, Rule 112 of the Rules of Court, no
complaint or information may be filed or dismissed by an investigating fiscal
without the prior written authority or approval of the provincial or city fiscal or
chief state prosecutor. Also, under Section l(d) of R.A. No. 5180, as amended
by P.D. No. 77 and P.D. No. 911.14
As can be clearly seen, the statement quoted by petitioners from Montesa, Jr. is
not meant to establish a doctrine that the judge should just follow the
determination by the prosecutor of whether or not there is probable cause. On
the contrary, Montesa, Jr. states:
The rule is settled that once a criminal complaint or information is filed in court,
any disposition thereof, such as its dismissal or the conviction or acquittal of the
accused, rests in the sound discretion of the court. While the prosecutor retains
the discretion and control of the prosecution of the case, he cannot impose his
opinion on the court. The court is the best and sole judge on what to do with the
case. Accordingly, a motion to dismiss the case filed by the prosecutor before or
after the arraignment, or after a reinvestigation, or upon instructions of the
Secretary of Justice who reviewed the records upon reinvestigation, should be
addressed to the discretion of the court. The action of the court must not,
however, impair the substantial rights of the accused or the right of the People
to due process of law.15
In a seemingly desperate attempt on the part of petitioners’ counsel, he tries to
convince us that a judge is allowed to deny a Motion to Withdraw Informations
from the prosecution only when there is grave abuse of discretion on the part of
the prosecutors moving for such withdrawal; and that, where there is no grave
abuse of discretion on the part of the prosecutors, the denial of the Motion to
Withdraw Informations is void. Petitioners’ counsel states in the Memorandum:
6.10. Furthermore, the ORDER dated October 2, 2006 of the Respondent Judge
BAY consisting of 9 pages which was attached to the URGENT PETITION did
not point out any iota of grave abuse of discretion committed by Asst. City
Prosecutor De Vera in issuing his Resolution in favor of the sons of the
Petitioners. Hence, the ORDER issued by RJBAY is NULL and VOID in view of
the recent ruling of the Hon. Supreme Court in Ledesma vs. Court of Appeals,
G.R. No. 113216, September 5, 1997, 86 SCAD 695, 278 SCRA 657 which
states that:
"In the absence of a finding of grave abuse of discretion, the court’s bare denial
of a motion to withdraw information pursuant to the Secretary’s resolution is
void." (Underscoring ours).
6.11. It is therefore respectfully submitted that the Hon. Supreme Court
disregard the argument of the OSG because of its falsity.16
This statement of petitioners’ counsel is utterly misleading. There is no such
statement in our Decision in Ledesma.17 The excerpt from Ledesma, which
appears to have a resemblance to the statement allegedly quoted from said
case, provides:
No Grave Abuse of Discretion in the Resolution of the Secretary of Justice
In the light of recent holdings in Marcelo and Martinez; and considering that the
issue of the correctness of the justice secretary's resolution has been amply
threshed out in petitioner's letter, the information, the resolution of the secretary
of justice, the motion to dismiss, and even the exhaustive discussion in the
motion for reconsideration - all of which were submitted to the court - the trial
judge committed grave abuse of discretion when it denied the motion to
withdraw the information, based solely on his bare and ambiguous reliance on
Crespo. The trial court's order is inconsistent with our repetitive calls for an
independent and competent assessment of the issue(s) presented in the motion
to dismiss. The trial judge was tasked to evaluate the secretary's
recommendation finding the absence of probable cause to hold petitioner
criminally liable for libel. He failed to do so. He merely ruled to proceed with the
trial without stating his reasons for disregarding the secretary's
recommendation.18 (Emphasis supplied.)
It very much appears that the counsel of petitioners is purposely misleading this
Court, in violation of Rule 10.02 of the Code of Professional Responsibility,
which provides:
Rule 10.02 – A lawyer shall not knowingly misquote or misrepresent the
contents of a paper, the language or the argument of opposing counsel, or the
text of a decision or authority, or knowingly cite as law a provision already
rendered inoperative by repel or amendment, or assert as a fact that which has
not been proved.
Counsel’s use of block quotation and quotation marks signifies that he intends
to make it appear that the passages are the exact words of the Court.
Furthermore, putting the words "Underscoring ours" after the text implies that,
except for the underscoring, the text is a faithful reproduction of the original.
Accordingly, we are ordering Atty. Procopio S. Beltran, Jr. to show cause why
he should not be disciplined as a member of the Bar.
To clarify, we never stated in Ledesma that a judge is allowed to deny a Motion
to Withdraw Information from the prosecution only when there is grave abuse of
discretion on the part of the prosecutors moving for such withdrawal. Neither did
we rule therein that where there is no grave abuse of discretion on the part of
the prosecutors, the denial of the Motion to Withdraw Information is void. What
we held therein is that a trial judge commits grave abuse of discretion if he
denies a Motion to Withdraw Information without an independent and complete
assessment of the issues presented in such Motion. Thus, the opening
paragraph of Ledesma states:
When confronted with a motion to withdraw an information on the ground of lack
of probable cause based on a resolution of the secretary of justice, the bounden
duty of the trial court is to make an independent assessment of the merits of
such motion. Having acquired jurisdiction over the case, the trial court is not
bound by such resolution but is required to evaluate it before proceeding further
with the trial. While the secretary's ruling is persuasive, it is not binding on
courts. A trial court, however, commits reversible error or even grave abuse of
discretion if it refuses/neglects to evaluate such recommendation and simply
insists on proceeding with the trial on the mere pretext of having already
acquired jurisdiction over the criminal action.19 (Emphases
supplied.)1avvphi1.zw+
Petitioners also try to capitalize on the fact that the dispositive portion of the
assailed Order apparently states that there was no probable cause against
petitioners:
WHEREFORE, finding no probable cause against the herein accused for the
crimes of rapes and acts of lasciviousness, the motion to withdraw informations
is DENIED.
Let the case be set for arraignment and pre-trial on October 24, 2006 at 8:30
o’clock in the morning.20(Underscoring ours.)
lasciviousness cannot be the basis of dismissal or withdrawal of the herein
cases. Failure to shout or offer tenatious resistance did not make voluntary the
complainants’ submission to the criminal acts of the accused (People v.
Velasquez, 377 SCRA 214, 2002). The complainants’ affidavits indicate that the
accused helped one another in committing the acts complained of. Considering
that the attackers were not strangers but their trusted classmates who enticed
them to go to the house where they were molested, the complainants cannot be
expected to react forcefully or violently in protecting themselves from the
unexpected turn of events. Considering also that both complainants were fifteen
(15) years of age and considered children under our laws, the ruling of the
Supreme Court in People v. Malones, G.R. Nos. 124388-90, March 11, 2004
becomes very relevant. The Supreme Court ruled as follows:
Rape victims, especially child victims, should not be expected to act the way
mature individuals would when placed in such a situation. It is not proper to
judge the actions of children who have undergone traumatic experience by the
norms of behavior expected from adults under similar circumstances. The range
of emotions shown by rape victim is yet to be captured even by calculus. It is,
thus, unrealistic to expect uniform reactions from rape victims (People v.
Malones, G.R. Nos. 124388-90, March 11, 2004).
The Court finds no need to discuss in detail the alleged actuations of the
complainants after the alleged rapes and acts of lasciviousness. The alleged
actuations are evidentiary in nature and should be evaluated after full blown trial
on the merits. This is necessary to avoid a suspicion of prejudgment against the
accused.22
As can be seen, the body of the assailed Order not only plainly stated that the
court found probable cause against the petitioners, but likewise provided an
adequate discussion of the reasons for such finding. Indeed, the general rule is
that where there is a conflict between the dispositive portion or the fallo and the
body of the decision, the fallo controls. However, where the inevitable
conclusion from the body of the decision is so clear as to show that there was a
mistake in the dispositive portion, the body of the decision will prevail. 23

