G.R. No.

169588 October 7, 2013

JADEWELL PARKING SYSTEMS CORPORATION represented by its manager and authorized representative Norma Tan, Petitioner,
vs.
HON. JUDGE NELSON F. LIDUA SR., Presiding Judge of The Municipal Trial Court Branch 3, Baguio City, BENEDICTO BALAJADIA, EDWIN ANG,
"JOHN DOES" and "PETER DOES" Respondents.
DECISION
LEONEN, J.:
We are asked to rule on this Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the assailed Decision of
Branch 7 of the Regional Trial Court of Baguio City and Order dated August 15, 2005 be reversed and that Criminal Case Nos. 112934 and
112935 be ordered reinstated and prosecuted before the Municipal Trial Court of Baguio City.
Petitioner Jadewell Parking Systems Corporation is a private parking operator duly authorized to operate and manage the parking spaces
in Baguio City pursuant to City Ordinance 003-2000. It is also authorized under Section 13 of the City Ordinance to render any motor vehicle
immobile by placing its wheels in a clamp if the vehicle is illegally parked.1
According to the Resolution of the Office of the Provincial Prosecutor, San Fernando City, La Union, the facts leading to the filing of the
Informations are the following:
Jadewell Parking Systems Corporation (Jadewell), thru [sic] its General Manager Norma Tan and Jadewell personnel Januario S. Ulpindo
and Renato B. Dulay alleged in their affidavit-complaint that on May 17, 2003, the respondents in I.S No. 2003-1996 Edwin Ang, Benedicto
Balajadia and John Doe dismantled, took and carried away the clamp attached to the left front wheel of a Mitsubishi Adventure with Plate
No. WRK 624 owned by Edwin Ang. Accordingly, the car was then illegally parked and left unattended at a Loading and Unloading Zone.
The value of the clamp belonging to Jadewell which was allegedly forcibly removed with a piece of metal is P26,250.00. The fines
of P500.00 for illegal parking and the declamping fee of P500.00 were also not paid by the respondents herein.
In I.S. No., 2003-1997, Jadewell thru [sic] its General Manager Norina C. Tan, Renato B. Dulay and Ringo Sacliwan alleged in their affidavit-
complaint that on May 7, 2003, along Upper Mabini Street, Baguio City, herein respondents Benedicto Balajadia, Jeffrey Walan and two (2)
John Does forcibly removed the clamp on the wheel of a Nissan Cefiro car with Plate No. UTD 933, belonging to Jeffrey Walan which was
then considered illegally parked for failure to pay the prescribed parking fee. Such car was earlier rendered immobile by such clamp by
Jadewell personnel. After forcibly removing the clamp, respondents took and carried it away depriving its owner, Jadewell, its use and
value which is P26,250.00. According to complainants, the fine of P500.00 and the declamping fee of P500.00 were not paid by the
respondents.2
The incident resulted in two cases filed by petitioner and respondents against each other. Petitioner Jadewell filed two cases against
respondents: Robbery under I.S. Nos. 2003-1996 and 2003-1997. Petitioner filed an Affidavit-Complaint against respondents Benedicto
Balajadia, Jeffrey Walan, and three (3) John Does, one of whom was eventually identified as respondent Ramon Ang. The Affidavit-
Complaint was filed with the Office of the City Prosecutor of Baguio City on May 23, 2003.3 A preliminary investigation took place on May
28, 2003. Respondent Benedicto Balajadia likewise filed a case charging Jadewell president, Rogelio Tan, and four (4) of Jadewell's
employees with Usurpation of Authority/Grave Coercion in I.S. No. 2003-1935.
In his Counter-affidavit for the two cases he filed for himself and on behalf of his co-respondents, respondent Benedicto Balajadia denied
that his car was parked illegally. He admitted that he removed the clamp restricting the wheel of his car since he alleged that the placing
of a clamp on the wheel of the vehicle was an illegal act. He alleged further that he removed the clamp not to steal it but to remove the
vehicle from its clamp so that he and his family could continue using the car. He also confirmed that he had the clamp with him, and he
intended to use it as a piece of evidence to support the Complaint he filed against Jadewell.4
In the Resolution5 of the Office of the Provincial Prosecutor of San Fernando City, La Union, Acting City Prosecutor Mario Anacleto Banez
found probable cause to file a case of Usurpation of Authority against the petitioner. Regarding the case of Robbery against respondents,
Prosecutor Banez stated that:
We find no probable cause to charge respondents in these two (2) cases for the felony of Robbery. The elements of Robbery, specifically
the intent to gain and force upon things are absent in the instant cases, thereby negating the existence of the crime.
xxxx
We, however, respectfully submit that the acts of respondents in removing the wheel clamps on the wheels of the cars involved in these
cases and their failure to pay the prescribed fees were in violation of Sec. 21 of Baguio City Ordinance No. 003-2000 which prescribes fines
and penalties for violations of the provisions of such ordinance. Certainly, they should not have put the law into their own hands. (Emphasis
supplied)
WHEREFORE, premises considered, there is probable cause against all the respondents, except Jeffrey Walan or Joseph Walan (who has
been dragged into this controversy only by virtue of the fact that he was still the registered owner of the Nissan Cefiro car) for violation of
Section 21 of City Ord. No. 003-2000 in both cases and we hereby file the corresponding informations against them in Court.6
Prosecutor Banez issued this Resolution on July 25, 2003.
On October 2, 2003, two criminal Informations were filed with the Municipal Trial Court of Baguio City dated July 25, 2003, stating:
That on May 17, 2003 at Baguio City and within the jurisdiction of this Honorable Court, the above-named accused with unity of action and
concerted design, did then and there, with unity of action and concerted design, willfully, unlawfully and feloniously forcibly dismantled
[sic] and took [sic] an immobilizing clamp then attached to the left front wheel of a Mitsubishi Adventure vehicle with Plate No. WRK 624
belonging to Edwin Ang which was earlier rendered immobilized by such clamp by Jadewell Personnel's for violation of the Baguio City
ordinance No. 003-2600 to the damage and prejudice of private complainant Jadewell Parking System Corporation (Jadewell) which owns
such clamp worth P26,250.00 and other consequential damages.
CONTRARY TO LAW,
San Fernando City, La Union for Baguio City, this 25th day of July 2003.7
The cases were docketed as Criminal Case Nos. 112934 and 112935 with the Municipal Trial Court of Baguio City, Branch 3. Respondent
Benedicto Balajadia and the other accused through their counsel Paterno Aquino filed a January 20, 2004 Motion to Quash and/or
Manifestation8 on February 2, 2004. The Motion to Quash and/or Manifestation sought the quashal of the two Informations on the following
grounds: extinguishment of criminal action or liability due to prescription; failure of the Information to state facts that charged an offense;
and the imposition of charges on respondents with more than one offense.
In their Motion to Quash, respondents argued that:
1. The accused in this case are charged with violation of Baguio City Ordinance No. 003-2000.
2. Article 89 of the Revised Penal [sic] provides that criminal liability is totally extinguished by prescription of the crime.
3. Act No. 3326, as amended by Act No. 3763, provides: "Section 1. x x x Violations penalized by municipal ordinances shall
prescribed [sic] after two months."
 4. As alleged in the Information, the offense charged in this case was committed on May 7, 2003. 5. As can be seen from the right
hand corner of the Information, the latter was filed with this Honorable Court on October 2, 2003, almost five (5) months after the
alleged commission of the offense charged. Hence, criminal liability of the accused in this case, if any, was already extinguished
by prescription when the Information was filed.9
In an Order10 dated February 10, 2004, respondent Judge Nelson F. Lidua, Sr., Presiding Judge of the Municipal Trial Court of Baguio City,
Branch 3, granted the accused's Motion to Quash and dismissed the cases.
Petitioner filed a Motion for Reconsideration on February 27, 2004 responding to the February 10, 2004 Order 11to argue among other points
that:
6.b. For another, the offenses charged have not yet prescribed. Under the law, the period of prescription of offenses shall be interrupted by
the filing of the complaint or information. While it may be true that the Informations in these cases have been filed only on October 2, 2003,
the private complainant has, however, filed its criminal complaint on May 23, 2003, well within the prescribed period. 12
Respondents filed their Opposition13 on March 24, 2004, and petitioner filed a Reply14 on April 1, 2004.
