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discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office. WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Courts Resolution dated September 24, 2001 is hereby LIFTED. ---------------------Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public officers cited in jurisprudence13 is that provided by Mechem, a recognized authority on the subject: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.14 The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.15 Mechem describes the delegation to the individual of some of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.16 Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as executive?

JURISDICTION LAUREL vs. DESIERTO G.R. No. 145368 April 12, 2002

FACTS: On June 13, 1991, President Aquino issued AO 223, constituting a Committee for the National Centennial Celebration in 1998. Subsequently, President Ramos issued EO 128, reconstituting the Committee for Centennial Celebrations, naming Vice President, Salvador H. Laurel as the Chairperson. Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created. Petitioner was among the nine Expocorp incorporators, who were also its first nine directors. Petitioner was elected Expocorp Chief Executive Officer. Anomalies were exposed in relation to the operations of the Commission. As a result, the Senate Blue Ribbon Committee recommended the prosecution by the Ombudsman of Salvador Laurel, chair of NCC and of EXPOCORP, for violating the antigraft law. Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because a) EXPOCORP was a private corporation b) The National Centennial Commission was not a public office, and that c) The petitioner is not a Public Officer in connection with his function as Chairman of the said corporations. Petitioner invoked that the jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioners position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him. ISSUE: Whether or not, the Ombudsman lacks jurisdiction over the petitioner on the ground that the Ombudsman can only act as regards cases cognizable by the Sandiganbayan HELD: No. The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the

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Clearly then, from the very allegation of the information the Regional Trial Court of Manila has jurisdiction. We hold that the NCC performs executive functions. The executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance."17 The executive function, therefore, concerns the implementation of the policies as set forth by law. Besides, the CRIME OF ESTAFA is a continuing or transitory offense which may be prosecuted at the place where any of the essential elements of the crime took place . One of the essential elements of estafa is damage or prejudice to the offended party. The private respondent has its principal place of business and office at Manila. The failure of the petitioner to remit the insurance premiums she collected allegedly caused damage and prejudice to private respondent in Manila. 2. As to the second issue, the contention that the subject matter is purely civil in nature, suffice it to state that evidentiary facts on this point have still to be proved. Dispositive Portion: WHEREFORE, the petition is DISMISSED for lack of merit. The case is remanded to the Regional Trial Court of Manila, Branch XIX for further proceedings. PEOPLE OF THE PHILIPPINES, petitioner, vs. LIBERTAD LAGON and HON. JUDGE ISIDRO O. BARRIOS, AS PRESIDING JUDGE OF THE CITY COURT OF ROXAS CITY, respondents. FACTS: In 1976, a criminal information was filed with the City Court charging private respondent Libertad Lagon with the crime of estafa under the RPC, for allegedly issuing a check in the amount of P4,232.80 as payment for goods or merchandise purchased, knowing that she did not have sufficient funds to cover the check. The case proceeded to trial and the prosecution commenced the presentation of its evidence. However, the City Court dismissed the information upon the ground that the penalty prescribed by law for the offense charged was beyond the court's authority to impose . The judge held that the jurisdiction of a court to try a criminal action is determined by the law in force at the time of the institution of the action, and not by the law in force at the time of the commission of the crime. At the time of the alleged commission of the crime in April 1975, jurisdiction over the offense was vested by law in the City Court. However, by the time the criminal information was filed, paragraph 2(d) of Article 315 of the Revised Penal Code had already been amended and the penalty imposable upon a person accused there under increased, which penalty was beyond the City Court's authority to impose. Accordingly, the court dismissed the information without prejudice to its being refiled in the proper court. Hence this Petition for Review brought by the People, arguing that the City Court of Roxas City had jurisdiction over the case and that it had erred in issuing its Order dismissing the case. ISSUE: W/N the court erred in dismissing the case? NO HELD: SUBJECT-MATTER jurisdiction in criminal cases is determined by the authority of the court to impose the penalty imposable under the applicable statute given the allegations of criminal information. If the facts recited in the complaint and the punishment provided for by law are sufficient to show that the court in which the complaint is presented has jurisdiction, that court must assume jurisdiction. Jurisdiction of the court is not determined by what may be meted out to the offender after trial or even by the result of the evidence that would be presented during the trial but by the extent of the penalty which

DETERMINED BY ALLEGATIONS OF COMPLAINT [G.R. No. 75079. January 26, 1989.] SOLEMNIDAD M. BUAYA, petitioner, vs. THE HONORABLE WENCESLAO M. POLO, Presiding Judge, Branch XIX, Regional Trial Court of Manila and the COUNTRY BANKERS INSURANCE CORPORATION, respondents. DOCTRINE: It is well-settled that the averments in the complaint or information characterize the crime to be prosecuted and the court before which it must be tried. The jurisdiction of courts in criminal cases is determined by the allegations of the complaint or information, and not by the findings the court may make after the trial. FACTS: Solemnidad Buaya is an insurance agent of private complainant of Country Bankers Insurance Corporation. Private respondent Buaya, was authorized to transact and underwrite insurance business and collect the corresponding premiums for and in behalf of the private respondent. Under the terms of the agency agreement, the petitioner is required to make a periodic report and accounting of her transactions and remit premium collections to the principal office of private respondent located in the City of Manila. Allegedly, an audit was conducted on petitioner's account which showed a shortage. She was charged with estafa before the Regional Trial Court of Manila. Private respondent filed a motion to dismiss, alleging that the Regional Trial Court of Manila has no jurisdiction over the offense since the collection was done in Cebu City and the offense complained of is purely civil in nature. The RTC denied the motion to dismiss. ISSUES: 1) Whether or not RTC Manila has jurisdiction over the case YES 2) Whether or not the offense complained is purely civil in nature. Hence warrants the dismissal of the criminal case. NEEDS TO BE PROVEN RULING: 1. YES. The Supreme Court reiterated that the averments in the complaint or information characterize the crime to be prosecuted and the court before which it must be tried. Thus, in order to determine the jurisdiction of the court in criminal cases, the complaint must be examined for the purpose of ascertaining whether or not the facts set out therein and the punishment provided for by law fall within the jurisdiction of the court where the complaint is filed. The jurisdiction of courts in criminal cases is determined by the allegations of the complaint or information, and not by the findings the court may make after the trial. Further, 14(a), Rule 110 of the Revised Rules of Court provides: In all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any of the essential elements thereof took place. The subject information charges petitioner with estafa committed "during the period 1980 to June 15, 1982 inclusive in the City of Manila, Philippines"