Thus, petitioners claim that since even the respondent judge himself found no In sum, petitioners’ resort to a Petition for Mandamus to compel the trial judge to
probable cause against them, the Motion to Withdraw Informations by the Office grant their Motion to Withdraw Informations is improper. While mandamus is
of the City Prosecutor should be granted.21 available to compel action on matters involving judgment and discretion when
refused, it is never available to direct the exercise of judgment or discretion in a
Even a cursory reading of the assailed Order, however, clearly shows that the particular way or the retraction or reversal of an action already taken in the
insertion of the word "no" in the above dispositive portion was a mere clerical exercise of either.24 The trial court, when confronted with a Motion to Withdraw
error. The assailed Order states in full: an Information on the ground of lack of probable cause, is not bound by the
resolution of the prosecuting arm of the government, but is required to make an
After a careful study of the sworn statements of the complainants and the independent assessment of the merits of such motion, a requirement satisfied
resolution dated March 3, 2006 of 2nd Assistant City Prosecutor Lamberto C. de by the respondent judge in the case at bar.25
Vera, the Court finds that there was probable cause against the herein
accused. The actuations of the complainants after the alleged rapes and acts of
Finally, if only to appease petitioners who came to this Court seeking a review of
the finding of probable cause by the trial court, we nevertheless carefully
reviewed the records of the case. After going through the same, we find that we
are in agreement with the trial court that there is indeed probable cause against
the petitioners sufficient to hold them for trial. We decided to omit a detailed
discussion of the merits of the case, as we are not unmindful of the undue
influence that might result should this Court do so, even if such discussion is
only intended to focus on the finding of probable cause.
WHEREFORE, the instant Petition for Mandamus is DISMISSED. Let the
records of this case be remanded to the Regional Trial Court of Quezon City for
the resumption of the proceedings therein. The Regional Trial Court is directed
to act on the case with dispatch.
Atty. Procopio S. Beltran, Jr. is ORDERED to SHOW CAUSE why he should not
be disciplined as a member of the Bar for his disquieting conduct as herein
discussed.
SO ORDERED.
G.R. No. 184760 April 23, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
PATERNO LORENZO y CASAS, Defendant-Appellant.
DECISION
PEREZ, J.:
Assailed in this appeal via Notice of Appeal is the 14 June 2007 Decision1 of the
Court of Appeals in CA-GR HC No. 02184 which affirmed the 05 October 2005
Decision2 promulgated by the Regional Trial Court (RTC) of San Mateo, Rizal, in
Criminal Case Nos. 6991-93, finding accused-appellant Paterno Lorenzo y
Casas guilty beyond reasonable doubt of violating Sections 5 and 11, Article II,
of Republic Act No. 9165, otherwise known as the Dangerous Drugs Act of
2002.3
Accused-appellant was arrested and charged following a buy-bust operation.
On 12 September 2003, two (2) Informations were filed against accused-
appellant Paterno Lorenzo y Casas (Lorenzo) charging him with violating
Sections 5 and 11, Article II of Republic Act No. 9165, the accusatory portions
thereof reading.
Criminal Case No. 6992
That on or about the 10th day of September 2003 in the Municipality of San
Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law, did then and
there willfully, unlawfully and knowingly have in his possession, direct custody
and control a total of 2.04 grams of white crystalline substance contained in two
(2) heat-sealed transparent plastic sachets which gave positive result to the test
for Methylamphetamine Hydrochloride, a dangerous drug.4
Criminal Case No. 6993
That on or about the 10th day of September 2003, in the Municipality of San
Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law, did then and
there willfully, unlawfully and knowingly sell, deliver and give away to another
0.20 gram of white crystalline substance contained in one (1) heat-sealed
transparent plastic sachet which gave positive result to the test for
Metamphetamine Hydrochloride, a dangerous drug.5
The cases were raffled to Branch 76 of the RTC of San Mateo, Rizal and
docketed as Criminal Case Nos. 6992-93.
One Conrado Estanislao y Javier (Estanislao) was similarly charged in a
different Information, which case was docketed as Criminal Case No. 6991.
Estanislao was accused of possessing illegal drugs in violation of the provisions
of Section 11, Article II of Republic Act No. 9165, the Information containing the
following averments:
Criminal Case No. 6994
That on or about the 10th day of September 2003, in the Municipality of San
Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law, did then and
there willfully, unlawfully and knowingly have in his possession, direct custody
and control of 0.05 gram of white crystalline substance contained in one (1)
heat-sealed transparent plastic sachet which gave positive result to the test for
Methylamphetamine Hydrochloride, a dangerous drug.
On arraignment, both accused, with the assistance of counsel, entered ‘NOT
GUILTY’ pleas.
The three (3) cases having been consolidated, joint trial on the merits ensued.
The prosecution presented as its lone witness, Police Officer 1 (PO1) Noel P.
Pineda, who was a member of the buy-bust team.
The evidence for the prosecution sought to establish that on 9 September 2003,
upon a series of reports relayed by a confidential informant that a certain
Paterno Lorenzo was peddling shabu in the Barangay Dulongbayan area, the
team of PO3 Pineda embarked on a buy-bust operation against said drug
peddler. Anticipating the operation, PO3 Pineda prepared two (2) pieces of
marked ₱100.00 bills to be used as buy-bust money. At around 10:00 o’clock in
the evening of the same day, PO3 Pineda, along with SPO1 Arellano and PO3
Tougan, proceeded to Barangay Dulongbayan and secretly met with their
confidential informant. According to the confidential informant, he had not seen
Lorenzo and raised the possibility that he was not in the area at the time.
Assessing the situation, the police officers instructed the confidential informant
to continue with his surveillance of the area and to inform them immediately if he
comes across Lorenzo.
At around 1:00 o’clock in the morning of 10 September 2003, while PO1 Pineda
and his companions were waiting at Gen. Luna Street, the confidential informant
reported that Lorenzo was already at the Daangbakal, Dulongbayan I area and
was selling prohibited drugs. Riding an unmarked vehicle, the team proceeded
to where Lorenzo was. On their arrival, Lorenzo was talking to a man at the
corner of Pulong Diablo and Daangbakal. PO3 Tougan stepped out of their
vehicle and hid in a place where he was not visible to Lorenzo. PO3 Pineda
stayed close to SPO1 Arellano, who was then hiding inside a tricycle near
Lorenzo. While this was happening, the confidential informant approached
Lorenzo for the transaction. Lorenzo and the confidential informant were
approximately four (4) meters away from PO3 Pineda. Because PO3 Pineda
knew who Lorenzo was and considering the place was illuminated, PO3 Pineda
recognized the suspect. The confidential informant and Lorenzo were talking for
about one minute, after which the informant gave the marked money to Lorenzo.
After taking the marked money, Lorenzo handed the shabu to the informant.
PO3 Pineda and SPO1 Arellano alighted from the tricycle and approached
Lorenzo, and introduced themselves as police officers. They arrested Lorenzo.
Upon being arrested, Lorenzo was bodily searched and PO1 Pineda was able to
retrieve the marked money and 2 other sachets of shabu from him. Seeing what
had happened to Lorenzo, the man he was talking to and later on identified as a
certain Estanislao, attempted to escape the police officers and ran, but he was
soon accosted by PO3 Tougan. A search of his pockets yielded one (1) sachet
of shabu.
After the buy-bust operation, Lorenzo and Estanislao were taken to the police
station where the incident was recorded in the police blotter. The plastic sachets
containing 2.04 and 0.20 grams of white crystalline substance bought from
Lorenzo was sent to the PNP Crime Laboratory for laboratory examination. The
results as contained in Chemistry Report no. D-1741-03E showed that the
substance sold by Lorenzo was positive for Methylamphetamine Hydrochloride
or shabu.6
Interposing the twin defenses of denial and frame-up, accused-appellant
Lorenzo and Estanislao stood before the witness stand and presented their
version of the facts.
Lorenzo was in his mountain bike on the way home to Dulongbayan sometime
between 12:00 o’clock in the evening and 1:00 o’clock in the morning of 10
September 2003. Estanislao, who was also with him at the time, was riding in
his motor cross style bike and was supposed to buy food at said place after
playing ‘tong-its.’
While the two (2) were traversing Daangbakal and Delos Angeles Street, the
chain on Estanislao’s bike went loose. During the time Estanislao was repairing
his bike, PO3 Tougan, PO3 Pineda, and SPO1 Arellano, who were then on
board an owner type jeepney, arrived and arrested Lorenzo and Estanislao.
According to the police officers, they were to be brought to the Municipal Hall.
The two (2) suspects protested, claiming not having done anything wrong but
the police officers continued with the arrest. It was later that they were informed
that the arrest was for illegal drugs.
On 5 October 2005, the RTC rendered a Decision convicting Lorenzo for illegal
possession and sale of dangerous drugs, but acquitting Estanislao, disposing as
follows:
WHEREFORE, judgment is hereby rendered:
(a) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable
doubt for violation of Section 5, first paragraph, Article II of Republic Act
No. 9165 (Criminal Case No. 6993) or illegal selling of 0.20 gram of
 methylamphetamine hydrochloride (shabu), a dangerous drug, and is
sentenced to suffer the penalty of life imprisonment and to pay a fine of
Five Hundred Thousand Pesos (₱500,000.00).
(b) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable
doubt for Violation of Section 11, second paragraph, No.3, Article II of
Republic Act No. 9165 (Criminal Case No. 6992) or illegal possession of
2.04 gram of methylamphetamine hydrochloride (shabu), a dangerous
drug, and is sentenced to suffer imprisonment of Twelve (12) years and
one (1) day as minimum to Twelve years and six (months) as maximum
and to pay a fine of Three Hundred Thousand Pesos (₱300,000.00).
(c) Finding accused Conrado Estanislao y Javier, for violation of Section
11, second paragraph, sub paragraph 3, Article II of Republic Act No.
9165, NOT GUILTY for failure of the prosecution to prove his guilt
beyond reasonable doubt.
Detained accused Conrado Estanislao y Javier is ordered released from
detention at the San Mateo Jail unless detained for some other lawful cause.
The plastic sachets of shabu subject matter of the instant cases are ordered
forfeited in favor of the government and the Officer-In-Charge of the Court is
hereby ordered to safely deliver or cause the safe delivery of the same to the
Philippine Drug Enforcement Agency (PDEA) for proper disposition.7
Weighing the testimonies of the prosecution and defense witnesses, as well as
the other evidence presented during trial, the trial court gave more veracity to
the prosecution’s version that Lorenzo was caught in flagrante delicto selling
illegal drugs to a poseur-buyer during a buy-bust operation. The trial court gave
credence to the prosecution’s evidence in accordance with the presumption of
regularity in the performance of official functions accorded to police officers.
According to the trial court, the prosecution proved beyond reasonable doubt
the identity of the buyer in the buy-bust operation and the seller, object and
consideration, including the delivery of the shabu sold by Lorenzo and the
payment of the buy-bust money.
Invoking his innocence, Lorenzo appealed his conviction to the Court of
Appeals, questioning the procedure followed by the police operatives in the
seizure and custody of the evidence against him.
On 14 June 2007, the Court of Appeals affirmed the judgment of conviction
rendered by the RTC, disposing to wit:
WHEREFORE, premises considered, appeal is hereby dismissed and the
assailed October 5, 2005 Decision of the Regional Trial Court of San Mateo
Rizal, Branch 76, in Criminal Case Nos. 6991-93, is hereby AFFIRMED.
Pursuant to Section 13 (C), Rule 124 of the 2000 Rules of Criminal Procedure,
as amended by AM No. 00-5-03-SC dated September 28, 2004, which became
effective on October 15, 2004. This judgment of the Court of Appeals may be
appealed to the Supreme Court by notice of appeal filed with the Clerk of Court
of the Court of Appeals.
SO ORDERED.
Unyielding, Lorenzo appealed before this Court on Notice of Appeal, 8 adopting
the same arguments raised before the Court of Appeals:
I.
THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF VIOLATION OF SECTIONS 5 AND 11,
REPUBLIC ACT NO. 9165; AND
II.
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND
CREDENCE TO ACCUSED-APPELLANT’S DEFENSE OF DENIAL.
The presumption of innocence of an accused in a criminal case is a basic
constitutional principle, fleshed out by procedural rules which place on the
prosecution the burden of proving that an accused is guilty of the offense
charged by proof beyond reasonable doubt. Corollary thereto, conviction must
rest on the strength of the prosecution’s evidence and not on the weakness of
the defense.
In fact, if the prosecution fails to meet the required quantum of evidence, the
defense may logically not even present evidence on its behalf. In which case,
the presumption of innocence shall prevail and, hence, the accused shall be
acquitted. However, once the presumption of innocence is overcome, the
defense bears the burden of evidence to show reasonable doubt as to the guilt
of the accused.
Whether the degree of proof has been met is largely left for the trial courts to be
determined. Consistent with the rulings of this Court, it is but a fundamental and
settled rule that factual findings of the trial court and its calibration of the
testimonies of the witnesses and its conclusions anchored on its findings are
accorded by the appellate court high respect, if not conclusive effect, more so
when affirmed by the Court of Appeals. The exception is when it is established
that the trial court ignored, overlooked, misconstrued or misinterpreted cogent
facts and circumstances which, if considered, will change the outcome of the
case. Considering that what is at stake here is the liberty of accused-appellant,
we have carefully reviewed and evaluated the records of the case and find it
necessary to reverse the appellate court’s decision convicting accused-
appellant.
Essentially, Lorenzo questions his conviction on the basis of reasonable doubt.
The defense anchors its claim on the failure of the prosecution to adopt the
required procedure under Section 21, Article II, Republic Act No. 9165, on the
custody and disposition of confiscated, seized, or surrendered dangerous drugs.
According to the defense, this alleged failure to follow proper procedure, i.e.
inventory and photographing of the retrieved evidence, raises doubts as to
whether the specimen examined by the forensic chemist and presented in court
were indeed retrieved from accused-appellant. The defense also faults the
police operatives for not having coordinated with the PDEA regarding the buy-
bust.
Thus, for resolution by this Court is the sole issue of whether the prosecution
discharged its burden of proving Lorenzo’s guilt beyond reasonable doubt for
the crime charged.
We rule in the negative. The prosecution’s case fails for failure to establish the
identity of the prohibited drug with moral certainty.
In order to successfully prosecute an accused for illegal sale of drugs, the
prosecution must be able to prove the following elements: (1) identities of the
buyer and seller, the object, and the consideration; and (2) the delivery of the
thing sold and the payment therefor.9 Material to the prosecution for illegal sale
of dangerous drugs is the proof that the transaction or sale had actually taken
place, coupled with the presentation in court of evidence of corpus delicti. 10 The
term corpus delicti means the actual commission by someone of the particular
crime charged.
On the other hand, in illegal possession of dangerous drugs, the elements are:
(1) the accused is in possession of an item or object which is identified to be a
prohibited drug; (2) such possession is not authorized by law; and (3) the
accused freely and consciously possessed the said drug. Similarly, in this case,
the evidence of the corpus delicti must be established beyond doubt.
In both illegal sale and illegal possession of prohibited drugs, conviction cannot
be sustained if there is a persistent doubt on the identity of the drug. The identity
of the prohibited drug must be established with moral certainty. Apart from
showing that the elements of possession or sale are present, the fact that the
substance illegally possessed and sold in the first place is the same substance
offered in court as exhibit must likewise be established with the same degree of
certitude as that needed to sustain a guilty verdict.
While buy-bust operations have been proven to be an effective way to flush out
illegal transactions that are otherwise conducted covertly and in secrecy, a buy-
bust operation is susceptible to police abuse. Thus, courts have been mandated
to be extra vigilant in trying drug cases lest an innocent person is made to suffer
the unusually severe penalties for drug offenses.
Accused-appellant claims that no physical inventory and no photographing of
Taking the aforementioned into consideration, specific procedures relating to the the drugs took place. Non-compliance by the police operatives with the
seizure and custody of drugs have been laid down under the Implementing foregoing requirements in the instant case is fatal to the prosecution’s case.
Rules and Regulations (IRR) for Republic Act No. 9165 and it is the Although the prosecution recognized its failure to coordinate with the PDEA
prosecution’s burden to adduce evidence that these procedures have been
complied with in proving the elements of the offense.
The procedure for the custody and disposition of confiscated, seized and/or
surrendered dangerous drugs, among others, is provided under Section 21 (a),
paragraph 1 of Article II of Republic Act No. 9165, to wit:
(a) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof;
Section 21 (a), Article II of the Implementing Rules and Regulations of Republic
Act No. 9165, which implements said provision, reads:
(a) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof; Provided, further that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officers/team, shall not render void and invalid such seizures of
and custody over said items.
Section 21(a), Article II of the IRR offers some flexibility in complying with the
express requirements. Indeed, the evident purpose of the procedure is the
preservation of the integrity and evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt of or innocence of the
accused. Thus, the proviso stating that non-compliance with the stipulated
procedure, under justifiable grounds, shall not render void and invalid such
seizures of and custody over said items, for as long as the integrity and
evidentiary value of the seized items are properly preserved by the
apprehending officers.
In People v. Sanchez,11 we clarified that this saving clause applies only where
the prosecution recognized the procedural lapses, and thereafter explained the
cited justifiable grounds.
because of the urgency of the situation, it ignored the issue of specifically
identifying the prohibited drug at the point of confiscation. There is absolutely
nothing in the records to show that the inventory and photography requirements,
or their credible substitute to prove integrity and evidentiary value, were ever
followed.
In People v. Lim,12 this Court held:
xxx any apprehending team having initial custody and control of said drugs
and/or paraphernalia, should immediately after seizure and confiscation, have
the same physically inventoried and photographed in the presence of the
accused, if there be any, and or his representative, who shall be required to sign
the copies of the inventory and be given a copy thereof. The failure of the
agents to comply with such a requirement raises a doubt whether what was
submitted for laboratory examination and presented in court was actually
recovered from the appellants. It negates the presumption that official duties
have been regularly performed by the PAOC-TF agents.
In Bondad, Jr. v. People,13 where the prosecution did not inventory and
photograph the confiscated evidence, this Court acquitted therein accused
reasoning that failure to comply with the aforesaid requirements of the law
compromised the identity of the items seized.
In People v. Ruiz,14 this Court acquitted accused due to the failure of the
prosecution to comply with the procedures under Republic Act No. 9165 and its
IRR as no physical inventory was ever made, and no photograph of the seized
items was taken under the circumstances required.
In People v. Orteza,15 the Court explained the implications of the failure to
comply with Paragraph 1, Section 21, Article II of Republic Act No. 9165, to wit:
In People v. Laxa, where the buy-bust team failed to mark the confiscated
marijuana immediately after the apprehension of the accused, the Court held
that the deviation from the standard procedure in anti-narcotics operations
produced doubts as to the origins of the marijuana. Consequently, the Court
concluded that the prosecution failed to establish the identity of the corpus
delicti.1avvphi1
The Court made a similar ruling in People v. Kimura, where the Narcom
operatives failed to place markings on the seized marijuana at the time the
accused was arrested and to observe the procedure and take custody of the
drug.
More recently, in Zarraga v. People, the Court held that the material
inconsistencies with regard to when and where the markings on the shabu were
made and the lack of inventory on the seized drugs created reasonable doubt
as to the identity of the corpus delicti. The Court thus acquitted the accused due
to the prosecution's failure to indubitably show the identity of the shabu.
To reiterate, the flexibility offered by the IRR of Republic Act No. 9165 is
coupled with the proviso that the integrity and evidentiary value of the seized
items must be preserved.
Thus, in Malillin v. People,16 the Court explained that the "chain of custody"
requirement performs this function in that it ensures that unnecessary doubts
concerning the identity of the evidence are removed. The chain of evidence is
constructed by proper exhibit handling, storage, labeling and recording, and
must exist from the time the evidence is found until the time it is offered in
evidence.17 Failure to prove that the specimen submitted for laboratory
examination was the same one allegedly seized from accused is fatal to the
prosecution’s case. There can be no crime of illegal possession or illegal sale of
a prohibited drug when nagging doubts persist on whether the item confiscated
was the same specimen examined and established to be the prohibited drug. 18
PO1 Pineda testified that it was their confidential agent who purchased the
shabu from accused-appellant and that he only retrieved it from said informant.
He further testified that he marked the retrieved sachet of shabu together with
the two other sachets of shabu that were allegedly seized from the accused, but
it was not certain when and where the said marking was done nor who had
specifically received and had custody of the specimens thereafter.
The Court also observes that the prosecution did not present the poseur-buyer
who had personal knowledge of the transaction. The lone prosecution witness
was at least four meters away from where accused-appellant and the poseur-
buyer were. From this distance, it was impossible for him to hear the
conversation between accused-appellant and the poseur-buyer.
The foregoing facts and circumstances create doubt as to whether the sachets
of shabu allegedly seized from accused-appellant were the same ones that
were released to Camp Crame and submitted for laboratory examination. We
therefore find that this failure to establish the evidence’s chain of custody is
damaging to the prosecution’s case.19
In sum, the totality of the evidence presented in the instant case failed to
support accused-appellant’s conviction for violation of Sections 5 and 11, Article
II, Republic Act No. 9165, since the prosecution failed to prove beyond
reasonable doubt all the elements of the offense.
Accordingly, the presumption of innocence should prevail.
WHEREFORE, the assailed Court of Appeals Decision dated 14 June 2007 in
CA-G.R. CR-H.C. No. 02184, is hereby REVERSED and SET ASIDE. Accused-
appellant PATERNO LORENZO y CASAS is hereby ACQUITTED for failure of
the prosecution to prove his guilt beyond reasonable doubt. He is ordered
immediately RELEASED from detention, unless he is confined for any other
lawful cause.
Let a copy of this Decision be furnished the Director of the Bureau of
Corrections, Muntinlupa City for immediate implementation. The Director of the
Bureau of Corrections is directed to report to this Court within five days from
receipt of this Decision the action he has taken. Copies shall also be furnished
the Director General, Philippine National Police, and the Director General,
Philippine Drugs Enforcement Agency, for their information.
SO ORDERED.
G.R. No. 185209 June 28, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
RENE BARON y TANGAROCAN, Appellant.
REY VILLATIMA and alias "DEDONG" BARGO, Accused.
DECISION
DEL CASTILLO, J.:
Circumstantial evidence is sufficient to produce a conviction that the appellant
conspired with his co-accused in committing the crime of robbery with homicide.
His claim that he acted under the impulse of uncontrollable fear of an equal or
greater injury could not be sustained because there was no genuine, imminent,
and reasonable threat, preventing his escape that compelled him to take part in
the commission of the offense charged.
Factual Antecedents
On July 19, 1995, an Information1 was filed before the Regional Trial Court of
Cadiz City, Negros Occidental, Branch 60, charging Rene Baron y Tangarocan
(appellant), Rey Villatima (Villatima), and alias "Dedong" Bargo (Bargo) with the
special complex crime of robbery with homicide committed against Juanito
Berallo (Berallo). The Information contained the following accusatory
allegations:
That on or about 9 o’clock in the evening of June 28, 1995 at Hda. Sta. Ana,
Brgy. Burgos, Cadiz City, Negros Occidental, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and helping one another with evident premeditation and treachery
and with intent to kill, did then and there, willfully, unlawfully and feloniously
assault, attack and stab to death one Juanito Berallo in order to rob, steal and
take away the following:
1) sidecar of the tricycle which costs ₱16,000.00;
2) motorcycle described as Kawasaki HDX colored black with Engine
No. G7E-088086 and Chassis No. HDX-849776 which is worth
₱103,536.00;
3) wallet with cash money of ₱1,250.00;
4) wrist watch and ring worth ₱3,800.00.
and inflicting upon the person of Juanito Berallo the following injuries, to wit:
1. Gaping incised wound, shallow at the extremeties and deeper at the
middle portion, 7½ cms. long, from right lateral aspect of the neck going
slightly downward and to the left of anterior neck.
2. Stabbed wound, 2 cm. long, 14 cm. deep, directed slightly upward
and to the right, located on the upper chest below wound # 1.
3. Stabbed wound, 2 cm. long, 12½ cm. deep, directed to the right,
located at the left chest, level of 3rd rib.
 4. Stabbed wound, 2 cm. long 20 cm. deep, directed slightly downward
and to the left, located at the middle of the chest, level of 5th rib.
5. Incised wound 1½ cm long, right cheek.
6. Stabbed wound, 2 cm. long, 6½ cm. deep, directed downward
located at the medial aspect of the upper back, right.
7. Stabbed wound, 2½ cm. long, 10 cm. deep, located at the upper
outer quadrant of the back, right.
8. Incised wound, 2 cm. long, located at the middle of the upper
quadrant of back, right.
9. Stabbed wound, 2 cm. long, 4 cm. deep, directed downward located
at the medial aspect of upper inner quadrant of back, left.
10. Stabbed wound, 2 cm. long, 5 cm deep, directed downward, located
at the middle of upper quadrant of back, left.
11. Incised wound, 2 cm long, located 2 cm to the left of wound # 10.
12. Stabbed wound, 2 cm. long, 7½ cm. deep, directed downward
located at the middle of lower back, left.
13. Incised wound, 6½ cm. long, distal third left forearm.
14. Incised wound, 3 cm. long palmar surface left hand.
15. Incised wound, 5 cm. long palmar surface left hand, 2 cm. below
wound # 13.
CAUSE OF DEATH: Severe hemorrhage due to Multiple Stabbed wounds,
which directly caused the death of the victim Juanito Berallo, to the damage and
prejudice of the heirs of the victim in the amount, to wit:
₱ 50, 000.00 - as indemnity for the death of the victim.
₱ 150, 000.00 - as indemnity for the loss of earning capacity, or such
amount to be fixed by the court.
ACT CONTRARY TO LAW.
Only the appellant was arrested. Villatima and Bargo remain at-large to date.
Appellant entered a plea of "not guilty" when arraigned. After the termination of
the pre-trial conference, trial ensued.
The Prosecution’s Version
Culled from the evidence presented by the prosecution, the case against the
appellant is as follows:
On June 28, 1995, at around 8:30 in the evening, Ernesto Joquino, Jr.
(Joquino), a tricycle driver, was having a conversation with Canni Ballesteros
(Ballesteros) in front of Julie’s Bakeshop at Magsaysay St., Cadiz City. Berallo
arrived and parked his tricycle in front of the bakeshop. The appellant
approached Berallo and asked if he could take him and his companions to
Hacienda Caridad for ₱30.00. When Berallo agreed, the appellant called
Villatima, then wearing a fatigue jacket, and Bargo. They then rode Berallo’s
tricycle.
Pacita Caratao, a dressmaker, was also in Julie’s Bakeshop at around the same
time Joquino and Ballesteros were in front of the premises. She noticed Berallo
sitting on a parked tricycle while the appellant was seated behind him. After
buying bread, she approached Berallo and asked if he was going home to Lag-
asan, hoping that she could ride with him. However, Berallo replied that he still
had to ferry passengers. She thus decided to cross the street and take a
passenger jeep. While inside the jeep, she saw two more persons boarding
Berallo’s tricycle.
On June 29, 1995, SPO2 Jude dela Rama received a report of a robbery with
homicide incident. Together with other policemen, he proceeded to Hacienda
Sta. Ana, Cadiz City, where he saw Berallo lying dead in a sugarcane plantation
about 20 meters away from the highway. They also noticed several traces of
footprints near Berallo’s body and a tricycle sidecar in a canal beside the
Martesan Bridge. Beside the sidecar was a fatigue jacket.
Dr. Merle Jane B. Regalado conducted the post-mortem examination on the
cadaver of Berallo. She found that the victim sustained 15 stab wounds and
died of severe hemorrhage due to multiple stab wounds. Five of them were
considered as fatal and caused the immediate death of Berallo. The wounds
also indicated that they could have been inflicted by more than one person.
The follow-up investigation of the police team identified the appellant as one of
the suspects. After having been apprised of his rights, appellant admitted that
he and his co-accused took Berallo’s tricycle and, after detaching the
motorcycle from the sidecar, brought the motorcycle to Barangay Oringao,
Kabankalan, Negros Occidental and left the same at the house of Villatima’s
aunt, Natividad Camparicio (Natividad).
Natividad denied knowledge of the incident but admitted that her nephew
Villatima, together with the appellant, and another companion, were the ones
who brought the motorcycle to her house in Kabankalan.
Nemia Berallo (Nemia) identified the motorcycle recovered from the house of
Natividad as the one stolen from her deceased husband. She also testified on
the sum of money and the value of the personal property stolen from her
husband. She allegedly spent the sum of ₱2,400.00 for the purchase of the
burial lot.
The Version of the Defense
Appellant denied any participation in the crime. He claimed that on June 28,
1995, at around 7 o’clock in the evening, he bought rice and other necessities
for his family and proceeded to the public transport terminal to get a ride home.
A tricycle with two passengers passed by and its driver inquired if he wanted a
ride up to Segundo Diez. He boarded the tricycle and told the driver that he
would alight at Canibugan, but the driver requested him to accompany them up
to Segundo Diez. He agreed out of concern for the safety of the driver. Upon
reaching Bangga Doldol, however, the passengers announced a hold-up.
Armed with guns, the passengers told him and the driver not to make any wrong
move, or they would be killed. Thereafter, the passengers tied the hands of the
driver and dragged him towards the sugarcane fields. He no longer knew what
happened to the driver since he remained in the tricycle. However, he
suspected that the driver was killed by the two passengers.
Thereafter, the passengers went to Taytay Martesan and detached the sidecar
of the tricycle. They then took him to a house at Barangay Oringao and did not
allow him to leave the premises. The following morning, they returned to Cadiz
City. The two passengers even accompanied him to his house and threatened
him and his wife at gunpoint not to report the incident to the police authorities.
On June 30, 1995, at around 10:00 o’clock in the evening, policemen came to
his house and asked where the motorcycle was taken. He told them of the
location of the vehicle and insisted that he had nothing to do with the incident.
He stressed that the two passengers whose names he did not know, were
responsible for the crime committed.
Ruling of the Regional Trial Court
On February 12, 2002, the trial court rendered a Decision2 finding the appellant
guilty beyond reasonable doubt of the complex crime of robbery with homicide.
It disposed as follows:
WHEREFORE, in view of the foregoing, this Court finds accused RENE BARON
Y TANGAROCAN (detained) GUILTY beyond reasonable doubt of the complex
crime of Robbery with Homicide as charged in the information and there being
the attendance of the aggravating circumstance of treachery hereby sentences
him to suffer the penalty of DEATH.
The accused is further ordered to pay the heirs of the victim the amount of
₱50,000.00 by way of indemnity for the death of the victim, Juanito Berallo and
the amount of ₱5,050.00 for the cash and the value of the wrist watch and ring
of the victim plus the amount of ₱2,400.00 for the purchase of the burial lot by
way of reparation and in addition the amount of ₱100,000.00 as moral damages
and ₱50,000.00 as exemplary damages. The sidecar and the motorcycle are
hereby ordered returned to the heirs of the victim.
The accused is further ordered to be immediately committed to the National
Penitentiary for service of his sentence.
The Clerk of Court of this Court is hereby ordered to immediately forward the
records of this case together with the Decision of this Court to the Supreme
Court for automatic review.
The case against Rey Villatima and alias "Dedong" Bargo [both of whom are] at-
large is hereby ordered archived and [to] be immediately revived upon their
arrest.
Cost against accused Rene Baron.
SO ORDERED.3
Ruling of the Court of Appeals
Before the appellate court, appellant alleged that the trial court erred in finding
him guilty as charged and in not appreciating in his favor the exempting
circumstance of irresistible force and/or uncontrollable fear of an equal or
greater injury. However, the same was disregarded by the CA holding that all
the requisites for said circumstances were lacking. The appellate court found
that the alleged threat, if at all, was not real or imminent. Appellant had every
opportunity to escape but did not take advantage of the same. Instead, he
waited inside the tricycle as if he was one of the malefactors. The dispositive
portion of the CA Decision4 reads as follows:
WHEREFORE, the APPEAL is DISMISSED. The Decision dated February 12,
2002, of the Regional Trial Court (RTC), Cadiz City, Negros Occidental, Branch
60, in Criminal Case No. 1675-C finding accused-appellant Rene Baron y
Tangarocan guilty of robbery with homicide is AFFIRMED with MODIFICATION
reducing the death penalty to reclusion perpetua without parole conformably
with R.A. 9346 and reducing the award of moral damages from ₱100,000.00 to
₱50,000.00 and exemplary damages from ₱50,000.00 to ₱25,000.00.
Costs against accused-appellant.
SO ORDERED.
Issues
Still aggrieved, the appellant comes to us for a final review of his case. In his
brief, he assigns the following correlated errors:
I
THE TRIAL COURT GRAVELY ERRED IN FAILING TO APPRECIATE THE
EXEMPTING CIRCUMSTANCES OF IRRESISTABLE FORCE AND/OR
UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.5
Our Ruling
The appeal is unmeritorious.
Robbery with homicide exists when a homicide is committed either by reason, or
on occasion, of the robbery. To sustain a conviction for robbery with homicide,
the prosecution must prove the following elements: (1) the taking of personal
property belonging to another; (2) with intent to gain; (3) with the use of violence
or intimidation against a person; and (4) on the occasion or by reason of the
robbery, the crime of homicide, as used in the generic sense, was committed. A
conviction needs certainty that the robbery is the central purpose and objective
of the malefactor and the killing is merely incidental to the robbery. The intent to
rob must precede the taking of human life but the killing may occur before,
during or after the robbery.6
In this case, the prosecution successfully adduced proof beyond reasonable
doubt that the real intention of the appellant and his companions was to rob the
victim. The appellant and his companions boarded the tricycle of the victim
pretending to be passengers. Midway to their destination, one of the accused
declared a hold-up and at gun point, tied the hands of the victim and brought
him towards the sugarcane field where he was stabbed to death. The victim was
divested of his wallet containing ₱1,250.00, a wrist watch and ring. Emerging
from the sugarcane plantation, they boarded the tricycle of the victim, detached
the sidecar and dumped the same in a canal beside the Martesan Bridge with
the fatigue jacket of one of the accused. They proceeded to Barangay Oringao,
Kabankalan and hid the motorcycle in the house of Villatima’s aunt, Natividad.
Concededly, there is no direct evidence proving that the appellant conspired
and participated in committing the crime. However, his complicity may be
proved by circumstantial evidence, which consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience.7 Circumstantial evidence is
sufficient to sustain conviction if: (a) there is more than one circumstance; (b)
the facts from which the inferences are derived have been established; (c) the
combination of all circumstances is such as to warrant a finding of guilt beyond
reasonable doubt.8 A judgment of conviction based on circumstantial evidence
can be sustained when the circumstances proved form an unbroken chain that
results to a fair and reasonable conclusion pointing to the accused, to the
exclusion of all others, as the perpetrator.9
In this case, the circumstantial evidence presented by the prosecution leads to
the inescapable conclusion that the appellant and his co-accused conspired to
commit robbery with homicide. When considered together, the circumstances
point to them and no one else as the culprits. We thus agree with the
observation of the trial court that:
A careful examination of the records of this case reveals, [that] no eye witness
was presented by the prosecution pointing to the three accused to be actually
responsible in the perpetration of the crime charged except the extra-judicial
narration of the accused Rene Baron but who also tried to exculpate himself
from the commission of the crime by denying his [complicity] in the crime.
Despite this finding however, this Court found from the records of this case,
numerous and cumulative material circumstantial evidence from which one can
derive a logical and necessary inference clearly showing the three accused to
be responsible for the crime charged and these are the following; to wit:
1. The fact that at about 8:30 in the evening of June 28, 1995 witness
Ernesto Joquino, Jr. while in front of Julie’s Bakeshop saw the victim
Juanito Berallo [park] the latter’s tricycle in front of the bakeshop when
accused Rene Baron hired the tricycle of the victim in going to Hda.
Caridad and whose companions were Rey Villatima and "Dedong"
Bargo (TSN-Tan, January 18, 1996, pp. 6-10). Thus, the excerpts of the
Transcript of the Stenographic Notes has this to reveal in vivid fashion,
to wit:
"Q. Mr. Joquino, on June 28, 1995 at about 8:30 in the evening
where were you?
A. I was in front of Julie’s Bakeshop.
Q. Where is this Julie’s Bakeshop located x x x?
A. At Magsaysay Street, Cadiz City.
Q. What were you doing at Julie’s Bakeshop at that particular
date and time?
A. I was x x x having a conversation with Canni Ballesteros.
Q. While you were x x x in front of Julie’s Bakeshop, was there
anything that transpired?
A. Yes, ma’am.
Q. Can you tell us what was that?
A. I saw Juanito Berallo park his tricycle in front of Julie’s
Bakeshop.
Q. When you saw Juanito Berallo park his tricycle x x x in front
of Julie’s Bakeshop, what transpired after that?
A. Rene Baron approached Juanito Berallo and asked him if he
can conduct Rene Baron to Hda. Caridad.
Q. By the way, do you know Rene Baron before June 28, 1995?
A. Yes, ma’am, I know him because we are all drivers of the
tricycle.
Q. What about this Juanito Berallo, do you know him before
June 28, 1995?
A. Yes ma’am.
Q. Why do you know him?
A. Because he ran as councilor in Cadiz City.
Q. So going back to the incident where you said Rene Baron
approached Juanito Berallo and asked Berallo if the latter would
conduct him to Hda. Caridad, what was the answer of Juanito
Berallo to Rene Baron?
A. Juanito Berallo asked Rene Baron how much he will pay [to]
him and then Rene Baron said that he will pay Juanito Berallo
the amount of ₱30.00 and then again Juanito Berallo asked
 Rene Baron how many x x x will ride on the tricycle and Rene
Baron said that there were three of them.
Q. By the way, how far were you from where Juanito Berallo
and Rene Baron were talking?
A. From here up there. (Witness pointed to a distance of about
four (4) meters.)
Q. After Juanito Berallo agreed with Rene Baron and his
companions to conduct them to Hda. Caridad, what did Rene
Baron do if there was any?
A. Rene Baron called his companions who were just across the
street.
Q. Were you able to recognize x x x the two companions whom
Rene Baron called from across the street?
A. Yes, sir.
Q. And who were they if you know?
A. Rey Villatima and Dedong Bargo."
(TSN-Tan, January 18, 1996, pp. 6-10)
2. The fact the Rey Villatima was wearing a fatigue jacket when the
latter boarded the tricycle of the victim and proceeded to Hda. Caridad
(ibid, p. 12) and it was the same fatigue jacket recovered by the police
from the sidecar of the tricycle at the scene of the crime and this was
the last time that the victim was seen alive;
3. The fact that witness Pacita Caratao corroborated the testimony of
Ernesto Joquino, Jr. and Berallo sitting on the latter’s tricycle parked
near Julie’s Bakeshop and saw Rene Baron sitting behind Juanito
Berallo and the witness even asked the former if he will be going to Lag-
asan to which the victim Juanito Berallo refused because he has some
passengers to be conducted (TSN-Tan, March 13, 1997, pp. 3-4) and
has referred to the accused Rene Baron and his two companions (TSN-
Tan, March 13, 1997, pp. 4-5) as his passengers;
4. The fact that the during the police investigation witness SPO2 Jude
de la Rama found the dead body of the victim inside the sugarcane
plantation in Hda. Sta. Ana and found many traces of footsteps inside
the sugarcane fields (TSN-Tan, July 8, 1997, p. 4) indicating that more
than one person conspired and co-operated with each other in killing
the victim;
5. The fact that the witness De la Rama found the sidecar of the tricycle
beside the Martisan Bridge which is just beside the scene of the incident
and also beside the sidecar of the tricycle they found a fatigue jacket
and has recovered inside its pocket a used soap (ibid, p. 5);
6. The fact that when the police officers invited Rene Baron for
interview, Rene Baron pointed to his co-accused, Rey Villatima as the
one who was wearing the fatigue jacket the police officers recovered as
well as had named his (Baron) other companion as alias "Dedong"
Bargo (ibid, p. 7);
7. The fact that after the three accused had detached the motorcycle
from its sidecar, Rey Villatima was pointed to by the accused Rene
Baron as the one who drove it while he (Rene Baron) and "Dedong"
Bargo rode behind and all of them immediately proceeded to the house
of the aunt of Rey Villatima in Brgy. Oringao, Kabankalan, Negros
Occidental (ibid);
8. The fact that it was accused Rene Baron who had guided the police
investigators to Kabankalan City, Negros Occidental, a city in the
southern portion of Negros Occidental which is about 150 kilometers
away from Cadiz City in the north, the scene of the crime; and with the
cooperation of the Chief of Police of the former place proceeded to the
house of a certain Natividad Camparicio, the aunt of accused Rey
Villatima (ibid, pp. 7-8);
9. The fact that Natividad Camparicio affirmed that the stolen
motorcycle was brought to her house at around 1:15 in the morning of
July 1, 1995 by her nephew, Rey Villatima together with the latter’s
companions and pinpointed to accused Rene Baron as one of them
(ibid, p. 9);
10. The fact that prosecution witness, Police Insp. Eduardo Berena also
confirmed they were able to recover the stolen motorcycle which was
kept in the ground floor of the house of Mrs. Camparicio (TSN-
Guanzon, October 2, 1997, pp. 8-15);
11. The fact that the stolen motorcycle was positively identified by
witness Nemia Berallo as the same motorcycle driven, owned and
registered in the name of the victim, Juanito Berallo (TSN-Guanzon,
October 2, 1997, pp. 9-10);
12. The fact that accused Rene Baron admitted during his testimony
that he rode in the tricycle driven by the victim together with the two
passengers in going to Segundo Diez but reached only the area of
Bangga "Doldol" where the actual robbery and killing took place (TSN-
Tan, May 11, 1999, pp. 9-12);
13. The fact that when the two hold-up men brought the driver inside the
sugarcane field, accused Rene Baron who was left on the road outside
the sugarcane field (ibid, p. 11) did nothing and instead of escaping and
seeking help, accused Rene Baron leisurely stayed in the tricycle as if
everything [was] normal and nothing [happened], thus indicating that he
(Baron) [was] in conspiracy to rob and kill the victim since as the facts
are depicted x x x Rene Baron would clearly appear that he (Baron)
acted as a "look out" while the two companions were killing the victim
 and to make matters worse, he (Baron) even went along with the two
other accused up to Oringao, Kabankalan City where they hid the stolen
motorcycle (ibid, pp. 12-13);
14. The fact that the accused Baron was left unharmed by the killers of
the victim in spite of the fact that he (Baron) is a potential witness to the
serious crime of Robbery with Homicide; and when they were in
Oringao, ate breakfast with them then rode a passenger jeep with many
passengers; alighted in Kabankalan proper from Barangay Oringao;
stood and waited in a public place at the Ceres Bus Terminal; rode a
public transportation bus to Bacolod City for three (3) hours then
alighted in Libertad Street in Bacolod City; and again rode a passenger
jeepney going to a place known as "Shopping" to take another
passenger bus in going back to Cadiz City (ibid, pp. 21-30).1avvph!1
From [this] series of proven circumstantial evidence, the inescapable and
natural conclusion is the three accused were in conspiracy with one another to
kill the victim and cart away the motorcycle as the combination of these
numerous circumstantial evidence [is] enough to produce the strong moral
certainty from an unbiased and [unprejudiced] mind to safely conclude that no
other persons but the three accused conspired to perpetrate the crime as clearly
the series of events indubitably [shows] that there was unity of purpose,
concurrence of will, and that they all acted in concert towards the same end, the
accused being together with a group when they rode the tricycle of the victim; all
of them were together at the scene of the crime, they all rode in the same stolen
motorcycle going to Barangay Oringao, Kabankalan City; all of them were
together in hiding the stolen motorcycle in the house of Natividad Camparicio;
and they were together as a group going to Cadiz City from Kabankalan City
passing [through] and stopping [at] various cities and municipalities.10
The concerted manner in which the appellant and his companions perpetrated
the crime showed beyond reasonable doubt the presence of conspiracy. When
a homicide takes place by reason of or on the occasion of the robbery, all those
who took part shall be guilty of the special complex crime of robbery with
homicide whether they actually participated in the killing, unless there is proof
that there was an endeavor to prevent the killing.11 There was no evidence
adduced in this case that the appellant attempted to prevent the killing. Thus,
regardless of the acts individually performed by the appellant and his co-
accused, and applying the basic principle in conspiracy that the "act of one is
the act of all," the appellant is guilty as a co-conspirator. As a result, the criminal
liabilities of the appellant and his co-accused are one and the same.12
The appellant’s attempt to evade criminal liability by insisting that he acted
under the impulse of an uncontrollable fear of an equal or greater injury fails to
impress. To avail of this exempting circumstance, the evidence must establish:
(1) the existence of an uncontrollable fear; (2) that the fear must be real and
imminent; and (3) the fear of an injury is greater than or at least equal to that
committed.13 A threat of future injury is insufficient. The compulsion must be of
such a character as to leave no opportunity for the accused to escape.14
We find nothing in the records to substantiate appellant’s insistence that he was
under duress from his co-accused in participating in the crime. In fact, the
evidence is to the contrary. Villatima and Bargo dragged the victim towards the
sugarcane field and left the appellant inside the tricycle that was parked by the
roadside. While all alone, he had every opportunity to escape since he was no
longer subjected to a real, imminent or reasonable fear. Surprisingly, he opted
to wait for his co-accused to return and even rode with them to Kabankalan,
Negros Occidental to hide the victim’s motorcycle in the house of Villatima’s
aunt.
The appellant had other opportunities to escape since he traveled with his co-
accused for more than 10 hours and passed several transportation terminals.
However, he never tried to escape or at least request for assistance from the
people around him.
Robbery with Homicide is a single indivisible crime punishable with reclusion
perpetua to death under paragraph 1, Article 294 of the Revised Penal Code.
We find that the trial court correctly appreciated the aggravating circumstance of
treachery, which exists when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution thereof that tend
directly and specifically to insure its execution without risk to himself arising from
the defense that the offended party might make.15 The evidence points that one
of the co-conspirators tied the hands of the victim before dragging him to the
sugarcane field.16 Thus, he was unable to defend and protect himself against his
malefactors who were superior in number and armed with knives and guns.
As thoroughly discussed in People v. Escote, Jr.,17 treachery is not a qualifying
circumstance but "a generic aggravating circumstance to robbery with homicide
although said crime is classified as a crime against property and a single and
indivisible crime".18 Corollarily, "Article 62, paragraph 1 of the Revised Penal
Code provides that in diminishing or increasing the penalty for a crime,
aggravating circumstances shall be taken into account. However, aggravating
circumstances which in themselves constitute a crime especially punishable by
law or which are included by the law in defining a crime and prescribing a
penalty therefor shall not be taken into account for the purpose of increasing the
penalty".19 In the case at bar, "treachery is not an element of robbery with
homicide".20Neither is it "inherent in the crime of robbery with homicide".21 As
such, treachery may be properly considered in increasing the penalty for crime.
In this case, the presence of treachery as a generic aggravating circumstance
would have merited the imposition of the death penalty. However, in view of the
subsequent passage of Republic Act (RA) No. 9346, entitled "An Act Prohibiting
the Imposition of the Death Penalty in the Philippines," we are mandated to
impose on the appellant the penalty of reclusion perpetua without eligibility for
parole.22
In line with current jurisprudence, if the death penalty would have been imposed
if not for the proscription in RA 9346, the civil indemnity for the victim shall be
₱75,000.00.23 As compensatory damages, the award of ₱2,400.00 for the burial
lot of the victim must be deleted since this expense was not supported by
receipts.24 However, the heirs are entitled to an award of temperate damages in
the sum of ₱25,000.00.25 The existence of one aggravating circumstance merits
the award of exemplary damages under Article 2230 of the New Civil Code.
Thus, the award of exemplary damages is proper. However, it must be
increased from ₱25,000.00 to ₱30,000.00.26 Moral damages must also be
increased from ₱25,000.00 to ₱75,000.00.27 Moreover, the appellant is ordered
to return the stolen items that were not recovered. Should this no longer be
possible, there must be restitution in the total amount of ₱5,050.00 representing
the cash contained in the victim’s wallet, as well as the value of the wrist watch,
the ring, the motorcycle and sidecar taken by the appellant and his co-accused.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR HC No.
00638 finding appellant guilty beyond reasonable doubt of Robbery with
Homicide and sentencing him to suffer the penalty
of reclusion perpetua is AFFIRMED with MODIFICATIONS. The appellant is
hereby ordered to pay the heirs of the victim ₱75,000.00 as civil indemnity;
₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages. Actual
damages is DELETED, and in lieu thereof, appellant is ordered to pay
temperate damages in the amount of ₱25,000.00. The appellant is also ordered
to return the cash of ₱5,050.00 taken from the victim’s wallet and the other
pieces of personal property also taken but not recovered, more particularly his
wrist watch, ring, his Kawasaki HDX motorcycle and its sidecar. Should
restitution be no longer possible, the appellant must pay the equivalent value of
the unreturned items.
SO ORDERED.
G.R. No. 174654 August 17, 2011
FELIXBERTO A. ABELLANA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and Spouses SAAPIA B. ALONTO and
DIAGA ALONTO, Respondents.
DECISION
DEL CASTILLO, J.:
The only issue that confronts this Court is whether petitioner Felixberto A.
Abellana could still be held civilly liable notwithstanding his acquittal.
Assailed before this Court are the February 22, 2006 Decision1 of the Court of
Appeals (CA) in CA-G.R. SP No. 78644 and its August 15, 2006
Resolution2 denying the motion for reconsideration thereto. The assailed CA
Decision set aside the May 21, 2003 Decision3 of the Regional Trial Court (RTC)
of Cebu City, Branch 13, in Criminal Case No. CBU-51385 and acquitted the
petitioner of the crime of falsification of public document by a private individual
because the Information charged him with a different offense which is estafa
through falsification of a public document.4 However, the CA still adjudged him
civilly liable.5
Factual Antecedents
In 1985, petitioner extended a loan to private respondents spouses Diaga and
Saapia Alonto (spouses Alonto),6secured by a Deed of Real Estate Mortgage
over Lot Nos. 6471 and 6472 located in Cebu City.7 Subsequently, or in 1987,
petitioner prepared a Deed of Absolute Sale conveying said lots to him. The
Deed of Absolute Sale was signed by spouses Alonto in Manila. However, it
was notarized in Cebu City allegedly without the spouses Alonto appearing
before the notary public.8 Thereafter, petitioner caused the transfer of the titles
to his name and sold the lots to third persons.
On August 12, 1999,9 an Information10 was filed charging petitioner with Estafa
through Falsification of Public Document, the accusatory portion of which reads:
That on or about the 9th day of July, 1987, in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, with deliberate
intent, and with intent to defraud, did then and there falsify a public document
consisting of a Deed of Absolute Sale of a parcel of land consisting of 803
square meters executed before Notary Public Gines N. Abellana per Doc. No.
383, Page No. 77, Book No. XXIII, Series of 1987 of the latter’s Notarial
Register showing that spouses Saapia B. Alonto and Diaga Alonto sold their
parcel of land located at Pardo, Cebu City, for a consideration of ₱130,000.00 in
favor of accused by imitating, counterfeiting, signing or [causing] to be imitated
or counterfeited the signature[s] of spouses Saapia B. Alonto and Diaga Alonto
above their typewritten names in said document as vendor[s], when in truth and
in fact as the accused very well knew that spouses Saapia B. Alonto and Diaga
Alonto did not sell their aforestated descri[b]ed property and that the signature[s]
appearing in said document are not their signature[s], thus causing it to appear
that spouses Saapia B. Alonto and Diaga Alonto participated in the execution of
said document when they did not so participate[. Once] said document was
falsified, accused did then and there cause the transfer of the titles of said land
to his name using the said falsified document, to the damage and prejudice of
spouses Saapia B. Alonto and Diaga Alonto in the amount of ₱130,000.00, the
value of the land .
CONTRARY TO LAW.11
During arraignment, petitioner entered a plea of "not guilty".12 After the
termination of the pre-trial conference, trial ensued.
Ruling of the Regional Trial Court
In its Decision dated May 21, 2003, the RTC noted that the main issue for
resolution was whether petitioner committed the crime of estafa through
falsification of public document.13 Based on the evidence presented by both
parties, the trial court found that petitioner did not intend to defraud the spouses
Alonto; that after the latter failed to pay their obligation, petitioner prepared a
Deed of Absolute Sale which the spouses Alonto actually signed; but that the
Deed of Absolute Sale was notarized without the spouses Alonto personally
appearing before the notary public. From these, the trial court concluded that
petitioner can only be held guilty of Falsification of a Public Document by a
private individual under Article 172(1)14 in relation to Article 171(2)15 of the
Revised Penal Code (RPC) and not estafa through falsification of public
document as charged in the Information.
The dispositive portion of the RTC Decision reads:
WHEREFORE, judgment is hereby rendered finding the accused Felixberto
Abellana GUILTY of the crime of falsification of public document by private
individuals under Article 172 of the Revised Penal Code and sentences him to
an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of Prision
Correccional, as minimum, to SIX (6)YEARS, as maximum.
He is directed to institute reconveyance proceedings to restore ownership and
possession of the real properties in question in favor of private complainants.
After private complainants shall have acquired full ownership and possession of
the aforementioned properties, they are directed to pay the accused the sum of
₱130,000.00 [with] legal interest thereon reckoned from the time this case was
instituted.
Should the accused fail to restore full ownership and possession in favor of the
private complainants [of] the real properties in question within a period of six (6)
months from the time this decision becomes final and executory, he is directed
to pay said complainants the sum of ₱1,103,000.00 representing the total value
of the properties of the private complainants.
He is likewise directed to pay private complainants the following:
1. ₱15,000.00 for nominal damages;
2. ₱20,000.00 for attorney’s fees;
3. ₱50,000.00 as and for litigation expenses;
4. ₱30,000.00 as and for exemplary damages; plus the cost of this suit.