The respondent judge released a Resolution15 dated April 16, 2004 upholding the Order granting respondents' Motion to Quash. The
Resolution held that:
For the guidance of the parties, the Court will make an extended resolution on one of the ground [sic] for the motion to quash, which is that
the criminal action has been extinguished on grounds of prescription.
These offenses are covered by the Rules on Summary Procedure being alleged violations of City Ordinances.
Under Section 9 of the Rule [sic] on Summary Procedure, the running of the prescriptive period shall be halted on the date the case is filed
in Court and not on any date before that (Zaldivia vs. Reyes, Jr. G.R. No. 102342, July 3, 1992, En Banc).
In case of conflict, the Rule on Summary Procedure as the special law prevails over Sec. 1 of Rule 110 of the Rules on Criminal Procedure
and also Rule 110 of the Rules of Criminal Procedure must yield to Act No. 3326 or "AN ACT TO ESTABLISH PERIODS OF PRESCRIPTION FOR
VIOLATIONS PENALIZED BY SPECIAL ACTS AND MUNICIPAL ORDINANCES AND TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN TO RUN" (Ibid).
Petitioner then filed a Petition16 for Certiorari under Rule 65 with the Regional Trial Court of Baguio City. The case was raffled to Branch 7 of
the Regional Trial Court of Baguio City. Petitioners contended that the respondent judge committed grave abuse of discretion amounting
to lack or excess of jurisdiction in dismissing Criminal Case Nos. 112934 and 112935 on the ground of prescription. Petitioners argued that the
respondent judge ruled erroneously saying that the prescriptive period for the offenses charged against the private respondents was halted
by the filing of the Complaint/Information in court and not when the Affidavit-Complaints were filed with the Office of the City Prosecutor of
Baguio City. Petitioner cited Section 1 of Rule 110 of the Rules on Criminal Procedure:
x x x "criminal actions shall be instituted x x x in x x x other chartered cities, the complaint shall be filed with the office of the prosecutor
unless otherwise provided in their charter" and the last paragraph thereof states that "the institution of the criminal action shall interrupt the
running of the period of prescription of the offense charged unless otherwise provided in special laws."17
Petitioner contended further that:
the filing of the criminal complaint with the Office of the City Prosecutor of Baguio City, not the filing of the criminal information before this
Honorable Court, is the reckoning point in determining whether or not the criminal action in these cases had prescribed.
xxxx
The offenses charged in Criminal Case Nos. 112934 and 112935 are covered by the Revised Rules on Summary Procedure, not by the old
Rules on Summary Procedure. Considering that the offenses charged are for violations of a City Ordinance, the criminal cases can only be
commenced by informations. Thus, it was only legally and procedurally proper for the petitioner to file its complaint with the Office of the
City Prosecutor of Baguio City as required by Section 11 of the new Rules on Summary Procedure, these criminal cases "shall be
commenced only by information." These criminal cases cannot be commenced in any other way.
Moreover, the ruling of the Supreme Court in Zaldivia vs. Reyes cited in the assailed Resolution does not apply in this case. The offense
charged in Zaldivia is a violation of municipal ordinance in which case, the complaint should have been filed directly in court as required
by Section 9 of the old Rules on Summary Procedure. On the other hand, Criminal Case Nos. 112934 and 112935 are for violations of a city
ordinance and as aforestated, "shall be commenced only by information."18
Thus, petitioner contended that the filing of the criminal complaint with the Office of the City Prosecutor stopped the running of the two-
month prescriptive period. Hence, the offenses charged have not prescribed.
In their Comment,19 respondents maintained that the respondent judge did not gravely abuse his discretion. They held that Section 2 of Act
No. 3326, as amended, provides that:
Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time,
from the discovery thereof and the institution of judicial proceeding for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.20 (Emphasis supplied)
Respondents argued that Zaldivia v. Reyes21 held that the proceedings mentioned in Section 2 of Act No. 3326, as amended, refer to
judicial proceedings . Thus, this Court, in Zaldivia, held that the filing of the Complaint with the Office of the Provincial Prosecutor was not a
judicial proceeding. The prescriptive period commenced from the alleged date of the commission of the crime on May 7, 2003 and ended
two months after on July 7, 2003. Since the Informations were filed with the Municipal Trial Court on October 2, 2003, the respondent judge
did not abuse its discretion in dismissing Criminal Case Nos. 112934 and 112935.
In a Decision dated April 20, 2005, the Regional Trial Court of Baguio City Branch 7, through Judge Clarence F. Villanueva, dismissed the
Petition for Certiorari. The Regional Trial Court held that, since cases of city ordinance violations may only be commenced by the filing of an
Information, then the two-month prescription period may only be interrupted by the filing of Informations (for violation of City Ordinance
003-2000) against the respondents in court. The Regional Trial Court of Baguio City, Branch 7, ruled in favor of the respondents and upheld
the respondent judges Order dated February 10, 2004 and the Resolution dated April 16, 2004.
Petitioners then filed a May 17, 2005 Motion for Reconsideration which was denied by the Regional Trial Court in an August 15, 2005 Order.
Hence, this Petition.
The principal question in this case is whether the filing of the Complaint with the Office of the City Prosecutor on May 23, 2003 tolled the
prescription period of the commission of the offense charged against respondents Balajadia, Ang, "John Does," and "Peter Does."
Petitioner contends that the prescription period of the offense in Act No. 3326, as amended by Act No. 3763, does not apply because
respondents were charged with the violation of a city ordinance and not a municipal ordinance. In any case, assuming arguendo that the
prescriptive period is indeed two months, filing a Complaint with the Office of the City Prosecutor tolled the prescription period of two
months. This is because Rule 110 of the Rules of Court provides that, in Manila and in other chartered cities, the Complaint shall be filed with
the Office of the Prosecutor unless otherwise provided in their charters.
In their Comment,22 respondents maintain that respondent Judge Lidua did not err in dismissing the cases based on prescription. Also,
respondents raise that the other grounds for dismissal they raised in their Motion to Quash, namely, that the facts charged constituted no
offense and that respondents were charged with more than one offense, were sustained by the Metropolitan Trial Court. Also, respondents
argue that petitioner had no legal personality to assail the Orders, since Jadewell was not assailing the civil liability of the case but the
assailed Order and Resolution. This was contrary to the ruling in People v. Judge Santiago23 which held that the private complainant may
only appeal the civil aspect of the criminal offense and not the crime itself.
In the Reply,24 petitioner argues that the respondent judge only dismissed the case on the ground of prescription, since the Resolution
dated April 16, 2004 only cited that ground. The Order dated February 10, 2004 merely stated but did not specify the grounds on which the
cases were dismissed. Petitioner also maintains that the proceedings contemplated in Section 2 of Act No. 3326 must include the
preliminary investigation proceedings before the National Prosecution Service in light of the Rules on Criminal Procedure 25 and Revised
Rules on Summary Procedure.
Lastly, petitioner maintains that it did have legal personality, since in a Petition for Certiorari, "persons aggrieved x x x may file a verified
petition"26 before the court.
The Petition is denied.
The resolution of this case requires an examination of both the substantive law and the procedural rules governing the prosecution of the
offense. With regard to the prescription period, Act No. 3326, as amended, is the only statute that provides for any prescriptive period for
the violation of special laws and municipal ordinances. No other special law provides any other prescriptive period, and the law does not
provide any other distinction. Petitioner may not argue that Act No. 3326 as amended does not apply.
In Romualdez v. Hon. Marcelo,27 this Court defined the parameters of prescription:
In resolving the issue of prescription of the offense charged, the following should be considered: (1) the period of prescription for the
offense charged; (2) the time the period of prescription starts to run; and (3) the time the prescriptive period was interrupted.28 (Citation
omitted)
With regard to the period of prescription, it is now without question that it is two months for the offense charged under City Ordinance 003-
2000.
The commencement of the prescription period is also governed by statute. Article 91 of the Revised Penal Code reads:
Art. 91. Computation of prescription of offenses. The period of prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and
shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.
The offense was committed on May 7, 2003 and was discovered by the attendants of the petitioner on the same day. These actions
effectively commenced the running of the prescription period.
The procedural rules that govern this case are the 1991 Revised Rules on Summary Procedure.