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the law imposes, together with other legal obligations, on the basis of the facts as recited in the complaint or information constitutive of the offense charged, for once jurisdiction is acquired by the court in which the information is filed, it is retained regardless whether the evidence proves a lesser offense than that charged in the information. Thus, it may be that after trial, a penalty lesser than the maximum imposable under the statute is proper under the specific facts and circumstances proven at the trial. In such a case, that lesser penalty may be imposed by the trial court (provided it had subject-matter jurisdiction under the rule above referred to) even if the reduced penalty otherwise falls within the exclusive jurisdiction of an inferior court. In the case at bar, the increased penalty provided for the offense charged in Criminal Case No. 7362 by P.D. No. 818 (prison mayor in its medium period) is obviously heavier than the penalty provided for the same offense originally imposed by paragraph 2(d) of Article 315 of the Revised Penal Code (up to prision correccional in its minimum period). WHEREFORE, the Court Resolved to DENY the Petition for Review for lack of merit. PRESCRIPTION EMILIANO A. FRANCISCO and HARRY B. BERNARDINO, petitioners, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. FACTS: On December 26, 1965 it was alleged that defamatory comments were uttered by Dr. Francisco and Atty. Bernardino against Dr. Angeles , to wit: Dr. Francisco (To Romulo Cruz): Your wife should not have been operated. If I were the doctor, all that I should have done was to do a curretage raspa on her. Atty. Bernardino: Those doctors are incompetent. They are not surgeons. They are just bold. Dr. Francisco: The operation was unusual. Atty. Bernardino: The doctors who operated on your wife could be charged for murder thru reckless imprudence. The doctors there are no good. They are not surgeons. The complaint was filed before the Fiscals office on February 3, 1966 . On May 3, 1966, an Information for GRAVE ORAL DEFAMATION was filed in court against the defendants. The TRIAL COURT rendered its decision convicting the accused of the crime of grave oral defamation. On appeal the CA modified the trial courts decision and found the accused guilty of SIMPLE SLANDER. Hence this petition. Issue: Whether or not the crime has prescribed? What is the reckoning period for purposes of counting the prescriptive period? NO Held: No, the crime has not yet prescribed. Grave oral defamation, the crime charged in the Information, prescribes in 6 months. The alleged crime was committed on December 26, 1965. The complaint was filed by the offended party before the Fiscal's office on February 3, 1966 or only thirty-nine (39) days after the incident in question. Hence, it is still within the prescriptive period. The filing of the complaint in the Municipal Court , even if it be merely for purposes of preliminary examination or investigation should, and does, interrupt the period of prescription of criminal responsibility , even if the court where the complaint or information is filed cannot try the case on the merits. It makes no difference whether the case was filed in the Fiscal's Office and not in the Municipal Court since Article 91 of the Revised Penal Code does not require that the complaint be one filed in court in order to toll the running of the period. Where an accused has been found to have committed a lesser offense includible within the offense charged, he cannot be convicted of the lesser offense, if it has already prescribed. To hold otherwise would be to sanction the circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver offense. Final disposition of the case: ACQUITTED since the words uttered were not slanderous. MOTION FOR INCLUSION G.R. Nos. 111771-77 November 9, 1993 ANTONIO L. SANCHEZ, petitioner, vs. The Honorable HARRIET O. DEMETRIOU ET AL., respondents. FACTS: The Presidential Anti-Crime Commission filed charges against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and the killing of Allan Gomez. The Panel of State Prosecutors of the DOJ conducted a PI. Sanchez was not present but was represented by his counsel. On 8/12/1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez and he was immediately taken to the camp. At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno and SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the DOJ in Manila. The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador Panelo as his counsel. After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued by Judge Enrico A. Lanzanas of the RTC of Manila, in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of 8, in relation to 1, of R.A. No. 6713. Sanchez was taken to the CIS Detention Center, Camp Crame, where he remains confined. On 8/16/1993, the respondent prosecutors filed with the RTC of Calamba, Laguna, 7 informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta. Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of all the accused. The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one of the accused. The Court ordered the transfer of the venue of the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou.

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The seven informations were amended to include the killing of Allan Gomez as an aggravating circumstance. The petitioner filed a motion to quash the informations, but the motion was denied by the respondent Judge. Sanchez then the instant petition for certiorari and prohibition with prayer for a TRO/WOI. PETITIONERS ARGUMENT : The 7 informations filed against him should be quashed because: 1) he was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman had the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising from the death of only two persons; 5) the informations are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the offense only by the Sandiganbayan. [The issue related to the topic pertains to Ground No. 5.] ISSUE: Whether or not the informations filed are discriminatory? NO RULING: On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City. When the case was set for arraignment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. The presiding Judge Mogul denied the motion. Subsequently, an MR was filed but was denied. But the arraignment was deferred to August 18, 1977 to afford time for petitioner to elevate the matter to the appellate court. A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals . In an order, the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. In a comment that was filed by the Solicitor General he recommended that the petition be given due course. Subsequently, the Court of Appeals granted the writ and perpetually restrained the judge from enforcing his threat to compel the arraignment of the accused in the case until the DOJ shall have finally resolved the petition for review. On March 22, 1978, Hon. Catalino Macaraig, Jr. (Undersecretary of Justice) resolved the petition for review and reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. A MTD for insufficiency of evidence was filed by the Provincial Fiscal with the trial court, attaching a copy of the letter of Undersecretary Macaraig, Jr. The Judge denied the motion and set the arraignment , stating that the motions trust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Courts independence and integrity. The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals. A restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. In a decision, the Court of Appeals dismissed the petition and lifted the restraining order. Subsequently, a MR was filed, but it was denied in a resolution of February 19, 1980. Hence this petition for review of said decision. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. ISSUE: W/N the trial court acting on a MTD a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits ? YES, the filing of complaint or information in court sets in motion the criminal action against the accused. Any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. RULING: CARDINAL PRINCIPLE: Criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt.

The prosecuting officer is required by law to charge all those who in his
opinion, appear to be guilty. He cannot be compelled to include in the information a person against whom he believes no sufficient evidence of guilt exists. The appreciation of the evidence involves the use of discretion on the part of the prosecutor. In the case at bar, there is no 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. The 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 a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. However, in such case, the proper remedy is a petition for mandamus, not certiorari or prohibition. Moreover, before resorting to the relief, the party seeking the INCLUSION of another person as a co-accused in the same case must first avail itself of other adequate remedies such as the filing of a motion for such inclusion. At any rate, it is a preposterous contention that because no charges have been filed against Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be dropped. WHEREFORE, the petition is DISMISSED.

CONTROL BY COURT G.R. No. L-53373 June 30, 1987 MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, ET AL., respondents. FACTS:

Ratio: Prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant.

It is through the conduct of a preliminary investigation that the fiscal determines the existence of a prima facie case that would warrant the prosecution of a case.

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The Courts CANNOT: Interfere with the fiscal's discretion and control of the criminal prosecution. disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. PEREZ vs. HAGONOY RURAL BANK Order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so and Courts that grant the same commit no error. Neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution, except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an oppressive and vindictive manner. LIMITATION OF FISCAL OR PROSECUTORS POWER: The action of the fiscal or prosecutor is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it may be elevated for review to the SECRETARY OF JUSTICE who has the power to affirm, modify or reverse the action or opinion of the fiscal. The Secretary of Justice may direct that a motion to dismiss the case be filed in Court or otherwise, that an information be filed in Court. CONTROL BY COURT: The filing of a complaint or information in Court initiates a criminal action . The Court acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. The PRELIMINARY INVESTIGATION conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is TERMINATED upon the filing of the information in the proper court . The filing of information sets in motion the criminal action against the accused in Court. If the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. While it is true that the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case should be addressed for the consideration of the Court . The only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law. The rule in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation . In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be FACTS: Private respondent owns the Hagonoy Money Shop and employed petitioner as Officer in Charge. An AUDIT was conducted on the said shop where anomalies were found in more or less 28 savings accounts consisting of withdrawals which were recorded in the subsidiary ledges of the money shop but not in the passbooks which were in the possession of the depositors. Hence, private respondent filed an affidavit-complaint for estafa against the employees of the money shop (including the petitioner) and two other outsiders. The prosecutor found prima facie evidence against the employees and petitioner and recommended the filing of information (the case was dismissed as to the outsiders) Petitioner filed a petition for review with the Secretary of Justice for the dismissal of the charged against her The Secretary of Justice Drilon issued a resolution ordering the prosecutor to dismiss the information against the petitioner on the ground of insufficient evidence Pursuant to said directive, the prosecutor filed a motion with the RTC praying for the dismissal of the case against the petitioner The RTC judge GRANTED the said motion. Private respondent filed a MR. However, it was denied. Private respondent filed a petition for certiorari and mandamus against the judge with the CA CA set aside the order of the RTC judge Hence, this petition

Compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction.