SO ORDERED.16
Ruling of the Court of Appeals
On appeal, petitioner raised the issue of whether an accused who was acquitted
of the crime charged may nevertheless be convicted of another crime or offense
not specifically charged and alleged and which is not necessarily included in the
crime or offense charged. The CA, in its Decision dated February 22, 2006,
ruled in the negative.17 It held that petitioner who was charged with and
arraigned for estafa through falsification of public document under Article 171(1)
of the RPC could not be convicted of Falsification of Public Document by a
Private Individual under Article 172(1) in relation to Article 171(2). The CA
observed that the falsification committed in Article 171(1) requires the
counterfeiting of any handwriting, signature or rubric while the falsification in
Article 171(2) occurs when the offender caused it to appear in a document that
a person participated in an act or proceeding when in fact such person did not
so participate. Thus, the CA opined that the conviction of the petitioner for an
offense not alleged in the Information or one not necessarily included in the
offense charged violated his constitutional right to be informed of the nature and
cause of the accusation against him.18 Nonetheless, the CA affirmed the trial
court’s finding with respect to petitioner’s civil liability. The dispositive portion of
the CA’s February 22, 2006 Decision reads as follows:
WHEREFORE, premises considered, We resolve to set aside the Decision
dated May 21, 2003 of the Regional Trial Court, 7th Judicial Region, Branch 13,
Cebu City only insofar as it found the petitioner guilty of a crime that is different
from that charged in the Information. The civil liability determinations are
affirmed.
SO ORDERED.19
Petitioner filed a motion for reconsideration which was denied in the Resolution
dated August 15, 2006.
Hence, petitioner comes before us through the present Petition for Review on
Certiorari raising the lone issue of whether he could still be held civilly liable
notwithstanding his acquittal by the trial court and the CA.
Our Ruling
The petition is meritorious.
It is an established rule in criminal procedure that a judgment of acquittal shall
state whether the evidence of the prosecution absolutely failed to prove the guilt
of the accused or merely failed to prove his guilt beyond reasonable doubt.20 In
either case, the judgment shall determine if the act or omission from which the
civil liability might arise did not exist.21 When the exoneration is merely due to
the failure to prove the guilt of the accused beyond reasonable doubt, the court
should award the civil liability in favor of the offended party in the same criminal
action.22 In other words, the "extinction of the penal action does not carry with it
the extinction of civil liability unless the extinction proceeds from a declaration in
a final judgment that the fact from which the civil [liability] might arise did not
exist."23
Here, the CA set aside the trial court’s Decision because it convicted petitioner
of an offense different from or not included in the crime charged in the
Information. To recall, petitioner was charged with estafa through falsification of
public document. However, the RTC found that the spouses Alonto actually
signed the document although they did not personally appear before the notary
public for its notarization. Hence, the RTC instead convicted petitioner of
falsification of public document. On appeal, the CA held that petitioner’s
conviction cannot be sustained because it infringed on his right to be informed
of the nature and cause of the accusation against him.24 The CA, however,
found no reversible error on the civil liability of petitioner as determined by the
trial court and thus sustained the same.25
We do not agree.
In Banal v. Tadeo, Jr.,26 we elucidated on the civil liability of the accused despite
his exoneration in this wise:
While an act or omission is felonious because it is punishable by law, it gives
rise to civil liability not so much because it is a crime but because it caused
damage to another. Viewing things pragmatically, we can readily see that what
gives rise to the civil liability is really the obligation and moral duty of everyone
to repair or make whole the damage caused to another by reason of his own act
or omission, done intentionally or negligently, whether or not the same be
punishable by law. x x x
Simply stated, civil liability arises when one, by reason of his own act or
omission, done intentionally or negligently, causes damage to another. Hence,
for petitioner to be civilly liable to spouses Alonto, it must be proven that the acts
he committed had caused damage to the spouses.
Based on the records of the case, we find that the acts allegedly committed by
the petitioner did not cause any damage to spouses Alonto.
First, the Information charged petitioner with fraudulently making it appear that
the spouses Alonto affixed their signatures in the Deed of Absolute Sale thereby
facilitating the transfer of the subject properties in his favor. However, after the
presentation of the parties’ respective evidence, the trial court found that the
charge was without basis as the spouses Alonto indeed signed the document
and that their signatures were genuine and not forged.
Second, even assuming that the spouses Alonto did not personally appear
before the notary public for the notarization of the Deed of Absolute Sale, the
same does not necessarily nullify or render void ab initio the parties’
transaction.27 Such non-appearance is not sufficient to overcome the
presumption of the truthfulness of the statements contained in the deed. "To
overcome the presumption, there must be sufficient, clear and convincing
evidence as to exclude all reasonable controversy as to the falsity of the [deed].
In the absence of such proof, the deed must be upheld."28 And since the
defective notarization does not ipso facto invalidate the Deed of Absolute Sale,
the transfer of said properties from spouses Alonto to petitioner remains valid.
Hence, when on the basis of said Deed of Absolute Sale, petitioner caused the
cancellation of spouses Alonto’s title and the issuance of new ones under his
name, and thereafter sold the same to third persons, no damage resulted to the
spouses Alonto.1avvphi1
Moreover, we cannot sustain the alternative sentence imposed upon the
petitioner, to wit: to institute an action for the recovery of the properties of
spouses Alonto or to pay them actual and other kinds of damages. First, it has
absolutely no basis in view of the trial court’s finding that the signatures of the
spouses Alonto in the Deed of Absolute Sale are genuine and not forged.
Second, "[s]entences should not be in the alternative. There is nothing in the law
which permits courts to impose sentences in the alternative."29 While a judge
has the discretion of imposing one or another penalty, he cannot impose both in
the alternative.30 "He must fix positively and with certainty the particular
penalty."31
In view of the above discussion, there is therefore absolutely no basis for the
trial court and the CA to hold petitioner civilly liable to restore ownership and
possession of the subject properties to the spouses Alonto or to pay them
₱1,103,000.00 representing the value of the properties and to pay them nominal
damages, exemplary damages, attorney’s fees and litigation expenses.
WHEREFORE, the petition is GRANTED. The February 22, 2006 Decision of
the Court of Appeals in CA-G.R. SP No. 78644 and its August 15, 2006
Resolution are AFFIRMED insofar as they set aside the conviction of the
petitioner for the crime of falsification of public document. The portion which
affirmed the imposition of civil liabilities on the petitioner, i.e., the restoration of
ownership and possession, the payment of ₱1,103,000.00 representing the
value of the property, and the payment of nominal and exemplary damages,
attorney’s fees and litigation expenses, is deleted for lack of factual and legal
basis.
SO ORDERED.
G.R. No. 142531 October 15, 2002
PEOPLE OF THE PHILIPPINES, appellee,
vs.
DANILO ASIS y FONPERADA and GILBERT FORMENTO y
SARICON, appellant.
DECISION
PANGANIBAN, J.:
Circumstantial evidence that merely arouses suspicions or gives room for
conjecture is not sufficient to convict. It must do more than just raise the
possibility, or even the probability, of guilt. It must engender moral certainty.
Otherwise, the constitutional presumption of innocence prevails, and the
accused deserves acquittal.
The Case
For automatic review before this Court is the March 8, 2000 Decision1 of the
Regional Trial Court (RTC) of Manila (Branch 54) in Criminal Case No. 98-
163090, finding Danilo Asis y Fonperada and Gilbert2 Formento y Saricon guilty
beyond reasonable doubt of robbery with homicide aggravated by abuse of
confidence, superior strength and treachery. The decretal portion of the
Decision reads as follows:
"WHEREFORE, the two (2) accused are found guilty beyond reasonable doubt
of the crime of Robbery with Homicide with the generic aggravating
circumstances of abuse of confidence, superior strength and treachery; and
each is sentenced to death under Article 294, par. 1 of the Revised Penal Code;
they are also ordered to jointly and severally pay P100,000.00 as damages to
the heirs of the victim."3
Appellants were charged in an Information4 dated February 18, 1998, worded as from the outside. When he opened the steel door, he found everything to be
follows:5
"That on or about February 10, 1998, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and mutually helping each
other, did then and there wilfully, unlawfully and feloniously, with intent to gain Hing Guan a.k.a. Roy Ching (victim), lying prostrate on the ground with a knife
and by means of force and violence upon person, to wit: by then and there
stabbing one YU HING GUAN @ ROY CHING with a bladed instrument on the
different parts of the body thereafter take, rob and carry away the following, to
wit:
Cash money in the amount of P20,000.00
one (1) wristwatch
one (1) gold necklace
and undetermined items
or all in the total amount of P20,000.00 more or less, belonging to said
YU HING GUAN @ ROY CHING against his will, to the damage and
prejudice of the said owner in the aforesaid amount more or less of
P20,000.00, Philippine Currency, and as a result thereof, he sustained
mortal stab wounds which were the direct and immediate cause of his
death."6
When arraigned on July 9, 1998, both appellants pleaded not guilty. 7 Found to
be deaf-mutes, they were assisted, not only by a counsel de oficio,8 but also by
an interpreter from the Calvary Baptist Church. After due trial, appellants were
found guilty and sentenced to death.
The Facts
Version of the Prosecution
In its Brief,9 the Office of the Solicitor General (OSG) detailed the facts in the
following manner:
"The prosecution presented nine (9) witnesses. Although none of them had
actually seen the crime committed, strong and substantial circumstantial
evidence abound linking beyond reasonable doubt both appellants to the crime.
"As culled from the records, hereunder are the pertinent facts of the case:
"George Huang, the nephew of the victim Yu Hing Guan a.k.a. Roy Ching,
always passes by the store of the victim at 1042 Benavidez Street, Binondo,
Manila to bring food stuff, ice and other things to his uncle and mother, Diana
Yu, who work[s] in the office of said store.
"On February 9, 1998, at around 6:30 o’clock in the morning, Huang arrived at
the victim’s store and discovered that the steel door of the store was locked
normal except for the inner door which had always been left open but which was
closed at that time with only a chair blocking it.
"When he removed the blocking chair, he discovered the body of his uncle, Yu
embedded on his nape. He closed the door and proceeded to Luneta, where
[his] mother exercises, to inform her of what he saw. After informing [his]
mother, Huang first went to the Chinatown Police Station and reported the
incident; thereafter, he went to another station located in Soler corner Reina
Regente to report the incident again.
"Diana Yu, the sister of the victim, testified that on February 9, 1998, before 8:30
o’clock in the evening, she was in the office of her brother where she was
working at 1042 Benavidez St., Binondo, Manila. She saw the two appellants,
namely: Danilo Asis and Gilbert Formento, and her brother (the victim), who are
all deaf-mutes, talking in sign language. She testified that Danilo Asis
frequented the office of the victim, while Gilbert Formento came only on the back to the scene of the crime. Afterwards, they brought Danilo Asis to the
night of February 9, 1998. At around 8:30 o’clock in the evening, she left the police station for investigation, who expectedly denied having anything to do
office, leaving both appellants and the victim behind. The following morning, at with the killing of the victim.
around 7:30 o’clock in the morning, her son, George Huang, informed her of her
brother’s (victim’s) death. Upon learning of said incident, she went to the office "During investigation (February 10, 1998), SPO1 Balatbat noticed that there was
where she saw her brother’s body. She discovered that the sales proceeds of a bloodstain in Asis’ T-shirt.
the preceding day were missing and the necklace of her brother (victim) which "During the presentation of prosecution witness Dr. Olga Bausa, they stipulated
he always wore was also missing. that the bloodstains found in the white t-shirt with a lettering of ‘Collorrific’ and in
"On re-direct examination, Diana testified that she suspected both appellants, the short pants were human blood."10 (Citations omitted)
especially Gilbert Formento, to have perpetrated the crime because of the fact Version of the Defense
that she saw the pair of shorts of the victim in the bag of appellant Gilbert
Formento. On the other hand, appellants’ version of the facts is as follows: 11
"Jimmy Pagaduan testified that he was a helper in the Yu Hing Guan Auto "GILBERT FORMENTO is a deaf-mute who is one of the accused in this case.
Supply for five years already. He saw the two appellants everyday in the store ofHe testified through sign interpreter, Mrs. Nelda Bahena. On February 9, 1998
the victim. Furthermore, he testified that as far as he knows, Danilo Asis owed at about 11 am., he was in the house of Roy Ching[.] They talked about things
the victim PhP 3,000.00 and that he saw a list thereof which the victim showed and events. When he left the house of Ching he proceeded to Bulacan while
him. On February 9, 1998, he left the store at around 6:00 o’clock in the eveningAsis went to Luneta. He denied having in possession of the clothes of Ching
and he saw both appellants conversing with the victim. found with him in Bulacan. A policeman met him in his house in Sto. Nino,
Hagunoy, Bulacan. They handcuffed him immediately. He was whipped for the
"SPO2 Pablo Ileto of WPD Homicide Section testified that on February 11, first time in his life. He was brought to Manila at Funeraria Paz. The relatives of
1998, he was at Barangay Sto. Ni[ñ]o, Hagunoy, Bulacan together with Sgt. Roy Ching were pointing to him while he was being whipped by the two
Napoleon Timbol, PO3 Luis Chico, and witness, Diana Yu. The three (3) of them policemen.
were trying to locate the whereabouts of appellant Gilbert Formento in
connection with the death of Yu Hing Guan a.k.a. Roy Ching. They coordinated "NESTOR PAGLINAWAN is a friend of Danilo Asis. He is a vendor who vends
with the Hagunoy Bulacan police and searched the area. Diana Yu saw Gilbert at the PICC area. He testified that accused-appellant Danilo Asis occasionally
Formento in a delivery truck and she pointed him to them. Thereafter, they help[s] him in vending by guarding his selling items and preparing coffee. He
invited Gilbert Formento to their office at the WPD Homicide Section. But before communicated with accused-appellant Asis through sign language. He had
going to the WPD station, they first brought Gilbert Formento to his house. Upon known Asis for five years. On February 9, 1998, at about 10:00 p.m., Danilo
reaching the house, Diana Yu asked from the wife of the suspect for the stolen Asis was with him at the PICC. Accused-appellant Asis stayed with him until
money. However, they could not understand each other, so the wife gave Diana 7:00 am of the following day.
Yu the bag of Gilbert Formento where Diana Yu noticed the pair of shorts which
belonged to the victim. PO2 Ileto noticed what appears to be blood stains on the "DANILO ASIS is a deaf-mute and one of the accused in this case. He testified
pair of shorts. through sign interpreters, Ms. Theta Figuerres and Mrs. Nelda Bahena. Roy
Ching was his friend since 1995. On February 9, 1998, he went to the store of
"SPO1 Benito Cabatbat testified that he, together with SPO1 Alfredo Opriasa, Roy Ching because he was called by Ching to help him in his store. When he
SPO1 Raul Olavario, the photographer SPO2 Tabio, and fingerprint technician arrived at Ching’s store, Gilbert Formento was there already. The three of them
Domingo Daclan of the District Crime Laboratory Division went to the crime drank beer. He left the store at 9:00 p.m., ahead of Gilbert Formento. He
scene to conduct the investigation on February 10, 1998. Upon arriving at the proceeded to PICC to help his friend Nestor, a cigarette vendor.
scene, they saw the victim lying prostrate on the ground, barefooted, and clad
only in brief. "He denied killing Ching. When he went back to Roy Ching’s store at 10 a.m.
the following day, he felt depressed upon knowing that Roy Ching was dead. He
"After photographing the victim, the team went upstairs where traces of blood was arrested and incarcerated on that same day."12 (Citations omitted)
were seen on the second and third floors.
Ruling of the Trial Court
"During the course of investigation, SPO1 Cabatbat received a phone call from
a relative informing him that one of the suspects, appellant Danilo Asis, went
The RTC held that the "crime charged and proved is robbery with homicide
under Article 294, No. 1 of the Revised Penal Code."13 It ruled that "although no
witnesses to the actual killing and robbery were presented, the circumstantial
evidence including the recovery of bloodstained clothing from both accused
definitely proved that the two (2) x x x committed the crime."14 Finally, the RTC
also appreciated the aggravating circumstances of abuse of confidence,
superior strength and treachery and thus sentenced both appellants to the
supreme penalty of death.
Hence, this automatic review before us.15
Issues
In their Brief, appellants fault the trial court with the following assignment of
errors:
"I
The trial court gravely erred in finding the accused-appellants guilty beyond
reasonable doubt of the crime of robbery with homicide notwithstanding the
insufficiency of the circumstantial evidence presented by the prosecution.
"II
The trial court gravely erred in concluding that evident premeditation, treachery
and conspiracy attended the killing of Roy Ching.
"III
The trial court gravely erred in not considering the physical infirmities of the two
accused-appellants who are deaf-mutes."16
The Court’s Ruling
The appeal is meritorious. The prosecution’s evidence does not prove the guilt
of appellants beyond reasonable doubt; hence, their constitutional right to be
presumed innocent remains and must be upheld.
Main Issue:
Sufficiency of Prosecution Evidence
In the present appeal, two things stand out: first, there were no eyewitnesses to
the robbery or to the homicide; and second, none of the items allegedly stolen
were recovered or presented in evidence.
Appellants argue that the pieces of circumstantial evidence submitted by the
prosecution are insufficient to prove their guilt beyond reasonable doubt. The
prosecution counters that these pieces of evidence, taken together, necessarily
lead to their conviction.
Certainly, it is not only by direct evidence that the accused may be convicted of
the crime charged.17 Circumstantial evidence is resorted to when direct
testimony would result in setting felons free and deny proper protection to the
community.18 The former is not a "weaker form of evidence vis-à-vis the
latter."19 The accused may be convicted on the basis of circumstantial evidence,
provided the proven circumstances constitute an unbroken chain leading to one
fair reasonable conclusion pointing to the accused, to the exclusion of all others,
as the guilty person.20"Circumstantial evidence is akin to a tapestry; it should be
made up of strands which create a pattern when interwoven."21 This pattern
should be reasonably consistent with the hypothesis that the accused is guilty
and at the same time totally inconsistent with the proposition that he or she is
innocent.22
The Rules on Evidence23 allow conviction by means of circumstantial evidence
as follows:
"SEC. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is
sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt."
Bloodstained Trousers
The prosecution argues that the strongest piece of evidence damning appellants
is the victim’s bloodstained pair of short pants recovered from the bag of Gilbert
Formento. It argues that since the trousers were recovered from one of the
appellants, then Rule 131 (j) of the Revised Rules of Court should apply. The
said provision is worded, thus:
"Sec. 3. Disputable presumptions.
The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
xxx xxx xxx
(j) That a person found in possession of a thing taken in the doing of a recent
wrongful act is the taker and the doer of the whole act; otherwise, that things
which a person possesses, or exercises acts of ownership over, are owned by
him;"24
We disagree. It escapes this Court how the recovery of a bloodstained pair of
shorts allegedly owned by the victim should give rise to the presumption that
one of the appellants was the "taker and doer of the whole act" 25 of robbery with
homicide. By itself, the retrieval of the pair of shorts does not prove that
appellants, or even just one of them, robbed the trouser owner of cash and
jewelry and also killed him, as charged in the Information. Neither does it show
that appellants, or one of them, perpetrated the aggression leading to the
victim’s death.
Furthermore, the ownership of the pair of shorts was not definitively determined.
And even granting for the sake of argument that it indeed belonged to the victim,
still, there is no evidence to prove that it was taken from him on the night of the
homicide. Neither can it be ruled out that he might have lent it or gave it to either
one of the two. It was neither extraordinary nor impossible for him to have
allowed Appellant Formento to use it, considering that they were friends, and
that they shared a commonality as deaf-mutes.
The OSG harps on the bloodstains found on the shorts. But as testified to by the
pathologist26 who examined them, although the origin was human blood, the
blood grouping could not be determined.27 Thus, its mere presence on the pair
of shorts did not in any way support the prosecution’s theory linking appellants
to the crime.
Evidence Is Inadmissible
In any event, appellants’ argument of illegal search and seizure cannot simply
be brushed aside, considering the guarantee so sacredly enshrined in our
Constitution.
There is no question that appellants were collared without any arrest warrant.
Neither was there any valid search warrant obtained against them. However,
they never questioned the legality of their arrest through a motion to quash the
Information. Instead, they entered a plea of not guilty and participated in the
trial. Settled is the rule that any objection involving the arrest or the trial court’s
procedure of acquiring jurisdiction over the person of the accused must be
made before the arraignment; otherwise, the objection is deemed waived.28
Indeed, appellants do not now question the legality of their arrest. What they
object to is the introduction of the bloodstained pair of shorts allegedly
recovered from the bag of Appellant Formento. They argue that the search was
illegally done, making the obtainment of the pair of shorts illegal and taints them
as inadmissible. The prosecution, on the other hand, contends that it was the
wife of appellant who voluntarily surrendered the bag that contained the
bloodstained trousers of the victim.29 Her act, it claims, constituted a valid
consent to the search without a warrant.30
We clarify. Primarily, the constitutional right against unreasonable searches and
seizures, being a personal one, cannot be waived by anyone except the person
whose rights are invaded or who is expressly authorized to do so on his or her
behalf.31 In the present case, the testimonies of the prosecution witnesses show
that at the time the bloodstained pair of shorts was recovered, Appellant
Formento, together with his wife and mother, was present. Being the very
subject of the search, necessarily, he himself should have given consent. Since
he was physically present, the waiver could not have come from any other
person.
The OSG cites Lopez v. Commissioner of Customs,32 which validated a waiver
of a warrantless search, when a woman thought to be the wife of the accused --
but who later turned out to be a manicurist -- surrendered to the police the
papers belonging to the appellant. The instant appeal, however, presents a
different situation, because here the accused himself was present when the
search was made. Hence, consent should have been obtained from or given by
him. In Lopez, the accused was not present when the search was made; hence,
the consent given by the occupant of the hotel room was deemed the consent of
the accused who was then renting the space.
The OSG’s argument loses even more cogency when evaluated against the
well-settled principles on searches and seizures without warrants.
To constitute a valid waiver, it must be shown that first, the right exists; second,
the person involved had knowledge, actual or constructive, of the existence of
such a right; and third, the person had an actual intention to relinquish the
right.33 How could Appellant Formento have consented to a warrantless search
when, in the first place, he did not understand what was happening at that
moment? The prosecution witnesses themselves testified that there was no
interpreter to assist him -- a deaf-mute -- during the arrest, search and seizure.
Naturally, it would seem that he indeed consented to the warrantless search, as
the prosecution would want this Court to believe.
As early as 1938, Justice Jose P. Laurel pointed out in Pasion vda. de Garcia v.
Locsin:
"As the constitutional guaranty is not dependent upon any affirmative act of the
citizen, the courts do not place the citizen in the position of either contesting an
officer’s authority by force, or waiving his constitutional rights; but instead they
hold that a peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy of
the law."34
This point becomes even more pronounced in the present case, in which
appellant is a deaf-mute, and there was no interpreter to explain to him what
was happening. His seeming acquiescence to the search without a warrant may
be attributed to plain and simple confusion and ignorance.
Verily, "courts indulge every reasonable presumption against waiver of
fundamental constitutional rights and x x x we do not presume acquiescence [to]
the loss of fundamental rights."35
Neither can the OSG claim that appellant’s wife voluntarily surrendered the bag
that contained the bloodstained trousers of the victim.36 As admitted by
Prosecution Witness PO2 Pablo Ileto, the victim’s sister and appellant’s wife
"cannot understand each other."37 Eventually, appellant’s wife gave the
belongings of Gilbert Formento where the bloodstained shorts of the victim were
recovered.38 How can the surrender of appellant’s belongings in this case be
voluntary, when the person surrendering them did not even understand the
person she was communicating with?
To be sure, the OSG cannot even use the argument that the search was made
by a private individual, the victim’s sister, and thereby skirt the issue of
constitutional protection against unlawful searches by the State.
The victim’s sister herself testified against this argument as follows:
"ATTY. FONTANILLA
Q So Gilbert Formento was not wearing the alleged trouser[s]?
A The bag was given by his mother or his wife, sir.
Q To whom?
A To the policemen, sir.
Q And they searched this, is that right?
A Yes sir."39
This testimony clearly forecloses the assertion that it was not the police
authorities who conducted the search. This testimony in fact belies that of PO2
Pablo Ileto40 that it was the prosecution witness who was talking to appellant’s
wife, and who conducted the search that yielded the bloodstained shortpants.
All told, the bloodstained pair of shorts was a piece of evidence seized on the
occasion of an unlawful search and seizure. Thus, it is tainted and should thus
be excluded for being the proverbial fruit of the poisonous tree.41 In the
language of the fundamental law, it shall be inadmissible in evidence for any
purpose in any proceeding.42
Bloodstained Shirt
The prosecution then contends that when the other appellant, Danilo Asis, was
brought to the police station for investigation the following day, the police found
bloodstain on his shirt.
Again, this fact cannot be taken as an indication of guilt on the part of Appellant
Asis. It does not point to the conclusion that he was involved in the crime
charged against him. We cannot agree that since there was bloodstain on his
clothing, ergo, he committed the robbery and the attendant killing. At most, this
piece of circumstantial evidence, taken with the other one, may lead to
suspicion. But courts do not rely on circumstantial evidence that merely arouses
suspicion or conjecture.43 For circumstantial evidence to lead to conviction, it
must do more than just raise the mere possibility or even probability of guilt.44 It
must engender moral certainty.
Motive for the Crime
The prosecution then attempts to ascribe motive to appellants by arguing that
one of them, Appellant Asis, allegedly owed the victim P6,070.45
Indeed, motive becomes material when the evidence is circumstantial or
inconclusive, and there is some doubt on whether a crime has been committed
or whether the accused has committed it.46 But the prosecution’s contention
again fails, as the fact of indebtedness was never conclusively established.
According to the sister of the victim, Asis still owed her brother the amount of
P6,070. Yet, during the testimony of the said appellant, it was shown that it was
actually the victim who had been indebted to the former. The prosecution, in
fact, uses this testimony of Asis to bolster its claim that he became "madder and
madder" at the victim. Coming from the prosecution itself, this argument casts
doubts on whether it was appellant who owed the victim or the other way
around.
The Public Attorney’s Office, the defense counsel, correctly points out that the
victim himself had made the entries in his logbook which served as bases for
the prosecution’s averment that appellant owed him some amount. The sister,
who was explaining the entries, admitted that she had no personal knowledge
thereof. More important, their veracity was never established. Neither were the
erasures or scratches thereon sufficiently explained.
To show that there was sufficient motive to commit the crime charged, the
prosecution uses the testimony of Asis that he got "madder and madder" at the
victim. This statement is too speculative to deserve serious consideration.
The Last Persons Seen
Talking with the Victim
It is also argued that appellants were the last persons seen with the victim; ergo,
the suspicion that they were the authors of the crime. Admittedly, this
circumstance may raise a speculation, but it is insufficient to establish their guilt.
As this Court has consistently stressed, mere suspicions and speculations can
never be the bases of conviction in a criminal case.47
Neither is the mere presence of appellants at the locus criminis sufficient to
implicate them. Their being at the store of the victim was not unusual, as
testified to by the witnesses. In fact, it was established that he and appellants
had known one another well, and that they had regularly met at his store.
Moreover, there was paucity of evidence indicating that, other than appellants,
no other person had or could have had access to the store where he was
robbed and killed.
As they themselves correctly observe, their complicity in the crime becomes
even more doubtful because, as testified to by his sister, the neighbors heard
shouts; these could not have come from deaf-mutes. Furthermore, appellants
question the non-presentation of the results of the tests conducted on the
fingerprints lifted from the crime scene.
Appellants Pointed to Each Other?
Finally, we do not find any evidence that appellants indeed pointed to one
another as the author of the crime charged. In fact, even during their cross-
examination, neither of them specifically shifted the blame to the other. When
questioned by the public prosecutor, they even denied having done so.
All told, to sustain a conviction for the complex crime of robbery with homicide,
which is primarily an offense against property, it is essential that the robbery be
proved beyond reasonable doubt.48 Proof of the homicide alone is not sufficient
to support a conviction for the aforesaid complex crime.49
Essential to robbery is the taking, with intent to gain, of personal property
belonging to another by means of violence or intimidation against another
person by the use of force upon things. There is robbery with homicide when, by
reason or on the occasion of a robbery with the use of violence against or
intimidation of persons, homicide is also committed.50
Accordingly, in robbery with homicide cases, the prosecution needs to prove
these elements: (a) the taking of personal property is perpetrated by means of
violence or intimidation against a person; (b) the property taken belongs to
another; (c) the taking is characterized by intent to gain or animus lucrandi; and
(d) on the occasion of the robbery or by reason thereof, the crime of homicide --
here used in its generic sense -- is committed.51
Robbery Completely
Unsubstantiated
The prosecution tried its best to prove the crime of homicide, even if
unsuccessfully, but in the process, it left the crime of robbery totally
unsubstantiated.
More glaring is the fact that the Information charged appellants "as conspiring
and confederating together and mutually helping each other."52 Yet, the RTC
Decision found them both guilty of the crime charged without any
pronouncement as to the presence of conspiracy. To serve effectively as a
basis for conviction, conspiracy must be proved as convincingly as the criminal
act itself.53
Had the alleged conspiracy to commit the crime been established, then the
precise modality of each individual conspirator becomes secondary. The
applicable rule in conspiracy is that the act of one shall be deemed to be the act
of all.54 The degree of actual participation in the commission of the crime is
immaterial.55 However, since there was neither proof nor finding of conspiracy,
then the extent of the individual participation of each appellant should have
been clearly delineated.
In criminal cases, the prosecution has the onus probandi of establishing the guilt
of the accused.56 Ei incumbit probatio non qui negat. He who asserts -- not he
who denies -- must prove.57 The burden must be discharged by the prosecution
on the strength of its own evidence, not on the weakness of that for the
defense.58 Hence, circumstantial evidence that has not been adequately
established, much less corroborated, cannot be the basis of
conviction.59 Suspicion alone is insufficient, the required quantum of evidence
being proof beyond reasonable doubt.60 Indeed, "the sea of suspicion has no
shore, and the court that embarks upon it is without rudder or compass."61
It must be stressed that in our criminal justice system, the overriding
consideration is not whether the court doubts the innocence of the accused, but
whether it entertains a reasonable doubt as to their guilt.62 Where there is no
moral certainty as to their guilt, they must be acquitted even though their
innocence may be questionable. The constitutional right to be presumed
innocent until proven guilty can be overthrown only by proof beyond reasonable
doubt.63
In the final analysis, the circumstances narrated by the prosecution engender
doubt rather than moral certainty on the guilt of appellants.
In view of the above findings, we deem it unnecessary to deal with the other
issues raised by appellants.
WHEREFORE, the automatically appealed Decision of the Regional Trial Court
of Manila (Branch 54) in Criminal Case No. 98-163090 is SET ASIDE. Danilo
Asis and Gilbert Formento are ACQUITTED on reasonable doubt, and ordered
immediately RELEASED from custody, unless they are being held for some
other lawful cause.
The director of the Bureau of Corrections is ORDERED to implement this
Decision forthwith and to INFORM this Court, within five (5) days from receipt
hereof, of the date appellants were actually released from confinement. Costs
de oficio.
SO ORDERED.
 G.R. Nos. 191370-71, August 10, 2015
RODOLFO BASILONIA, LEODEGARIO CATALAN AND JOHN
BASILONIA, Petitioners, v. HON. DELANO F. VLLLARUZ, ACTING IN HIS
CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, ROXAS
CITY, BRANCH 16, AND DIXON ROBLETE, Respondents.
DECISION
PERALTA, J.:
The lone issue for resolution in this petition for certiorari under Rule 65 of the
1997 Revised Rules of Civil Procedure (Rules) with prayer for the issuance of
preliminary injunction and/or temporary restraining order is the applicability of
Section 6, Rule 39 of the Rules in criminal cases. Specifically, does a trial court
have jurisdiction to grant a motion for execution which was filed almost twenty
(20) years after the date of entry of judgment? In his Orders dated December 3,
20091 and January 4, 2010,2 respondent Judge Delano F. Vi11aruz of the Regional
Trial Court (RTC), Roxas City, Branch 16, held in the affirmative.3 We sustain in
part.
The Facts
On June 19, 1987, a Decision4 was promulgated against petitioners in Criminal
Case Nos. 1773, 1774 and 1775, the dispositive portion of which states: Lawlibra ryofCRAlaw
WHEREFORE, and in view of the foregoing considerations, this court finds the
[accused] Rodolfo Basilonia, Leodegario Catalan, and John "Jojo" Basilonia,
GUILTY BEYOND REASONABLE DOUBT, as principals in Criminal Case No. 1773 for
the murder of Atty. Isagani Roblete on September 15, 1983 in Roxas City,
Philippines, defined under Article 248 of the Revised Penal Code of the Philippines,
without any aggravating or mitigating circumstance, and sentences the said
[accused] to suffer an indeterminate sentence of 12 years, 1 month and 1 day of
reclusion temporal as minimum, to 20 years, and 1 day of reclusion temporal as
maximum, and the accessory penalties thereto; to pay and [indemnify], jointly
and severally, the heirs of the deceased Atty. Isagani Roblete the sum of
1!32,100.00 representing funeral expenses, tomb, burial, and expenses for wake;
the sum of 1!30,000.00 as indemnity for the death of Atty. Isagani Roblete; the
amount of lost income cannot be determined as the net income of the deceased
cannot be ascertained; and to pay the costs of suit. [Accused] Vicente Catalan and
Jory Catalan are ACQUITTED for lack of evidence.
In Criminal Case No. 1775 for Frustrated Murder, this court finds the accused John
"Jojo" Basilonia GUlLTY BEYOND REASONABLE DOUBT of the crime of Frustrated
Homicide, as principal, committed against the person of Rene Gonzales on
September 15, 1983, defined under Article 249, in relation to Articles 6 and 50 of
the Revised Penal Code and sentences the said accused to suffer an indeterminate
sentence of 2 years, 4 months and 1 day of prision [correccional] as minimum, to
6 years, and 1 day of prision mayor as maximum; and to pay the costs. [Accused]
Rodolfo Basilonia, Leodegario Catalan, Vicente Catalan and Jory Catalan are
ACQUITTED for lack of evidence.
In Criminal Case No. 1774 for Illegal Possession of Firearm, all [accused] are
ACQUITTED for insufficiency of evidence.
SO ORDERED.5
Petitioners filed a Notice of Appeal on July 30, 1987, which the trial court granted
on August 3, 1987.6 redarclaw
On January 23, 1989, the Court of Appeals (CA) dismissed the appeal for failure of
petitioners to file their brief despite extensions of time given.7 reda rclaw
The Resolution was entered in the Book of Entries of Judgment on September 18,
1989.8 Thereafter, the entire case records were remanded to the trial court on
October 4, 1989.9 redarc law
Almost two decades passed from the entry of judgment, on May 11, 2009, private
respondent Dixon C. Roblete, claiming to be the son of the deceased victim, Atty.
Roblete, filed a Motion for Execution of Judgment.10 redarclaw
He alleged, among others, that despite his request to the City Prosecutor to file a
motion for execution, the judgment has not been enforced because said
prosecutor has not acted upon his request.
Pursuant to the trial court's directive, the Assistant City Prosecutor filed on May
22, 2009 an Omnibus Motion for Execution of Judgment and Issuance of Warrant
of Arrest.11
redarc law
On July 24, 2009, petitioners filed before the CA a Petition for Relief of Judgment
praying to set aside the June 19, 1987 trial court Decision and the January 23,
1989 CA Resolution.12 Further, on September 1, 2009, they filed before the trial
court a Manifestation and Supplemental Opposition to private respondent
Roblete's motion.13
redarclaw
The trial court granted the motion for execution on December 3, 2009 and
ordered the bondsmen to surrender petitioners within ten (10) days from notice of
the Order. The motion for reconsideration14 filed by petitioners was denied on
January 4, 2010.
Due to petitioners' failure to appear in court after the expiration of the period
granted to their bondsmen, the bail for their provisional liberty was ordered
forfeited on January 25, 2010.15 On even date, the sheriff issued the writ of
execution.16
reda rclaw
The Court's Ruling
The determination of whether respondent trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction in granting a motion for
execution which was filed almost twenty (20) years after a judgment in a criminal
case became final and executory necessarily calls for the resolution of the twin
issues of whether the penalty of imprisonment already prescribed and the civil
liability arising from the crime already extinguished. In both issues, petitioners
vehemently assert that respondent trial court has no more jurisdiction to order the
execution of judgment on the basis of Section 6, Rule 39 of the Rules.
We consider the issues separately.
Prescription of Penalty
With respect to the penalty of imprisonment, Act No. 3815, or the Revised Penal
Code (RPC)17 governs. Articles 92 and 93 of which provide: Lawl ibra ryofCRAlaw
ARTICLE 92. When and How Penalties Prescribe. - The penalties imposed by final
sentence prescribe as follows:Lawlib raryofCR Alaw
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto
mayor, which prescribes in five years;
4. Light penalties, in one year.
ARTICLE 93. Computation of the Prescription of Penalties.- The period of
prescription of penalties shall commence to run from the date when the culprit
should evade the service of his sentence, and it shall be interrupted if the
defendant should give himself up, be captured, should go to some foreign country
with which this Government has no extradition treaty, or should commit another
crime before the expiration of the period of prescription.
As early as 1952, in Infante v. Provincial Warden of Negros Occidental,18 the Court
already opined that evasion of service of sentence is an essential element of
prescription of penalties. Later, Tanega v. Masakayan, et al.19 expounded on the
rule that the culprit should escape during the term of imprisonment in order for
prescription of penalty imposed by final sentence to commence to run, thus:
LawlibraryofCR Alaw
x x x The period of prescription of penalties- so the succeeding Article 93 provides
- "shall commence to run from the date when the culprit should evade the service
of his sentence."
What then is the concept of evasion of service of sentence? Article 157 of the
Revised Penal Code furnishes the ready answer. Says Article 157:
Lawlib raryofCR Alaw
ART. 157. Evasion of service of sentence. - The penalty of prision correccional in
its medium and maximum periods shall be imposed upon any convict who shall
evade service of his sentence by escaping during the term of his imprisonment by
reason of final judgment. However, if such evasion or escape shall have taken
place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs,
or floors, or by using picklocks, false keys, disguise, deceit, violence or
intimidation, or through connivance with other convicts or employees of the penal
institution, the penalty shall be prision correccional in its maximum period.
Elements of evasion of service of sentence are: (1) the offender is a convict by
final judgment; (2) he "is serving his sentence which consists in deprivation of
liberty"; and (3) he evades service of sentence by escaping during the term of his
sentence. This must be so. For, by the express terms of the statute, a convict
evades "service of his sentence" by "escaping during the term of his imprisonment
by reason of final judgment." That escape should take place while serving
sentence, is emphasized by the provisions of the second sentence of Article 157
which provides for a higher penalty if such "evasion or escape shall have taken
place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs,
or floors, or by using picklocks, false keys, disguise, deceit, violence or
intimidation, or through connivance with other convicts or employees of the penal
institution, * * *" Indeed, evasion of sentence is but another expression of the
term "jail breaking."
A dig into legal history confirms the views just expressed. The Penal Code of Spain
of 1870 in its Article 134 - from whence Articles 92 and 93 of the present Revised
Penal Code originated- reads: Lawlib raryofCR Alaw
"Las penas impuestas por sentencia firme prescriben: Las de muerte y cadena
perpetua, a los veinte años.
***
Las leves, al año.
El tiempo de esta prescripcion comenzara a correr desde el dia en que se notifique
personalmente al reo la sentencia firme, o desde el quebrantamiento de la
condena, si hubiera esta comenzado a cumplirse. * * *" Note that in the present
Article 93 the words "desde el dia en que se notifique personalmente al reo la
sentencia firme", written in the old code, were deleted. The omission is significant.
What remains reproduced in Article 93 of the Revised Penal Code is solely
"quebrantamiento de Ia condena". And, "quebrantamiento" or "evasion"
means escape. Reason dictates that one can escape only after he has started
service of sentence.
Even under the old law, Viada emphasizes, where the penalty consists of
imprisonment, prescription shall only begin to run when he escapes from
confinement. Says Viada: Lawlibra ryofCRAlaw
"El tiempo de la prescripcion empieza a contarse desde el dia en que ha tenido
Iugar la notificacion personal de la sentencia firme al reo: el Codigo de 1850 no
expresaba que la notificacion hubiese de ser personal, pues en su art. 126 se
consigna que el termino de Ia prescripcion se cuenta desde que se notifique la
sentencia, causa de la ejecutoria en que se imponga le pena respectiva. Luego
ausente el reo, ya no podra prescribir hoy Ia pena, pues que Ia notificacion
personal no puede ser sup/ida por Ia notificacion hecha en estrados. Dada la
imprescindible necesidad del requisito de la notificacion personal, es obvio que en
las penas que consisten en privacion de libertad solo podra existir Ia prescripcion
quebrantando el reo Ia condena, pues que si no se hallare ya preso pre-
ventivamente, debera siempre procederse a su encerrarniento en el acto de serle
notificada personalmente la sentencia."
We, therefore, rule that for prescription of penalty of imprisonment imposed by
final sentence to commence to run, the culprit should escape during the term of
such imprisonment.20
Following Tanega, Del Castillo v. Hon. Torrecampo21 held that one who has not
been committed to prison cannot be said to have escaped therefrom. We agree
with the position of the Solicitor General that "escape" in legal parlance and for
purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner
from the limits of his custody.
Of more recent vintage is Our pronouncements in Pangan v. Hon.
Gatbalite,22 which cited Tanega and Del Castillo, that the prescription of penalties
found in Article 93 of the RPC applies only to those who are convicted by final
judgment and are serving sentence which consists in deprivation of liberty, and
that the period for prescription of penalties begins only when the convict evades
service of sentence by escaping during the term of his sentence.
Applying existing jurisprudence in this case, the Court, therefore, rules against
petitioners. For the longest time, they were never brought to prison or placed in
confinement despite being sentenced to imprisonment by final judgment.
Prescription of penalty of imprisonment does not run in their favor. Needless to
state, respondent trial court did not commit grave abuse of discretion in assuming
jurisdiction over the motion for execution and in eventually granting the same.
Extinction of Civil Liability
The treatment of petitioners' civil liability arising from the offense committed is
different.
Elementary is the rule that every person criminally liable for a felony is also civilly
liable.23 We said in one case: Lawlib ra ryofCRAlaw
It bears repeating that "an offense as a general rule causes two (2) classes of
injuries - the first is the social injury produced by the criminal act which is sought
to be repaired thru the imposition of the corresponding penalty and the second is
the personal injury caused to the victim of the crime which injury is sought to be
compensated thru indemnity, which is civil in nature." (Ramos v. Gonong, 72
SCRA 559). As early as 1913, this Court in US. v. Heery (25 Phil. 600) made it
clear that the civil liability of the accused is not part of the penalty for the crime
committed. It is personal to the victim. x x x.
Under Article 112 of the RPC, civil liability established in Articles
100,25 101,26 102,27 and 10328 of the Code shall be extinguished in the same
manner as other obligations, in accordance with the provisions of the Civil Law.
Since the Civil Code is the governing law, the provisions of the Revised Rules of
Civil Procedure, particularly Section 6, Rule 39 thereof, is applicable. It states:
Lawlibra ryofCRAlaw
Section 6. Execution by motion or by independent action. - A final and executory
judgment or order may be executed on motion within five (5) years from the date
of its entry. After the lapse of such time, and before it is barred by the statute of
limitations, a judgment may be enforced by action. The revived judgment may
also be enforced by motion within five (5) years from the date of its entry and
thereafter by action before it is barred by the statute of limitations. (6a)
Section 6, Rule 39 of the Rules must be read in conjunction with
Articles 1144 (3) and 1152 of the Civil Code, which provide: Lawlib raryofCRAlaw
Art. 1144. The following actions must be brought within ten years from the time
the right of action accrues:Lawlibra ryofCRAlaw
xxxx
(3) Upon a judgment
Art. 1152. The period for prescription of actions to demand the fulfillment of
obligations declared by a judgment commences from the time the judgment
became final.
Based on the foregoing, there are two (2) modes of enforcing a final and
executory judgment or order: through motion or by independent action.
These two modes of execution are available depending on the timing when the
judgment creditor invoked its right to enforce the court's judgment. Execution by
motion is only available if the enforcement of the judgment was sought
within five (5) years from the date of its entry. On the other hand, execution
by independent action is mandatory if the five-year prescriptive period for
execution by motion had already elapsed. However, for execution by independent
action to prosper - the Rules impose another limitation - the action must be filed
before it is barred by the statute of limitations which, under the Civil Code, is ten
(10) years from the finality of the judgment.29
An action for revival of judgment is not intended to reopen any issue affecting the
merits of the case or the propriety or correctness of the first judgment.30 The
purpose is not to re-examine and re-try issues already decided but to revive the
judgment; its cause of action is the judgment itself and not the merits of the
original action.31 However, being a mere right of action, the judgment sought to
be revived is subject to defenses and counterclaims like matters of jurisdiction and
those arising after the finality of the first judgment or which may have arisen
subsequent to the date it became effective such as prescription, payment, or
counterclaims arising out of transactions not connected with the former
controversy.32redarclaw
Once a judgment becomes final, the prevailing party is entitled as a matter of
right to a writ of execution the issuance of which is the trial court's ministerial
duty, compellable by mandamus.33 Yet, a writ issued after the expiration of the
period is null and void.34 The limitation that a judgment be enforced by execution
within the stated period, otherwise it loses efficacy, goes to the very jurisdiction of
the court. Failure to object to a writ issued after such period does not validate it,
for the reason that jurisdiction of courts is solely conferred by law and not by
express or implied will of the parties.35
reda rclaw
Nonetheless, jurisprudence is replete with a number of exceptions wherein the
Court, on meritorious grounds, allowed execution of judgment despite non-
observance of the time bar. In Lancita, et al. v. Magbanua, et al.36 it was held: Lawli bra ryofCRAlaw
ChanRobles Vi rtualaw lib rary
In computing the time limited for suing out an execution, although there is
authority to the contrary, the general rule is that there should not be included the
time when execution is stayed, either by agreement of the parties for a definite
time, by injunction, by the taking of an appeal or writ of error so as to operate as
a supersedeas, by the death of a party, or otherwise. Any interruption or delay
occasioned by the debtor will extend the time within which the writ may be issued
without scire facias. x x x.37
Thus, the demands of justice and fairness were contemplated in the following
instances: dilatory tactics and legal maneuverings of the judgment obligor which
redounded to its benefit;38 agreement of the parties to defer or suspend the
enforcement of the judgment;39 strict application of the rules would result in
injustice to the prevailing party to whom no fault could be attributed but
relaxation thereof would cause no prejudice to the judgment obligor who did not
question the judgment sought to be executed;40and the satisfaction of the
judgment was already beyond the control of the prevailing party as he did what
he was supposed to do.41 Essentially, We allowed execution even after the
prescribed period elapsed when the delay is caused or occasioned by actions of
the judgment debtor and/or is incurred for his benefit or advantage.42 redarc law
In the instant case, it is obvious that the heirs of Atty. Roblete did not file a
motion for execution within the five-year period or an action to revive the
judgment within the ten-year period. Worse, other than the bare allegation that
the judgment has not been enforced because the public prosecutor has not acted
on the request to file a motion for execution, no persuasive and compelling reason
was presented to warrant the exercise of Our equity jurisdiction. Unfortunately for
private respondent Roblete, the instant case does not fall within the exceptions
afore-stated. It cannot be claimed that the delay in execution was entirely beyond
their control or that petitioners have any hand in causing the same.43 As regards
the civil aspect of a criminal case is concerned, it is apt to point that —
ChanRobles Vi rtualaw lib rary
Litigants represented by counsel should not expect that all they need to do is sit
back and relax, and await the outcome of their case. They should give the
necessary assistance to their counsel, for at stake is their interest in the case.
While lawyers are expected to exercise a reasonable degree of diligence and
competence in handling cases for their clients, the realities of law practice as well
as certain fortuitous events sometimes make it almost physically impossible for
lawyers to be immediately updated on a particular client's case.44
Aside from the civil indemnity arising from the crime, costs and incidental
expenses of the suit are part of the judgment and it is incumbent upon the
prevailing party in whose favor they are awarded to submit forthwith the itemized
bill to the clerk of court.45 Manifestly, the heirs of Atty. Roblete failed to do so.
Their indifference, if not negligence, is indicative of lack of interest in executing
the decision rendered in their favor. To remind, the purpose of the law in
prescribing time limitations for executing judgments or orders is to prevent
obligors from sleeping on their rights.46 Indeed, inaction may be construed as a
waiver.47reda rclaw
To close, the Court cannot help but impress that this case could have been
averted had the lower court been a competent dispenser of justice. It is opportune
to remind judges that once a judgment of conviction becomes final and executory,
the trial court has the ministerial duty to immediately execute the penalty of
imprisonment and/or pecuniary penalty (fine). A motion to execute judgment of
conviction is not necessary. With respect to the penalty of imprisonment, the trial
court should cancel the bail bond and issue a warrant of arrest, if the accused is
not yet under detention. If the convicted accused is already under detention by
virtue of the warrant of arrest issued, the trial court should immediately issue the
corresponding mittimus or commitment order for the immediate transfer of the
accused to the National Penitentiary to serve his sentence, if the penalty imposed
requires the service of sentence in the National Penitentiary. The commitment
order should state that an appeal had been filed, but the same had been
withdrawn/dismissed/decided with finality.
If aside from the penalty of imprisonment the penalty of fine is likewise imposed,
the trial court should issue at once an order requiring the payment of fine within a
reasonable period of time and, in case of nonpayment and subsidiary
imprisonment is imposed, he should likewise serve the subsidiary imprisonment.
If, however, the penalty is only fine and the judgment has become final and
executory, an order should be issued by the trial court at once for the payment of
the fine. And in case of non-payment, the bail bond previously issued for his
provisional liberty should be cancelled and a warrant of arrest should be issued to
serve the subsidiary imprisonment, if there is any.
In cases where the accused is a detention prisoner, i.e., those convicted of capital
offenses or convicted of non-capital offenses where bail is denied, or refused to
post bail, a mittimus or commitment order should be immediately issued after the
promulgation of judgment by the trial court as long as the penalty imposed
requires the service of sentence in the National Penitentiary. The filing of a motion
for reconsideration, motion for new trial, or notice of appeal should not stop the
lower court from performing its ministerial duty in issuing the commitment order,
unless a special order has been issued by the Court in specific cases - to the effect
that the convicted accused shall remain under detention in the provincial jail or
city jail while the motion is being heard or resolved.
In so far as the civil liability arising from the offense is concerned, a motion for
execution should be filed in accordance with Section 6, Rule 39 of the Rules and
existing jurisprudence.
WHEREFORE, the foregoing considered, the instant petition
for certiorari is PARTIALLY GRANTED. The Orders dated December 3, 2009 and
January 25, 2010 of Presiding Judge Delano F. Villaruz, Regional Trial Court,
Roxas City, Branch 16, are AFFIRMED IN PART only insofar as to the execution
of the penalty of imprisonment is concerned. Let the records of this case
be REMANDED to the trial court for the immediate issuance of mittimus,
pursuant to OCA Circular No. 40-2013, in relation to OCA Circular No. 4-92-A.
The Office of the Court Administrator is hereby DIRECTED to conduct an
investigation on the possible culpability of those responsible for the unreasonable G.R. No. 198270, December 09, 2015
delay in the execution of the judgment of conviction.
ARMILYN MORILLO, Petitioner, v. PEOPLE OF THE PHILIPPINES AND
SO ORDERED. cralawlawlibra ry
RICHARD NATIVIDAD, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Decision1 dated January 18, 2011 and
Resolution2 dated August 9, 2011 of the Court of Appeals (CA) in CA-G.R. CR No.
32723 which reversed and set aside the Decision3 dated February 23, 2009 and
Order4 dated July 13, 2009, of the Regional Trial Court (RTC) in Criminal Case
Nos. 08-1876-77, which, in turn, affirmed the Joint Decision5 dated September 3,
2008 of the Metropolitan Trial Court (MeTC) in Criminal Case Nos. 337902-03.