SECTION 1. Scope This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction:
xxxx
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances (Emphasis supplied)
Section 11 of the Rules provides that:
Sec. 11. How commenced. The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information:
Provided, however, that in Metropolitan Manila and in Chartered Cities, such cases shall be commenced only by information, except when
the offense cannot be prosecuted de officio.
The Local Government Code provides for the classification of cities. Section 451 reads:
SEC. 451. Cities, Classified. A city may either be component or highly urbanized: Provided, however, that the criteria established in this
Code shall not affect the classification and corporate status of existing cities. Independent component cities are those component cities
whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the
province.
Cities in the Philippines that were created by law can either be highly urbanized cities or component cities. An independent component
city has a charter that proscribes its voters from voting for provincial elective officials. It stands that all cities as defined by Congress are
chartered cities. In cases as early as United States v. Pascual Pacis,29 this Court recognized the validity of the Baguio Incorporation Act or
Act No. 1963 of 1909, otherwise known as the charter of Baguio City.
As provided in the Revised Rules on Summary Procedure, only the filing of an Information tolls the prescriptive period where the crime
charged is involved in an ordinance. The respondent judge was correct when he applied the rule in Zaldivia v. Reyes.
In Zaldivia v. Reyes, the violation of a municipal ordinance in Rodriguez, Rizal also featured similar facts and issues with the present case. In
that case, the offense was committed on May 11, 1990. The Complaint was received on May 30, 1990, and the Information was filed with
the Metropolitan Trial Court of Rodriguez on October 2, 1990. This Court ruled that:
As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of municipal or city ordinances, it
should follow that the charge against the petitioner, which is for violation of a municipal ordinance of Rodriguez, is governed by that rule
and not Section 1 of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit
Trial Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting in such courts:
(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months, or a fine of not
more than four thousand pesos, or both such fine and imprisonment, regardless of other imposable accessory or other penalties, including
the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof; Provided, however,
That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the
imposable fine does not exceed twenty thousand pesos.
These offenses are not covered by the Rules on Summary Procedure.
Under Section 9 of the Rules on Summary Procedure, "the complaint or information shall be filed directly in court without need of a prior
preliminary examination or preliminary investigation." Both parties agree that this provision does not prevent the prosecutor from
conducting a preliminary investigation if he wants to. However, the case shall be deemed commenced only when it is filed in court,
whether or not the prosecution decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall
be halted on the date the case is actually filed in court and not on any date before that.
This interpretation is in consonance with the afore-quoted Act No. 3326 which says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings referred to in Section 2 thereof are "judicial proceedings," contrary to
the submission of the Solicitor General that they include administrative proceedings. His contention is that we must not distinguish as the law
does not distinguish. As a matter of fact, it does.
At any rate, the Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on
Criminal Procedure, the former should prevail as the special law. And if there be a conflict between Act No. 3326 and Rule 110 of the Rules
on Criminal Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not allowed to "diminish,
increase or modify substantive rights" under Article VIII, Section 5(5) of the Constitution. Prescription in criminal cases is a substantive right.30
Jurisprudence exists showing that when the Complaint is filed with the Office of the Prosecutor who then files the Information in court, this
already has the effect of tolling the prescription period. The recent People v. Pangilinan 31categorically stated that Zaldivia v. Reyes is not
controlling as far as special laws are concerned. Pangilinan referred to other cases that upheld this principle as well. However, the doctrine
of Pangilinan pertains to violations of special laws but not to ordinances.
There is no distinction between the filing of the Information contemplated in the Rules of Criminal Procedure and in the Rules of Summary
Procedure. When the representatives of the petitioner filed the Complaint before the Provincial Prosecutor of Baguio, the prescription
period was running. It continued to run until the filing of the Information. They had two months to file the Information and institute the
judicial proceedings by filing the Information with the Municipal Trial Court. The conduct of the preliminary investigation, the original charge
of Robbery, and the subsequent finding of the violation of the ordinance did not alter the period within which to file the Information.
Respondents were correct in arguing that the petitioner only had two months from the discovery and commission of the offense before it
prescribed within which to file the Information with the Municipal Trial Court.
Unfortunately, when the Office of the Prosecutor filed the Informations on October 5, 2003, the period had already prescribed. Thus,
respondent Judge Nestor Lidua, Sr. did not err when he ordered the dismissal of the case against respondents. According to the
Department of Justice National Prosecutors Service Manual for Prosecutors, an Information is defined under Part I, Section 5 as:
SEC. 5. Information. - An information is the accusation in writing charging a person with an offense, subscribed by the prosecutor, and filed
with the court. The information need not be placed under oath by the prosecutor signing the same.
The prosecutor must, however, certify under oath that
a) he has examined the complainant and his witnesses;
b) there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof;
c) the accused was informed of the complaint and of the evidence submitted against him; and
d) the accused was given an opportunity to submit controverting evidence.
As for the place of the filing of the Information, the Manual also provides that:
SEC. 12. Place of the commission of offense. - The complaint or information is sufficient if it states that the crime charged was committed or
some of the ingredients thereof occurred at some place within the jurisdiction of the court, unless the particular place in which the crime
was committed is an essential element of the crime, e.g. in a prosecution for violation of the provision of the Election Code which punishes
the carrying of a deadly weapon in a "polling place," or if it is necessary to identify the offense charged, e.g., the domicile in the offense of
"violation of domicile."
Finally, as for the prescription period, the Manual provides that:
SEC. 20. How Period of Prescription Computed and Interrupted. - For an offense penalized under the Revised Penal Code, the period of
prescription commences to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and
shall be interrupted:
a) by the filing of the complaint with the Office of the City/Provincial Prosecutor; or with the Office of the Ombudsman; or
b) by the filing of the complaint or information with the court even if it is merely for purposes of preliminary examination or
investigation, or even if the court where the complaint or information is filed cannot try the case on its merits.
However, for an offense covered by the Rules on Summary Procedure, the period of prescription is interrupted only by the filing of the
complaint or information in court.
xxxx
For violation of a special law or ordinance, the period of prescription shall commence to run from the day of the commission of the
violation, and if the same is not known at the time, from the discovery and the institution of judicial proceedings for its investigation and
punishment. The prescription shall be interrupted only by the filing of the complaint or information in court and shall begin to run again if the
proceedings are dismissed for reasons not constituting double jeopardy. (Emphasis supplied).1wphi1
Presidential Decree No. 127532 reorganized the Department of Justices Prosecution Staff and established Regional State Prosecution
Offices. These Regional State Prosecution Offices were assigned centers for particular regions where the Informations will be filed. Section 6
provides that the area of responsibility of the Region 1 Center located in San Fernando, La Union includes Abra, Benguet, Ilocos Norte,
Ilocos Sur, La Union, Mt. Province, Pangasinan, and the cities of Baguio, Dagupan, Laoag, and San Carlos.
The Regional Prosecutor for Region 1 or his/her duly assigned prosecutor was designated to file the Information within the two-month period
provided for in Act No. 3326, as amended.1wphi1
The failure of the prosecutor to seasonably file the Information is unfortunate as it resulted in the dismissal of the case against the private
respondents. It stands that the doctrine of Zaldivia is applicable to ordinances and their prescription period. It also upholds the necessity of
filing the Information in court in order to toll the period. Zaldivia also has this to say concerning the effects of its ruling:
The Court realizes that under the above interpretation, a crime may prescribe even if the complaint is filed seasonably with the prosecutor's
office if, intentionally or not, he delays the institution of the necessary judicial proceedings until it is too late. However, that possibility should
not justify a misreading of the applicable rules beyond their obvious intent as reasonably deduced from their plain language.
The remedy is not a distortion of the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected.33
WHEREFORE the Petition is DENIED.
SO ORDERED.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
WE CONCUR:
__________________--
JOVENDO DEL CASTILLO, petitioner, vs. HON. ROSARIO TORRECAMPO, Presiding Judge, RTC of Camarines Sur, Branch 33 and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
CORONA, J.:
The instant petition is one for the review, by way of appeal by certiorari, of the Decision [1] of the Court of Appeals dated November
20, 1998, and of the Resolution dated June 14, 1999 denying the motion for reconsideration thereof.