ISSUE: W/N Judge Masadao committed grave abuse of discretion in granting the prosecutor's MTD the criminal case against petitioner without an independent assessment of the sufficiency or insufficiency of the evidence against the latter YES HELD: Judge Masadao acted with grave abuse of discretion in granting the prosecutor's motion to dismiss the criminal charges against the petitioner on the basis solely of the recommendation of the Secretary of Justice. The above quoted Order allowing the amendment of the information to exclude petitioner therefrom effectively dismissed the criminal case against the latter. That the trial judge did not make an independent evaluation or assessment of the merits of the case is apparent from the foregoing order. Judge Masadao's reliance on the prosecutor's averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner was, to say the least, an abdication of the trial court's duty and jurisdiction to determine a prima facie case, in blatant violation of this Court's pronouncement in Crespo v. Mogul. In other words, the grant of the motion to dismiss was based upon considerations other than the judge's own personal individual conviction that there was no case against the accused. Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise

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of judicial discretion merely to accept the prosecution's word for its supposed insufficiency. A perusal of the Martinez case reveals that the opinion of this Court finding the dismissal of the case against the accused erroneous was not predicated on the violation of the private offended party's right to due process nor on the recommendation of the Solicitor General. In fact, we categorically stated therein that the "fault or error tainting the order of dismissal of the lower court consists in its failure to observe procedural due process and to exercise its discretion properly and judiciously." 25 The first part refers to the fact that the private offended party was not afforded his day in court while the latter pertains to the failure of the judge to make an independent assessment of the evidence or lack thereof against the accused. Otherwise stated, the first is not the rationale behind the latter declaration. Furthermore, petitioner's asseveration that as the records of the case were already before Judge Masadao, it can be safely assumed that he had studied them and thereafter agreed with the prosecution that he evidence did not support the earlier finding of probable cause against the petitioner. This is non sequitur and is simply belied by the order that nonchalantly granted the motion to dismiss. Moreover, Judge Masadao categorically declined to pass upon the merits of the private respondent's motion for reconsideration of the dismissal of the criminal case against the petitioner, and chose to summarily deny the same on the ground of the private respondent's lack of personality to revive the criminal charges against the petitioner. STA. ROSA MINING vs. ZABALA G.R. No. L-44723 August 31, 1987 HELD: YES. There is no question that the institution of a criminal action is addresses to the sound discretion of the investigating fiscal. He may or he may not file the information according to whether the evidence is in his opinion sufficient to establish the guilt of the accused beyond reasonable doubt, and when he decides not to file the information, in the exercise of his discretion, he may not be compelled to do so. However, after the case had already been filed in court, "fiscals are not clothed with power, without the consent of the court, to dismiss or nolle prosequi criminal actions actually instituted and pending further proceedings. The power to dismiss criminal actions is vested solely in the court". The MATTER OF INSTITUTING AN INFORMATION should be distinguished from a MOTION BY THE FISCAL FOR THE DISMISSAL of a case already filed in court. The judge may properly deny the motion where, judging from the record of the preliminary investigation, there appears to be sufficient evidence to sustain the prosecution. This is, as it should be, because the case is already in court and, therefore, within its discretion and control. After the complaint has been presented, and certainly after the trial has been commenced, the court and not the fiscal has full control of it. The complaint cannot be withdrawn by the fiscal without the consent of the court. It is discretionary on the court where the case is pending to grant the motion to dismiss or deny the same. Notwithstanding his personal convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the court to enable the court to arrive at its own independent judgment as to the culpability of the accused. The fiscal should not shirk from his responsibility much less leave the prosecution of the case at the hands of a private prosecutor. Otherwise, the entire proceedings will be null and void. In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government since an offense is an outrage to the sovereignty of the State. This is so because "the prosecuting officer is the representative not of an ordinary party to a controversy but of a sovereignty where obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done. If the fiscal is not at all convinced that a prima facie case exists, he simply cannot move for the dismissal of the case and, when denied, refuse to prosecute the same. He is obliged by law to proceed and prosecute the criminal action. The mere fact that the Secretary of Justice had, after reviewing the records of the case, directed the prosecuting fiscal to move for the dismissal of the case and the motion to dismiss filed pursuant to said directive is denied by the trial court, is no justification for the refusal of the fiscal to prosecute the case. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. WHEREFORE, petition is hereby Granted. Public respondent is hereby ordered to continue prosecuting the criminal case until the same is terminated.

FACTS: On March 21, 1974, petitioner filed a complaint for ATTEMPTED THEFT of the installations on its mining property at Jose Panganiban, Camarines Norte against private respondents Romeo Garrido and Gil Alapan with the Office of the Provincial Fiscal of Camarines Norte. The case was set for PI. After conducting the investigation the prosecutor recommended that an information for Attempted Theft be filed against private respondents on a finding of prima facie case. In a letter dated October 22, 1974, the private respondents requested the Secretary of Justice for a review. On November 6, 1974, the Chief State Prosecutor ordered the Provincial Fiscal to elevate entire records of the case against Garrido et al., and to defer all proceedings pending review. The letter-request for review was opposed by petitioner in a letter to the Secretary of Justice dated November 23, 1974 alleging, among other things, that an information for Attempted Theft had already been filed, for which reason the request for review has become moot as the Provincial Fiscal has lost jurisdiction to dismiss the charge for attempted theft. The Secretary of Justice reversed the findings of prima facie case of the Provincial Fiscal and directed said prosecuting officer to immediately move for the dismissal of the criminal case. Since the case was already in court, the second motion to dismiss was likewise denied. Hence, this petition for mandamus. ISSUE: Whether or not it is the Court that has discretion whether to dismiss the case or proceed with it based on the evidence presented and after the information has been filed by the prosecutor YES

CRIMINAL PROCEDURE |7
sufficient that it alleged that the taking was without any authority or license from the government. ACCORDINGLY, the petition is GRANTED. The questioned order of the trial court dismissing the information is SET ASIDE. Criminal Case No. 1591 is reinstated. THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MAXIMIANO ASUNCION, as Presiding Judge, Branch 104, Regional Trial Court, National Capital Judicial Region, Quezon City, and ROLANDO ABADILLA, respondents. FACTS: ROLANDO ABADILLA, a former colonel of the AFP, was charged before the QC RTC with the offense of Violation of PD No. 1866 [ILLEGAL POSSESSION OF FIREARMS ANDAMMUNITION) --The Information read that he willfully, unlawfully and feloniously had in his possession and under his custody and control rifles, pistons, ammunitions and magazines without first securing the necessary license and/or permit from the lawful authority. Upon motion of the accused, the respondent judge, dismissed the Information on the ground that it did not allege sufficient facts to constitute an offense , since the possession of loose firearms and explosives is not illegal per se, in view of Executive Order No. 107 which gives holders or possessors of unlicensed firearms and ammunition a period within which to surrender the same to the proper authorities, without incurring any criminal liability therefor, except if the unlicensed firearm or ammunition is carried outside of one's residence, not for the purpose of surrendering the same, or used in the commission of any other offense, and there is no allegation in said information that the firearms and ammunition enumerated therein were carried outside the accusers residence or used in the commission of some other crime.

SUFFICIENCY OF COMPLAINT OR INFORMATION [G.R. No. L-46772. February 13, 1992.] THE PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF FIRST INSTANCE OF QUEZON (BRANCH VII), GODOFREDO ARROZAL AND LUIS FLORES, respondents. MEDIALDEA, J p: DOCTRINE: When an accused invokes in a motion to quash the ground that the facts charged do not constitute an offense (Rule 117, Sec. 2[a] Rules of Court), the sufficiency of the Information hinges on the question of whether the facts alleged, if hypothetically admitted, meet the essential elements of the offense defined in the law . ***The elements of the crime of qualified theft of logs are: 1) That the accused cut, gathered, collected or removed timber or other forest products; 2) that the timber of other forest products cut, gathered, collected or removed belongs to the government or to any private individual; and 3) that the cutting, gathering, collecting or removing was without authority under a license agreement, lease, license, or permit granted by the state. FACTS: This petition seeks the annulment of the order of the CFI of Quezon dismissing the information filed therein. The private respondents were charged with the crime of qualified theft of logs, defined and punished under Section 68 of Presidential Decree No. 705, otherwise known as the Revised Forestry Code of the Philippines, in an information which read: On March 23, 1977, the named accused filed a motion to quash the information on two (2) grounds, to wit: (1) that the facts charged do not constitute an offense; and, (2) that the information does not conform substantially to the prescribed form. The Trial court dismissed the information on the grounds invoked and the reconsideration sought was denied. Hence this petition. ISSUE: WoN the information charged an offense.