The antecedent facts are as follows: cha nRoblesv irt ual Lawlib rary

Sometime in July 2003, respondent Richard Natividad, Milo Malong and Bing
Nanquil, introducing themselves as contractors doing business in Pampanga City
under the name and style of RB Custodio Construction, purchased construction
materials for their project inside the Subic Freeport Zone from petitioner Armilyn
Morillo, owner of Amasea General Merchandize and Construction Supplies. The
parties agreed that twenty percent (20%) of the purchases shall be paid within
seven (7) days after the first delivery and the remaining eighty percent (80%) to
be paid within thirty-five (35) days after the last delivery, all of which shall be via
postdated checks.6

Pursuant to the agreement, petitioner delivered construction materials amounting

to a total of P500,054.00 at the construction site where respondent and his
partners were undertaking their project. After the last delivery, respondent paid
P20,000.00 in cash and issued two (2) post-dated checks, drawn from Metrobank,
Pampanga branch, in the amounts of P393,000.00 and P87,054.00. Upon
maturity, petitioner attempted to deposit the checks in her savings account at
Equitable PCI Bank, San Lorenzo, Makati City. They were, however, dishonored by
the drawee bank. Immediately thereafter, petitioner communicated the dishonor
to respondent and his partners and demanded for payment. Again, respondent
issued two (2) post-dated Metrobank checks and assured petitioner that they will
be honored upon maturity. Upon deposit in her savings account at Equitable PCI
Bank, Makati Branch, the checks were once again dishonored for the reason that
the account from which they were drawn was already a closed account.
Consequently, petitioner made several demands from respondent and his
partners, but to no avail, prompting her to file a complaint with the City
Prosecution Office, Makati City.7 Thus, on August 12, 2004, two (2) Informations
were filed against respondent and Milo Malong, the accusatory portions of which
read:

Criminal Case No. 337902

That on or about the 20th day of October 2003, or prior thereto, in the City of
Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, unlawfully and
feloniously make out, draw and issue to AMASEA GENERAL MERCHANDIZE AND In the amount : Php13,032.00
CONSTRUCTION SUPPLIES herein represented by ARMILYN MORILLO to apply on
account or for value the check described below:
Postdated / Dated : October 20, 2003
Check No. : 2960203217
: AMASEA GENERAL
Payable to MERCHANDIZE AND
Drawn Against : Metrobank CONSTRUCTION SUPPLIES

In the amount : Php434,430.00 said accused well knowing that at the time of issue thereof, said accused did not
have sufficient funds in or credit with the drawee bank for the payment in full of
the face amount of such check upon its presentment which check when presented
Postdated / Dated : October 20, 2003 for payment within ninety (90) days from the date thereof, was subsequently
dishonored by the drawee bank for the reason "Account Closed" and despite
receipt of notice of such dishonor, the said accused failed to pay said payee the
: AMASEA GENERAL face amount of said check or to make arrangement for full payment thereof within
Payable to MERCHANDIZE AND five (5) banking days alter receiving notice.
CONSTRUCTION SUPPLIES
CONTRARY TO LAW.8 ChanRoblesVi rt ualawlib ra ry

said accused well knowing that at the time of issue thereof, said accused did not
have sufficient funds in or credit with the drawee bank for the payment in full of
the face amount of such check upon its presentment which check when presented
for payment within ninety (90) days from the date thereof, was subsequently
dishonored by the drawee bank for the reason "Account Closed" and despite
receipt of notice of such dishonor, the said accused failed lo pay said payee the
face amount of said check or to make arrangement for full payment thereof within
five (5) banking days after receiving notice.
CONTRARY TO LAW.
Criminal Case No. 337903
That on or about the 20th day of October 2003, or prior thereto, in the City of
Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, unlawfully and
feloniously make out, draw and issue to AMASEA GENERAL MERCHANDIZE AND
CONSTRUCTION SUPPLIES herein represented by ARMILYN MORILLO to apply on
account or for value the check described below:
Check No. : 2960203218
Drawn Against : Metrobank
On September 15, 2004, the Assistant City Prosecutor issued a Resolution
recommending that respondent and his partners be charged in court with the
crime of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code as
well as for Violation of Batas Pambansa No. 22 (BP 22), which was later docketed
as Criminal Case Nos. 337902-03.
On September 3, 2008, the MeTC rendered its Joint Decision, finding that the
prosecution had proven all the elements of violation of BP 22 as against
respondent, the dispositive portion of which reads:
WHEREFORE, judgment is rendered in Criminal Cases Nos. 337902-03 finding the
accused, RICHARD NATIVIDAD, GUILTY beyond reasonable doubt of the offense of
Violation of Batas Pambansa Blg. 22 and is sentenced to pay a fine equivalent to
Two Hundred Thousand Pesos (Php200,000.00), for Check No. 2960203217 and
Thirteen Thousand Thirty-Two Pesos for Check No. 2960203218 or a total penalty
of Two Hundred Thousand Thirteen Thousand Thirty Two Pesos (Php213,032.00),
with subsidiary imprisonment in case of insolvency. However, accused MILO
MALONG, is ACQUITTED on the ground of reasonable doubt. Both accused Malong
and Natividad are ordered to jointly pay the private complainant the total sum of
Four Hundred Forty-Seven Thousand Four Hundred Sixty-Two Pesos
(Php447,462.00) which are the face value of the two (2) checks issued, subject of
these cases, with interest at twelve percent (12%) per annum and three percent
(3%) penalty per month as stipulated in the invoices, reckoned from the date of
receipt of the demand on February 28, 2004, until the amount is fully paid, plus
the costs of suit.

All other claims are DISMISSED for lack of evidence.

SO ORDERED.9 ChanRoblesVi rtualaw lib rary

Respondent appealed the decision of the MeTC to the RTC arguing that the MeTC
of Makati City had no jurisdiction over the case. He asserted that since the subject
checks were issued, drawn, and delivered to petitioner in Subic, the venue of the
action was improperly laid for none of the elements of the offense actually
transpired in Makati City. Respondent also pointed out that during the retaking of
petitioner's testimony on March 14, 2008, the records of the case did not show
that the public prosecutor manifested his presence in court and that he delegated
the prosecution of the case to the private prosecutor. Thus, since there was no
appearance for the public prosecutor, nor was there a proper delegation of
authority, the proceedings should be declared null and void.10
On February 23, 2009, the RTC affirmed the MeTC ruling in the following wise:
Since accused Natividad failed to raise before the court [a quo] the issue of
authority of the private prosecutor to present witness Morillo in the absence of the
public prosecutor during the March 14, 2008 proceeding, and only did so after
obtaining an adverse judgment, it would be an injustice if all the proceedings had
in the case would be set aside.
The second issue raised on appeal also holds no ground. A violation of BP 22 is a
continuing or transitory offense, which is oft-repeated in our jurisprudence. Under
this doctrine, jurisdiction may be had in several places where one of the acts
material to the crime occurred.
Accused Natividnd postulates that since the checks were presented suid
dishonored in Makati City, which is not the place where it was issued and
delivered, the court [a quo] lacks jurisdiction. This argument is, at best,
specious. The fact remains that the bank where it was presented lor
payment is in Makati City. These checks passed through this bank for
clearance, confirmation, and or validation processes. Moreover, the
eventual dishonour indeed took place or was completed at the end of the
collecting bank in Makati City, where the private complainant maintains
her account over which the court [a quo] has jurisdiction.
WHEREFORE, finding no merit on accused-appellant Natividad's appeal, the same
is hereby dismissed. Accordingly, the appealed decision of the court [a quo] is
hereby AFFIRMED in full.
SO ORDERED.11
ChanRoblesVi rtua lawlib rary
On appeal, however, the Court of Appeals, in its January 18, 2011 Decision,
reversed the lower courts' rulings and dismissed the case without prejudice to its
refiling in the proper venue, the pertinent portions of said Decision state:
In this case, records will reveal that the first element of the offense happened in
Pampanga. It was indisputably established that the subject checks were issued to
private complainant at petitioner's office in Pampanga. Said checks were drawn
from petitioner's account in Metrobank, Pampanga branch.
The second element of the offense or the knowledge of dishonor of the checks by
the maker also transpired in Pampanga. After private complainant was informed of
the dishonor of the checks, she immediately proceeded to petitioner's office in
Pampanga, personally informed him and his companions of the dishonor of the
checks and tendered a demand letter for the payment of the construction
materials.
Finally, the third element or dishonor of the checks by the drawee bank
also happened in Pampanga. Upon maturity of the subject checks, private
complainant deposited the same in her savings account at Equitable PCI
Bank, Makati Branch. Subsequently, she was informed by the latter bank
that the subject checks were dishonored by the drawee bank, Metrobank,
Pampanga branch.
Clearly, all the essential elements of the offense happened in Pampanga.
Consequently, the case can only be filed in said place. Unfortunately,
private complainant filed the case in Makati City, under the erroneous
assumption that since she deposited the subject checks in Equitable PCI
Bank, Makati City, and was informed of lite dishonor of the checks by the
same bank, the case may be filed in Makati City. However, as correctly
argued by the OSG, the act of depositing the check is not an essential
clement of BP 22. Likewise, the fact that private complainant was
informed of the dishonor of the checks at her bank in Makuti City did not
vest the MeTC, Makati City with jurisdiction to take cognizance of the
case. To reiterate, a transitory crime can only be tiled in any of the places
where its constitutive elements actually transpired. And, knowledge of
the payee of the dishonor of the checks is not an element of BP 22. The
law speaks only of the subsequent dishonor of the checks by the drawee
bank and the knowledge of the fact of dishonor by the maker.
Consequently, none of the elements of the offense can be considered to
have transpired in Makati City. Thus, the venue of the instant case was
improperly laid.12 ChanRobles Vi rtualaw lib rary
Aggrieved, petitioner filed the instant action invoking the following argument:
I.
THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT THE
METROPOLITAN TRIAL COURT OF MAKATI CITY DID NOT HAVE JURISDICTION
OVER THE CASE DESPITE A CLEAR SHOWING THAT THE OFFENSE WAS
COMMITTED WITHIN THE JURISDICTION OF SAID COURT.13
ChanRoblesVirtualawl ibra ry
Petitioner maintains that the MeTC of Makati City, the place where the dishonored
checks were deposited, had jurisdiction over the instant case. In support of her
contention, petitioner cites the ruling in Nieva, Jr. v. Court of Appeals,14 wherein it
was held that since the check drawn in violation of BP 22 was deposited and
presented for encashment with the Angeles City Branch of the Bank of the
Philippine Islands, the RTC of Pam.pa.nga clearly had jurisdiction over the crime of
which accused therein was charged.15 Thus, petitioner asserts that the appellate
court erred in ruling that the Makati MeTC did not have jurisdiction to try the
instant case. That none of the essential elements of the crime of violation of BP 22
occurred in the City of Makati is belied by the Nieva doctrine recognizing the
jurisdiction of the court of the place where the check was deposited and/or
presented for encashment.