 Petitioner was charged on March 8, 1983 with violation of Section 178 (nn)[2] of the 1978 Election Code in Criminal Case No. F-1447
before Branch 33, Regional Trial Court, Camarines Sur. The Information alleged:
That on May 17, 1982, (Barangay Election Day), at around 8:15 P.M. in Barangay Ombao, Municipality of Bula, Province of Camarines Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did, then and there unlawfully conducted
himself in a disorderly manner, by striking the electric bulb and two (2) kerosene petromax lamps lighting the room where voting center no.
24 is located, during the counting of the votes in said voting center plunging the room in complete darkness, thereby interrupting and
disrupting the proceedings of the Board of Election Tellers.[3]
On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued.
On January 14, 1985, the trial court rendered judgment and declared petitioner guilty beyond reasonable doubt of violating Section
178 (nn) of PD 1296, otherwise known as the 1978 Election Code, as amended, and sentenced petitioner to suffer the indeterminate
penalty of imprisonment of 1 year as minimum to 3 years as maximum.
Aggrieved, petitioner appealed his conviction to the Court of Appeals which eventually affirmed the decision of the trial court in
toto. Said decision became final and executory. Thus, the execution of judgment was scheduled on October 14, 1987.
On October 12, 1987, an urgent motion to reset the execution of judgment was submitted by petitioner through his counsel. But it was
denied for lack of merit.
During the execution of judgment, petitioner failed to appear which prompted the presiding judge to issue an order of arrest of
petitioner and the confiscation of his bond. However, petitioner was never apprehended. He remained at large.
Ten years later, on October 24, 1997, petitioner filed before the trial court a motion to quash the warrant issued for his arrest on the
ground of prescription of the penalty imposed upon him. However, it was denied. His motion for reconsideration thereof was likewise
denied.
Dissatisfied, petitioner filed with the Court of Appeals a Petition for Certiorari assailing the orders of the trial court denying both his
motion to quash the warrant of arrest and motion for reconsideration.
On November 20, 1998, the Court of Appeals rendered its now assailed decision dismissing the petition for lack of merit.
Following the denial of his motion for reconsideration, the instant petition was filed before us.
Petitioner asserts that the Court of Appeals gravely erred in holding that the penalty imposed upon petitioner has not
prescribed. Petitioner maintains that Article 93 of the Revised Penal Code provides that the period of prescription shall commence to run
from the date when the culprit should evade the service of his sentence. The Court of Appeals, in its interpretation of the said provision,
engaged in judicial legislation when it added the phrase by escaping during the term of the sentence thereto, so petitioner claims.
Going over the merits of the petition, the Court finds that the Court of Appeals did not err in dismissing the petition for certiorari.
The threshold issue in the instant case is the interpretation of Article 93 of the Revised Penal Code in relation to Article 157 of the same
Code.
In dismissing the petition, the Court of Appeals ruled:
Article 92 of the Revised Penal Code provides as follows:
When and how penalties prescribe The penalties imposed by the final sentence prescribed as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in five years;
4. Light penalties, in one year.
And Article 93 of the Revised Penal Code, provides as follows:
Computation of the prescription of penalties The period of prescription of penalties shall commence to run from the date when the culprit
should evade the service of his sentence, and it shall be interrupted if the defendant should give himself up, be captured, should go to
some foreign country with which his Government has no extradition treaty, or should commit another crime before the expiration of the
period of prescription.
The penalty imposed upon the petitioner is one (1) year of imprisonment as minimum to three (3) years of imprisonment as maximum.
The law under which the petitioner was convicted is a special law, the 1978 Election Code. This law does not provide for the prescription of
penalties. This being the case, We have to apply the provision of the Revised Penal Code which allows the application of said code in
suppletory character when it provides that:
Offenses which are or in the future may be punishable under special laws are not subject to the provision of this code. This code shall be
supplementary to such laws, unless the latter should specially provide the contrary.
The penalty imposed upon the petitioner is a correctional penalty under Article 25 in relation to Article 27 of the Revised Penal Code. Being
a correctional penalty it prescribed in ten (10) years.
The petitioner was convicted by a final judgment on June 14, 1986. Such judgment would have been executed on October 14, 1986 but
the accused did not appear for such proceeding. And he has never been apprehended.
The contention of the petitioner is that said judgment prescribed on October 24, 1996.
The issue here is whether or not the penalty imposed upon the petitioner has prescribed.
The elements in order that the penalty imposed has prescribed are as follows:
1. That the penalty is imposed by final sentence.
2. That the convict evaded the service of the sentence by escaping during the term of his sentence.
3. That the convict who escaped from prison has not given himself up, or been captured, or gone to a foreign country with
which we have no extradition treaty or committed another crime.
4. That the penalty has prescribed, because of the lapse of time form the date of the evasion of the service of the sentence by
the convict.
(p. 93, Revised Penal Code by L. Reyes 93 ed.)
From the foregoing elements, it is clear that the penalty imposed has not prescribed because the circumstances of the case at bench
failed to satisfy the second element, to wit That the convict evaded the service of the sentence by escaping during the service of his
sentence. As a matter of fact, the petitioner never served a single minute of his sentence.
The foregoing conclusion of the Court of Appeals is consistent with the ruling of this Court in Tanega vs. Masakayan, et. al.,[4] where
we declared that, for prescription of penalty imposed by final sentence to commence to run, the culprit should escape during the term of
such imprisonment.
The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from our earlier pronouncement clearly
exemplified in the Tanega case.
 Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it shall
commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service
of sentence can be committed only by those who have been convicted by final judgment by escaping during the term of his sentence.
As correctly pointed out by the Solicitor General, escape in legal parlance and for purposes of Articles 93 and 157 of the RPC means
unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have
escaped therefrom.
In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for his conviction, he
was already in hiding. Now petitioner begs for the compassion of the Court because he has ceased to live a life of peace and tranquility
after he failed to appear in court for the execution of his sentence. But it was petitioner who chose to become a fugitive. The Court
accords compassion only to those who are deserving. Petitioners guilt was proven beyond reasonable doubt but he refused to answer for
the wrong he committed. He is therefore not to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws. It did not engage in judicial
legislation but correctly interpreted the pertinent laws.Because petitioner was never placed in confinement, prescription never started to
run in his favor.
WHEREFORE, for lack of merit, the petition is hereby DENIED.
SO ORDERED.
Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Morales, JJ., concur.

BENJAMIN PANGAN y RIVERA, petitioner, vs. HON. LOURDES F. GATBALITE, as the Presiding Judge, Regional Trial Court of Angeles City,
Branch 56, and COL. JAMES D. LABORDO, as the City Jail Warden of Angeles City, respondents.
DECISION
AZCUNA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the decision of the
Regional Trial Court of Angeles City, Branch 56, rendered on January 31, 2000.[1]
The facts of this case are undisputed. The petitioner was indicted for simple seduction in Criminal Case No. 85-816, at the Municipal
Trial Court of Angeles City, Branch 3.
During the trial of the case, Atty. Eduardo Pineda, counsel for petitioner, submitted the case for decision without offering any
evidence, due to the petitioners constant absence at hearings.
On September 16, 1987, the petitioner was convicted of the offense charged and was sentenced to serve a penalty of two months
and one day of arresto mayor.
On appeal, the Regional Trial Court, on October 24, 1988, affirmed in toto the decision of the Municipal Trial Court.
On August 9, 1991, the case was called for promulgation of the decision in the court of origin. Despite due notice, counsel for the
petitioner did not appear. Notice to petitioner was returned unserved with the notation that he no longer resided at the given address. As a
consequence, he also failed to appear at the scheduled promulgation. The court of origin issued an order directing the recording of the
decision in the criminal docket of the court and an order of arrest against the petitioner.[2]
Pursuant to the order of arrest, on January 20, 2000, the petitioner was apprehended and detained at the Mabalacat Detention Cell.