MR denied. The petitioner claims that the respondent judge erred in holding that the possession of loose firearms and explosives is not illegal per se during the period covered by Executive Orders Nos. 107 and 222.

HELD: YES. The Court agree with the petitioner that the information substantially alleged all the elements of the crime of qualified theft of logs as described in Section 68 of P.D. 705. While it was admitted that the information did not precisely allege that the taking of the logs in question was "without the consent of the state," nevertheless, said information expressly stated that the accused "illegally cut, gather, take, steal and carry away therefrom, without the consent of said owner and without any authority under a license agreement, lease, license or permit, sixty (60) logs of different species ." Since only the state can grant the lease, license, license agreement or permit for utilization of forest resources, including timber, then the allegation in the information that the transportation of the logs was "without any authority" under a license agreement, lease, license or permit, is tantamount to alleging that the taking of the logs was without the consent of the state. When an accused invokes in a motion to quash the ground that the facts charged do not constitute an offense (Rule 117, Sec. 2[a] Rules of Court), the sufficiency of the Information hinges on the question of whether the facts alleged, if hypothetically admitted, meet the essential elements of the offense defined in the law. The failure of the information to allege that the logs taken were owned by the state is not fatal. The fact that only the state can grant a license agreement, license or lease does not make the state the owner of all the logs and timber products produced in the Philippines including those produced in private woodlands. While it is only the state which can grant a license or authority to cut, gather, collect or remove forest products it does not follow that all forest products belong to the state. In the just cited case, private ownership of forest products grown in private lands is retained under the principle in civil law that ownership of the land includes everything found on its surface. Ownership is not an essential element of the offense as defined in Section 60 of P.D. No. 705 . Thus, the failure of the information to allege the true owner of the forest products is not material, it was

The PETITIONER CLAIMS that it was not necessary for the prosecution to allege in the information that the firearms and ammunition, subject matter of this case, were brought out of the residence of the accused or were used by him in the commission or another offense, since these circumstances are not essential ingredients of the crime of illegal possession of firearms and ammunition. ISSUE: W/N the dismissal is valid? YES HELD: In People vs. Lopez, the Court already ruled that, under Republic Act No. 4, the use or the carrying of firearms and/or ammunition was an ingredient, if not the sole ingredient, of the offense; i.e. the very acts which were punished, subject to certain conditions, and hence, should be alleged and proved. In People vs. Austria, the Court also ruled that in order that an information charging illegal possession of firearm and ammunition, under Republic Act No. 482, may be deemed sufficient, it must allege that the accused was using the unlicensed firearm or carrying it in his person at the time he was apprehended by the authorities with said firearm. In several cases involving firearms and ammunition, jurisprudence had held that the use of or the carrying of firearms and ammunition was essential to the offense, that is, such were the very acts that were punishable (subject to certain conditions); hence, the same should be alleged and proved.

CRIMINAL PROCEDURE |8
penalty should be imposed in the maximum period, or from 2 years 11 months and 11 days to 4 years and 2 month. And applying the Indeterminate Sentence Law, appellants should be sentenced to suffer an indeterminate penalty of from 4 months and 1 day of arresto mayor to 4 years and 2 months of prision correccional. LESSON: All the elements and the aggravating and mitigating circumstances must be expressly stated in the Information (so as to avoid surprise on the part of the defendant and enable him to prepare his defense) and must be proved during the trial. Otherwise, it cannot be appreciated. G.R. No. L-23693 April 27, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUDY REGALA and DELFIN FLORES, defendants, RUDY REGALA, defendant-appellant. FACTS: Defendants Rudy Regala and Delfin Flores were charged with the crime of murder with assault upon an agent of a person in authority in an information filed on June 27, 1964 by the provincial fiscal of Masbate with the Court of First Instance of Masbate which reads:
That on or about the 13th day of June, 1964, at the Magallanes Gate in the poblacion of the Municipality of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together and helping each other, with deliberate intent to kill, with evident premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack and stab with. a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty, thereby inflicting upon the latter serious stab wounds at the midepigastric region penetrating abdominal cavity and perforating cordial and cardiac regions which injury directly caused his instantaneous death.

The apparent failure to do so cannot give rise to a valid information . On this note, a subsequent presentation of evidence CANNOT serve as to validate the defective information for, in the eyes of the law, there never was an information in the first place. The information, in this particular charge against accused-respondent Abadilla, is fatally defective. It would be fatally defective against any other accused charged with the same offense. Respondent judge, in dismissal the information, committed no reversible error or grave abuse of discretion. He acted correctly. G.R. No. L-11241 July 26, 1960

VALENTIN ILO, ET AL., petitioner, vs. COURT OF APPEALS, ET AL., respondents.

Article 321. Other forms of arson. - When the arson consists in the burning of other property and under the circumstances given hereunder, the offender shall be punishable: 1. By reclusion temporal or reclusion perpetua: (a) if the offender shall set fire to any building, farmhouse, warehouse, hut, shelter, or vessel in port, knowing it to be occupied at the time by one or more persons 5. By prision correccional in its medium period to prision mayor in its minimum period, when the damage caused is over 200 pesos but does not exceed 1,000 pesos, and the property referred to in paragraph (a) of the preceding subdivision is set on fire; but when the value of such property does not exceed 200 pesos, the penalty next lower in degree than that prescribed in this subdivision shall be imposed. Article 322. Cases of arson not included in the preceding articles. - Cases of arson not included in the next preceding articles shall be punished: 3. By prision correccional in its minimum and medium periods, if the damage caused is over 200 pesos but does not exceed 1,000 pesos;

FACTS: Valentin Ilo and Silvestre Buela were charged with the crime of arson . The TRIAL COURT found the accused guilty of arson under article 321, par 5 of the RPC. The accused appealed to the CA. The CA found appellants guilty under Article 321, paragraph 1, of the RPC and not under the same article, paragraph 5, and as a consequence, it modified the penalty imposed upon them. Counsel for appellants disagrees with both the trial court and the Court of Appeals, for he contends that the information does not contain any allegation that the building burned is used as a dwelling and is located in an uninhabited place to make it come under Article 321(5) of the RPC, nor does it alleged that the accused set fire to the house "knowing it to be occupied at the time by one or more persons." He contends that such averment, as well as the proof adduced that the accused saw two occupants of the house at the time of the burning cannot convert the crime charged into a more serious one, or one under paragraph 1 of the same article. ISSUE: Under what paragraph may accused be convicted? HELD: We agree with counsel that the offense of which appellants may be convicted is that defined and penalized in Article 322, paragraph 3, of the RPC which governs cases of arson not included in Article 321 and imposes the penalty of prision correccional in its minimum and medium period if the damage caused is over P200.00 but does not exceed P1,000.00. Considering that the crime was committed with the aggravating circumstances of dwelling, not offset by any mitigating circumstance, that

The defendants pleaded not guilty. The prosecution presented five witnesses, namely, Erlinda Tidon, Juanito Evangelista, Modesto Taleon, Dr. Orlando delos Santos and Municipal Judge Jose M. Angustia. Erlinda Tidon and Juanito Evangelista both testified that they were at the scene of the crime and saw the accused Rudy Regala stab the victim, Sgt. Juan Desilos Jr. After the evidence for the prosecution was admitted by the court, defense counsel moved, by way of demurrer, for the dismissal of the case on the grounds that (1) the prosecution miserably failed to establish the guilt of accused Delfin Flores and (2) that there was variance between the date of the commission of the crime as alleged in the information and that proved by the evidence. The prosecuting fiscal interposed his objection on the main ground that the alleged variance was not substantial as the events leading to the stabbing incident began in the late hour of June 12, 1964 culminating at around midnight or immediately thereafter. Hence, the information alleged the time of the crime as "on or about the 13th of June, 1964 ". Consequently, the case was set for the reception of the evidence of the defense. Eight witnesses were presented by the defense, including accused Rudy Regala and Delfin Flores. Three of these witnesses Alberto Abayon, Eladio Mendoza and Noemi Almirol claimed to have been at the scene of the crime and seen the stabbing of Sgt. Juan Desilos Jr. The trial Judge gave more weight and credence to the testimonies of the witnesses of the People than that of the accused, resulting in the conviction of accused Rudy Regala for the complex crime of murder with assault upon an agent of a person in authority, and the imposition on him of the supreme penalty of death. However, with respect to the other accused, Delfin Flores, the trial Judge found him guilty only as an accessory after the fact. Consequently, the trial Judge imposed upon accused Delfin Flores the penalty of eight months and 21 days as