Petitioner went on lo state that all the elements of violation of BP 22 were duly
proven beyond reasonable doubt. First, the prosecution sufficiently established
that the respondent issued the subject checks as shown by the documentary
evidence submitted. They were issued for value, as payment for the construction
supplies and materials which petitioner delivered to the accused.
As to the second and third elements, petitioner posits that it was clearly shown
that respondent had knowledge of the insufficiency of funds in or credit with the
drawee bank, which subsequently dishonored the subject checks. Section 2 of BP
22 provides that "the dishonor of a check when presented within ninety (90) days
from the date of the check shall be prima facie evidence of knowledge of
insufficiency of funds or credit unless such maker or drawer pays the holder
thereof the amount due thereon, or makes arrangements for payment in full by
the drawee of such check within five (5) banking days after receiving notice that
such check has not been paid by the drawee." In this case, petitioner states that
the prosecution was able to sufficiently show that the subject checks were
presented within the time period required by law. In fact, written demand relaying
the fact that the drawee bank dishonored the subject checks was even personally
delivered by petitioner to respondent as evidenced by the demand letter signed by
respondent. Thus, respondent cannot deny that he had knowledge of the
insufficiency of funds in his account with the drawee bank and that the subject
checks were subsequently dishonored for the reason that the account from which
they were drawn was already a closed account.
For its part, the Office of the Solicitor General (OSG), representing the State, is in
line with the appellate court's and respondent's stance that the MeTC had no
jurisdiction over the instant case. According to the OSG, the act of depositing the
check is not an essential element of the offense under the Bouncing Checks Law.
Citing the ruling in Rigor v. People,16 the OSG posited that the place of deposit
and the place of dishonor are distinct from each other and that the place where
the check was issued, delivered, and dishonored is the proper venue, not the
place where the check was deposited, viz.:
The evidence clearly shows that the undated check was issued and delivered at
the Rural Bank of San Juan, Metro Manila. x x x The check was deposited with PS
Bank, San Juan Branch, Metro Manila. x x x The information at bar effectively
charges San Juan as the place of drawing and issuing. The jurisdiction of courts in
criminal cases is determined by the allegations of the complaint or information.
Although the check was dishonored by the drawee, Associated Bank, in its Tarlac
Branch, appellant has drawn, issued and delivered it at RBSJ, San Juan. The place
of issue and delivery was San Juan and knowledge, as an essential part of the
offense, was also overtly manifested in San Juan. There is no question that crimes
committed in San Juan are triable by the RTC stationed in Pasig.17 ChanRoblesVirt ualawli bra ry
On the basis of the pronouncement in Rigor, the OSG thus claimed that the MeTC
of Makati City did not have jurisdiction over the instant case for none of the
essential elements of violation of BP 22 occurred therein.
The contention is untenable.
It is well settled that violations of BP 22 cases are categorized as transitory or
continuing crimes, meaning that some acts material and essential thereto and
requisite in their consummation occur in one municipality or territory, while some
occur in another. In such cases, the court wherein any of the crime's essential and
material acts have been committed maintains jurisdiction to try the case; it being
understood that the first court taking cognizance of the same excludes the other.
Thus, a person charged with a continuing or transitory crime may be validly tried
in any municipality or territory where the offense was in part committed.18
The OSG, relying on our ruling in Rigor v. People, concluded that "the Supreme
Court regarded the place of deposit and the place of dishonor as distinct from one
another and considered the place where the check was issued, delivered and
dishonored, and not where the check was deposited, as the proper venue for the
filing of a B.P. Blg. 22 case." The Court, however, cannot sustain such conclusion.
In said case, She accused therein obtained a loan from the Rural Bank of San
Juan, Metro Manila, and in payment thereof, he issued a check drawn against
Associated Bank of Tarlac. Thereafter, Rural Bank deposited the check at PS Bank,
San Juan, but the same was returned for the reason that it had been dishonored
by Associated Bank of Tarlac. When all other efforts to demand the repayment of
the loan proved futile, Rural Bank filed an action against the accused for violation
of BP 22 at the RTC of Pasig City, wherein crimes committed in. San Juan are
triable. The accused, however, contends that the RTC of Pasig had no jurisdiction
thereon since no proof had been offered to show that his check was issued,
delivered, dishonored or that knowledge of hmrfficiency of funds occurred in the
Municipality of San Juan. The Court, however, disagreed and held that while the
check was dishonored by the drawee. Associated Bank, in its Tarlac Branch,
evidence clearly showed that the accused had drawn, issued and delivered it at
Rural Bank, San Juan, viz.:
Lastly, positioner contends thai the Regional Trial Court of Pasig h;ui no
jurisdiction over this case since no proofhas been offered that his check was
issued, delivered, dishonored or that knowledge of insufficiency of funds occurred
in the Municipality of San Juan, Metro Manila.
The contention is untenable.
x x x x.
The evidence clearly shows that the undated check was issued and delivered at
the Rural Bank of San Juan, Metro Manila on November 16, 1989, and
subsequently the check was dated February 16, 1990 thereat. On May 25, 1990,
the check was deposited with PS Bank, San Juan Branch, Metro Manila. Thus, the
Court of Appeals correctly ruled:
Violations of B.P. 22 are categorized as transitory or continuing crimes. A suit on
the check can be filed in any of the places where any of the elements of the
offense occurred, that is, where the check is drawn, issued, delivered or
dishonored. x x x
The information at bar effectively charges San Jisars as the place of
drawing and issuing. The jurisdiction of courts in criminal cases is
determined by the allegations of the complaint or information. Although,
the check was dishonored by the drawee, Associated Baisk, sit its Tariac
Branch, appellant has drawn, issued and delivered it at RBSJ, San Juan.
The place of issue airul delivery was San Juan and knowledge, as an
essential part of she offense, was also overtly manifested in San Juan.
There is no question that crimes committed in November, 1989 in San
Juan arc triable by the RTC stationed in Pasig. In short both allegation
and proof in this case sufficiently vest jurisdiction upon the RTC in Pasig
City.19
ChanRoble sVirtualawl ibra ry
The bone of contention in Rigor, therefore, was whether the prosecution had
offered sufficient proof that the check drawn in violation of BP 22 was issued,
delivered, dishonored or that lcnowledge of insufficiency of funds occurred in the
Municipality of San Juan, thereby vesting jurisdiction upon the RTC of Pasig City.
Nowhere in the cited case, however, was it held, cither expressly or impliedly, that
the place where the check was deposited is not the proper venue for actions
involving violations of BP 22, it is true thai the Court, in Rigor, acknowledged the
feet that the check was issued and delivered at the Rural Bank of San Juan, while
the same was deposited wilts the PS Bank of San Juan. But such differentiation
cannot be taken as basis sufficient enough to conclude that the court of the place
of deposit cannot exercise jurisdiction over violations of BP 22. In the absence,
thereiore, of any ground, jurisprudential or otherwise, to sustain the OSG's
arguments, the Court cannot take cognizance of a doctrine that is simply
inapplicable to the issue at hand.
In contrast, the ruling in Nieva, Jr. v. Court of Appeals20 cited by petitioner is
more squarely on point with the instant case. In Nieva, the accused delivered to
Ramon Joven a post-dated check drawn against the Commercial Bank of Manila as
payment for Joven's dump truck. Said check was deposited in the Angeles City
Branch of the Bank of Philippine Islands, joven was advised, however, that the
Commercial Bank of Manila returned the check for the reason that the account
against which the check was drawn is a "closed account." Consequently, the
accused was charged with violation of BP 22 before the RTC of Pampanga. On the
contention of the accused that said court had no jurisdiction to try the case, the
Court categorically ruled:
As to petitioner's contention that the Regional Trial Court of Pampanga
has no jurisdiction to try the cases charged herein as none of the
essential elements thereof took place in Pampanga, suffice it to say that
such contention has no basis. The evidence discloses that the check was
deposited and/or presented for encashment with the Angeles City Branch
of the Bank of the Philippine Islands. This fact clearly confers jurisdiction
upon the Regional Trial Court of Pampanga over the crimes of which
petitioner is charged. It must be noted that violations of B.P. Blg. 22 are
categorized as transitory or continuing crimes and so is the crime of estafa. The
rule is that a person charged with a transitory crime may be validly tried in any
municipality or territory where the offense was in part committed.21ChanRobles Vi rt ualawlib ra ry
In fact, in the more recent Yalong v. People,22 wherein the modes of appeal and
rules of procedure were the issues at hand, the Court similarly inferred:
Besides, even discounting the above-discussed considerations, Yalong's appeal
still remains dismissible on the ground that, inter alia, the MTCC had properly
acquired jurisdiction over Criminal Case No. 45414. It is welksedled that violation
of BP 22 cases is categorized as transitory or continuing crimes, which means that
the acts material and essential thereto occur in one municipality or territory, while
some occur in another. Accordingly, the court wherein any of the crime's essential
and material acts have been committed maintains jurisdiction to try the case; it
being understood that the first court taking cognizance of the same excludes the
other. Stated differently, a person charged with a continuing or transitory crime
may be validly tried in any municipality or territory where the offense was in part
committed. Applying these principles, a criminal case for violation of BP 22 may
be tiled in any of the places where any of its elements occurred - in particular, the
place where the check is drawn, issued, delivered, or dishonored.
In this case, while it is undisputed that the subject check was drawn,
issued, and delivered in Manila, records reveal that Ylagan presented the
same for deposit and encashment at the LBC Bank in Batangas City where
she learned of its dishonor. As such, the MTCC [of Batangas City]
correctly took cognizance of Criminal Case No. 45414 as It had the
territorial jurisdiction to try and resolve the same. In this light, the denial
of the present petition remains warranted.23 ChanRobles Virtualawl ibra ry
Guided by the foregoing pronouncements, there is no denying, therefore, that the
court of the place where the check was deposited or presented for encashment;
can be vested with jurisdiction to try cases involving violations of BP 22. Thus, the
fact that the check subject of the instant case was drawn, issued, and delivered in
Pampanga does not strip off the Makati MeTC of its jurisdiction over the instant
case for it is undisputed that the subject check was deposited and presented for
encashment at the Makati Branch of Equitable PC IBank. The MeTC of Makati,
therefore, correctly took cognizance of the instant case and rendered its decision
in the proper exercise of its jurisdiction.
It may be argued, however, that the instant petition ought to be dismissed
outright due to certain procedural infirmities. Section 35 (1), Chapter 12, Title III,
Book IV of the 1987 Administrative Code provides that the OSG shall represent
the Government of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding, investigation or matter requiring
the services of lawyers. Specifically, it shall represent the Government in all
criminal proceedings before the Supreme Court and the Court of Appeals.24 Thus,
as a general rule, if a criminal case is dismissed by the trial court or if there is an
acquittal, the appeal on the criminal aspect of the case must be instituted by the
Solicitor General on behalf of the State.25cralawred
There have been instances, however, where the Court permitted an offended
party to file an appeal without the intervention of the OSG, such as when the
offended party questions the civil aspect of a decision of a lower court,26 when
there is denial of due process of law to the prosecution and the State or its agents
refuse to act on the case to the prejudice of the State and the private offended
party,27 when there is grave error committed by the judge, or when the interest of
substantial justice so requires.28
Corollary, a judgment of acquittal may be assailed through a petition
for certiorari under Rule 65 of the Rules of Court showing that the lower court, in
acquitting the accused, committed not merely reversible errors of judgment, but
also exercised grave abuse of discretion amounting to lack or excess of
jurisdiction, or a denial of due process, thereby rendering the assailed judgment
null and void. If there is grave abuse of discretion, granting the aggrieved party's
prayer is not tantamount to putting the accused in double jeopardy,29 in violation
of the general rule that the prosecution cannot appeal or bring error proceedings
from a judgment rendered in favor of the defendant in a criminal case. This is
because a judgment of acquittal is immediately final and executory, and the
prosecution is barred from appealing lest the constitutional prohibition against
double jeopardy be violated.30
Thus, it may be argued that since the instant petition is one for review
on certiorari under Rule 45 of the Rules of Court, not under Rule 65, and was not
filed by the OSG representing the interest of the Republic, the same should be
summarily dismissed. The unique and special circumstances attendant in the
instant petition, however, justify an adjudication by the Court on the merits and
not solely on technical grounds.
First of all, the Court stresses that the appellate court's dismissal of the case is
not an acquittal of respondent. Basic is the rule that a dismissal of a case is
different from an acquittal of the accused therein. Except in a dismissal based on
a Demurrer to Evidence filed by the accused, or for violation of the right of the
accused to a speedy trial, the dismissal of a criminal case against the accused will
not result in his acquittal.31 In the oft-cited People v. Salico,32 the Court
explained:
This argument or reasoning is predicated on a confusion of the legal concepts of
dismissal and acquittal. Acquittal is always based on the merits, that is, the
defendant is acquitted because the evidence does not show that
defendant's guilt is beyond a reasonable doubt; but dismissal does tint
decide the case on the merits or that the defendant is not gniity.
Dismissal terminates the proceeding, either because the court is not a
court of competent jurisdiction, or the evidence does noi show that the
offense was committed within the territorial jurisdiction of the court, or
the complaint or information is not valid or sufficient in form and
substance, etc.The only case in which the word dismissal is commonly but not
correctly used, instead of the proper term acquittal, is when, after the prosecution
has presented all its: evidence, the defendant moves for me dismissal and the
court dismisses the ease on the ground that the evidence tails to show beyond a
reasonable doubt thai the defendant is guilty; for in such case the dismissal is in
reality an acquittal because the case is decided on the merits. If the prosecution
fails to prove that the offense was committed within the territorial
jurisdiction of the court and the case is dismissed, the dismissal is not an
acquittal, inasmuch as if it were so the defendant could not be again
prosecuted before the court of competent jurisdiction; and it is elemental
that in such case, the defendant may again be prosecuted for the same
offense before a court of competent jurisdiction.33 ChanRoblesVi rtua lawlib rary
Thus, when the appellate court herein dismissed the instant case on the ground
that the MeTC lacked jurisdiction over the offense charged, it did not decide the
same on the merits, let alone resolve the issue of respondent's guilt or innocence
based on the evidence proffered by the prosecution.34 The appellate court merely
dismissed the case on the erroneous reasoning that none of the elements of BP 22
was committed within the lower court's jurisdiction, and not because of any
finding that the evidence failed to show respondent's guilt beyond reasonable
doubt. Clearly, therefore, such dismissal did not operate as an acquittal, which, as
previously discussed, may be repudiated only by a petition for certiorari under
Rule 65 of the Rules of Court, showing a grave abuse of discretion.
Thus, petitioner's resort to Rule 45 of the Rules of Court cannot be struck down as
improper. In a petition for review on certiorari under Rule 45, the parties raise
only questions of law because the Court, in its exercise of its power of review, is
not a trier of facts. There is a question of law when the doubt or difference arises
as to what the law is on certain state of facts and which does not call for an
existence of the probative value of the evidence presented by the parties-
litigants.35 In De Vera v. Spouses Santiago,36 the Court categorically ruled that the
issue of whether the appellate court erred in annulling the RTC Decision for lack of
jurisdiction is a question of law, to wit:
Undeniably, the issue whether the CA erred in annulling the RTC Decision
for lack of jurisdiction is a question of law. The resolution of such issue
rests solely on what the law [B.P. Blg. 129, as amended] provides on the
given set of circumstances as alleged in petitioners' complaint for
reconveyance of ownership and possession with damages.37 ChanRobles Vi rtualaw lib rary
In the instant case; the lone issue invoked by petitioner is precisely "whether the
Court of Appeals erred when it ruled that the Metropolitan Trial Court of Makati
City did not have jurisdiction over the case despite clear showing that the offense
was committed within the jurisdiction of said court." Evidently, therefore, the
instant petition was filed within the bounds of our procedural rules for the issue
herein rests solely on what the law provides on the given set of circumstances
insofar as the commission of the crime of BP 22 is concerned. In criminal cases,
the jurisdiction of the court is determined by the averments of the complaint or
Information, in relation to the law prevailing at the time of the filing of the
complaint or Information, and the penalty provided by law for the crime charged
at the time of its commission.38 Thus, when a case involves a proper interpretation
of the rules and jurisprudence with respect to the jurisdiction of courts to
entertain complaints filed therewith, it deals with a question of law that can be
properly brought to this Court under Rule 45.39
More importantly, moreover, since the dismissal of the instant case cannot be
considered as an acquittal of respondent herein, he cannot likewise claim that his
constitutional right to protection against double jeopardy will be violated. In Paulin
v. Hon. Gimenez,40 the Court held:
Jurisprudence on double jeopardy as well as the exceptions thereto which finds
application to the case at bar has been laid down by this Court as follows:
. . . However, an appeal by the prosecution from the order of dismissal (of
the criminal case) by the trial court shall not constitute double jeopardy if
(1) the dismissal is made upon motion, or with the express consent of the
defendant; (2) the dismissal is not an acquittal or based upon
consideration of the evidence or of the merits of the case; and (3) the
question to be passed upon by the appellate court is purely legal so that
should the dismissal he found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to determine the
guilt or innocence of the defendant.41 ChanRoblesVi rt ualawlib ra ry
A cursory review of the records would readily reveal the presence of the foregoing
requisites. First, as early as the stage of respondent's appeal of the MeTC's
decision to the RTC, respondent had already been moving for the dismissal of the
case alleging the ground of lack of jurisdiction. Accordingly, the CA's dismissal on
said ground can rightly be considered to have been with respondent's express
consent. Second, as earlier mentioned, the dismissal herein is not an acquittal or
based upon a consideration of the merits. Third, the question raised in this case is
based purely on a question of law. In view therefore of the presence of all three
requisites, the Court finds that petitioner's appeal of the appellate court's
dismissal cannot be barred by double jeopardy.
As to the issue of petitioner's legal standing to file the instant petition in the
absence of the OSG's participation, the circumstances herein warrant the Court's
consideration. In Narciso v. Sta. Romana-Cruz,42 the Court gave due regard to the
ends of substantial justice by giving due course to a petition filed before it by the
private offended party, viz.:
Citing the "ends of substantial justice," People v. Calo, however, provided an
exception to the above doctrines in this manner:
While the rule is, as held by the Court of Appeals, only the Solicitor General may
bring or defend actions on behalf of the Republic of the Philippines, or represent
the People or the State in criminal proceedings pending in this Court and the
Court of Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of
substantial justice would be better served, and the issues in this action
could be determined in a more just, speedy and inexpensive manner, by
entertaining the petition at bar. As an offended party in a criminal case,
private petitioner has sufficient personality and a valid grievance against
Judge Adao's order granting bail to the alleged murderers of his (private
petitioner's) father.
xxxx
The ends of substantial justice indeed require the affirmation of the
appellate court's ruling on this point. Clearly, the assailed Order of Judge
Santiago was issued in grave abuse of discretion amounting to lack of
jurisdiction. A void order is no order at all. It cannot confer any right or be the
source of any relief. This Court is not merely a court of law; it is likewise a court
of justice.
To rule otherwise would leave the private respondent without any
recourse to rectify the public injustice brought about by the trial court's
Order, leaving her with only the standing to file administrative charges
for ignorance of the law against the judge and the prosecutor. A party
cannot be left without recourse to address a substantive issue in law. 43 ChanRobles Vi rtua lawlib rary
In a similar manner, the Court finds that in the interest of substantial justice, it
must give due course to the instant petition and consequently rule on the merits
of the same. The circumstances surrounding this case left petitioner with no other
suitable recourse but to appeal the case herself. Not only was there an absence of
support from the OSG, said government office also took a position in contrast to
the rights and interests of petitioner. Moreover, as discussed above, the
arguments which ran counter to petitioner's interest as well as the grounds used
to support them were simply inapplicable to the issue at hand. In fact, these
erroneous contentions were adopted by the appellate court in their entirety,
dismissing the instant case in a manner not in accord with law and applicable
jurisprudence. For the Court, now, to apply procedural rules in their strict and
literal sense by similarly dismissing, as the CA had, petitioner's action poses
serious consequences tantamount to a miscarriage of justice. To rule that the
accused can postpone criminal prosecution and delay the administration of justice
at petitioner's expense on the erroneous ground of lack of jurisdiction would
create a hazardous precedent and open loopholes in our criminal justice system.44
Indeed, the unique and exceptional circumstances in the instant case demand that
the Court forego a rigid application of the technicalities under
the law so as to prevent petitioner from suffering a grave injustice. As disclosed
by the records, petitioner had already fulfilled her end of the agreement in giving
respondent, as early as in the year 2003, construction materials amounting to half
a million pesos and yet up until now, she has not been paid therefor. In feet, after
having sufficiently proven to the satisfaction of both the MeTC and the RTC her
right allegedly violated by respondent, the CA simply dismissed, albeit without
prejudice to the re-filing of the case with the appropriate court, her action for the
incorrect ground of wrong venue. On the mistaken reasoning that the MeTC of
Makati City did not have jurisdiction over the instant case, the CA, without
providing any legal or jurisprudential basis, would have petitioner start from the
very beginning and refile her complaint before the same court which already had
jurisdiction in the first place.
Thus, when there exists meritorious grounds to overlook strict procedural matters,
the Court cannot turn a blind eye thereto lest the administration of justice be
derailed by an overly stringent application of the rules.45 Rules of procedure are
meant to be tools to facilitate a fair and orderly conduct of proceedings. Strict
adherence thereto must not get in the way of achieving substantial justice. As
long as their purpose is sufficiently met and no violation of due process and fair
play takes place, the rules should be liberally construed.46 Dismissal of appeals
purely on technical grounds is frowned upon where the policy of the court is to
encourage hearings of appeals on their merits and the rules of procedure ought
not to be applied in a very rigid, technical sense; rules of procedure are used only
to help secure, not override substantial justice. It is a far better and more prudent
course of action for the court to excuse a technical lapse and afford the parties a
review of the case on appeal to attain the ends of justice rather than dispose of
the case on technicality and cause a grave injustice to the parties, giving a false
impression of speedy disposal of cases while actually resulting in more delay, if
not a miscarriage of justice.47
WHEREFORE, premises considered, the instant petition is GRANTED. The
Decision dated January 18, 2011 and Resolution dated August 9, 2011 of the
Court Appeals in CA-G.R. CR No. 32723 are REVERSEDand SET ASIDE. The
Decision dated February 23, 2009 and Order dated July 13, 2009, of the Regional RULE 121 – NEW TRIAL/RECONSIDERATION
Trial Court in Criminal Case Nos. 08-1876-77, which affirmed the Joint Decision
dated September 3, 2008 of the Metropolitan Trial Court in Criminal Case Nos.
337902-03 are hereby REINSTATED.
G.R. Nos. 163957-58 April 7, 2009
SO ORDERED. chanrobl
MUNIB S. ESTINO and ERNESTO G. PESCADERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 164009-11 April 7, 2009
ERNESTO G. PESCADERA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
For review before the Court under Rule 45 are the April 16, 2004 Decision1 and
June 14, 2004 Resolution2 of the Sandiganbayan in the consolidated Criminal
Case Nos. 26192 and 26193 entitled People of the Philippines v. Munib S.
Estino and Ernesto G. Pescadera. In G.R. Nos. 163957-58, petitioners Munib S.
Estino and Ernesto G. Pescadera appeal their conviction of violation of Section
3(e), Republic Act No. (RA) 3019 or the Anti-Graft and Corrupt Practices Act for
failure to pay the Representation and Transportation Allowance (RATA) of the
provincial government employees of Sulu. In G.R. Nos. 164009-11, petitioner
Pescadera alone appeals his conviction of malversation of public funds under
Article 217 of the Revised Penal Code for failure to remit the Government
Service Insurance System (GSIS) contributions of the provincial government
employees amounting to PhP 4,820,365.30. In these consolidated appeals,
petitioners pray for their acquittal.
The Facts
Estino was elected Vice-Governor of Sulu in the May 1998 elections along with
Gov. Abdusakur Tan. On June 23, 1998, this Court issued a status quo order in
G.R. No. 133676, suspending the effects of the proclamation of Gov. Tan and
ordering Vice-Gov. Estino to assume the position of Governor until further
orders. Thus, Estino acted as Governor of Sulu from July 27, 1998 up to May
23, 1999 when this Court lifted the suspension order against Gov. Tan. Ernesto
G. Pescadera, on the other hand, was Provincial Treasurer of Sulu during
Estino’s stint as Acting Governor.3
Pursuant to Commission on Audit (COA)-ARMM Office Order No. 99-165 dated
August 26, 1999, a special audit team was created upon the request of the
Provincial Government of Sulu. An audit of the disbursement vouchers and
payrolls for the period starting July 27, 1998 up to May 23, 1999 was then
conducted by COA State Auditor II Mona U. Balabaran and her team. The COA
Special Audit Report stated that there were anomalies in the payment of salary
differentials, allowances, and benefits, among others. The Ombudsman then
filed three informations against petitioners, as follows:
CRIMINAL CASE NO. 26192
That sometime in or about January to May 1999, or shortly prior or subsequent
thereto, in Jolo, Sulu and within the jurisdiction of this Honorable Court, accused
Munib S. Estino and Ernesto G. Pescadera, both high ranking public officers,
being the Vice-Governor and Provincial Treasurer of Sulu, respectively, taking
advantage of their official positions and acting in relation to their official
functions, conspiring and confederating with each other, did there and then
willfully, unlawfully and feloniously, cause undue injury to the employees of the
Provincial Government of Sulu through evident bad faith by failing to pay them
their salary differentials, Additional Compensation Allowance (ACA), Personal
Emergency and Representation Allowance (PERA), Representation and Travel
Allowance (RATA), Mid-year Bonus, Cash Gift and Clothing Allowance in the
total amount of P8,435,625.34.
CONTRARY TO LAW.
CRIMINAL CASE NO. 26193
That sometime in or about July 1998 to May 1999, or shortly prior or subsequent
thereto, in Jolo, Sulu and within the jurisdiction of this Honorable Court, accused
Munib S. Estino and Ernesto G. Pescadera, both high ranking public officers,
being the Vice Governor and Provincial Treasurer of Sulu, respectively, taking
advantage of their official positions and acting in relation to their official
functions, conspiring and confederating with each other, did there and then,
willfully, unlawfully and feloniously, take, convert and misappropriate the GSIS
monthly contributions and loan amortizations collected from the provincial
employees in the amount of P4,820,365.30 for their own personal benefit or
advantage to the damage and prejudice of the said employees and the
government as well.
CONTRARY TO LAW.
CRIMINAL CASE NO. 26194
That sometime in or about May 1999, or shortly prior or subsequent thereto, in
Jolo, Sulu and within the jurisdiction of this Honorable Court, accused Munib S.
Estino and Ernesto G. Pescadera, both high ranking public officers, being the
Vice Governor and Provincial Treasurer of Sulu, respectively, taking advantage
of their official positions and acting in relation to their official functions,
conspiring and confederating with each other, did there and then, willfully,
unlawfully and feloniously, cause undue injury to the government through
evident bad faith by withdrawing from Philippine National Bank-Jolo Branch the
amount of P21.5 million on 07 May 1999 out of the Internal Revenue Allotment
of P28,268,578.00 which was deposited to the account of Sulu Provincial
Government on the same day and using the said amount to pay "various
expenses" without, however, specifying what the expenses are in violation of
existing government accounting rules.
CONTRARY TO LAW. 4
Petitioners pleaded not guilty to the offenses charged in the informations.
Criminal Case No. 26192
During trial in the Sandiganbayan, Balabaran testified that based on the
disbursement vouchers and payrolls she and her team examined for the period
January to May 1999, the Provincial Government of Sulu failed to pay the
provincial government employees their salary differentials, Additional
Compensation Allowance (ACA), Personal Emergency and Representation
Allowance (PERA), and other benefits; that the Department of Budget and
Management confirmed to the special audit team that funds were released to
the Provincial Government of Sulu for January to May 1999 so there was no
reason why the money was not released to the employees; and that the funds
released came from the internal revenue allotment (IRA) of the provincial
government for the 1999 budget. The prosecution submitted that this failure
violated Sec. 3(e) of RA 3019 which provides:
Section 3. Corrupt practices of public officers. — In addition to acts or omissions
of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or giving
any private party any unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.
In his defense, Estino testified that when he assumed office as Acting Governor
of Sulu, he called for a general meeting of all the heads of departments, as well
as officials and employees to inform them that the remaining money of the
provincial government was PhP 47 only. He further informed them of the
pending amortization for the loan from the Philippine National Bank (PNB)
payable from April to June 1998, and suggested that the salary differentials of
all the government employees be paid first while the GSIS remittance be
deferred since the pending IRA for the provincial government was not yet
released. As to the ACA, PERA, and clothing allowance, he said that these were
not paid because the budget for 1999 was not yet approved and there was no
provision for those items in the 1998 budget. The budget for 1999 was approved
only on June 17, 1999 when Estino was no longer the Acting Governor. The
RATA, on the other hand, was provided for in the 1998 budget; hence, the 1998
budget was used in paying the RATA.5
Pescadera testified that the employees’ benefits were not paid because the
1999 budget was not yet approved then. Also, he said that there was no
appropriation for ACA and PERA in the 1998 budget; that the RATA for 1999
was paid; that the cash gift, mid-year bonus, and clothing allowance for the
period January to May 1999 were not paid as these were supposed to be paid in
December 1999; and that he was the Provincial Treasurer of Sulu up to May
1999 only.6
The Sandiganbayan found petitioners not guilty with regard to the charge of
nonpayment of PERA, ACA, cash gift, mid-year bonus, and clothing allowance.
The court found that the Provincial Government of Sulu did operate under the
1998 reenacted budget which had no appropriation for PERA and ACA.
Petitioners were not held liable for nonpayment of the Year-End Bonus and
Cash Gift because these may be given from May 1 to May 31 of each year,
while Estino held office as Acting Governor until May 23, 1999 and Pescadera
was the Provincial Treasurer until May 1999. As to the clothing allowance, no
evidence was presented as to when it should be given to the employees.
Payment for the salary differentials for January to May 1999 could not also be
done since the 1999 budget was not yet approved.7
As regards the RATA, the Sandiganbayan held that petitioners’ defense of
payment was an affirmative allegation that required proof. The court stated:
x x x [N]o convincing evidence was presented by the defense to support their
claim that they paid the same. Although accused Pescadera testified that
Exhibits "3-O" to "3-T", "3-W", "3-X", "3-HH" and "3-II" were vouchers showing
payment of RATA for the month of May 1999 for various officers of the
Provincial Government of Sulu, the same were not signed by the claimants
thereof.
There is budget for the payment of RATA. The IRA pertaining to the province
was regularly released. The non-payment thereof constitutes a conscious and
deliberate intent to perpetrate an injustice to the officials of the Provincial
Government of Sulu. Evident bad faith therefore exists.
xxxx
In the instant case, failure to pay the RATA constitutes an inaction which caused and 1999.
actual damage to the officials entitled thereto, the amount of which was
equivalent to the actual amount of the RATA that was due them for the period
January to May 1999.
The information alleged that the two accused committed this offense by
conspiring and confederating with each other. In conspiracy, it is essential that
there must be unity of purpose and unity in the execution of the unlawful
objective. These were present in the instant case. Both accused knew that they
failed to pay the RATA to the officers entitled thereto.8
The aforesaid judgment is the subject of the appeal docketed as G.R. Nos.
163957-58.
Criminal Case No. 26193
Auditor Balabaran testified that the GSIS premiums for the government and
personal share of officials and employees of the Provincial Government of Sulu
were deducted from their salaries, but upon confirmation with the Branch
Manager of the GSIS in Jolo, the audit team learned that the GSIS premiums
were not remitted. According to Estino, however, the audit reports showed that
he and Pescadera did not malverse the funds of the Provincial Government. In
addition, Pescadera testified that when Estino assumed office as Acting
Governor, the Provincial Government of Sulu was already indebted to the GSIS
for its failure to remit the said GSIS monthly remittances which amounted to
PhP 4 million. Pescadera stated that Estino called a general assembly of all the
officers and employees of the provincial government to discuss the cash
operation of Sulu. In that meeting, the officers and employees decided to
prioritize the payment of the salary differentials first, followed by the loan
amortization to the PNB, and lastly, the GSIS remittances. Pescadera added
that the provincial government intended to pay or remit the accrued GSIS
monthly remittances as soon as the cash position of the province improves and
the 10% of the IRA is released.9
Before the Sandiganbayan, the prosecution charged petitioners with
malversation of public funds under Art. 217 of the Revised Penal Code. The
Sandiganbayan consequently exonerated Estino but convicted Pescadera. The
court held:
In the case at bar, there was evidence that GSIS contributions for the period
July 1998 to May 1999 consisting of employee share and loan amortizations
were deducted from the salaries of the employees of the province. The 1998
reenacted budget provided for GSIS Premiums (Government Share) and the
IRA for the province was regularly released by the DBM. These GSIS
contributions were not remitted. In fact contrary to accused Estino’s claim,
Provincial Auditor Nora A. Imlan stated in her 1998 and 1999 Annual Audit
Report that the Province of Sulu had unremitted GSIS contributions for CY 1998
Accused Pescadera, being then the Provincial Treasurer, was the public officer
charged with the disbursement of GSIS funds for remittance to the GSIS. He
failed to disburse and to remit it to the GSIS at the time it became due. He failed
to account for it upon demand by Provincial Auditor Nora A. Imlan and by the
Special Audit Team. It is now incumbent upon the accused to rebut the
presumption of conversion.
 xxxx Nestor Lozano. As a result, the transactions were not recorded in the book of
accounts. She further stated that the amount of cash in the trial balance was
However, no evidence was presented to support the claim that the employees overstated. The audit team did not examine the monthly trial balance, the
agreed to prioritize the payment of PNB loan amortization. Even if there were journal and analysis of obligations, the journal of checks issued, the report of
such an agreement, it would still be contrary to Section 6(b) of the Government checks issued, and the journal of cash disbursement because all these
Service Insurance System Act of 1997 (R.A. 8291) which provides: documents merely contained the sum total, whereas the disbursement vouchers
Each employer shall remit directly to the GSIS the employees’ and employers’ and payrolls stated the particular transactions that transpired which could help
contributions within the first ten (10) days of the calendar month to which the them discover any anomaly.13
contributions apply. The remittance by the employer of the contributions to the Petitioners were charged with violation of RA 3019, Sec. 3(e). In his defense,
GSIS shall take priority over and above the payment of any and all obligations, Estino testified that the disbursement vouchers for the PhP 21.5 million cash
except salaries and wages of its employees. advances he approved were supported with documents; that the 5% of the 10%
Insufficiency of funds of the province is not a valid defense. The fact remained retention of the IRA of the national government was paid only in May 2002; and
that the GSIS contributions consisting of employee share and loan amortizations that he was authorized by the Provincial Board to withdraw PhP 21.5 million on
were deducted from the salaries of the employees. May 7, 1999. Pescadera, on the other hand, testified that the cash advances
amounting to PhP 21.5 million from the PNB was accompanied by vouchers and
While it was true that the budget for 1999 was approved only on June 2, 1999, it supporting documents; that the said amount was used in paying specific
was also true that on January to May 1999, the province of Sulu operated under obligations of the Provincial Government of Sulu; that the signature of the
the 1998 reenacted budget. Further, the reenacted budget provided for GSIS provincial accountant did not appear on the cash advances and vouchers
Premiums (Government Share). The DBM letter dated October 28, 1999 because during the withdrawal of the amounts, the provincial accountant was
(Exhibit "A-39") and Summary of Releases of IRA for July 1998 to May 1999 out of town; and that the provincial auditor of Sulu allowed said cash
(Exhibit "A-40") clearly showed that the IRA pertaining to the province was advances.14
regularly released.
RA 3019, Sec. 3(e) has three elements: (1) the accused is a public officer
Moreover, prosecution witness Mona Balabaran correctly testified that the Trial discharging administrative, judicial, or official functions; (2) the accused must
Balance, Journal of Checks Issued and Report of Checks Issued showed only have acted with manifest partiality, evident bad faith, or inexcusable negligence;
the sum total of all the money transactions of the Province of Sulu. These and (3) the accused’s action caused any undue injury to any party, including the
reports did not contain the cash status vis-à-vis the mandatory obligations and government, or giving any private party unwarranted benefits, advantage, or
the details on where the fund of the province was spent. Clearly, accused preference in the discharge of his or her functions.
Pescadera was not able to rebut the presumption of conversion.10
The Sandiganbayan found only the first two elements in this case. First,
With respect to Estino, however, the Sandiganbayan did not find any conspiracy petitioners were public officers at the time in question. Second, bad faith was
with Pescadera. The court held that it was Pescadera’s duty as the Provincial evident in petitioners’ act of withdrawing amounts without the signature of the
Treasurer to advise Estino, then Acting Governor, and other local government provincial accountant. This violated Sec. 344 of the Local Government Code
officials regarding the disposition of local government funds and other matters and Secs. 157 and 168 of the Government Accounting and Auditing
related to public finance. It was found that Pescadera failed to inform Estino that Manual. Nevertheless, the government did not suffer actual damages from the
the GSIS contributions must be remitted directly to the GSIS within the first 10 withdrawal of PhP 21.5 million. While said cash advances did not specify the
days of the calendar month following the month to which the contributions particulars of payment, the documentary exhibits attached to the cash
apply.11 Also, the Sandiganbayan explained that even if Estino was Pescadera’s advances, i.e., disbursement vouchers, Request for Obligation of Allotment,
co-signatory in the checks, mere signature or approval is not enough to sustain Summary of Payrolls, Time Book, and Payrolls, sufficiently itemized the
a finding of conspiracy, based on Sabiniano v. Court of Appeals.12 obligations to be paid by the cash advances. Since the prosecution failed to
prove any damage or injury to the Provincial Government of Sulu, petitioners
Pescadera’s appeal of his conviction is the subject of G.R. Nos. 164009-11. were acquitted of the crime charged.15
Criminal Case No. 26194 The Ruling of the Sandiganbayan
Anent the last charge, Balabaran testified that internal control was violated when The dispositive portion of the Sandiganbayan’s April 16, 2004 judgment reads:
petitioners signed the vouchers without the signature of Provincial Accountant
WHEREFORE:
I. In Criminal Case No. 26192, the Court finds accused MUNIB S.
ESTINO and ERNESTO G. PESCADERA, both GUILTY, beyond reasonable
doubt, for violation of Sec. 3(e) of R.A. 3019, and pursuant to Section 9 thereof,
and are hereby sentenced to suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence Law, six
(6) years and one (1) month as minimum, up to fifteen (15) years, as
maximum; and,
(B) Perpetual Disqualification from Public Office.
II. In Criminal Case No. 26193, this Court finds accused ERNESTO G.
PESCADERA, GUILTY, beyond reasonable doubt, of the crime of malversation
of public funds, and is hereby sentenced to suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence Law,
twelve (12) years, five (5) months and eleven (11) days of reclusion
temporal, as minimum, up to twenty years (20) years of reclusion
perpetua, as maximum;
(B) Perpetual Special Disqualification;
(C) Fine of FOUR MILLION EIGHT HUNDRED TWENTY THOUSAND
THREE HUNDRED SIXTY-FIVE PESOS AND THIRTY CENTAVOS
(Php4,820,365.30), with subsidiary imprisonment in case of insolvency;
(D) All the accessory penalties provided for under the law; and,
(E) To pay the cost of the suit.
Accused PESCADERA is likewise ordered to restitute the amount of FOUR
MILLION EIGHT HUNDRED TWENTY THOUSAND THREE HUNDRED SIXTY-
FIVE PESOS AND THIRTY CENTAVOS (Php4,820,365.30) to the Provincial
Government of Sulu.
With respect to MUNIB S. ESTINO, for failure of the Prosecution to prove his
[guilt] beyond reasonable doubt, he is hereby ordered ACQUITTED of the crime
of malversation of public funds.
III. In Criminal Case No. 26194, for failure of the Prosecution to prove the guilt of and I call your attention on the finding in page 5 thereof which reads: "On the
accused MUNIB S. ESTINO and ERNESTO G. PESCADERA beyond
reasonable doubt, both accused are hereby ordered ACQUITTED. 16
Petitioners filed a Motion for Reconsideration and a Supplemental Motion for
Reconsideration and New Trial which were denied in the June 14, 2004
Sandiganbayan Resolution. Thus, they filed these petitions.
The Issues
WHETHER OR NOT PETITIONERS FAILED TO PAY THE RATA AND ARE
THUS GUILTY OF VIOLATING SEC. 3(e) OF RA 3019
WHETHER OR NOT PETITIONER PESCADERA IS GUILTY OF
MALVERSATION OF PUBLIC FUNDS FOR FAILURE TO REMIT THE GSIS
CONTRIBUTIONS
The Court’s Ruling
G.R. Nos. 163957-58
Petitioners Estino and Pescadera point out that the basis of the information for
Criminal Case No. 26192 was the COA Report, which reads:
2. On the allegation that no payments were intended for the salary
differentials, ACA, PERA and other benefits of employees of the Provincial
Government of Sulu for the period covered from January, 1999 to May,
1999
It was noted that no benefits were paid to the employees of Sulu Provincial
Office for the period covered from January, 1999 to May, 1999 based on the
submitted paid disbursement vouchers (Annex E).
For the month of May 1999, the Provincial Government of Sulu received a total
allotment of P28,268,587.00, which includes January, 1999 to April, 1999
releases for IRA differentials (See Annex B). The amount intended for the said
benefits were disbursed other than specific purpose for which these are
appropriated (Annex C).17
Petitioners note that the COA Report does not state that they did not pay the
RATA under the reenacted budget of 1998. The prosecution witness, Auditor
Balabaran, testified that the COA Report pertains to the nonpayment of ACA,
PERA, and other benefits provided for in the 1999 budget. The 1999 budget,
however, was not approved during the incumbency of Estino as Acting
Governor. In the cross-examination of Balabaran, she testified as follows:
CROSS-EXAMINATION:
(Atty. Quadra)
Q. I show to you, Madam Witness, your Audit Report dated January 12, 2000,
allegation that no payments were made intended for the salary [differentials],
ACA, PERA, and other benefits of the employees of the Provincial Government
of Sulu for the period covered from January 1999 to May 1999." Now, it is stated
here that no payments of the said benefits of the employees were made from
January 1999 to May 1999. My question is, when you said benefits of the
employees you are referring to the benefits of the employees provided for in the
1999 Budget? Please go over this Report.
(Witness looking at the document)
A. You want me to explain?
AJ Palattao: What benefit are you referring?
A. We are referring to the benefits that was to be paid, your Honor, the ACA, the
PERA, and the other benefits.
Q Yes, and those benefits that you are referring to are the benefits provided for
in the Annual Budget for the Year 1999?
AJ Palattao: Are you referring to a benefit granted to the employees under the
1999 Annual Budget? Yes or no?
A. The benefits that are intended to the employees for the year 1999.
Q. 1999. You are not referring to the benefits of the employees provided for in
the 1998 budget?
A. Yes, it is very clear, January 1999 to May 1999.
Q. It is only in 1999?
A. Yes, Sir. [TSN, p. 5 December 6, 2000]18
Petitioners insist that there is enough evidence to show that the RATA provided
for in the 1998 reenacted budget was paid for the period January to May 1999.
In their Supplemental Motion for Reconsideration and Motion for New Trial,
petitioners presented to the Sandiganbayan a Certification dated May 11, 2002
issued by the Provincial Auditor Abdurasad J. Undain, stating that the RATA for
the period January to May 1999 was paid to the officials entitled to it and that
the GSIS premiums pertaining to prior years were also settled by the Provincial
Government of Sulu. In support of this certification, petitioners submitted sworn
statements of the provincial officials entitled to RATA, stating that they were
paid such allowance from January to May 1999 and that they did not have any
complaint to its alleged nonpayment.19 They also submitted 99 certified true
copies of the Disbursement Vouchers showing the payment of the RATA from
January to May 1999 provided for in the 1998 reenacted budget. Petitioners
presented these vouchers only in their Supplemental Motion for Reconsideration
and/or Motion for New Trial allegedly because they thought that the COA Report
pertained only to the benefits provided in and to be paid with the 1999 budget.
They may have been misled when Auditor Balabaran did not testify on the
alleged nonpayment of the RATA for January to May 1999 with the reenacted
budget of 1998.
Anent the Sandiganbayan’s finding that the vouchers showing payment of RATA strictly not newly discovered, it appears to us that petitioners were mistaken in
for May 1999 were not signed by the claimants, petitioners explain that the
actual release of RATA is the responsibility of the cashier of the province.
Petitioners claim that they could not be faulted for the failure of the cashier to
require the claimants to sign the receipt of payment. Furthermore, the claimants
in Exhibits "3-O" to "3-T," "3-W," "3-X," "3-HH," and "3-II" all executed sworn
statements that they received their RATA.
Petitioners further point out that the Sandiganbayan justices who heard and
tried their case were not the ones who rendered the questioned decision. The
trial was conducted by Justices Narciso S. Nario, Rodolfo G. Palattao, and
Nicodemo T. Ferrer, while the decision was rendered by Justices Gregory T.
Ong, Norberto Y. Geraldez, and Efren N. dela Cruz.
On the other hand, the Office of the Special Prosecutor asserts that the petition
should be dismissed because it raises questions of fact not proper in an appeal
by certiorari. It also asserts the following: Even if the petition is given due
course, there are factual and legal bases for the conviction. Although the term
"RATA" was not mentioned in the COA Report, said allowance was
contemplated by the auditors in their use of the term "benefits." Also, the sworn
statements of the officials on their receipt of the RATA and the certification of
the Provincial Auditor to the effect that the RATA has been paid are belated and
unsubstantiated. These were submitted only in petitioners’ Supplemental Motion
for Reconsideration, thus implying that payments of the RATA were made after
the conviction of petitioners. Likewise, the unsigned disbursement vouchers
deserve no merit because of the irregularities in these documents. Some do not
bear the dorsal portion of the vouchers or the signature of the Provincial Auditor,
while others were signed by persons other than the claimants without any proof
of their authority from the principals. The vouchers also show that the RATA
was paid in cash instead of through checks in violation of Presidential Decree
No. 1445.
The Case Should be Remanded to the Sandiganbayan
Petitioners’ defense is anchored on their payment of RATA, and for this
purpose, they submitted documents which allegedly show that they paid the
RATA under the 1998 reenacted budget. They also claim that the COA Report
did not sufficiently prove that they did not pay the RATA because the alleged
disbursement vouchers, which were supposed to be annexed to the COA
Report as proof of nonpayment of RATA, were not submitted with said report.
We resolve to grant petitioners a chance to prove their innocence by remanding
the case to the Sandiganbayan for a new trial of Criminal Case No. 26192. Rule
121 of the Rules of Court allows the conduct of a new trial before a judgment of
conviction becomes final when new and material evidence has been discovered
which the accused could not with reasonable diligence have discovered and
produced at the trial and which if introduced and admitted would probably
change the judgment.20 Although the documents offered by petitioners are
their belief that its production during trial was unnecessary. In their
Supplemental Motion and/or Motion for New Trial, they stressed that they no
longer presented the evidence of payment of RATA because Balabaran testified
that the subject of the charge was the nonpayment of benefits under the 1999
budget, without mention of the RATA nor the 1998 reenacted budget. It seems
that they were misled during trial. They were precluded from presenting pieces
of evidence that may prove actual payment of the RATA under the 1998
reenacted budget because the prosecution’s evidence was confined to alleged
nonpayment of RATA under the 1999 budget.
In this instance, we are inclined to give a more lenient interpretation of Rule 121,
Sec. 2 on new trial in view of the special circumstances sufficient to cast doubt
as to the truth of the charges against petitioners. The situation of the petitioners
is peculiar, since they were precluded from presenting exculpatory evidence
during trial upon the honest belief that they were being tried for nonpayment of
RATA under the 1999 budget. This belief was based on no less than the
testimony of the prosecution’s lone witness, COA Auditor Mona Balabaran.
Even Associate Justice Palattao of the Sandiganbayan had to clarify from
Balabaran which budget she was referring to. Balaraban, however, made it very
clear that the unpaid benefits were those provided under the 1999 budget, to
wit:
AJ Palattao: Are you referring to a benefit granted to the employees under the
1999 Annual Budget? Yes or no?
A. The benefits that are intended to the employees for the year 1999.
Q. 1999. You are not referring to the benefits of the employees provided for in
the 1998 budget?
A. Yes, it is very clear, January 1999 to May 1999.
Q. It is only in 1999?
A. Yes, Sir. [TSN, p. 5 December 6, 2000]21 (Emphasis supplied.)
From the foregoing discourse, it is understandable how petitioners could have
thought that they need not present any more evidence to prove payment of the
RATA under the 1998 budget. Apparently, the COA Auditor who prepared the
report and testified on it established that the trial was about nonpayment of
benefits under the 1999 budget. That budget was not approved during
petitioners’ stint in Sulu. Faced with conviction, nevertheless, they deserve a
chance to prove their innocence. This opportunity must be made available to the
accused in every possible way in the interest of justice. Hence, petitioners
should be allowed to prove the authenticity of the vouchers they submitted and
other documents that may absolve them. A remand of the case for a new trial is
in order. This procedure will likewise grant the prosecution equal opportunity to
rebut petitioners’ evidence.
In granting petitioners’ motion for new trial, we reiterate our pronouncement
in Cano v. People:
It is x x x equally settled that rules of procedure are not to be applied in a very
rigid, technical sense and are used only to help secure substantial justice. If a
technical and rigid enforcement of the rules is made, their aim would be
defeated. They should be liberally construed so that litigants can have ample
opportunity to prove their claims and thus prevent a denial of justice due to
technicalities.22
More importantly, we have settled that procedural rules can be suspended if
matters of life, liberty, honor, and property are at stake, thus:
In Ginete vs. Court of Appeals, we specifically laid down the range of reasons
which may provide justifications for a court to resist a strict adherence to
procedure and suspend the enforcement of procedural rules. Among such
reasons x x x are: (1) matters of life, liberty, honor or property; (2) counsel’s
negligence without any participatory negligence on the part of the client; (3) the
existence of special or compelling circumstances; (4) the merits of the case; (5)
a cause not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules; and (6) a lack of any showing that the review
sought is merely frivolous and dilatory.23
We have also held that:
Unquestionably, the Court has the power to suspend procedural rules in the
exercise of its inherent power, as expressly recognized in the Constitution, to
promulgate rules concerning ‘pleading, practice and procedure in all courts.’ In
proper cases, procedural rules may be relaxed or suspended in the interest of
substantial justice, which otherwise may be miscarried because of a rigid and
formalistic adherence to such rules. x x x
xxxx
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather than promote substantial
justice, must always be avoided. x x x Time and again, this Court has
suspended its own rules and excepted a particular case from their operation
whenever the higher interests of justice so require.24
While the information states that the accused failed to pay the RATA sometime
in or about January to May 1999, there was no mention which budget the RATA
was supposed to be sourced. Petitioners relied on the COA Auditor’s testimony
that they were being tried for nonpayment of benefits under the 1999 budget.
The Special Audit Report does not also distinguish the budget source but upon
the testimony of Balabaran, it was established that the source was the 1999
budget. Balabaran verified this when cross-examined by Sandiganbayan Justice
Palattao. This distinction is material because conviction or acquittal depends on
which budget source the information referred to. Thus, even if the 1998 budget
was automatically reenacted in 1999, if the trial was clearly about the
nonpayment of benefits under the 1999 budget as established by the
prosecution, then petitioners could not be faulted for proceeding accordingly.
The prosecution could have been clearer about the budget source through re-
direct examination of Balabaran but it did not choose to do so. As always in
criminal cases, the burden is on the prosecution to establish guilt beyond
reasonable doubt based on sufficient information. It is not the responsibility of
the accused to produce exculpatory evidence in a trial that does not demand it,
as in this peculiar case where the prosecution failed to be clear about how they
have allegedly been negligent in paying employee benefits.
The evidence sought to be introduced by the petitioners were presented in their
Supplemental Motion for Reconsideration. Obviously, it was after their
conviction that petitioners realized their mistake and belatedly presented their
evidence which consist of (1) a certification dated May 11, 2004 by Abdurasad
J. Undain, Provincial Auditor of Sulu, attesting to the payment of the RATA for
the period January to May 1999 to officials of Sulu who were entitled to such
benefit; (2) disbursement vouchers showing payment of RATA to provincial
employees of Sulu for the period January to May 1999; and (3) sworn
statements from the claimants of the RATA attesting to their receipt of RATA
from January to May 1999. The Sandiganbayan noted how some of the
disbursement vouchers were not signed by the claimants. Petitioners, however,
were not given the chance to explain this alleged irregularity. The
Sandiganbayan also completely disregarded the sworn statements from the
claimants of the RATA which state that they did not have any complaint to its
alleged nonpayment. It should be remembered that petitioners are being
charged with violation of Sec. 3(e) of RA 3019, an element of which is undue
injury to any party. If the claimants of the RATA, the supposed injured parties,
state that they received the RATA and have no complaints to its nonpayment,
then these sworn statements could absolve petitioners. These documents
should be weighed properly, its authenticity duly established by the accused,
and the prosecution should be given the chance to rebut these pieces of
evidence. Since we are not a trier of facts, we should remand this case to the
Sandiganbayan.
As the court of last resort, we cannot and should not be hasty in convicting the
accused when there are factual circumstances that could save them from
imprisonment. In this case, the accused should be afforded the chance to prove
the authenticity of documents which have a tendency to prove their innocence.
Procedural rules should be interpreted liberally or even set aside to serve the
ends of justice. Hence, we order the remand of Criminal Case No. 26192 to the
Sandiganbayan for a new trial.
G.R. Nos. 164009-11
Petitioner Pescadera’s defense consists of two arguments: (1) that the elements
of the crime of malversation under Art. 217 of the Revised Penal Code were not
present; and (2) that his failure to remit the GSIS contributions was due to the
prioritization of other obligations of the Provincial Government of Sulu.
Pescadera claims that the elements of the crime of malversation were not met
because there was no demand on him by the Provincial Auditor or by the
Special Audit Team to account for the GSIS contributions. He submits that
the prima facie presumption of malversation is not applicable when no written
demand for accounting was given to him. Assuming that there was a demand,
there is allegedly no direct evidence showing misappropriation of PhP
4,820,365.30. He asserts that he did not withdraw such amount from the
provincial government funds. He submitted documents that show how the funds
of the Provincial Government of Sulu were spent from July 1998 to May 23,
1999. These documents consisted of the monthly trial balance from August 31,
1998 to May 31, 1999; certified true copies of the journal of checks issued from
July 1998 to May 7 to 30, 1999; certified true copies of the Treasurer’s Journal
Cash Disbursements from August 1998 to February 1999; and annual Audit
Report for 1998 and 1999. Pescadera claims that the COA Special Audit Team
merely examined the disbursement vouchers and the payrolls and found that
the only irregularity was the non-remittance of the GSIS contributions and loan
amortization.
Art. 217 of the Revised Penal Code provides:
Art. 217. Malversation of Public Funds or Property—Presumption of
Malversation. Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or consent, or through abandonment or negligence, shall
permit any other person to take such funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation of such funds or property, shall
suffer:
xxxx
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal uses.
There is no dispute that Pescadera is a public officer who has control or custody
of public funds and, thus, accountable for them. As to whether Pescadera
misappropriated the GSIS premiums, he argues that the presumption of
malversation does not apply because there was no demand on him.
The Sandiganbayan held that Pescadera failed to account for the GSIS
premiums when demand was made by Provincial Auditor Nora Imlan and the
Special Audit Team, citing Exhibit "12-c." Pescadera points out, however, that
Exhibit "12-c" referred to the "State Auditor’s Opinion on the Financial
Statements" herein reproduced:
The auditor rendered a qualified opinion on the fairness of the presentation of
the financial statements due to management’s failure to conduct physical
inventory on its fixed assets and inventories as discussed in finding no. 1 and
inability to conduct inspection on the infra projects under the 20% Development
Fund.
SUMMARY OF SIGNIFICANT FINDINGS AND RECOMMENDATIONS
During the year under audit, the following are the findings and
recommendations, to wit:
xxxx
2. Non-remittances [in] 1998 of various trust liabilities in violation of laws, rules,
and regulations.
prosecution merely relied on the presumption of malversation which we have
already disproved due to lack of notice. Hence, the prosecution should have
proven actual misappropriation by the accused. Pescadera, however,
emphasized that the GSIS premiums were applied in the meantime to the salary
differentials and loan obligations of Sulu, that is, the GSIS premiums were
appropriated to another public use. Thus, there was no misappropriation of the
public funds for his own benefit. And since the charge lacks one element, we set
aside the conviction of Pescadera.
WHEREFORE, the Decision dated April 16, 2004 of the Sandiganbayan in
Criminal Case No. 26192 is SET ASIDE and the case is REMANDED to the
Sandiganbayan for new trial on the alleged nonpayment of RATA. The Decision
dated April 16, 2004 of the Sandiganbayan in Criminal Case No.
26193 is REVERSED and SET ASIDE, and Ernesto G. Pescadera
is ACQUITTED of the charge against him. Costs against petitioners.
SO ORDERED.