On January 24, 2000, petitioner filed a Petition for a Writ of Habeas Corpus at the Regional Trial Court of Angeles City. He impleaded as
respondent the Acting Chief of Police of Mabalacat, Pampanga.[3] Petitioner contended that his arrest was illegal and unjustified on the
grounds that:
(a) the straight penalty of two months and one day of arresto mayor prescribes in five years under No. 3, Article 93 [of the] Revised
Penal Code, and
(b) having been able to continuously evade service of sentence for almost nine years, his criminal liability has long been totally
extinguished under No. 6, Article 89 [of the] Revised Penal Code.[4]
After his transfer to the City Jail of Angeles City on January 25, 2000, petitioner filed an Amended Petition with the Regional Trial Court,
impleading herein respondent Col. James D. Labordo, the Jail Warden of Angeles City, as respondent.[5]
In response, the Jail Warden alleged that petitioners detention was pursuant to the order of commitment (mittimus), issued by Marlon
P. Roque, Clerk of Court III of the Municipal Trial Court of Angeles City, Branch 3, dated January 25, 2000.[6]
On January 31, 2000, respondent Judge rendered the decision, which is the subject of this present appeal, which pronounced:
The Court cannot subscribe to the contention of the petitioner that the penalty imposed on him in the decision adverted to above had
already prescribed, hence, his detention is illegal for under Article 93 of the Revised Penal Code:
The period of prescription of penalties shall commence to run from the date when the culprit should evade the service of sentence, and it
shall be interrupted if the defendant should give himself up, be captured, should go to some foreign country with which this Government
has no extradition treaty, or should commit another crime before the expiration of the period of prescription.
The elements of prescription are:
1. That the penalty is imposed by final judgment;
2. That convict evaded the service of the sentence by escaping during the term of his sentence;
3. That the convict who had escaped from prison has not given himself up, or been captured, or gone to a foreign
country with which we have no extradition treaty, or committed another crime;
4. The penalty has prescribed, because of the lapse of time from the date of the evasion of the service of the sentence
by the convict.
In this case, the essential element of prescription which is the evasion of the service of sentence is absent. Admittedly, the petitioner herein
has not served the penalty imposed on him in prison and that during the service of the sentence, he escaped therefrom. Notably, at the
trial of Crim. Case No. 85-816 in the Municipal Trial Court, Branch III, Angeles City and on the date set for the promulgation of the affirmed
decision, the petitioner failed to appear and remained at large.
There was no evasion of the service of the sentence in this case, because such evasion presupposes escaping during the service of the
sentence consisting in deprivation of liberty. (Infante vs. Warden, 48 O.G. No. 122) (92 Phil. 310).
Corollarily, the detention of the petitioner in Angeles City Jail in compliance with the Order of Commitment (Exhibit E) is not illegal for
A commitment in due form, based on a final judgment, convicting and sentencing the defendant in a criminal case, is conclusive
evidence of the legality of his detention, unless it appears that the court which pronounced the judgment was without jurisdiction or
exceeded it. (U.S. vs. Jayne, 24 Phil 90, 24 J.F. 94, Phil. Digest, Vol. 2, 1398).
WHEREFORE, for not being meritorious and well-founded, the petition for a writ of habeas corpus is hereby denied.
SO ORDERED.
Angeles City, January 31, 2000.[7]
 From the above quoted decision, petitioner filed the instant petition for review on a question purely of law and raised the following
issue:
HOW SHOULD THE PHRASE SHALL COMMENCE TO RUN FROM THE DATE WHEN THE CULPRIT SHOULD EVADE THE SERVICE OF SENTENCE IN
ARTICLE 93 OF THE REVISED PENAL CODE ON THE COMPUTATION OF THE PRESCRIPTION OF PENALTIES BE CONSTRUED? PUT A LITTLE
DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE PERIOD OF PENALTIES BEGIN TO RUN?[8]
Petitioner claims that:
xxx the period for the computation of penalties under Article 93 of the Revised Penal Code begins to run from the moment the judgment of
conviction becomes final and the convict successfully evades, eludes, and dodges arrest for him to serve sentence. [9]
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on the 1952 ruling rendered in Infante vs. Warden, 48 O.G. No. 122, 92 Phil. 310, is,
petitioner most respectfully submits, not good case law. It imposes upon the convict a condition not stated in the law. It is contrary to the
spirit, nature or essence of prescription of penalties, creates an ambiguity in the law and opens the law to abuse by government.
THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW.
It appears that the Infante ruling imposes that, as an essential element, the convict must serve at least a few seconds, minutes, days, weeks
or years of his jail sentence and then escapes before the computation of prescription of penalties begins to run. This, petitioner respectfully
submits is not a condition stated in Article 93, which states that, the prescription of penalties shall commence to run from the date when the
culprit should evade the service of sentence.
There is no dispute that the duty of government to compel the service of sentence sets in when the judgment of conviction becomes final.
The dispute, however, is in the construction of the phrase should evade the service of sentence. When does the period of prescription of
penalties begin to run? The Infante ruling construes this to mean that the convict must escape from jail because such evasion presupposes
escaping during the service of the sentence consisting in deprivation of liberty.
Petitioner, with due respect, disagrees because if that were the intention of the law, then the phrase should evade the service of sentence
in Article 93 would have read: should escape during the service of the sentence consisting in deprivation of liberty. The legislature could
have very easily written Article 93 to read this way
The period of prescription of penalties shall commence to run from the date when the culprit should escape during the service of the
sentence consisting in deprivation of liberty, and it shall be interrupted if the defendant should give himself up, be captured, should go to
some foreign country with which this Government has no extradition treaty, or should commit another crime before the expiration of the
period of prescription.
But they did not.
The legislature wrote should evade the service of sentence to cover or include convicts like him who, although convicted by final
judgment, were never arrested or apprehended by government for the service of their sentence. With all the powers of government at its
disposal, petitioner was able to successfully evade service of his 2 months and 1 day jail sentence for at least nine (9) years, from August 9,
1991 to January 20, 2000. This is approximately 3 years and 5 months longer than the 5-year prescriptive period of the penalty imposed on
him.
That, as the respondent RTC Judge noted, petitioner did not attend the trial at the Municipal Trial Court and the promulgation of his
judgment of conviction in August 9, 1991 is of no moment. His bond for provisional release was surely cancelled and an order of arrest was
surely issued against petitioner. The undisputed fact is that on August 9, 1991 the judgment of conviction was promulgated in absentia and
an order for petitioners arrest was issued by the Municipal Trial Court of Angeles City, Branch III.
The duty of government, therefore, to arrest petitioner and compel him to serve his sentence began on August 9, 1991. The 5-year
prescriptive period of his arresto mayor penalty also began to run on that day considering that no relief was taken therefrom. Since
petitioner never gave himself up [n]or was [he], until January 20, 2000, ever captured, for the service of his sentence nor did he flee to some
foreign country with which [our] government has no extradition treaty, that 5-year prescriptive period of his penalty ran continuously from
August 9, 1991 when his judgment of conviction was promulgated in absentia and was never interrupted.
For reasons known only to it, however, government failed or neglected, for almost nine (9) years, to arrest petitioner for the service of
his arresto mayor sentence [which] should not be taken against petitioner. He was able to successfully evade service of his sentence for a
period longer than the 5-year prescriptive period of his penalty and, as such, is entitled to total extinction of his criminal liability.
To say, as was said in Infante, that the prescriptive period of the penalty never began to run in favor of petitioner because he never
escaped from jail during the service of his sentence imposes a condition not written in the law. It also violates the basic principle that the
criminal statutes are construed liberally in favor of the accused and/or convict and is contrary to the spirit behind or essence of statutes of
limitations [and] prescription, in criminal cases.[10]
The Regional Trial Court based its decision on the case of Infante v. Warden[11]. In said case, Infante, the petitioner, was convicted of
murder and was sentenced to seventeen years, four months and one day of reclusion temporal. After serving fifteen years, seven months
and eleven days, he was granted a conditional pardon. The condition was that he shall not again violate any of the penal laws of the
Philippines. Ten years after his release on conditional pardon, Infante was found guilty by a Municipal Court for driving without a license.
Infante was immediately ordered rearrested for breach of the condition of his pardon. One of the issues raised by Infante in his petition,
xxx was that the remitted penalty for which the petitioner had been recommitted to jail one year and 11 days had prescribed. xxx [12]
The Court disagreed and reasoned out thus:
The contention is not well taken. According to article 93 of the Revised Penal Code the period of prescription of penalties commences to
run from the date when the culprit should evade the service of his sentence. It is evident from this provision that evasion of the sentence is
an essential element of prescription. There has been no such evasion in this case. Even if there had been one and prescription were to be
applied, its basis would have to be the evasion of the unserved sentence, and computation could not have started earlier than the date of
the order for the prisoner's rearrest.[13]
A perusal of the facts in Infante v. Warden reveals that it is not on all fours with the present case. In Infante, the convict was on
conditional pardon when he was re-arrested. Hence, he had started serving sentence but the State released him. In the present case, the
convict evaded service of sentence from the start, and was arrested eight years later.