CRIMINAL PROCEDURE |9
minimum, to six years and 1 day of prision mayor as maximum with the recommendation that his parole be immediately cancelled. Before the Court, by way of review is only the death penalty imposed on accused Rudy Regala; because Delfin Flores did not interpose any appeal from his conviction as an accessory after the fact, and was accordingly released on June 11, 1973 after the expiration of his sentence as certified by the Director of the NBP. [COMMENTO: This case is very long, I mean it. I omitted portions of the facts because theyre mainly testimonies of witnesses. SUMMARIZED VERSION: The witnesses and offenders are all in Magallanes Gate, trying to get in to attend the town fiesta dance. The victim, Sgt. Desilos who was then wearing a PC uniform, was stationed at the EXIT gate. Tidon was behind Regala at that time and Evangelista was beside the accused when the stabbing incident happened. When they were all trying to get in, they were pushed by Sgt. Juan Desilos who told them not to get inside because the gate is for exit. Both accused Delfin Flores and Rudy Regala were pushed by Sgt. Juan Desilos but it was accused Delfin Flores who was directly hit by Sgt. Juan Desilos and because of the pushing, accused Rudy Regala got angry and still at the same distance, he drew his knife from the left side of his waist which was covered by his shirt and then stabbed with it Sgt. Juan Desilos in the stomach. For their defense, the accused testified that they were not in the scene of the crime and that during that time, they were drinking beer inside the canteen at Magallanes Gate.] ISSUE: Whether the trial court erred in failing to give the two accused a fair trial? NO RULING: Whether or not the Accused was Denied Due Process of Law Counsel de officio claims in support of the first assigned error that the indignation and revulsion of the trial Judge directly caused undue prejudice against the accused because of his previous criminal record. An impartial trial necessarily requires an impartial judge to conduct the same. In other words, absent an impartial judge, there can be no fair and impartial trial. Appellant impugns the impartiality of the trial judge, who was allegedly prejudiced against the appellant. The Court does not agree with counsel de officio that the trial court failed to accord appellant Rudy Regala a fair trial. Appellant has not pointed and the Court found none, to any part or stage of the trial betraying the trial Judge's hostility, bias and prejudice against the appellant after the prosecution had brought forth the fact of appellant's previous criminal conviction. As a matter of fact, appellant's previous conviction of the crimes of malicious mischief and slight physical injuries was testified to only by the witness last presented by the prosecution in its evidence in chief. And the trial Judge, contrary to the claim of the appellant, gave due consideration to his evidence as shown by the fact that in the decision of conviction, the trial Judge examined extensively the testimonies of all the eight witnesses for the defense. Consequently, while the quoted portions of the judgment of conviction are interspersed with statements and phrases which properly should not have been made as they may be wrongly interpreted as indicative of bias and prejudice, such statements and phrases in the judgment of conviction do not per se constitute evidence of bias and impartiality in the conduct of the trial by the trial Judge as to violate appellant's right to an impartial trial. Alibi and Denial cannot Prevail over Affirmative Testimonies 1. The trial court correctly rejected appellant Regala's defense of alibi and denial. Indeed such defenses cannot prevail over the affirmative testimonies of Erlinda Tidon and Juanito Evangelista who positively Identified appellant Rudy Regala as the one who inflicted the single but fatal wound on the deceased Sgt. Juan Desilos. The exit gate where the stabbing took place was just in the vicinity of about 15 meters from the canteen where appellant was allegedly drinking beer during the night of June 12 until the early morning of the 13th. Alibi, to be convincing must preclude any possibility that the accused could have been physically present at the place of the crime nor its immediate vicinity at the time of its commission. 2. It is a recognized principle that on the matter of credibility of witnesses, the observation of the trial court must be accorded respect and great weight in view of its special opportunity to observe closely the demeanor of the individual witnesses. 3. Consequently, the inconsistencies and incredibilities in the testimonies of the material witnesses of the prosecution as pointed out by the appellant are better left to the appreciation of the trial court, which has not found the same sufficient to destroy the probity of said witnesses. Appellant contends that prosecution witness Erlinda Tidon's testimony to the effect that appellant Rudy Regala and accused Delfin Flores ran away after appellant Rudy Regala had stabbed Sgt. Juan Desilos Jr., is improbable considering that, according to Tidon herself, the scene of the crime was crowded or overflowing with people and consequently one cannot move fast or run. Such inconsistency or improbability is more apparent than real. It may be true that under normal condition, that is, absent any unusual incident such as the killing of a peace officer, such assertion may be characterized as improbable. This is not so, however, in the instant case; because the commotion created by the stabbing incident enabled the culprits to easily disappear among the milling throng. SUFFICIENCY OF COMPLAINT OR INFORMATION The killing of Sgt. Juan Desilor Jr., according to the trial court, was qualified as murder by the circumstances of treachery and evident premeditation and hence, appellant was convicted of the complex crime of murder with assault upon an agent of a person in authority . However, neither treachery nor evident premeditation can be properly appreciated and considered in instance case so as to characterize the killing as murder. Consequently, the killing of Sgt. Juan Desilos by appellant cannot be qualified as murder. It was simple homicide. The appellant cannot be convicted of the complex crime of homicide with assault upon an agent of a person in authority because the INFORMATION filed against appellant did not allege the essential elements of assault that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority . The information in this case barely alleged that the accused "with deliberate intent to kill, with evident premeditation and treachery and taking advantage of nighttime, did then and there willfully, unlawfully and feloniously attack and stab with a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty thereby inflicting upon the latter serious stab wounds at the mid-epigastric region penetrating abdominal cavity and perforating cardial and cardiac region which injury directly caused his instantaneous death," such an allegation cannot be an adequate substitute for the essential averment to justify a conviction of the complex crime, which necessarily requires the imposition of the maximum period of the penalty prescribed for the graver offense. The fact that the crime of assault was established by the evidence of the prosecution without any objection on the part of the accused cannot cure the defect in the information so as to validly convict the accused thereof; because to do so would be convicting the accused of a crime not properly alleged in the body of the information in violation of his constitutional right to be informed of the nature and cause of the accusation against him. The crime of assault was definitely demonstrated by the evidence of the People because it showed that the victim (Sgt. Juan Desilos Jr.) while maintaining peace and order at the exit gate of the Plaza Magallanes where the crime took place, was in complete PC uniform at the time the accused attacked him by reason of the latter's act of pushing the accused and his co-accused so as to prevent them from entering the plaza through its exit gate. However, "like a qualifying circumstance, such knowledge must be expressly and specifically averred in the information; otherwise, in the absence of such allegation, the required knowledge, like a