Require the Provincial Treasurer to remit all trust liabilities such as GSIS
premiums/loans repayments/state insurance, MEDICARE AND PAGIBIG.25
We agree with Pescadera that this is not the demand contemplated by law. The
demand to account for public funds must be addressed to the accountable
officer. The above-cited letter was made by the Provincial Auditor
recommending to the Chairperson of the COA to "require the Provincial
Treasurer of Sulu to remit all trust liabilities such as GSIS premium/loans,
repayments/state insurance, Medicare and Pag-ibig." Nowhere in the pleadings
did the Special Prosecutor refute the lack of a formal demand upon Pescadera
to account for the GSIS premiums. Pescadera even denies being informed of
the conduct of the audit, an assertion which was not refuted by the prosecution.
It can be concluded then that Pescadera was not given an opportunity to explain
why the GSIS premiums were not remitted. Without a formal demand, the prima
facie presumption of conversion under Art. 217 cannot be applied.
While demand is not an element of the crime of malversation,26 it is a requisite
for the application of the presumption. Without this presumption, the accused
may still be proved guilty under Art. 217 based on direct evidence of
malversation. In this case, the prosecution failed to do so. There is no proof that
Pescadera misappropriated the amount for his personal use.
The elements of Art. 217 are: (1) the offender is a public officer, (2) he or she
has custody or control of the funds or property by reason of the duties of his
office, (3) the funds or property are public funds or property for which the
offender is accountable, and, most importantly, (4) the offender has
appropriated, taken, misappropriated or consented, or, through abandonment or
negligence, permitted another person to take them. The last and most important
element of malversation was not proved in this case. There is no proof that
Pescadera used the GSIS contributions for his personal benefit. The
 G.R. No. 204444, January 14, 2015 party therein. He also reiterated that his signatures on the said contracts were
forgeries.20 chanRob lesvi rtual Lawli bra ry

VIRGILIO C. BRIONES, Petitioner, v. COURT OF APPEALS AND CASH ASIA

CREDIT CORPORATION, Respondents. The RTC Ruling

DECISION
In an Order21 dated September 20, 2010, the RTC denied Cash Asia’s motion to
PERLAS-BERNABE, J.: dismiss for lack of merit. In denying the motion, the RTC opined that the parties
must be afforded the right to be heard in view of the substance of Briones’s cause
Assailed in this petition for certiorari1 are the Decision2 dated March 5, 2012 and
of action against Cash Asia as stated in the complaint.22
the Resolution3 dated October 4, 2012 of the Court of Appeals(CA) in CA-G.R. SP
chanRoblesvi rtua lLawl ibra ry

No. 117474, which annulled the Orders dated September 20, 20104 and October
Cash Asia moved for reconsideration23 which was, however, denied in an
22, 20105 of the Regional Trial Court of Manila, Branch 173 (RTC) in Civil Case No.
Order24 dated October 22, 2010. Aggrieved, it filed a petition for certiorari25 before
10-124040, denying private respondent Cash Asia Credit Corporation’s (Cash
the CA.
Asia) motion to dismiss on the ground of improper venue.
cralawred

cralaw red

The CA Ruling
The Facts

In a Decision26 dated March 5, 2012, the CA annulled the RTC Orders, and
The instant case arose from a Complaint6 dated August 2, 2010 filed by Virgilio C.
accordingly, dismissed Briones’s complaint without prejudice to the filing of the
Briones (Briones) for Nullity of Mortgage Contract, Promissory Note, Loan
same before the proper court in Makati City.27 It held that the RTC gravely abused
Agreement, Foreclosure of Mortgage, Cancellation of Transfer Certificate of Title
its discretion in denying Cash Asia’s motion to dismiss, considering that the
(TCT) No.290846, and Damages against Cash Asia before the RTC.7 In his
subject contracts clearly provide that actions arising therefrom should be
complaint, Briones alleged that he is the owner of a property covered by TCT No.
exclusively filed before the courts of Makati City only.28 As such, the CA concluded
160689 (subject property),and that, on July 15, 2010, his sister informed him that
that Briones’s complaint should have been dismissed outright on the ground of
his property had been foreclosed and a writ of possession had already been issued
improper venue,29 this, notwithstanding Briones’s claim of forgery.
in favor of Cash Asia.8 Upon investigation, Briones discovered that: (a) on
December 6, 2007, he purportedly executed a promissory note,9 loan
Dissatisfied, Briones moved for reconsideration,30 which was, however, denied in a
agreement,10 and deed of real estate mortgage11covering the subject property
Resolution31 dated October 4, 2012, hence, this petition.
(subject contracts) in favor of Cash Asia in order to obtain a loan in the amount of
P3,500,000.00 from the latter;12 and (b) since the said loan was left unpaid, Cash The Issue Before the Court
Asia proceeded to foreclose his property.13 In this relation, Briones claimed that he
never contracted any loans from Cash Asia as he has been living and working in
Vietnam since October 31, 2007. He further claimed that he only went back to the The primordial issue for the Court’s resolution is whether or not the CA gravely
Philippines on December 28, 2007 until January 3, 2008 to spend the holidays abused its discretion in ordering the outright dismissal of Briones’s complaint on
with his family, and that during his brief stay in the Philippines, nobody informed the ground of improper venue.
him of any loan agreement entered into with Cash Asia. Essentially, Briones
assailed the validity of the foregoing contracts claiming his signature to be The Court’s Ruling
forged.14cha nRoblesvi rt ualLaw lib rary

The petition is meritorious.