The RTC decision, however, must stand, since it is in accord with applicable decisions of this Court. The issue raised by petitioner is not
novel. Article 93 of the Revised Penal Code[14]has been interpreted several times by the Court.
The case of Tanega v. Masakayan[15] falls squarely within the issues of the present case. In that case, petitioner Adelaida Tanega
failed to appear on the day of the execution of her sentence. On the same day, respondent judge issued a warrant for her arrest. She was
never arrested. More than a year later, petitioner through counsel moved to quash the warrant of arrest, on the ground that the penalty
had prescribed. Petitioner claimed that she was convicted for a light offense and since light offenses prescribe in one year, her penalty
had already prescribed. The Court disagreed, thus:
xxx The period of prescription of penalties the succeeding Article 93 provides "shall commence to run from the date when the culprit should
evade the service of his sentence". What then is the concept of evasion of service of sentence? Article 157 of the Revised Penal Code
furnishes the ready answer. Says Article 157:
"ART. 157. Evasion of service of sentence. The penalty of prision correccional in its medium and maximum periods shall be imposed upon
any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment. xxx"
Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2) he "is serving his sentence which consists
in deprivation of liberty"; and (3) he evades service of sentence by escaping during the term of his sentence. This must be so. For, by the
express terms of the statute, a convict evades "service of his sentence" by "escaping during the term of his imprisonment by reason of final
judgment." That escape should take place while serving sentence, is emphasized by the provisions of the second sentence of Article 157
which provides for a higher penalty if such "evasion or escape shall have taken place by means of unlawful entry, by breaking doors,
windows, gates, walls, roofs, or floors, or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with
other convicts or employees of the penal institution, . . ." Indeed, evasion of sentence is but another expression of the term "jail breaking."
xxx
We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to commence to run, the culprit should
escape during the term of such imprisonment.
Adverting to the facts, we have here the case of a convict who sentenced to imprisonment by final judgment was thereafter never placed
in confinement. Prescription of penalty, then, does not run in her favor.[16]
In Del Castillo v. Torrecampo[17], the Court cited and reiterated Tanega. Petitioner, Del Castillo, was charged for violation of Section
178 (nn) of the 1978 Election Code. The trial court found Del Castillo guilty beyond reasonable doubt and sentenced him to suffer an
indeterminate sentence of imprisonment of 1 year as minimum to 3 years as maximum. On appeal the Court of Appeals affirmed the
decision of the trial court in toto. During the execution of judgment on October 14, 1987, petitioner was not present. The presiding Judge
issued an order of arrest and the confiscation of his bond. Petitioner was never apprehended. Ten years later, petitioner filed a motion to
quash the warrant of arrest on the ground that the penalty imposed upon him had already prescribed. The motion was denied by the trial
court. Del Castillo, on a petition for certiorari to the Court of Appeals, questioned the denial by the trial court. The Court of Appeals
dismissed the petition for lack of merit. Upon denial of his Motion for Reconsideration, Del Castillo raised the matter to this Court. The Court
decided against Del Castillo and after quoting the ratio decidendi of the Court of Appeals in full, it ratiocinated, thus:
The foregoing conclusion of the Court of Appeals is consistent with the ruling of this Court in Tanega vs. Masakayan, et al., where we
declared that, for prescription of penalty imposed by final sentence to commence to run, the culprit should escape during the term of such
imprisonment.
The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from our earlier pronouncement clearly
exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it shall
commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service
of sentence can be committed only by those who have been convicted by final judgment by escaping during the term of his sentence.
As correctly pointed out by the Solicitor General, "escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC means
unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have
escaped therefrom.
In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for his conviction, he was
already in hiding. Now petitioner begs for the compassion of the Court because he has ceased to live a life of peace and tranquility after
he failed to appear in court for the execution of his sentence. But it was petitioner who chose to become a fugitive. The Court accords
compassion only to those who are deserving. Petitioner's guilt was proven beyond reasonable doubt but he refused to answer for the
wrong he committed. He is therefore not to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws. It did not engage in judicial legislation
but correctly interpreted the pertinent laws. Because petitioner was never placed in confinement, prescription never started to run in his
favor.[18]
Consistent with the two cases cited above, this Court pronounces that the prescription of penalties found in Article 93 of the Revised
Penal Code, applies only to those who are convicted by final judgment and are serving sentence which consists in deprivation of liberty.
The period for prescription of penalties begins only when the convict evades service of sentence by escaping during the term of his
sentence. Since petitioner never suffered deprivation of liberty before his arrest on January 20, 2000 and as a consequence never evaded
sentence by escaping during the term of his service, the period for prescription never began.
Petitioner, however, has by this time fully served his sentence of two months and one day of arresto mayor and should forthwith be
released unless he is being detained for another offense or charge.
WHEREFORE, the decision of the Regional Trial Court of Angeles City, Branch 56 is AFFIRMED, but petitioner is ordered released
effective immediately for having fully served his sentence unless he is detained for another offense or charge.
No costs.
SO ORDERED.
Quisumbing, (Acting Chairman), Ynares-Santiago, and Carpio, JJ., concur.
Davide, Jr., C.J., (Chairman), on leave.

G.R. No. 76872 July 23, 1987

WILFREDO TORRES Y SUMULONG, petitioner,
vs.
HON. NEPTALI A. GONZALES, THE CHAIRMAN, BOARD OF PARDONS AND PAROLE, and THE DIRECTOR, BUREAU OF PRISONS, respondents.
FELICIANO, J.:
This is an original petition for habeas corpus filed on behalf of petitioner Wilfredo S. Torres, presently confined at the National Penitentiary in
Muntinlupa. We issued the writ and during the hearing and from the return filed by the respondents through the Solicitor General, and other
pleadings in this case, the following facts emerged:
1. Sometime before 1979 (no more specific date appears in the records before this Court), petitioner was convicted by the Court
of First Instance of Manila of the crime of estafa (two counts) and was sentenced to an aggregate prison term of from eleven (11)
years, ten (10) months and twenty-two (22) days to thirty-eight (38) years, nine (9) months and one (1) day, and to pay an
indemnity of P127,728.75 (Criminal Cases Nos. 68810, 91041 and F-138107). These convictions were affirmed by the Court of
Appeals (CA-G.R. Nos. 14773-CR and 17694-CR). The maximum sentence would expire on 2 November 2000.1
 2. On 18 April 1979, a conditional pardon was granted to the petitioner by the President of the Philippines on condition that
petitioner would "not again violate any of the penal laws of the Philippines. Should this condition be violated, he will be
proceeded against in the manner prescribed by law."2 Petitioner accepted the conditional pardon and was consequently
released from confinement.
3. On 21 May 1986, the Board of Pardons and Parole (the "Board") resolved to recommend to the President the cancellation of the
conditional pardon granted to the petitioner. In making its recommendation to the President, the Board relied upon the decisions
of this Court in Tesoro vs. Director of Prisons (68 Phil. 154 [1939]) and Espuelas vs. Provincial Warden of Bohol (108 Phil. 356 [1960]).
The evidence before the Board showed that on 22 March 1982 and 24 June 1982, petitioner had been charged with twenty
counts of estafa in Criminal Cases Nos. Q-19672 and Q-20756, which cases were then (on 21 May 1986) pending trial before the
Regional Trial Court of Rizal (Quezon City). The record before the Board also showed that on 26 June 1985, petitioner had been
convicted by the Regional Trial Court of Rizal (Quezon City) of the crime of sedition in Criminal Case No. Q-22926; this conviction
was then pending appeal before the Intermediate Appellate Court. The Board also had before it a letter report dated 14 January
1986 from the National Bureau of Investigation ("NBI"), addressed to the Board, on the petitioner. Per this letter, the records of the
NBI showed that a long list of charges had been brought against the petitioner during the last twenty years for a wide assortment
of crimes including estafa, other forms of swindling, grave threats, grave coercion, illegal possession of firearms, ammunition and
explosives, malicious mischief, violation of Batas Pambansa Blg. 22, and violation of Presidential Decree No. 772 (interfering with
police functions). Some of these charges were Identified in the NBI report as having been dismissed. The NBI report did not purport
to be a status report on each of the charges there listed and Identified.