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qualifying circumstance, although proven, would only be appreciated as aggravating circumstance. Applying this principle, the attack on the victim, who was known to the appellant as a peace officer, could be considered only as aggravated by being 'in contempt or with insult to the public authorities' or as an insult or in disregard of the respect due the offended party on account of his rank". Appellant can therefore be convicted only of the crime of homicide, aggravated by the circumstance of "in contempt or with insult to the public authorities" or as an "insult or in disregard of the respect due to the offended party on account of his rank. Likewise, the guilt of appellant is aggravated by recidivism as he was previously sentenced by final judgment for slight physical injuries. THUS MODIFIED, THE JUDGMENT APPEALED FROM HIS HEREBY AFFIRMED IN ALL OTHER RESPECTS. DESIGNATION OF OFFENSE G.R. No. L-63971 May 9, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO ELESTERIO y CARPENTERS, defendant-appellant. FACTS: At two o'clock in the morning of 6/8/1981, a police car sighted a group of three men and one woman on the sidewalk of Libertad and stopped to investigate. While they were frisking two of the men, the third male made a run for it but was caught after a brief pursuit. A search of his person yielded a .32 caliber revolver and two rounds of live ammunition. Ricardo Elesterio admitted that he had no permit or authority to carry the firearm. An information was filed against him in the CFI of Pasay City reading as follows: The undersigned Assistant City Fiscal accuses RICARDO ELESTERIO Y CARPENTERS of the crime of VIOLATION OF GENERAL ORDER NO. 6 in rel. to PAR. 2, PRESIDENTIAL DECREE NO. 9, as amended, committed as follows: That on or about the 8th day of June, 1981, in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, RICARDO ELESTERIO y CARPENTERS, did then and there willfully, unlawfully and feloniously have in his possession and carry outside of his residence a .32 caliber revolver with SN-23271 and (2) two rounds live ammunitions, without having been permitted or authorized by law. The accused pleaded not guilty when arraigned and so, trial ensued. Patrolman Nepomuceno testified for the prosecution and narrated the arrest and search of the accused. The accused testified and said the firearm did not belong to him but was passed to him by one Ray Arong minutes before the patrol car passed by them. The judge then asked if the defense had any more witnesses to present. The defense counsel said he had, to corroborate the testimony of the accused that he had earlier gone to several discotheques. The judge said this would only be cumulative, whereupon the counsel said, "Well, if that is the case, Your Honor, we rest our case with the testimony of our lone witness." The judge thereupon dictated his decision in open court finding the accused guilty and sentencing him to life imprisonment. The defense counsel manifested his intention to appeal, to which the judge replied: "The appeal is automatic. In the meantime he has to be held in custody. I am cancelling the bailbond." Elesterio was committed to the national penitentiary, but he escaped and filed a motion for reconsideration, which was denied. (2) He was recaptured on 30 March 1983. On 12 May 1983, Fe Cruz (aunt) filed a petition for habeas corpus on his behalf, alleging that: a) the sentence imposed upon him was unlawful and excessive; b) he was denied due process because the trial was held only in one sitting and the defense was not allowed to present additional witnesses; and c) the person who represented him at the trial was not a lawyer.

ISSUES: Whether the trial court erred when it (1) (2) (3) RULING: (1) NO. In dispensing with the testimony of the other defense witnesses who were only intended to corroborate the averment of the accused that he had been to several discotheques before his apprehension, the trial court was not acting arbitrarily. The trial judge had the right to control the conduct of the trial and to bar unnecessary testimony, such as that intended merely to corroborate relatively unimportant matters, that would only unnecessarily delay the case. It was held in People v. Barabasa, that suppression of that kind of evidence "did not deprive the accused of any substantial right" as "the evidence was merely cumulative and unnecessary because it would not have affected the result of the case in the least." NO. The mere fact that the trial was concluded in one sitting only is not necessarily indicative of irregularity or inordinate haste. If all the evidence needed by both parties could be presented by them in that single session, there is no reason why any resetting had to be made. YES. The Court agrees that Judge Enrique Agana was exceptionally careless, when he immediately after the trial dictated his decision in open court. One may well suspect that he had prejudged the case and had a prepared decision to foist upon the accused even before the submission of the case. What is worse is that the decision was wrong. a. The elements of the offense punished by General Order No. 6 in relation to Par. 2, PD No. 9 are (1) the carrying of a firearm outside one's residence and (2) the motive for such act, which is "in furtherance of or to abet, or in connection with subversion, rebellion, insurrection, lawless violence, criminality, chaos or public disorder." The INFORMATION filed against the accused will show that the second element of the imputed crime is not alleged at all . All that is averred is that Elesterio on the date and place indicated, had in his possession and was carrying outside his residence a firearm and two live bullets without the proper permit or authorization. There is no allegation in the information that the accused was carrying the weapon outside his residence for the purposes mentioned in the laws supposedly violated. In any event, it is clear that the accused could not have been convicted of a violation of General Order No. 6 in relation to PD No. 9(2) and so should not have been sentenced to the severe penalty of life imprisonment. Notwithstanding, the accused-appellant is not entirely guiltless. Although his act is not punishable under the laws invoked by the prosecution, it is undeniable that it comes under the provision of 2692 of the Revised Administrative Code, as amended by RA No. 4, for illegal possession of firearms. Under this provision, mere possession of an unlicensed firearm is malum prohibitum and is punishable regardless of lack of criminal intent or proof of the ownership of the firearm by another person. Dispensed with other testimonies Concluded the case in one sitting Dictated the decision in open court immediately after trial

(3)

b.

c.

d.

It is well-settled that the NATURE AND CAUSE OF THE ACCUSATION are determined NOT BY THE NAME given to the offense BUT BY THE

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DESCRIPTION of the manner and circumstances in which it was committed. The DESIGNATION OF THE OFFENSE or of the law violated is a conclusion of law made by the prosecuting officer but this is NOT binding on the court. That conclusion must ultimately be made only by the court itself after the trial and following its own ascertainment of the facts needed to constitute the elements of the crime attributed to the accused. If an essential element is not alleged to prove a graver crime, no conviction therefore may be rendered. Conversely, if the elements proved constitute a less serious offense, conviction is justified although it is the higher offense that is alleged. In other words, it is the RECITALS of the facts of the commission of the offense, and not the nomenclature of the offense, that should determine the crime being charged in the information. In the case of People v. Mamogay, where the failure of the information to allege that the murder had been committed with the use of an illegally possessed firearm removed it from the coverage of PD No. 9 in relation to GO. No. 6. Nevertheless, the recitals in the information were specific enough to justify the conviction of the accused under 2692 of the RAC for illegal possession of firearms. In the case at bar, the information contained allegations which were sufficient to warrant the conclusion that the offense committed by the accused was violation of 2692 of the RAC. He should have been meted the penalty prescribed therein, not the sentence of life imprisonment for violation of the presidential decree. WHEREFORE, the accused is declared guilty of Illegal Possession of Firearms under 2692 of the RAC. Inasmuch as he has been detained for more than the maximum period of imprisonment imposable for the offense, he is hereby ordered released immediately upon payment of the fine of P1,000.00. CAUSE OF ACCUSATION MATILDE vs. JABSON FACTS: The Assistant Provincial Fiscal of Rizal filed three informations against petitioner and other accused for the crime of qualified theft It appears that the said informations were amended twice: (1) is on the value of the articles and (2) on the nature and character of the offense, changing it from qualified to simple theft by deleting the phrase with grave abuse of confidence. Hence, petitioner withdrew his previous plea of not guilty The trial court ruled for their conviction (IN RELATION TO PD 133) PETITIONER sought for a reconsideration of the judgment contending that in the absence of any allegation in the body of the information alleging specifically all the elements of the offenses defined and penalized under PD 133, he cannot be convicted and penalized under the said decree. The court denied the MR Hence, this petition ISSUE: WON THE CONVICTION OF THE PETITIONER IS VALID HELD: The Constitution guarantees that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him. 3 To give substance to this Constitutional guarantee, 8 of Rule 110 of the Rules of Court requires that the acts or omissions complained of as constituting the offense must be stated in an ordinary and concise language so as (a) to enable a person of common understanding to know what offense is intended to be charged; and (b) to enable the court to pronounce proper judgment. The rule states that the statement need not necessarily be in the language of the statute. What is important is that the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. In other words, the crime is stated in such a way that a person of ordinary intelligence may immediately know what is meant, and the court can decide the matter according to law. 4 Inasmuch as "not only the liberty but FACTS: This is a petition for review on certiorari of the decision of the Court of First Instance of Batangas in Civil Case entitled " Rita de los Reyes vs. Luz E. Balitaan, et al." annulling the orders of the MTC of Bauan, Batangas and ordered the questioned testimonies to be striken out from the record on the ground that they are at variance with the allegations of the Information. On April 11, 1973, an Information was filed against respondent Rita de los Reyes of the crime of ESTAFA before the Municipal Court of Bauan, Batangas,. That between April 27, 1982 to June, 1972, delos Reyes, being then an employee of Luz E. Balitaan, took the sum of P127.58 belonging to the latter, under the express obligation on the part of the accused to immediately account for and deliver the same. even the life of the accused may be at stake, it is always wise and proper that the accused should be fully apprised of the true charges against them, and thus avoid all and any possible surprises which may be detrimental to their rights and interests." 5 The main purpose of this requirement is to enable the accused to suitably prepare his defense. He is presumed to be innocent and therefore, has no independent knowledge of the facts that constitute the offense with which he is charged. Concommitant with the foregoing is the rule "that an accused person cannot be convicted of a higher offense than that with which he is charged in the complaint or information on which he is tried . It matters not how conclusive and convincing the evidence of guilt may be, an accused person cannot be convicted in the Courts of these Islands of any offense, unless it is charged in the complaint or information on which he is tried, or necessarily included therein. He has a right to be informed as to the nature of the offense with which he is charged before he is put on trial, and to convict him of a higher offense than that charged in the complaint or information on which he is tried would be an authorized denial of that right."
8