For its part, Cash Asia filed a Motion to Dismiss15 dated August 25, 2010, praying
for the outright dismissal of Briones’s complaint on the ground of improper
At the outset, the Court stresses that “[t]o justify the grant of the extraordinary
venue.16 In this regard, Cash Asia pointed out the venue stipulation in the subject
remedy of certiorari, [the petitioner] must satisfactorily show that the court or
contracts stating that “all legal actions arising out of this notice in connection with
quasi-judicial authority gravely abused the discretion conferred upon it. Grave
the Real Estate Mortgage subject hereof shall only be brought in or submitted to
abuse of discretion connotes judgment exercised in a capricious and whimsical
the jurisdiction of the proper court of Makati City.”17 In view thereof, it contended
manner that is tantamount to lack of jurisdiction. To be considered ‘grave,’
that all actions arising out of the subject contracts may only be exclusively
discretion must be exercised in a despotic manner by reason of passion or
brought in the courts of Makati City, and as such, Briones’s complaint should be
personal hostility, and must be so patent and gross as to amount to an evasion of
dismissed for having been filed in the City of Manila.18
positive duty or to a virtual refusal to perform the duty enjoined by or to act at all
chanRoblesvi rtual Lawli bra ry

in contemplation of law.”32
In response, Briones filed an opposition,19 asserting, inter alia, that he should not
chanRoblesvi rtua l Lawlib rary

be covered by the venue stipulation in the subject contracts as he was never a

Guided by the foregoing considerations, the Court finds that the CA gravely
abused its discretion in ordering the outright dismissal of Briones’s complaint
against Cash Asia, without prejudice to its re-filing before the proper court in
Makati City.
Rule 4 of the Rules of Court governs the rules on venue of civil actions, to wit: chan roble svirtual lawlib rary
Rule 4
VENUE OF ACTIONS
SECTION 1. Venue of real actions. — Actions affecting title to or possession of real
property, or interest therein, shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real property involved, or a
portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the municipal
trial court of the municipality or city wherein the real property involved, or a
portion thereof, is situated.
SEC. 2. Venue of personal actions. — All other actions may be commenced and
tried where the plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides, or in the case of a non-
resident defendant where he may be found, at the election of the plaintiff.
SEC. 3. Venue of actions against nonresidents. — If any of the defendants does
not reside and is not found in the Philippines, and the action affects the personal
status of the plaintiff, or any property of said defendant located in the Philippines,
the action may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is situated or found.
SEC. 4. When Rule not applicable. — This Rule shall not apply –
(a) In those cases where a specific rule or law provides otherwise; or
(b) Where the parties have validly agreed in writing before the filing of the action
on the exclusive venue thereof.
Based therefrom, the general rule is that the venue of real actions is the court
which has jurisdiction over the area wherein the real property involved, or a
portion thereof, is situated; while the venue of personal actions is the court which
has jurisdiction where the plaintiff or the defendant resides, at the election of the
plaintiff. As an exception, jurisprudence in Legaspi v. Rep. of the Phils.33 instructs
that the parties, thru a written instrument, may either introduce another venue
where actions arising from such instrument may be filed, or restrict the filing of
said actions in a certain exclusive venue, viz.:chan roble svirtual lawlib rary
The parties, however, are not precluded from agreeing in writing on an exclusive
venue, as qualified by Section 4 of the same rule. Written stipulations as to
venue may be restrictive in the sense that the suit may be filed only in
the place agreed upon, or merely permissive in that the parties may file
their suit not only in the place agreed upon but also in the places fixed by
law. As in any other agreement, what is essential is the ascertainment of the
intention of the parties respecting the matter.
As regards restrictive stipulations on venue, jurisprudence instructs that
it must be shown that such stipulation is exclusive. In the absence of
qualifying or restrictive words, such as “exclusively,” “waiving for this purpose
any other venue,” “shall only” preceding the designation of venue, “to the
exclusion of the other courts,” or words of similar import, the stipulation should
be deemed as merely an agreement on an additional forum, not as
limiting venue to the specified place.34 (Emphases and underscoring supplied)
In this relation, case law likewise provides that in cases where the complaint
assails only the terms, conditions, and/or coverage of a written instrument and
not its validity, the exclusive venue stipulation contained therein shall still be
binding on the parties, and thus, the complaint may be properly dismissed on the
ground of improper venue.35 Conversely, therefore, a complaint directly assailing
the validity of the written instrument itself should not be bound by the exclusive
venue stipulation contained therein and should be filed in accordance with the
general rules on venue.To be sure, it would be inherently consistent for a
complaint of this nature to recognize the exclusive venue stipulation when it, in
fact, precisely assails the validity of the instrument in which such stipulation is
contained.
In this case, the venue stipulation found in the subject contracts is indeed
restrictive in nature, considering that it effectively limits the venue of the actions
arising therefrom to the courts of Makati City. However, it must be emphasized
that Briones’s complaint directly assails the validity of the subject contracts,
claiming forgery in their execution. Given this circumstance, Briones cannot be
expected to comply with the aforesaid venue stipulation, as his compliance
therewith would mean an implicit recognition of their validity. Hence, pursuant to
the general rules on venue, Briones properly filed his complaint before a court in
the City of Manila where the subject property is located.
In conclusion, the CA patently erred and hence committed grave abuse of
discretion in dismissing Briones’s complaint on the ground of improper venue. chan rob leslaw
WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated March 5,
2012 and the Resolution dated October 4, 2012 of the Court of Appeals in CA-G.R.
SP No. 117474 are hereby ANNULLED and SET ASIDE. The Orders dated
September 20, 2010 and October 22, 2010 of the Regional Trial Court of Manila,
Branch 173 in Civil Case No. 10-124040 are REINSTATED.
SO ORDERED.
cralawlawlibra ry
G.R. NO. 184537 April 23, 2010
QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, Petitioners,
vs.
The HONORABLE SANDIGANBAYAN, 4th DIVISION and the PEOPLE OF
THE PHILIPPINES, Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 of the
1997 Rules on Civil Procedure with a prayer for the issuance of a writ of
preliminary injunction and temporary restraining order assailing the July 14,
2008 Resolution1 of the Sandiganbayan in Criminal Case No. SB-08 CRM 0263,
denying the Motion for Preliminary Investigation filed by the petitioners who
were charged with a violation of Section 3(e) of Republic Act No. 3019, and the
denial of their Motion for Reconsideration done in open court on August 13,
2008.
An Information2 dated September 13, 2000 charging both petitioners with having
violated Section 3(e) of Republic Act No. 3019, by causing undue injury to the
government, reads:
The undersigned Graft Investigation Officer of the Office of the Ombudsman-
Visayas, accuses QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for
VIOLATION OF SECTION 3(e) OF REPUBLIC ACT NO. 3019, AS AMENDED
(THE ANTI-GRAFT AND CORRUPT PRACTICES ACT), committed as follows:
That in or about the months of November and December, 1997, at the
Municipality of Lavezares, Province of Northern Samar, Philippines, and within
the jurisdiction of this Honorable Court, above-named accused, public officials,
being the Municipal Mayor and PNP Member of Lavezares, Northern Samar in
such capacity and committing the offense in relation to office, conniving,
confederating and mutually helping with one another, and with the late Limpio
Legua, a private individual, with deliberate intent, with evident bad faith and
manifest partiality, did then and there willfully, unlawfully and feloniously enter
into a Pakyaw Contract for the Construction of Barangay Day Care Centers for
Barangays Mac-arthur and Urdaneta, Lavezares, Northern Samar, each in the
amount of FORTY-EIGHT THOUSAND FIVE HUNDRED PESOS (₱48,500.00),
Philippine Currency, or a total amount of NINETY-SEVEN THOUSAND PESOS
(₱97,000.00), Philippine Currency, without conducting a competitive public
bidding, thus depriving the government the chance to obtain the best, if not, the
most reasonable price, and thereby awarding said contracts to Olimpio Legua, a
non-license contractor and non-accredited NGO, in violation of Sec. 356 of
Republic Act No. 7160 (The Local Government Code) and COA Circular No. 91-
368, to the damage and prejudice of the government.
CONTRARY TO LAW.
This case was initially raffled to the Third Division of Sandiganbayan and was
docketed as Criminal Case No. 26319.
In a Resolution3 promulgated on June 14, 2002, the Third Division granted
petitioners’ Motion to Quash and dismissed the information "for failure of the
prosecution to allege and prove the amount of actual damages caused the
government, an essential element of the crime charged."
In a Memorandum4 dated July 1, 2003, the Ombudsman directed the Office of
the Special Prosecutor (OSP) to study the possibility of having the information
amended and re-filed with the Sandiganbayan.
Thus, the OSP re-filed the Information5 dated August 17, 2007, this time,
docketed as Criminal Case No. SB-08 CRM 0263, with the Fourth Division of
the Sandiganbayan, charging the petitioners for violation of Section 3(e) of R.A.
No. 3019, by giving unwarranted benefit to a private person, to the prejudice of
the government.
The information, subject of the petition, now reads:
The undersigned Prosecutor of the Office of the Special Prosecutor/Office of the
Ombudsman, hereby accuses, MAYOR QUINTIN B. SALUDAGA and SPO2
FIEL E. GENIO, for the violation of Section 3(e) of Republic Act 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That in or about the months of November and December, 1997 at the
Municipality of Lavezares, Province of Northern Samar, Philippines, and within
the jurisdiction of this Honorable Court, accused QUINTIN B. SALUDAGA, a
high ranking public official being then the Mayor of Lavezares, Northern Samar,
and committing the crime herein charged while in the discharge of his official
administrative function, conspiring and conniving with accused SPO2 FIEL B.
GENIO, a member of Lavezares Police Force (PNP) and with the late OLIMPIO
LEGUA, a private individual, with deliberate intent, did then and there willfully,
unlawfully and criminally give unwarranted benefit or advantage to the late
Olimpio Legua, a non-license contractor and non-
accredited NGO, through evident bad faith and manifest partiality by then and
there entering into a Pakyaw Contract with the latter for the Construction of
Barangay Day Care Centers for barangays Mac-Arthur and Urdaneta,
Lavezares, Northern Samar, in the amount of FORTY EIGHT THOUSAND FIVE
HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN
THOUSAND PESOS (P97,000.00) Philippine Currency, without the benefit of a
competitive public bidding to the prejudice of the Government and public
interest.
CONTRARY TO LAW.
Petitioners filed a Motion for Preliminary Investigation6 dated June 4, 2008
which was strongly opposed by the prosecution in its Opposition 7 dated June
18, 2008.
Petitioners contend that the failure of the prosecution to conduct a new
preliminary investigation before the filing of the second Information constituted a
violation of the law because the latter charged a different offense–that is,
violation of Section 3(e) by giving unwarranted benefit to private parties. Hence,
there was a substitution of the first Information. They argue that assuming that
no substitution took place, at the very least, there was a substantial amendment
in the new information and that its submission should have been preceded by a
new preliminary investigation. Further, they claim that newly discovered
evidence mandates re-examination of the finding of a prima facie cause to file
the case.
On July 14, 2008, the Sandiganbayan Fourth Division issued the assailed
Resolution denying the petitioners’ motion for preliminary investigation. The
graft court found that there is no substituted information or substantial
amendment that would warrant the conduct of a new preliminary investigation. It
gave the following ratiocination:
The re-filed information did not change the nature of the offense charged, but
merely modified the mode by which accused committed the offense. The
substance of such modification is not such as to necessitate the conduct of
another preliminary investigation.
Moreover, no new allegations were made, nor was the criminal liability of the
accused upgraded in the re-filed information. Thus, new preliminary
investigation is not in order.
The dispositive portion of the Resolution states:
Finding the arguments of accused-movants indefensible, the sufficiency of the
information must be sustained.
WHEREFORE, having established the sufficiency of the Information, the motion
under consideration is hereby DENIED for lack of merit. Accordingly, the
arraignment of both accused shall proceed as scheduled.8
Petitioners filed a Motion for Reconsideration9 dated August 6, 2008, submitting
that the two Informations substantially charged different offenses, such that the
present information constituted a substitution that should have been preceded
by a new preliminary investigation.
On August 13, 2008, in a hearing for the arraignment of petitioners, the
Sandiganbayan denied the Motion10 in open court.
Hence, petitioners interpose the present petition for certiorari, prohibition and
mandamus with prayer for the issuance of a writ of preliminary injunction and
temporary restraining order under Rule 65 of the Rules of Court anchored on
the following grounds:
I
The Honorable Sandiganbayan acted with grave abuse of discretion amounting
to lack or excess of jurisdiction when it refused to order the preliminary
investigation of the case a quo, when the second Information in the instant case
constituted substituted Information whose submission required the conduct of
preliminary investigation.
II
The Honorable Sandiganbayan acted with grave abuse of discretion amounting
to lack or excess of jurisdiction when it refused to order the conduct of a
preliminary investigation of the case a quo, since the second Information therein
contained substantial amendments whose submission required the conduct of
preliminary investigation.
III
The Honorable Sandiganbayan acted with grave abuse of discretion amounting
to lack or excess of jurisdiction when it refused to order the preliminary
investigation of the case a quo, although the newly discovered evidence
mandates due re-examination of the finding that prima facie cause existed to file
the case a quo.11
From the arguments raised by petitioners, the core issue is whether or not the
two (2) ways of violating section 3(e) of Republic Act 3019, namely: (a) by
causing undue injury to any party, including the Government; or (b) by giving
any private party any unwarranted benefit, advantage or preference constitute
two distinct and separate offenses that would warrant a new or another
preliminary investigation.
In its Comment12 dated January 12, 2009, respondent People of the Philippines,
represented by the Office of the Special Prosecutor, counters that there is no
substituted information in contemplation of law and jurisprudence that would
require the conduct of another preliminary investigation. There is no newly-
discovered evidence that would lead to a different determination should there be
another preliminary investigation conducted.
In their Reply,13 dated April 24, 2009, petitioners insist that the offenses charged
in the first and second Information are not the same, and what transpired was a
substitution of Information that required prior conduct of preliminary
investigation. Even assuming there was no substitution, substantial
amendments were made in the second Information, and that its submission
should have been preceded by a new preliminary investigation.
We find no merit in this petition.
Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the
Anti-Graft and Corrupt Practices Act which reads:
Section 3. Corrupt practices of public officers.- In addition to acts or omissions
of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be 0unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving
any private party any unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to officers and employees charged with the grant of licenses or permits or
other concessions.
The essential elements of the offense are as follows:
1. The accused must be a public officer discharging administrative,
judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or
inexcusable negligence; and
3. That his action caused any undue injury to any party, including the
government, or giving any private party unwarranted benefits,
advantage or preference in the discharge of his functions.14
In a string of decisions, the Court has consistently ruled:
R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its
elements that the public officer should have acted by causing any undue injury
to any party, including the Government, or by giving any private party
unwarranted benefits, advantage or preference in the discharge of his functions.
The use of the disjunctive term "or" connotes that either act qualifies as a
violation of Section 3 paragraph (e), or as aptly held in Santiago, as two (2)
different modes of committing the offense. This does not however indicate that
each mode constitutes a distinct offense, but rather, that an accused may be
charged under either mode or under both.15
The afore-stated ruling is consistent with the well-entrenched principle of
statutory construction that "The word or is a disjunctive term signifying
disassociation and independence of one thing from the other things
enumerated; it should, as a rule, be construed in the sense in which it ordinarily
implies, as a disjunctive word."16
Contrary to the argument of petitioners, there is no substituted information. The
Information dated August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263
charged the same offense, that is, violation of Section 3(e) of Republic Act No.
3019. Only the mode of commission was modified. While jurisprudence, the
most recent being Talaga, Jr. v. Sandiganbayan,17 provides that there are two
(2) acts or modes of committing the offense, thus: a) by causing any undue
injury to any party, including the government; or b) by giving any private party
any unwarranted benefit, advantage or preference, it does not mean that each
act or mode constitutes a distinct offense. An accused may be charged under
either mode18 or under both should both modes concur.19
Petitioners’ reliance on the Teehankee v. Madayag,20 ruling that, "in substitution
of information another preliminary investigation is entailed and that the accused
has to plead anew to the new information" is not applicable to the present case
because, as already stated, there is no substitution of information there being no
change in the nature of the offense charged.
Consequently, petitioners cannot invoke the principle enunciated in Villaflor v.
Vivar,21 that failure to conduct a new preliminary investigation is tantamount to a
violation of their rights. While it is true that preliminary investigation is a statutory
and substantive right accorded to the accused before trial, the denial of
petitioners’ claim for a new investigation, however, did not deprive them of their
right to due process. An examination of the records of the case discloses that
there was a full-blown preliminary investigation wherein both petitioners actively
participated.
Anent the contention of petitioners that the information contained substantial
amendments warranting a new preliminary investigation, the same must
likewise fail.1avvphi1
Petitioners erroneously concluded that giving undue injury, as alleged in the first
Information, and conferring unwarranted benefits, alleged in the second
Information, are two distinct violations of, or two distinct ways of violating
Section 3(e) of Republic Act No. 3019, and that such shift from giving undue
injury to conferring unwarranted benefit constituted, at the very least, a
substantial amendment. It should be noted that the Information is founded on
the same transaction as the first Information, that of entering into a Pakyaw
Contract for the construction of barangay day care centers for barangays Mac-
Arthur and Urdaneta, Lavezares, Northern Samar. Thus, the evidentiary
requirements for the prosecution and defense remain the same.
To bolster their claim for a reinvestigation of the offense, petitioners cited the
case of Matalam v. Sandiganbayan.22The same is inapplicable to petitioners’
case. In Matalam, there was indeed a substantial amendment which entitled the
accused to another preliminary investigation. The recital of facts constituting the
offense charged therein was definitely altered. In the original information, the
prohibited act allegedly committed by the petitioner was the illegal and
unjustifiable refusal to pay the monetary claims of the private complainants,
whereas in the amended information, it is the illegal dismissal from the service
of the private complainants. In the case at bar, there is no substantial
amendment to speak of. As discussed previously, the Information in Criminal
Case No. 26319 was already dismissed by the Third Division of the
Sandiganbayan in view of the petitioners’ Motion to Quash. As such, there is
nothing more to be amended.
The Court is not unaware of the case of People v. Lacson,23 where it was
written:
The case may be revived by the State within the time-bar either by the refiling of
the Information or by the filing of a new Information for the same offense or an
offense necessarily included therein. There would be no need of a new
preliminary investigation. However, in a case wherein after the provisional
dismissal of a criminal case, the original witnesses of the prosecution or some of
them may have recanted their testimonies or may have died or may no longer
be available and new witnesses for the State have emerged, a new preliminary
investigation must be conducted before an Information is refiled or a new
Information is filed. A new preliminary investigation is also required if aside from
the original accused, other persons are charged under a new criminal complaint
for the same offense or necessarily included therein; or if under a new criminal
complaint, the original charge has been upgraded; or if under a new criminal
complaint, the criminal liability of the accused is upgraded from that as an
accessory to that as a principal. The accused must be accorded the right to
submit counter-affidavits and evidence.
No such circumstance is obtaining in this case, because there was no
modification in the nature of the charged offense.1avvphi1 Consequently, a new
preliminary investigation is unnecessary and cannot be demanded by the
petitioners.
Finally, the third assigned error, that newly discovered evidence mandates due
re-examination of the finding of prima facie cause to file the case, deserves
scant consideration. For petitioners, it is necessary that a new investigation be
conducted to consider newly discovered evidence, in particular, the Affidavit of
COA Auditor Carlos G. Pornelos, author of the audit report. We are not
convinced.
Under Section 2, Rule 121 of the Rules of Court, the requisites for newly
discovered evidence are: (a) the evidence was discovered after trial (in this
case, after investigation); (b) such evidence could not have been discovered
and produced at the trial with reasonable diligence; and (c) that it is material, not
merely cumulative, corroborative or impeaching, and is of such weight that, if
admitted, will probably change the judgment.24
The Pornelos affidavit, which petitioners claim as newly-discovered, was
executed by affiant way back in November 29, 2000, as correctly found by the
Sandiganbayan. Clearly, it cannot be considered as newly found evidence
because it was already in existence prior to the re-filing of the case. In fact, such
sworn affidavit was among the documents considered during the preliminary
investigation. It was the sole annexed document to petitioners’ Supplement to
Motion for Reinvestigation,25 offered to dispute the charge that no public bidding
was conducted prior to the execution of the subject project.
More important is the prosecution’s statement in its Memorandum that, "after a
careful re-evaluation of the documentary evidence available to the prosecution
at the time of the filing of the initial Information, and at the time of the re-filing of
the Information, the prosecution insists on the finding of probable cause, an
exercise within the exclusive province of the Office of the Ombudsman."26
Worthy of note is the case of Soriano v. Marcelo,27 viz:
Case law has it that the determination of probable cause against those in public
office during a preliminary investigation is a function that belongs to the Office of
the Ombudsman. The Ombudsman has the discretion to determine whether a
criminal case, given its attendant facts and circumstances, should be filed or
not. It is basically his call.
Without good and compelling reasons, the Court cannot interfere in the exercise
by the Office of the Ombudsman of its investigatory and prosecutory
powers.28 The only ground upon which it may entertain a review of the Office of
the Ombudsman’s action is grave abuse of discretion.29
Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law or to act in contemplation of law as when the
judgment rendered is not based on law and evidence but on caprice, whim and
despotism.30
The special civil action for certiorari under Rule 65 of the Rules of Court is
intended to correct errors of jurisdiction or grave abuse of discretion amounting
to lack or excess of jurisdiction. The writ of certiorari is directed against a
tribunal, board or officer exercising judicial or quasi-judicial function that acted
without or in excess of its or his jurisdiction or with grave abuse of discretion.
Grave abuse of discretion means such capricious or whimsical exercise of
judgment which is equivalent to lack of jurisdiction. To justify the issuance of the
writ of certiorari, the abuse of discretion must be grave, as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in
contemplation of law, as to be equivalent to having acted without jurisdiction. 31
The case at bench discloses no evident indication that respondent
Sandiganbayan acted with arbitrariness, whim or caprice. It committed no error
in refusing to order the conduct of another preliminary investigation. As
sufficiently explained by the prosecution, a new preliminary investigation is not
necessary as there was neither a modification of the nature of the offense
charged nor a new allegation. Such conduct of preliminary investigation anew
will only delay the resolution of the case and would be an exercise in futility in as
much as there was a complete preliminary investigation actively participated by
both petitioners.
In view of the foregoing, we hold that the public respondent committed no grave G.R. No. 182555 February 8, 2011
abuse of discretion in issuing its Resolution of July 14, 2008, denying
petitioners’ motion for preliminary investigation in Criminal Case No. SB-08 LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners,
CRM 0263. vs.
PEOPLE OF THE PHILIPPINES, Respondent.
WHEREFORE, the petition is DENIED.
x - - - - - - - - - - - - - - - - - - - - - - -x
SO ORDERED.
G.R. No. 185123
CESAR FORTUNA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 187745
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA,
LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and
AUGUSTO SANTOS y GALANG, Accused,
RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, Accused-
Appellants.
RESOLUTION
VILLARAMA, JR., J.:
This resolves the motions for reconsideration separately filed by Lenido
Lumanog and Augusto Santos, Cesar Fortuna and Rameses de Jesus assailing
our Decision dated September 7, 2010 convicting them of the crime of murder,
the dispositive portion of which reads:
WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED.
The Decision dated April 1, 2008 of the Court of Appeals in CA-G.R. CR-HC No.
00667 is hereby AFFIRMED with MODIFICATIONS in that the civil indemnity for
the death of Col. Rolando N. Abadilla is hereby increased to ₱75,000.00, and
the amounts of moral and exemplary damages awarded to his heirs are reduced
to ₱75,000.00 and ₱30,000.00, respectively.
With costs against the accused-appellants.
SO ORDERED.1
Lumanog and Augusto Santos seek the reversal of their conviction on the
following grounds:
The Honorable Supreme Court erred in:
I. Setting out in the facts of the case and the contents of inadmissible
extrajudicial confessions;
II. Not including the extrajudicial confession of Lorenzo delos Santos as
excluded evidence;
III. Applying the ruling in People v. Rivera "that the testimony of a sole
eyewitness is sufficient to support a conviction so long as it is clear,
straightforward and worthy of credence by the trial court";
IV. According finality to the evaluation made by the lower court of the
testimony of Freddie Alejo;
V. Ruling that there was positive identification;
VI. Finding "none of the danger signals enumerated by Patrick M. Wall"
when 3, 7, 10, 11, 12 in said enumeration are present;
VII. Dismissing the mismatch between the prior description given by the
witness and the actual appearances of the accused;
VIII. Relying on the ocular inspection conducted at a time when a
material condition is significantly altered;
IX. Ruling that the inconsistencies in Alejo’s earlier statement and his in-
court testimony have been explained;
X. Not discrediting Alejo’s testimony despite acceptance of benefits
from the Abadilla family;
XI. Holding that the acquittal of Lorenzo delos Santos does not
necessarily benefit the appellants;
XII. Ruling that the ballistic and fingerprint examination results are
inconclusive and not indispensable;
XIII. Not considering the totality of evidence presented by the defense
as against the alleged "positive identification" of the accused.
XIV. Allowing Justice Jose Catral Mendoza to take part in the
deliberation and the voting;
XV. Dismissing the evidence presented by Augusto Santos;
XVI. Ruling that the silence of accused Lumanog amounts to a quasi-
confession;
XVII. Holding that the delay of (4) four years during which the case
remained pending with the CA and this Court was not unreasonable,
arbitrary or oppressive.2
Rameses de Jesus raised the following grounds in his motion:
I.
THE HONORABLE SUPREME COURT GRAVELY ERRED IN
HEAVILY RELYING ON THE LONE ALLEGED EYEWITNESS
SECURITY GUARD (SG) FREDDIE ALEJO’S TESTIMONY, WHICH
WAS CHARACTERIZED BY MATERIAL OMISSIONS, PATENT
INCREDIBILITY, CONTRADICTIONS AND DISCREPANCIES.
II.
THE HONORABLE SUPREME COURT GROSSLY MISAPPRECIATED
THE FIRST SWORN STATEMENT GIVEN BY SG FREDDIE ALEJO,
WHEREIN HE STATED THAT THERE WERE FOUR (4) SUSPECTS
WHO PERPETRATED THE CRIME CONTRARY TO HIS
SUBSEQUENT TESTIMONY IN OPEN COURT.
III.
THE HONORABLE SUPREME COURT FAILED TO APPRECIATE THE
PERSONAL CIRCUMSTANCES OF THE ACCUSED-APPELLANTS,
WHICH WOULD SHOW AS HIGHLY UNLIKELY THEIR ALLEGED
COLLECTIVE GUILT AND CONSPIRACY.
IV.
THE HONORABLE SUPREME COURT FAILED TO GIVE WEIGHT TO
PHYSICAL EVIDENCE, PARTICULARLY THE EXCULPATORY
BALLISTICS AND DACTYLOSCOPY EVIDENCE, AND EXPERT
TESTIMONY PRESENTED BY THE DEFENSE.3
On his part, Cesar Fortuna argues that:
THE LONE, CONTRADICTED AND INCREDIBLE TESTIMONY OF S/G ALEJO
IS NOT SUFFICIENT TO PROVE THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT4
At the inception, let it be emphasized that the filing of a motion for
reconsideration does not impose on us the obligation to discuss and rule again
on the grounds relied upon by the movant which are mere reiteration of the
issues previously raised and thoroughly determined and evaluated in our
Decision being questioned.5 In particular, the Court need not dwell again on the
extrajudicial confessions of Joel de Jesus and Lorenzo delos Santos which we
have held inadmissible, the delay in the resolution of the appeals before the CA
and this Court which under the circumstances cannot be deemed unreasonable
or arbitrary, the inconclusive ballistic and fingerprint examination results, and the
effect of Lorenzo delos Santos’ acquittal to the rest of appellants. These matters
have been passed upon and adequately discussed in our Decision.
In fine, the accused-movants strongly assail the weight and credence accorded
to the identification of the accused by the lone eyewitness presented by the
prosecution, security guard Freddie Alejo. It was pointed out, among others,
that: (1) in his statement given to the police investigators immediately after the
incident, Alejo mentioned only four suspects, contrary to his subsequent
testimony in court; it was impossible for him not to mention the two men he had
seen walking back and forth before the shooting; (2) Alejo accepted financial
support and benefits from the Abadilla family which could have colored his
testimony against the accused; (3) his in-court identification of the six accused is
questionable and unreliable considering that it referred to them only by numbers
and he had given prior description of only two suspects; and (4) the ocular
inspection conducted by the trial court to confirm Alejo’s observations was
likewise unreliable because it was made at a time when a material condition is
significantly altered, i.e., it was held from 10:00 a.m. onwards whereas the
incident occurred between 8:30 and 9:00 a.m. when the glare of the morning
sun directly hits the guard post where Alejo was stationed.
Fortuna submitted an Affidavit dated November 12, 2009 executed by a certain
Orencio G. Jurado, Jr. who claims to be one of the police officers initially
assigned to investigate the case. Fortuna contends that said belated statement
would certainly cast doubt on the procedures undertaken by the police
authorities in the apprehension of the likely perpetrators.
We find the motions bereft of merit.
While it is true that Alejo mentioned only four and not six suspects in his June
13, 1996 sworn statement, this did not impair his testimony as an eyewitness.
Alejo was simply responding to specific questions as to what he had witnessed
during the shooting incident. Herein quoted is an excerpt from the questioning
by SPO1 Edilberto S. Nicanor of the Criminal Investigation Division (CID) at
Camp Karingal (PNP-NCR) and Alejo’s answers thereto:
08. T - Habang ikaw ay naka-duty bilang guwardiya sa 211 Katipunan
Road, Quezon City, itong araw na ito, may napansin ka bang hindi
pangkaraniwang pangyayari?
S - Mayroon, Sir.
09. T – Ano iyon?
S - May binaril na sakay ng kotse sa harap ng puwesto ko sir.
10. T - Anong oras ito nangyari?
S - 8:40 ng umaga kanina sir, more or less (13 June 1996)
11. Tanong : Sino ba itong binaril na tinutukoy mo, kung kilala mo?
Sagot : Isang hindi ko kilala na lalaki sir.
12. T - Sino naman ang bumaril sa biktima na ito, kung kilala mo?
S - Apat na hindi kilalang lalaki sir na armado ng baril.
x x x x6 (Emphasis supplied.)
The foregoing shows that Alejo merely gave the responsive answer to the
question as to those persons whom he saw actually shoot the victim who was in
his car. As the question was phrased, Alejo was not being asked about the
persons who had participation or involvement in the crime, but only those who
actually fired at the victim. Hence, he replied that there were four (4) armed men
who suddenly fired shots at the victim. What followed was Alejo’s narration of
what the gunmen further did to the already wounded victim, to those people
within the vicinity -- including himself who was ordered at gunpoint to lie down
and not interfere -- and until the firing stopped as the suspects ran away.
Clearly, it was not a fatal omission on the part of Alejo not to include in his first
affidavit the two other suspects who were acting as lookouts. During his
testimony in court, Alejo was able to fully recount the details and state that there
were two men walking back and forth before the shooting. It is settled that
contradictions between the contents of an affiant’s affidavit and his testimony in
the witness stand do not always militate against the witness’ credibility. This is
so because affidavits, which are usually taken ex parte, are often incomplete
and inaccurate.7
There is likewise nothing irregular in Alejo’s manner of testifying in court, initially
referring to the accused by numbers, to indicate their relative positions as he
remembered them, and the individual participation of each in the violent ambush
of Abadilla. As already explained in our decision, Alejo’s elevated position from
the guardhouse gave him such a clear and unobstructed view of the incident
that he was able to recognize the faces and physical features of the accused at
the time. When two of the accused actually poked a gun at him, it gave him
more opportunity to see the faces of the accused who had briefly turned their
eyes on him. Furthermore, experience dictates, precisely because of the
unusual acts of violence committed right before witnesses’ eyes, that they
remember with a high degree of reliability the identity of criminals.8 Indeed,
Alejos’ recollection is not of "superhuman" level as accused now make it
appear, considering that he was a trained security guard, whose job demands
extra perceptiveness and vigilance at all times especially during emergency or
critical situations. Keen scrutiny of the physical appearance and behavior of
persons is a routine part of a security guard’s work duties.
Movants likewise fault this Court for giving considerable weight to the
observations made by the trial judge during the ocular inspection, arguing that
the timing of said ocular inspection did not coincide with the precise hour in the
morning when the shooting incident happened. Because the shooting took place
between 8:30 to 9:00 when the glare of the morning sun directly hits the guard
post of Alejo, the latter supposedly cannot be said to have had such clear
vantage point as found by the trial judge when he positioned himself at the said
guard post at a later time, which is already past 10:00 in the morning.
We are not persuaded.
Movants are raising the issue for the first time before this Court and long after
trial and rendition of judgment. We have perused the transcript of stenographic
notes taken during the ocular inspection conducted by the trial court on
September 26, 1996, and found no objection or comment made by the defense
counsel regarding the timing of the inspection and its relevance to the secure testimonies from police officers like Jurado, or other persons involved in
evaluation of Alejo’s testimony. Neither did the accused complain of any the investigation, who questioned or objected to the apprehension of the
irregularity in the conduct of the said ocular inspection before the appellate accused in this case. Hence, the belatedly executed affidavit of Jurado does not
court. If indeed, the accused found the timing of the ocular inspection crucial to qualify as newly discovered evidence that will justify re-opening of the trial
their defense that Alejo was not really an eyewitness as he could not have and/or vacating the judgment. In any case, we have ruled that whatever flaw
clearly seen the faces of all the accused from his guard post, they could have that may have initially attended the out-of-court identification of the accused, the
made a proper manifestation or objection before the trial judge. They could have same was cured when all the accused-appellants were positively identified by
even staged a reenactment to demonstrate to the trial court the alleged glare of the prosecution eyewitness during the trial.
the morning sun at the time of the commission of the crime, which could have
affected Alejo’s perception of the incident. But they did not. It is now too late in Finally, we must make it clear that Justice Jose Catral Mendoza, who, as then
the day for the accused to assail as irregular the ocular inspection which was presiding judge at the trial court, heard the prosecution and defense witnesses,
done with the conformity and in the presence of their counsel. never took part in the deliberations and voting by the Court in this case. The
absence of notation in the ponencia that Justice Mendoza had "no part" in the
It is an admitted fact that Alejo and his family were sheltered and given financial deliberations and voting in this case was purely an oversight and inadvertent
support by the victim’s family, presumably out of gratitude and sympathy omission. The Clerk of Court, Atty. Enriqueta Esguerra-Vidal, had already
considering that Alejo lost his job after the incident. Such benevolence of the rectified such error in the Revised Page 75 of our Decision dated September 7,
Abadilla family, however, is not sufficient basis for the conclusion that Alejo 2010.
would falsely accuse movants as the perpetrators of the crime. As we have
stressed, Alejo did not waver in his identification of the accused despite a IN VIEW OF THE FOREGOING, the motions for reconsideration filed by Lenido
grueling cross-examination by the defense lawyers. Both the trial and appellate Lumanog and Augusto Santos, Rameses de Jesus and Cesar Fortuna are
courts found Alejo’s testimony as credible, categorical and straightforward. After hereby DENIED WITH FINALITY.
a painstaking review of the records, we find no cogent reason to deviate from Let entry of judgment be made in due course.
their findings on the issue of credibility of the prosecution’s lone eyewitness.
SO ORDERED.
As to the affidavit of Orencio G. Jurado, Jr. submitted by Fortuna, the said
affiant claimed that he had a heated argument with Inspector Roger Castillo
during one of the hearings before the trial court because Inspector Castillo was
urging him (Jurado) "to confirm that those arrested by the joint team of CID and
PARAK-DILG were exactly the same people/suspects described by the guards
to which [he] firmly declined". Jurado alleged that he was surprised to see the
faces of the suspects flashed on TV several days after Herbas and Alejo gave
their statements at Camp Karingal because they did not fit the description given
by witnesses Herbas and Alejo. Jurado was also allegedly prevented earlier by
an unidentified policeman -- as per instruction of then DILG Secretary Robert
Barbers -- from interviewing the suspects arrested by the operatives of the CID
and PARAK-DILG.9
Evidently, Fortuna seeks the introduction of additional evidence to support the
defense argument that there was no positive identification of Abadilla’s killers.
To justify a new trial or setting aside of the judgment of conviction on the basis
of such evidence, it must be shown that the evidence was "newly discovered"
pursuant to Section 2,10 Rule 121 of the Revised Rules of Criminal Procedure,
as amended.1avvphi1
Evidence, to be considered newly discovered, must be one that could not, by
the exercise of due diligence, have been discovered before the trial in the court
below.11 Movant failed to show that the defense exerted efforts during the trial to
 G.R. No. 151911 : July 25, 2011]
EDGAR PAYUMO, REYNALDO RUANTO, CRISANTO RUANTO, APOLINARIO
RUANTO, AND EXEQUIEL BONDE, PETITIONERS, VS. HONORABLE
SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES, OFFICE OF THE
OMBUDSMAN, AND OFFICE OF THE SPECIAL PROSECUTOR, DOMICIANO
CABIGAO, NESTOR DOMACENA, ROLANDO DOBLADO, ERNESTO PAMPUAN,
EDGARDO PRADO, ROMEO DOMINICO, RAMON GARCIA, AND CARLOS
PACHECO, RESPONDENTS.
[G.R. NO. 154535]
NESTOR DOMACENA, PETITIONER, VS. HONORABLE SANDIGANBAYAN,
PEOPLE OF THE PHILIPPINES, AND EDGAR PAYUMO, REYNALDO RUANTO,
CRISANTO RUANTO, APOLINARIO RUANTO, AND EXEQUIEL BONDE,
RESPONDENTS.
DECISION
MENDOZA, J.:
Before this Court are two consolidated petitions filed under Rule 65 of the 1997
Rules on Civil Procedure and docketed as G.R. No. 151911 and G.R. No. 154535,
respectively. These cases were consolidated by the Court in its Resolution dated
January 29, 2003.
G.R. No. 151911 is a petition for certiorari and mandamus which seeks to reverse
and set aside the October 24, 2001 Resolution[1] by the Sandiganbayan Special
Fifth Division, granting the Omnibus Motion to Set Aside the Decision dated
November 27, 1998 and for New Trial, filed by the accused in Criminal Case No.
4219 entitled "People of the Philippines v. Domiciano Cabigao, et al." for Murder
with Multiple Frustrated and Attempted Murder. The petition also seeks to compel
the Office of the Ombudsman (Ombudsman) and the Office of the Special
Prosecutor (OSP) to perform their lawful duties of protecting the interests of the
State and the petitioners.
G.R. No. 154535 was filed by Nestor Domacena (Domacena), one of the accused
in Criminal Case No. 4219 and one of the respondents in G.R. No. 151911 to
nullify the April 12, 2002 Resolution[2] of the Sandiganbayan which denied his
Urgent Omnibus Motion to Dismiss. This petition, together with G.R. No. 151911
with respect to Domacena, was later dismissed by the Court in its January 31,
2007 Resolution, after the Sandiganbayan dismissed Criminal Case No. 4219
against this accused, in view of his death.
THE FACTS
The petitions stem from the facts of Criminal Case No. 4219 involving a shooting
incident that occurred on February 26, 1980 at around 5:30 o'clock in the
afternoon in Sitio Aluag, Barangay Sta. Barbara, Iba, Zambales. A composite team
of Philippine Constabulary (PC) and Integrated National Police (INP) units
allegedly fired at a group of civilians instantly killing Amante Payumo and
wounding Teofilo Payumo, Barangay Captain of Sta. Barbara at Cabatuhan River;
Edgar Payumo, Reynaldo Ruanto; Crisanto Ruanto; Apolinario Ruanto; and
Exequiel Bonde. The following were indicted for Murder with Multiple Frustrated
and Attempted Murder before the Sandiganbayan: Domiciano Cabigao, Nestor
Domacena, Rolando Doblado, Ernesto Pampuan, Edgardo Prado, Romeo Dominico,
Rodolfo Erese, Ramon Garcia and Carlos Pacheco.
Accused Rodolfo Erese, however, died before the arraignment. When arraigned,
the rest of the accused pleaded not guilty to the offense charged.[3] During the
trial, the accused interposed the defenses of lawful performance of duty, self-
defense, mistake of fact, and alibi. They insisted that the incident was a result of a
military operation, and not an ambush as claimed by the prosecution.
After four (4) years of trial, the Second Division of the Sandiganbayan rendered
its Decision[4] dated October 5, 1984, penned by Justice Romeo M. Escareal,
convicting the accused as co-principals in the crime of Murder with Multiple
Frustrated and Attempted Murder. The dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding accused Domiciano Cabigao y
Cabal, Nestor Domacena y Deveraturda, Rolando Doblado y Draguin, Ernesto
Pampuan y Santos, Edgardo Prado y Molina, Romeo Dominico y Quitaneg, Ramon
Garcia y Dantes and Carlos Pacheco y Dominico GUILTY beyond reasonable doubt
as co-principals in the crime of Murder with Multiple Frustrated and Attempted
Murder, qualified by abuse of superior strength, and there being no modifying
circumstances present, hereby sentences each of them to suffer the penalty of
Reclusion Perpetua, with the accessory penalties attached thereto; to indemnify,
jointly and severally the heirs of deceased victim Amante Payumo in the amount
of P30,000.00; to indemnify, jointly and severally, Reynaldo Ruanto, Crisanto
Ruanto, Edgar Payumo, Teofilo Payumo, Apolinario Ruanto and Exequiel Bonde in
the amount of P10,000.00, P2,000.00 to Apolinario Ruanto and P1,000.00 to
Exequiel Bonde for actual damages, and to pay their proportionate costs of this
action.
xxxx
On October 23, 1984, the accused jointly moved for a reconsideration of the
aforesaid decision, but the motion was denied by the Second Division in its
Resolution dated December 10, 1984 and promulgated on December 11,1984.
On January' 11, 1985, the accused filed their Motion for New Trial anchored on the
following grounds: (1) Error of law or irregularities have been committed during
the trial prejudicial to the substantive rights of the accused; and (2) the accused
were denied procedural due process of law.
The accused appealed to this Court the October 5, 1984 Decision of the
respondent court through a petition for review on certiorari, which was docketed
as G.R. No. 69422 entitled "Domiciano Cabigao v. Sandiganbayan."
In view of the appeal (G.R. No. 69422) before this Court, the Sandiganbayan
Second Division issued a Resolution dated January 31, 1985 denying accused's
Motion for New Trial on the ground that it no longer had any jurisdiction over the
case.
This prompted the accused to file on February 20, 1985 a petition for certiorari
before the Court, docketed as G.R. No. 69960, claiming that the Sandiganbayan
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it issued the January 31, 1985 Resolution.
The petition in G.R. No. 69960 was later denied by the Court En Banc for lack of
merit. A motion for reconsideration was filed by- the accused but was likewise
denied by the Court in its Resolution dated June 4, 1985.
On May 29, 1987, this Court rendered its Decision in G.R. No. 69422 granting the
petition, setting aside the October 5, 1984 Decision of the Sandiganbayan and
remanding the case for a new trial. The dispositive portion of the decision reads:
WHEREFORE, the petition is hereby GRANTED. The questioned decision is set
aside and the case is remanded to the court a quo for new trial as prayed for in
the petitioner's motion.
Thus, Criminal Case No. 4219 was remanded to the Sandiganbayan and was
raffled to the First Division. Meanwhile, upon motion of the accused, the Court
clarified in its Resolution dated February 2, 1989 that the conduct of a new trial
should not be limited to the mere presentation of newly discovered evidence but
"should be full and complete, taking into account the other serious allegations
touching on due process."[5] Accordingly, the First Division received anew all the
evidence of the parties, both testimonial and documentary.
Later, with the creation of the Fourth and Fifth divisions, Criminal Case No. 4219
was transferred to the Fifth Division.
On February 23, 1999, the Fifth Division promulgated its 92-page
judgment[6] dated November 27, 1998, penned by Justice Godofredo T. Legaspi,
convicting the accused of the crime of Murder with Multiple Attempted Murder, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding accused Domiciano Cabigao y
Cabal, Nestor Domacena y Deveraturda, Rolando Doblado y Draguin, Ernesto
Pampuan y Santos, Edgardo Prado y Molina, Romeo Dominico y Quitaneg, Ramon
Garcia y Dantes and Carlos Pacheco y Dominico GUILTY beyond reasonable doubt
of the Crime Murder with Multiple Attempted Murder, qualified by abuse of
superior strength. Considering that the accused failed to prove any mitigating
circumstance, they are hereby sentenced to suffer the penalty of reclusion
perpetua, with the accessory penalties attached thereto. They are also hereby
ordered to indemnify jointly and severally the heirs of the victim Amante Payumo
the amount of P50,000.00 for his death; to jointly and severally indemnify the
heirs of Teofilo Payumo, Reynaldo Ruanto, Crisanto Ruanto and Apolinario Ruanto,
Edgar Payumo, Exequiel Bonde and Virgilio Abong the amount of P10,000.00 each
as moral damages; to pay jointly, and severally the heirs of Teofilo Payumo the
amount of P2,000.00, Reynaldo Ruanto the amount of P1,000.00, Crisanto Ruanto
the amount of P1,000,000, Exequiel Bonde the sum of P800.00, Apolinario Ruanto
the amount of P3,000.00 and Edgar Payumo the amount of P3,000.00, all by way
of actual damages, and to pay the costs of this suit.
Considering that, as manifested by Prosecutor Benitez in open court that accused
Rodolfo Erese already died, his criminal liability, if any, is deemed extinguished.
As regards the civil liability deemed impliedly instituted with the criminal case,
pursuant to Sec. 1, Rule III of the Rules of Court, no judgment can be made
against his estate, there being no proper substitution made upon his legal
representative.
Accordingly, pursuant to Supreme Court Administrative Circular No. 2-92, par. 4,
(3) dated January 20,1990 the bail bonds of accused Cabigao, Domacena,
Doblado, Pampuan, Prado, Dominico, Garcia and Pacheco are hereby ordered
cancelled. Said accused are hereby ordered confined at the National Bureau of
Prisons.
SO ORDERED.[7]
On March 8, 1999, the accused filed their Omnibus Motion to Set Aside Judgment
and for New Trial[8]contending that errors of law or irregularities had been
committed during and after trial which were prejudicial to their substantive and
constitutional rights. Later, the accused filed their Supplemental Omnibus Motion
to Set Aside Judgment and for New Trial,[9] and thereafter their Supplemental
Omnibus Motion to Re-open Case and to Set for Oral Arguments.[10]
Since the Fifth Division could not reach unanimity in resolving the aforesaid
omnibus motion, a Special Fifth Division composed of five (5) members of the
Sandiganbayan[11] was constituted pursuant to Section 1 (b) of Rule XVIII of the
1984 Revised Rules of the Sandiganbayan. On September 27, 2001, Special Fifth
Division, voting 3-2, issued the subject Resolution promulgated on October 24,.
2001, setting aside the November 27, 1998 Decision and granting a second new
trial of the case. The dispositive portion of which states:
WHEREFORE, accused's "OMNIBUS MOTION TO SET ASIDE JUDGMENT AND FOR
NEW TRIAL" and its supplemental thereto is hereby GRANTED. The grant of the
accused's
"SUPPLEMENTAL OMNIBUS MOTION TO REOPEN CASE AND TO SET FOR ORAL
ARGUMENTS dated April 5, 1999 thus becomes unnecessary."[12]
xxx
The Special Fifth Division reasoned out that the November 27, 1998 Decision of
the Fifth Division penned by Justice Godofredo T. Legaspi, (Justice Legaspi) could
not have been validly promulgated and could not have acquired binding effect
since Justice Legaspi had transferred to the Second Division and, hence, he
ceased to be a member of the Fifth Division before the Decision was promulgated
on February 23, 1999. Further, the Special Fifth Division ruled that a second new
trial was necessary because the directive of this Court for the conduct of a trial de
novo "has not yet been fully and completely complied with."[13]The testimonies of
prosecution witnesses Teofilo Payumo (Teofilo) and Edgar Payumo (Edgar), which
had been tainted with the irregularity of "rigodon de juezes" pursuant to the ruling
of the Court in the case of Cabigao v. The Sandiganbayan,[14] were erroneously
admitted during the trial de novo and, as such, had to be stricken out and taken
anew. The Special Fifth Division also pronounced that a second new trial would
enable it to allow the accused to adduce pertinent evidence including the records
of the Judge Advocate General Office (JAGO), Armed Forces of the Philippines, to
shed light on the "serious allegations" also referred to in the Cabigao case.
Ascribing grave abuse of discretion to the Sandiganbayan amounting to lack or
excess of jurisdiction for nullifying the November 27, 1998 Decision and granting
new trial, the complainants in Criminal Case No. 4219, Edgar Payumo, Reynaldo
Ruanto, Crisanto Ruanto, Apolinario Ruanto, and Exequiel Bonde (petitioners) filed
the present petition for certiorari and mandamus with prayer for the issuance of a
temporary restraining order and/or injunction to enjoin the Sandiganbayan from
proceeding with the scheduled hearings for a second new trial.
In support of their position, petitioners allege that the Ombudsman and OSP
negligently failed to protect their interest and that of the State when they did not
file any opposition to the Omnibus Motion to Set Aside Judgment and for New Trial
and, later, a motion for reconsideration of the challenged resolution dated October
24, 2001. They claim that the Ombudsman and the OSP slept on their lawful duty
to protect their interest and that of the State.
ISSUES
Faulting the Special Fifth Division of the Sandiganbayan, petitioners raised the
following issues:
FIRST
WHETHER OR NOT THE RESPONDENT COURT ACTED WITHOUT OR IN
EXCESS OF JURISDICITION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN GRANTING
PRIVATE RESPONDENTS' "OMNIBUS MOTION TO SET ASIDE JUDGMENT
AND FOR NEW TRIAL."
SECOND
WHETHER OR NOT THE RESPONDENT COURT ACTED WITHOUT OR IN
EXCESS OF JURISDICTION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN SETTING ASIDE THE JUDGMENT OF CONVICTION
(DECISION DATED 27 NOVEMBER 1998) ON THE GROUND THAT THE
PROMULGATION THEREOF WAS DONE AT THE TIME THE PONENTE WAS
ALREADY TRANSFERRED FROM THE FIFTH DIVISION TO THE SECOND
DIVISION.
THIRD
WHETHER OR NOT THE RESPONDENT COURT ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
SETTING ASIDE THE TESTIMONIES OF THE PROSECUTION WITNESSES
TEOFILO PAYUMO AND EDGAR PAYUMO WHICH WERE ADOPTED IN THE
FIRST NEW TRIAL ON THE GROUND THAT THEIR NONÂAVAILABILITY FOR
THE FIRST NEW TRIAL DOES NOT DISPENSE WITH THE NEED TO CURE
THEIR TAINTED TESTIMONIES OF THE EFFECTS OF THE IRREGULARITIES
OF THE "RIGODON DE JUEZES."
FOURTH
WHETHER OR NOT THE RESPONDENT COURT ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ORDERING AND
DIRECTING THE PRIVATE RESPONDENTS TO PRESENT EVIDENCE IN
CONNECTION WITH THE RECORDS OF INVESTIGATION CONDUCTED BY
THE OFFICE OF THE JUDGE ADVOCATE GENERAL RELATIVE TO THE
SHOOTING INCIDENT ON FEBRUARY 21, 1980 AND IN DIRECTING THE
ISSUANCE OF A SUBPOENA DUCES TECUM FOR THIS PURPOSE.[15]
In a Minute Resolution[16] dated April 29, 2002, this Court denied petitioners'
application for the issuance of a restraining order and/or injunction.
On September 29, 2005, Atty. Pascual Lacas filed a Consolidated
Manifestation[17] informing this Court of the death of his client, Nestor Domacena,
on June 12, 2005, and praying for the dismissal of the aforesaid cases insofar as
his deceased client was concerned. Meanwhile, the Sandiganbayan dismissed
Criminal Case No. 4219 as against Nestor Domacena in view of his death.
Accordingly, on January 31, 2007, the Court in a resolution,[18] dismissed G.R.
Nos. 151911 and 154535, and considered said cases closed and terminated with
respect to Nestor Domacena in light of his untimely demise.
On October 24, 2007, Atty. Pablito Carpio filed a Manifestation[19] informing the
Court of the death of Edgardo Prado y Molina (Prado), another accused in Criminal
Case No. 4219 and one of the respondents in G.R. No. 151911, and seeking the
dismissal of the case against him. In its Resolution[20] dated March 10, 2008, the
Court dismissed G.R. No. 151911 as far as Prado was concerned.
Likewise, the Court issued its July 30, 2008 Resolution[21] dismissing G.R. No.
151911 against another respondent Romeo Dominico, who had also died during
the pendency of the case.
In the light of the dismissal of G.R. No. 154535, the present disposition shall
pertain only to G.R. No. 151911.
A perusal of the voluminous pleadings filed by the parties leads the Court to the
following core issues:
1. Whether or not the Sandiganbayan acted in excess of its
jurisdiction when it set aside the November 27, 1998 Decision;
 2. Whether or not the Sandiganbayan acted in excess of its division which rendered the same.[27]Promulgation of the decision is an important
jurisdiction when it granted a new trial of Criminal Case No. part of the decision-making process. Promulgation signifies that on the date it was
4219;and made, the judge or justices who signed the decision continued to support it which
could be inferred from his silence or failure to withdraw his vote despite being able
3. Whether or not grave abuse of discretion attended the non-filing to do so. A decision or resolution of the court becomes such, only from the
by the Ombudsman and the OSP of an Opposition to private moment of its promulgation.[28]
respondents' Omnibus Motion to Set Aside Judgment and for New
Trial, a Motion for Reconsideration of the assailed Resolution A final decision or resolution becomes binding only after it is promulgated and not
dated October 24, 2001 and a Petition for Certiorari. before.[29] It is an elementary doctrine that for a judgment to be binding, it must
be duly signed and promulgated during the incumbency of the judge who penned
it.[30] In this connection, the Court En-Banc issued the Resolution dated February
The Court finds the petition for certiorari impressed with merit.
10, 1983 implementing B.P. 129[31] which merely requires that the judge who
pens the decision is still an incumbent judge, that is, a judge of the same court,
The Sandiganbayan is a special court of the same level as the Court of Appeals
albeit now assigned to a different branch, at the time the decision is
(CA), and possessing all the inherent powers of a court of justice, with functions of
promulgated.[32] In People v. CFI of Quezon, Branch X,[33] it was clarified that a
a trial court.[22] It is a collegial court. Collegial is defined as relating to a collegium
judge who died, resigned, retired, had been dismissed, promoted to a higher court
or group of colleagues. In turn, a collegium is "an executive body with each
or appointed to another office with inconsistent functions, would no longer be
member having approximately equal power and authority."[23] The members of the
considered an incumbent member of the court and his decision written thereafter
graft court act on the basis of consensus or majority rule. The three Justices of a
would be invalid. Indeed, one who is no longer a member of the court at the time
Division, rather than a single judge, are naturally expected to exert keener
the final decision or resolution is signed and promulgated cannot validly take part
judiciousness and to apply broader circumspection in trying and deciding
in that decision or resolution.[34] Much less could he be the ponente of the
cases.[24] The seemingly higher standard is due in part to the fact that the reviews
decision or resolution. Also, when a judge or a member of the collegiate court,
of judgment of conviction are elevated directly to this Court generally through the
who had earlier signed or registered his vote, has vacated his office at the time of
discretionary mode of petition for review on certiorari under Rule 45, Rules of
the promulgation of the decision or resolution, his vote is automatically withdrawn
Court, which eliminates issues of fact, instead of via an ordinary appeal whereby
or cancelled.[35]
the judgment of conviction still undergoes intermediate reviews in the appellate
court before ultimately reaching the Court, if at all.
Guided by the foregoing principles, the judgment of conviction dated November
27, 1998 penned by Justice Legaspi must be declared valid. Apparently, it was not
In resolving the private respondents' Omnibus Motion, the majority of the
necessary that he be a member of the Fifth Division at the time the decision was
Sandiganbayan Special Fifth Division, declared that after reviewing the case
promulgated since he remained an incumbent justice of the Sandiganbayan. What
of Consolidated Bank and Trust Corporation v. Intermediate Appellate Court[25], it
is important is that the ponente in a collegiate court remains a member of said
realized that it might have erred in the promulgation of the November 27, 1998
court at the time his ponencia is promulgated because, at any time before that, he
Decision considering that at the time of its promulgation, the ponente, Justice
has the privilege of changing his opinion or making some last minute changes
Legaspi, was no longer a member of the Fifth Division as he already transferred to
therein for the consideration and approval of his colleagues. After all, each division
the Second Division as its Senior Member. According to the Special Fifth Division,
is not separate and distinct from the other divisions as they all constitute one
the thrust and spirit of the case of Consolidated Bank and Trust Corporation was
Sandiganbayan. Jurisdiction is vested in the court, not in the judges or
that a decision could no longer be promulgated after the ponente died because the
justices.[36] Thus, when a case is filed in the Sandiganbayan, jurisdiction over the
latter had "already lost that freedom, authority and right to amend or even
case does not attach to the division or justice alone, to the exclusion of the other
reverse during the period intervening from the time of his death up to the time of
divisions.
promulgation."[26] The division ruled that the ratio decidendi in the aforeÂcited
case applied mutatis mutandis to the present case where a member of a division
Moreover, the other two[37] members then of the Fifth Division signed and adopted
was transferred to another division and ceased to be a member of it before the
the judgment of conviction dated November 27, 1998, and continued to support it
promulgation of a decision. Thus, the cessation of Justice Legaspi's membership in
until its promulgation on February 23, 1999. The members reached their
the Fifth Division carried with it the cessation of all his authority and power to
conclusion in consultation and, accordingly, rendered it as a collective judgment
continue participating in the resolution of Criminal Case No. 4219 and all other
after due deliberation. Hence, there was no procedural defect.
cases assigned to said division, which included the authority and right to change
or amend the November 27, 1998 Decision up to the time of its promulgation.
Besides, the presumption that the three justices had regularly performed their
official function has not at all been rebutted by contrary evidence. Not an iota of
The Court does not agree.
evidence was adduced to show that the three justices were either impelled by
malice or corrupt motive or inspired by an intention to violate the law or well-
A judgment of a division of the Sandiganbayan shall be promulgated by reading
known legal rules in promulgating the judgment of conviction. At any rate, the
the judgment or sentence in the presence of the accused and any Justice of the
decision penned by Justice Legaspi cannot be said to be a decision of another
court, but of the same Sandiganbayan and of which the ponente was an
incumbent justice when he wrote the decision until its promulgation.
Notably, the 1984 Revised Rules of the Sandiganbayan, its prevailing rules at the
time the challenged October 24, 2001 Resolution was issued, did not provide the
procedure to be followed in case the ponente would be transferred to another
division at any time before the promulgation of the decision. This time, however,
under the 2002 Revised Internal Rules of the Sandiganbayan which was approved
by the Court En Banc in the Resolution dated August 28, 2002 and issued in A.M.
No. 02-6-07-SB, the situation contemplated in this controversy has been covered.
Section 4 (k) of Rule XII thereof provides:
SEC. 4. Cases Submitted for Decision; Assignment to Ponente.
xxxx
(k) If the justice to whom the case is assigned for study and report is transferred
to another Division as its permanent member, he shall bring with him and write
his report of the cases assigned to him in his original Division together with the
other members of the Division to which the case was submitted for decision.
The Division from which the Justice to whom the case is assigned for study and
report came shall be known as a Special Division.
xxxx xxxx xxxx xxxx
On the propriety of the grant by the Special Fifth Division of the motion for new
trial in Criminal Case No. 4219, the Court finds the same to be devoid of any legal
and factual basis.
The majority of the Special Fifth Division granted a new trial on the following
grounds: (1) serious irregularity during the trial due to the erroneous admission of
the testimonies of Teofilo and Edgar, which according to the Sandiganbayan, were
tainted with irregularities of the "too frequent rotation of Justices hearing the
case"[38] and, thus, had to be taken anew; and (2) to afford the accused the
opportunity to present in evidence the records of the JAGO relative to the incident
that happened on February 26, 1980 in Sitio Aluag, Brgy. Sta Barbara, Iba,
Zambales to shed light on the crucial issue as to whether the shooting incident
was an ambush or the result of a military operation.
The Court cannot sustain it.
Rule 121, Section 2 of the 2000 Rules on Criminal Procedure enumerates the
grounds for a new trial, to wit:
Sec. 2. Grounds for a new trial. The court shall grant a new trial on any of the
following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during trial;
(b) That new and material evidence has been discovered which the accused could
not with reasonable diligence have discovered and produced at the trial and which
if introduced and admitted would probably change the judgment
Records disclosed that during the conduct of a new trial in the First Division of the
Sandiganbayan, the testimonies of the prosecution and defense witnesses were
retaken with the exception of those of prosecution witnesses, Teofilo and Edgar.
The prosecution instead filed a Motion to Admit Former Testimonies of Prosecution
Witnesses stating that Teofilo had died as shown by the attached death certificate
and that Edgar was out of the country. The defense filed no opposition thereto. On
September 14, 1989, the First Division issued a resolution allowing the adoption of
said witnesses' testimonies. Thereafter, the defense filed a motion for
reconsideration of the aforesaid resolution, which was denied by the First
Division.[39]
Granting arguendo that the First Division erred in admitting the testimonies of the
Payumos given during the first trial, which proceedings were nullified by this Court
in the Cabigao case, the same would still not justify a new trial. It must be
emphasized that an erroneous admission or rejection of evidence by the trial court
is not a ground for a new trial or reversal of the decision if there are other
independent evidence to sustain the decision, or if the rejected evidence, if it had
been admitted; would not have changed the decision.[40] In the case at bench, a
meticulous reading of the November 27, 1998 Decision reveals that the combined
testimonies of the other complainants, namely, Reynaldo Ruanto, Crisanto
Ruanto, Apolinario Ruanto, and Exequiel Bonde, have sufficiently established the
commission of the crime charged in the information and the participation of the
accused in the said crime. Seemingly, it- would not debilitate the cause of the
prosecution even if the testimonies of the Payumos would be expunged from the
records.
Neither would the presentation in evidence of the records of the JAGO warrant a
new trial.
To begin with, the records of the JAGO relative to the February 26, 1980 incident
do not meet the criteria for newly discovered evidence that would merit a new
trial. A motion for new trial based on newly-discovered evidence may be granted
only if the following requisites are met: (a) that the evidence was discovered after
trial; (b) that said evidence could not have been discovered and produced at the
trial even with the exercise of reasonable diligence; (c) that it is material, not
merely cumulative, corroborative or impeaching; and (d) that the evidence is of
such weight that, if admitted, would probably change the judgment.[41] It is
essential that the offering party exercised reasonable diligence in seeking to locate
the evidence before or during trial but nonetheless failed to secure it.[42] In this
case, however, such records could have been easily obtained by the accused and
could have been presented during the trial with the exercise of reasonable
diligence. Hence, the JAGO records cannot be considered as newly discovered
evidence. There was nothing that prevented the accused from using these records
during the trial to substantiate their position that the shooting incident was a
result of a military operation.
Secondly, the non-presentation of the JAGO records, if they are indeed vital to the SO ORDERED.
acquittal of the accused, speaks of negligence, either on the part of the accused
themselves, or on the part of their counsels. In either instance, however, this
negligence is binding upon the accused. It is a settled rule that a party cannot
blame his counsel for negligence when he himself was guilty of neglect.[43] A client
is bound by the acts of his counsel, including the latter's mistakes and
negligence.[44]