4. On 4 June 1986, the respondent Minister of Justice wrote to the President of the Philippines informing her of the Resolution of the
Board recommending cancellation of the conditional pardon previously granted to petitioner.
5. On 8 September 1986, the President cancelled the conditional pardon of the petitioner.
6. On 10 October 1986, the respondent Minister of Justice issued "by authority of the President" an Order of Arrest and
Recommitment against petitioner. The petitioner was accordingly arrested and confined in Muntinlupa to serve the unexpired
portion of his sentence.
Petitioner now impugns the validity of the Order of Arrest and Recommitment. He claims that he did not violate his conditional pardon
since he has not been convicted by final judgment of the twenty (20) counts of estafa charged in Criminal Cases Nos. Q-19672 and Q-
20756 nor of the crime of sedition in Criminal Case No. Q-22926.3Petitioner also contends that he was not given an opportunity to be heard
before he was arrested and recommitted to prison, and accordingly claims he has been deprived of his rights under the due process
clause of the Constitution.
The issue that confronts us therefore is whether or not conviction of a crime by final judgment of a court is necessary before the petitioner
can be validly rearrested and recommitted for violation of the terms of his conditional pardon and accordingly to serve the balance of his
original sentence.
This issue is not novel. It has been raised before this Court three times in the past. This Court was first faced with this issue in Tesoro Director of
Prison.4 Tesoro, who had been convicted of the crime of falsification of public documents, was granted a parole by the then Governor-
General. One of the conditions of the parole required the parolee "not [to] commit any other crime and [to] conduct himself in an orderly
manner."5 Two years after the grant of parole, Tesoro was charged before the Justice of the Peace Court of San Juan, Rizal, with the crime
of adultery said to have been committed with the wife of Tesoro's brother-in-law. The fiscal filed with the Court of First Instance the
corresponding information which, however, was dismissed for non-appearance of the complainant. The complainant then went before the
Board of Indeterminate Sentence and charged Tesoro with violation of the conditions of his parole. After investigation by the parole officer,
and on the basis of his report, the Board recommended to the President of the Philippines the arrest and recommitment of the petitioner.
Tesoro contended, among other things, that a "judicial pronouncement to the effect that he has committed a crime" is necessary before
he could properly be adjudged as having violated his conditional parole.
Addressing this point, this Court, speaking through then Mr. Justice Moran, held that the determination of whether the conditions of Tesoro's
parole had been breached rested exclusively in the sound judgment of the Governor-General and that such determination would not be
reviewed by the courts. As Tesoro had consented to place his liberty on parole upon the judgment of the power that had granted it, we
held that "he [could not] invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was
ordered."6 Thus, this Court held that by accepting the terms under which the parole had been granted, Tesoro had in effect agreed that
the Governor-General's determination (rather than that of the regular courts of law) that he had breached one of the conditions of his
parole by committing adultery while he was conditionally at liberty, was binding and conclusive upon him. In reaching this conclusion, this
Court relied upon Section 64 (i) of the Revised Administrative Code which empowered the Governor-General
to grant to convicted prisoners reprieves or pardons, either plenary or partial, conditional or unconditional; to suspend sentences
without parole, remit fines, and order the discharge of any convicted person upon parole, subject to such conditions as he may
impose; and to authorize the arrest and recommitment of any such person who, in his judgment, shall fail to comply with the
condition or conditions, of his pardon, parole or suspension of sentence. (Emphasis supplied)
In Sales vs. Director of Prisons,7 the petitioner had been convicted of the crime of frustrated murder. After serving a little more than two
years of his sentence, he was given a conditional pardon by the President of the Philippines, "the condition being that he shall not again
violate any of the penal laws of the Philippines and that, should this condition be violated, he shall be proceeded against in the manner
prescribed by law."8 Eight years after the grant of his conditional pardon, Sales was convicted of estafa and sentenced to three months
and eleven days of arresto mayor. He was thereupon recommitted to prison to serve the unexpired portion of his original sentence. Sales
raised before this Court two principal contentions. Firstly, he argued that Section 64 (i) of the Revised Administrative Code had been
repealed by Article 159 of the Revised Penal Code. He contended, secondly, that Section 64 (i) was in any case repugnant to the due
process clause of the Constitution (Article III [1], 1935 Constitution). This Court, through Mr. Justice Ozaeta speaking for the majority, rejected
both contentions of Sales.
Sales held, firstly, that Article 159 of the Revised Penal Code did not repeal Section 64 (i) Revised Administrative Code. It was pointed out
that Act No. 4103, the Indeterminate Sentence Law, which was enacted subsequent to the Revised Penal Code, expressly preserved the
authority conferred upon the President by Section 64. The Court also held that Article 159 and Section 64 (i) could stand together and that
the proceeding under one provision did not necessarily preclude action under the other. Sales held, secondly, that Section 64 (i) was not
repugnant to the constitutional guarantee of due process. This Court in effect held that since the petitioner was a convict "who had
already been seized in a constitutional was been confronted by his accusers and the witnesses against him-, been convicted of crime and
been sentenced to punishment therefor," he was not constitutionally entitled to another judicial determination of whether he had
breached the condition of his parole by committing a subsequent offense. Thus:
[a] statute [like Section 64 (i)] supervenes to avoid the necessity for any action by the courts in the premises. The executive
clemency under it is extended upon the conditions named in it, and he accepts it upon those conditions. One of these is that the
 governor may withdraw his grace in a certain contingency, and another is that the governor shall himself determine when that
contingency has arisen. It is as if the convict, with full competency to bind himself in the premises, had expressly contracted and
agreed, that, whenever the governor should conclude that he had violated the conditions of his parole, an executive order for his
arrest and remandment to prison should at once issue, and be conclusive upon him. 9
In Espuelas vs. Provincial Warden of Bohol,10 the petitioner had been convicted of the crime of inciting to sedition. While serving his
sentence, he was granted by the President a conditional pardon "on condition that he shall not again violate any of the penal laws of the
Philippines."11 Espuelas accepted the conditional pardon and was released from confinement. Sometime thereafter, he was convicted by
the Justice of the Peace Court in Tagbilaran, Bohol, of the crime of usurpation of authority. He appealed to the Court of First Instance. Upon
motion of the provincial fiscal, the Court of First Instance dismissed the case provisionally, an important prosecution witness not having been
available on the day set for trial. A few months later, upon recommendation of the Board of Pardons and Parole, the President ordered his
recommitment to prison to serve the unexpired period of his original sentence.
The Court in Espuelas reaffirmed the continuing force and effect of Section 64 (i) of the Revised Administrative Code. This Court,
quoting Tesoro and Sales, ruled that:
Due process is not necessarily judicial The appellee had had his day in court and been afforded the opportunity to defend himself
during his trial for the crime of inciting to sedition, with which he was charged, that brought about or resulted in his conviction,
sentence and confinement in the penitentiary. When he was conditionally pardoned it was a generous exercise by the Chief
Executive of his constitutional prerogative. The acceptance thereof by the convict or prisoner carrie[d] with it the authority
or power of the Executive to determine whether a condition or conditions of the pardon has or have been violated. To no other
department of the Government [has] such power been intrusted. 12
The status of our case law on the matter under consideration may be summed up in the following propositions:
1. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts
which are not subject to judicial scrutiny.
2. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of such breach,
may be either a purely executive act, not subject to judicial scrutiny under Section 64 (i) of the Revised Administrative Code; or it
may be a judicial act consisting of trial for and conviction of violation of a conditional pardon under Article 159 of the Revised
Penal Code. Where the President opts to proceed under Section 64 (i) of the Revised Administrative Code, no judicial
pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order
that a convict may be recommended for the violation of his conditional pardon.
3. Because due process is not semper et unique judicial process, and because the conditionally pardoned convict had already
been accorded judicial due process in his trial and conviction for the offense for which he was conditionally pardoned, Section 64
(i) of the Revised Administrative Code is not afflicted with a constitutional vice.
We do not believe we should depart from the clear and well understood rules and doctrine on this matter.