The informations in these cases charge the accused simply with the crime of theft. Thus, while alleging that the accused were laborers working in the Markers Agro-Chemical Enterprises, these informations charge them with having conspired and confederated with one Renato Matuto, and having mutually aided one another, with intent of gain and without the knowledge and consent of said Company, in taking stealing and carrying away the articles mentioned therein belonging to said Company. Nowhere is it alleged in the body of the aforementioned informations that the articles stolen were materials or products which the accused-petitioner was "working on or using or producing" as employee or laborer of the complainant. The clear import of Presidential Decree No. 133 on the basis of its recitals is to eradicate "graft and corruption in society, and promote the economic and social welfare of the people" by placing a strong deterrent on workers and laborers from sabotaging the productive efforts of the industry where they are employed, through the imposition of heavier penalties for the theft of "any material, spare part, product, or article that he is working on, using or producing." It is obvious that the averment of those facts in the body of the complaint or information is essential and necessary to qualify the offense and to justify the imposition of the heavier penalty prescribed by Presidential Decree No. 133 . It is true that in the preamble of the aforesaid informations, the petitioner is charged with the crime of simple theft "in relation to Presidential Decree No. 133". This is, however, insufficient for the purpose envisioned by the afore-mentioned constitutional guarantee, considering that it is well-settled that the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the ACTUAL RECITAL OF FACTS IN THE COMPLAINT OR INFORMATION BALITAANvs.COURT OF FIRST INSTANCE OF BATANGAS G.R. No. L-38544 July 30, 1982

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At the hearing, complaining witness Luz E. Balitaan testified that she was the proprietress of a baby dress mending shop , that her business was engaged in the sewing of baby dresses with the accused, Rita de los Reyes as the one in charge of the management of her business . Complaining witness testified as to the issuance of THREE CHECKS and cash voucher which were allegedly the subject of the estafa case. The defense counsel objected to her testimony on the ground that said testimonies are at variance with the allegations in the information. Accordingly, there is NO ALLEGATION IN THE INFORMATION whatsoever regarding these checks and this cash voucher. Defense filed a motion to dismiss, but the lower court ruled against it. On petition for Certiorari, the Court of First Instance of Batangas sustained respondent's stand. Hence, this present petition. ISSUE: Whether or not the petitioner has sufficiently alleged his cause of accusation so as to entitle her evidence to be admitted by the court in the instant case HELD: YES. It is fundamental that every element of which the offense is composed must be alleged in the complaint or information . What facts and circumstances are necessary to be stated must be determined by reference to the definitions and the essentials of the specific crimes. Thus, in the case at bar, inasmuch as the crime of estafa through misappropriation or with grave abuse of confidence is charged, the information must contain these ELEMENTS: (a) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond; (b) that there is conversion or diversion of such property by the person who has so received it; (c) that such conversion, diversion or denial is to the injury of another and (d) that there be demand for the return of the property. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. As a GENERAL RULE, matters of evidence, as distinguished from facts essential to the description of the offense, need not be averred. Moreover, reasonable certainty in the statement of the crime suffices. All that is required is that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed and will enable him intelligently to prepare his defense , and if found guilty to plead her conviction, in a subsequent prosecution for the same offense. It is true that estafa under paragraph 1(b) is essentially a different offense from estafa under paragraph 2(a) of the same article because the elements of these two offenses are not the same. In estafa under paragraph 1(b), which is committed with grave abuse of confidence, it must be shown that the offender received money or other personalty in trust or on commission or for administration, or under any other obligation involving the duty to make delivery of or to return the same but misappropriated it to the prejudice of another. It is also necessary that previous demand be made on the offender. To sustain a conviction for estafa under paragraph 2(a), on the other hand, deceit or false representation to defraud and the damage caused thereby must be proved. And no demand is necessary. This does not mean, however, that presentation of proof of deceit in a prosecution for estafa under paragraph 1(b) is not allowed. Abuse of confidence and deceit may co-exist. Even if deceit may be present, the abuse of confidence win characterize the estafa as the deceit will be merely incidental or is absorbed by abuse of confidence. Thus, the questioned testimony eliciting the fact that accused respondent falsely represented to the complainant-petitioner that the amount of P127.58 out of the total of P1,632.97 belonged to Cesar Dalangin may not be said to be at variance with the allegations of the Information. The presence of deceit would not change the whole theory of the prosecution that estafa with abuse of confidence was committed. The municipal court therefore properly denied the motion to strike out the testimonies anent use of false representations. WHEREFORE, the decision of the CFI ordering the testimonies to be stricken from the record is hereby REVERSED and SET ASIDE.

[G.R. No. 139622. July 31, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO PERRERAS @ PEPOT and BOY FERNANDEZ (at large), accused, PEDRO PERRERAS @ PEPOT, accused-appellant. DOCTRINE: The Rules now require that every complaint or information state not only the qualifying but also the aggravating circumstances, otherwise the same cannot be properly appreciated. FACTS: Perreras alias "PEPOT" was found guilty by the court a quo of murder for the killing of one Estanislao Salo . (Accused fired at Estanislao, hitting him on the head). On appeal is the decision of the trial court convicting accusedappellant Pedro Perreras of the crime of murder and sentencing him to suffer the penalty of death. In his appeal before the Court, appellant maintained that the lower court committed a grievous error in lending weight to the testimony of prosecution witness Leonardo Salazar. He pointed out supposed "inconsistencies" in Salazar's testimony in an attempt to impugn his credibility. First, the ocular inspection of the area which revealed that the victim's house was east of the shed was inconsistent with Salazar's testimony that he was facing west when the incident transpired. Second, the location of the electric post which illuminated the vicinity was not twenty (20) meters in front of the house, as Salazar claimed, but on its southern direction 100 meters away. Third, it was impossible for him to have asked directions to the house of Manoling Pastoral because he personally knew Pastoral as well as the location of his house. ISSUE: WoN the court erred in sentencing the accused to suffer the penalty of death. HELD: NO. The Supreme Court affirmed the decision of the trial court convicting appellant of murder. The Court, however, reduced the penalty of death imposed by the trial court to reclusion perpetua. According to the Court, the death penalty cannot be imposed on accused-appellant in light of the Court's recent rulings in People v. Arrojado and People v. Gano where 8 and 9 of The Revised Rules on Criminal Procedure were given retroactive application favorable to the accused. The Rules now require that every complaint or information shall state not only the qualifying but also the aggravating circumstances, otherwise the same cannot be properly appreciated. Since dwelling was not alleged in the information, it cannot be considered to raise the penalty to death. The Court considered the alleged discrepancy as to the distance between the electric post and the victim's house a minor inconsistency that cannot affect the credibility of the witness' testimony. The Court also gave weight and credence to the facts obtained by the trial court when it conducted an ocular inspection, which settled all doubts regarding the relative positions of the houses, electric lights, basketball court, etc. Said findings are entitled to great weight because no amount of textual description, recitation of measurements, and diagrams could even approximate the actual subjection of the crime scene to the trial judge's acute senses. WHEREFORE, the Decision of the Regional Trial Court in Crim. Case No. 98-02303-D finding accused-appellant PEDRO PERRERAS alias "Pepot" guilty of murder, imposing on him the death penalty and ordering him to pay the heirs of ESTANISLAO SALO P75,000.00 as civil indemnity, P91,803.59 in actual and compensatory damages, P1,728,000.00 in lost