Lastly, the matter of presentation of evidence for the defense is not for the trial
court to decide. Considering that the defense counsels have control over the
conduct of the defense, the determination of which evidence to present rests upon
them. The Court notes that the defense presented a substantial number of
witnesses and exhibits during trial de novo to belie the accusation against the
accused and to prove the defenses they interposed. It has been held that the
mistakes of the attorney as to the competency of a witness, the sufficiency,
relevancy, materiality or immateriality of a certain evidence, the proper defense,
or the burden of proof are not proper grounds for a new trial.[45]

All told, the Court finds and so rules that the Sandiganbayan Special Fifth Division
acted in excess of its jurisdiction when it nullified the November 27, 1998 Decision
and granted a new trial for Criminal Case No. 4219. There is excess of jurisdiction
where the respondent court, being clothed with the power to determine the case,
oversteps its authority as determined by law.[46] Accordingly, the assailed
Resolution dated October 24, 2001 must be set aside.

Finally, the Court finds the petition for mandamus to be bereft of merit. Petitioners
failed to adduce clear and convincing proof to substantiate their submission that
the Ombudsman and the OSP unlawfully neglected the performance of their duty.
In any event, the determination of what pleadings should be filed for the People,
as well as the necessity of filing them to protect and advance the prosecution's
cause, clearly involves the exercise of discretion or judgment. Either the
Ombudsman or the OSP cannot be compelled by mandamus to file a particular
pleading when -it determines, in the exercise of its sound judgment, that it is not
necessary. As an extraordinary writ, the remedy of mandamus lies only to compel
an officer to perform a ministerial duty, not a discretionary one. Mandamus will
not issue to control the exercise of discretion of a public officer where the law
imposes upon him the duty to exercise his judgment in reference to any manner
in which he is required to act, because it is his judgment that is to be exercised
and not that of the court.[47]

WHEREFORE, the petition for certiorari is GRANTED. Accordingly, the assailed

Resolution dated October 24, 2001 of the Sandiganbayan Special Fifth Division is
hereby SET ASIDE and the November 27, 1998 Decision is REINSTATED.

The prayer for the issuance of a Writ of Mandamus is DENTED.

The case is hereby ordered REMANDED to the Sandiganbayan for appropriate

proceedings. The Sandiganbayan shall notify the parties of the reinstatement of
the November 27, 1998 Decision. The period of appeal shall be reckoned from the
date of receipt of notice by the accused.