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earnings, and P100,000.00 in moral damages is MODIFIED. Accusedappellant PEDRO PERRERAS is found guilty of murder and sentenced instead to reclusion perpetua and to pay the heirs of ESTANISLAO SALO P50,000.00 as civil indemnity, P61,813.15 as actual damages, P1,080,000.00 in lost earnings and P50,000.00 as moral damages. No costs. PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. MARTIN ALAGAO, et al., defendants-appellees. FACTS: The City Fiscal of Manila filed information against the defendantsappellees charging them of having committed the COMPLEX CRIME OF INCRIMINATORY MACHINATIONS through unlawful arrest. The defendants moved to quash the information alleging among others that the information charges more than one offense . That there would either be only the singular crimes of incriminatory machinations or unlawful arrest, or perhaps two crimes, incriminatory machinations and unlawful arrest. If such then, the Court would not have any jurisdiction over any crime or crimes charged. The City Fiscal opposed the motion to quash, contending that "A perusal of the information will readily conclude that it is a complex crime in the sense that unlawful arrest was used as a means for incriminatory machination." CFI sustained the motion to quash. There is no complex crime involved. The alleged unlawful arrest committed by the defendants cannot be said to have been used as a necessary means to commit the crime of incriminatory machination. The lower court discarded the theory of the prosecution that the offense of unlawful arrest was a necessary means to commit the crime of incriminatory machinations, because of the allegation in the information that the accused had first unlawfully arrested the offended party Marcial Apolonio y Santos and after the arrest he was investigated and it was during the investigation that the accused had commingled the marked P1.00 bill among the paper bills that were taken from the possession of the said offended party. MR denied ISSUE: Whether the information filed in the court below alleges the complex crime of "incriminatory machinations through unlawful arrest. YES HELD: It is the GENERAL RULE that in resolving the motion to quash a criminal complaint or information the facts alleged in the complaint or information should be taken as they are . The EXCEPTIONS to this general rule are those cases where the Rules of Court expressly permit the investigation of facts alleged in the motion to quash . The grounds, or facts, relied upon in the motion, to quash in the present case, are not included in the exceptions we have adverted to. It is very apparent that by the use of the phrase "through unlawful arrest" in the information an idea is conveyed that the unlawful arrest was resorted to as a necessary means to plant evidence in the person of the offended party, thereby incriminating him. From a reading of the information we find a close connection between the act of the accused in first unlawfully arresting the offended party and then investigating him; and it was during that investigation that they planted incriminatory evidence against him. In declaring that the information did not allege a complex crime the trial court expressed the view that the alleged planting of evidence took place while the victim was already under investigation, "long after the consummation of the alleged unlawful arrest." This observation of the trial court does not find support in the allegations contained in the information in question. The statement in the information that the offended party was investigated "after" the unlawful arrest does not necessarily convey the idea that the investigation took place "long after" the arrest had been effected. It should be a matter of evidence first, before any conclusion is arrived at: that the investigation, during which the incriminating evidence was planted, had taken place immediately after the arrest or long after the arrest. The allegation in the information that the accused committed the complex crime of incriminatory machinations thru unlawful arrest, and also the allegation that the act of planting the incriminatory evidence took place during the supposed investigation after the unlawful arrest, are basis for the logical assumption, in the absence of evidence, that the two acts imputed to the accused that of unlawfully arresting and that of planting incriminatory evidence had closely followed each other, and that the former was a necessary means to commit the latter. For a criminal complaint or information to charge the commission of a complex crime, the allegations contained therein do not necessarily have to charge a complex crime as defined by law. It is sufficient that the information contains allegations which show that one offense was a necessary means to commit the other. The court a quo committed error when it ordered its dismissal. We likewise hold that the court a quo has jurisdiction to try the accused of the offense charged in the information. DATE OF COMMISSION G.R. No. L-62737 June 29, 1983 THE PEOPLE OF THE PHILIPPINES and CELSO M. GIMENEZ, Acting City Fiscal of Mandaue City, petitioners, vs. JOAQUIN BORROMEO and HONORABLE TEMISTOCLES BOHOLST, JR., City Judge of Mandaue City, respondents. FACTS: Petitioners seek to set aside the order of respondent Judge denying the verbal motion of the City Fiscal of Mandaue City to amend the information for grave coercion against private respondent Joaquin Borromeo by changing the date of the commission of the crime from "on or about the 24th day of June, 1981 " to "on or about August 28, 1981, " after the accused had been arraigned and entered a plea of not guilty and during the testimony of the complainant, as well as the order denying the motion for reconsideration of the aforesaid order. The original information for grave coercion alleges that "the crime was committed on or about the 24th day of June, 1981." The first amended information was admitted in an order dated March 24, 1982. After the accused pleaded not guilty, at the trial on or about June 30, 1982 and during the testimony of the complainant who testified that the crime of grave coercion was committed on or about August 28, 1981, the prosecution orally moved to further amend the amended information by changing the date of the commission of the offense from June 24, 1981 to August 28, 1981. The respondent Judge denied the verbal motion to amend on the ground that the proposed amendment would impair the substantial rights of the accused as guaranteed by the Constitution. The MR was likewise denied in an order dated July 28, 1982.

ISSUE: Whether or not the amendments of the said date would be prejudicial to the accused? NO RULING: SGS COMMENT: The change of the date of the commission of the crime from June 24, 1981 to August 28, 1981 is more formal than substantial and would not prejudice the rights of the accused, as the said proposed amendment would not alter the nature of the offense of grave coercion The Court ruled in the case of Vega vs. Panis, that an amendment which neither adversely affects any substantial right of the accused (e.g. does not deprive him of the right to invoke prescription nor affects and/or alters

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the nature of the offense originally charged nor involves a change in the basic theory of the prosecution so as to require the accused to undergo any material change or modification in his defense) is an amendment as to matter of form. The TEST as to whether a defendant is prejudiced by the amendment of an information has been said to be whether a DEFENSE under the information, as it originally stood would be available after the amendment is made, and whether any EVIDENCE defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information introduced after the accused has pleaded not guilty thereto, which does not expose the accused to a charge which could call for a higher penalty, does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance-not prejudicial to the accused and therefore, is not prohibited by 13, Rule 110. 10 of Rule 110 states that "it is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which date the offense was committed as the information or complaint will permit." The precise time is NOT an essential ingredient of the offense of grave coercion. In the case at bar, the difference is only two months and five days, which disparity allows approximation as to the date of the commission of the offense of grave coercion. The amendment of the information is merely a matter of form and will not prejudice the rights of the accused. Moreover, as stressed by the Solicitor General, the error as to the date of the commission of the offense was discovered early and the motion to amend or correct the same was as immediate as to preclude any surprise or prejudice on the part of the accused. WHEREFORE, THE PETITION IS HEREBY GRANTED, THE ORDERS OF RESPONDENT JUDGE DATED JUNE 30,1982 AND JULY 28,1982 ARE HEREBY SET ASIDE, AND THE RESPONDENT JUDGE IS HEREBY DIRECTED TO ADMIT THE ADDITIONAL AMENDMENT TO THE AMENDED INFORMATION FROM "JUNE 24,1981 TO AUGUST 28,1981. " NO COSTS.