It may be emphasized that what is involved in the instant case is not the prosecution of the parolee for a subsequent offense in the regular
course of administration of the criminal law. What is involved is rather the ascertainment of whether the convict has breached his
undertaking that he would "not again violate any of the penal laws of the Philippines" for purposes of reimposition upon him of the remitted
portion of his original sentence. The consequences that we here deal with are the consequences of an ascertained breach of the
conditions of a pardon. A convict granted conditional pardon, like the petitioner herein, who is recommitted must of course be convicted
by final judgment of a court of the subsequent crime or crimes with which he was charged before the criminal penalty for such subsequent
offense(s) can be imposed upon him. Again, since Article 159 of the Revised Penal Code defines a distinct, substantive, felony, the parolee
or convict who is regarded as having violated the provisions thereof must be charged, prosecuted and convicted by final judgment before
he can be made to suffer the penalty prescribed in Article 159.1avvphi1
Succinctly put, in proceeding against a convict who has been conditionally pardoned and who is alleged to have breached the
conditions of his pardon, the Executive Department has two options: (i) to proceed against him under Section 64 (i) of the Revised
Administrative Code; or (ii) to proceed against him under Article 159 of the Revised Penal Code which imposes the penalty of prision
correccional, minimum period, upon a convict who "having been granted conditional pardon by the Chief Executive, shall violate any of
the conditions of such pardon." Here, the President has chosen to proceed against the petitioner under Section 64 (i) of the Revised
Administrative Code. That choice is an exercise of the President's executive prerogative and is not subject to judicial scrutiny.
WHEREFORE, this Petition is hereby DISMISSED. No pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Fernan, Melencio-Herrera, Gutierrez, Jr., Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.
Narvasa, J., took no part.

The Lawphil Project - Arellano Law Foundation

Separate Opinions
CRUZ, J., dissenting:
The petitioner challenges his recommitment, claiming he has not violated the condition of his pardon "that he shall not again violate any of
the penal laws of the Philippines." The government bases its stand on the case of Espuelas v. Provincial Warden of Bohol, 108 Phil. 353,
where it was held, in connection with a similar condition, that mere commission of a crime, as determined by the President, was sufficient to
justify recommitment. Conviction was considered not necessary.
I would grant the petition.
There is no question that the petitioner is facing a long list of criminal charges, but that certainly is not the issue. The point is that, as many as
such charges may be, none of them so far has resulted in a final conviction, without which he cannot be recommitted under the condition
of his pardon.
Mere accusation is not synonymous with guilt. (People v. Dramayo, 42 SCRA 59). A prima facie case only justifies the filing of the
corresponding information, but proof beyond reasonable doubt is still necessary for conviction. Manifestly, an allegation merely accuses
the defendant of a crime: it is the conviction that makes him a criminal. In other words, a person is considered to have committed a crime
only if he is convicted thereof, and this is done not by his accuser but by the judge.
That this conviction must be pronounced by the judge and no other is too obvious a proposition to be disputed. The executive can
only allege the commission of crime and thereafter try to prove it through indubitable evidence. If the prosecution succeeds, the court will
then affirm the allegation of commission in a judgment of conviction.
The current doctrine holds that, by virtue of Section 64(i) of the Revised Administrative Code, the President may in his judgment determine
whether the condition of the pardon has been violated. I agree that the authority is validly conferred as long as the condition does not
involve the commission of a crime but, say, merely requires good behavior from the pardonee. But insofar as it allows the President to
determine in his judgment whether or not a crime has been committed, I regard the authority as an encroachment on judicial functions.
Dissenting from the majority opinion in the case of Tesoro v. Director of Prisons, 68 Phil. 154, Justice Pedro Concepcion declared:
I am of the opinion that the "commission" of a crime may only be determined upon the "conviction" of the accused. It is not
sufficient that a person be charged with having committed a crime in order to consider that he is convicted thereof. His
innocence is a legal presumption which is overcome only by his conviction after he is duly and legally prosecuted. And the courts
of justice are the only branch of the government which has exclusive jurisdiction under the law to make a pronouncement on the
conviction of an accused.
Black defines "commission" as "doing or preparation; the performance of an act." (Groves v. State, 116 Ga. 516). "Conviction," on the other
hand, is "the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged." Continuing, he says, "in
ordinary parlance, the meaning of the word conviction is the finding by the jury of a verdict that the accused is guilty. But, in legal
parlance, it often denotes the final judgment of the court." (Blaufus v. People, 69 N.Y., 109, 28 A-Rep. 148; Marino v. Hibbard, 243 Mass. 90).
To convict is "to condemn after a judicial investigation " (p. 403). A convict is "one who has been finally condemned by a court, one who
has been adjudged guilty of a crime or misdemeanor." (Molineur v. Collins, 177 N.Y., 395). Emphasis is mine.
In the instant case, the government does not deny that the petitioner has not been finally convicted of any of the offenses imputed to him.
There are several convictions by the lower court, to be sure, but all of them are on appeal. From the judicial viewpoint, therefore, the
petitioner has, since accepting his conditional pardon not violated any of the penal laws of the Philippines as to be subject to
recommitment.
In the landmark case of United States v. Wilson, 7 Pet. (U.S.) 100, it was remarked that "a conditional pardon is in force and substance a
contract between the executive power of the State and the person for whom it is granted." Once accepted, therefore, the stipulated
condition binds not only the pardonee, who must observe the same, but the State as well, which can recommit the pardonee only if the
condition is violated. Stated otherwise, the condition is a limitation not only of the pardonee's conduct but also of the President's power of
recommitment, which can be exercised only if the condition is not observed.
Even if considered "an act of grace," declared this Court in Infante v. Provincial Warden of Negros Occidental, 32 Phil. 311, "there is general
agreement that limitations upon its operation should be strictly construed (46 C.J. 1202) so that, where a conditional pardon is susceptible
of more than one interpretation, it is to be construed most favorably to the grantee (39 Am. Jur. 564). "
I am for the reversal of Espuelas v. Provincial Warden of Bohol and the immediate release of the petitioner on the ground that he has not
violated the condition of his pardon.
Paras, J., dissents.
EUFEMIO P. TESORO, petitioner-appellant,
vs.
THE DIRECTOR OF PRISONS, respondent-appellee.
Antonio Barredo y Padagas for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney Kapunan, Jr. for appellee.
MORAN, J.:
On October 10, 1934, petitioner, Eufemio P. Tesoro, was convicted in the Court of First Instance of Manila of the crime of falsification of a
public document and sentenced to an indeterminate penalty of from two (2) to three (3) years, six (6) months and twenty-one (21) days, to
pay a fine of one hundred pesos (100), or undergo subsidiary imprisonment in case of insolvency. This penalty was to expire on October 28,
1937. On November 14, 1935, the then Governor-General Frank Murphy granted the petitioner a parole, which the latter accepted, subject
to the following conditions:
1. That he will live in the City of Manila and will not change his residence without first obtaining the consent of the Board of
Indeterminate Sentence;
2. That he will not commit any other crime and will conduct himself in an orderly manner;
3. That he will report, during the period of his parole, to the Executive Secretary of the Board of Indeterminate Sentence, during
the first year, once a month, and thereafter, once every three months.
Should any of the conditions stated be violated, the sentence imposed shall again be in full force and effect.
On December 3, 1937, petitioner was charged in the justice of the peace court of San Juan, Rizal, with the crime of adultery alleged to
have been committed with one Concordia Dairo, wife of petitioner's brother-in-law, Jose Nagar. To the complaint were attached the
affidavits of the complainant Jose Nagar, of Luz Nagar and of Epimaco Nagar. The case was thereafter forwarded to the Court of First
Instance of Rizal where the provincial fiscal filed the corresponding information which, however, was dismissed for non-appearance of the
complainant.
Sometime in the month of February, 1938, the same Jose Nagar lodged a complaint with Board of Indeterminate Sentence, and upon the
same facts supporting the criminal action aforementioned, charged the petitioner with violation of the conditions of his parole. On
February 3, 1938, petitioner was summoned to appear before the board for a hearing on the aforecited complaint, but petitioner asked for
postponement until the day following. On February 4, 1938, petitioner addressed a letter to the board denying the charge of illicit relations
with the complainant's wife the included therewith the supposed retraction of Epimaco Nagar of what the latter had stated in his former
affidavit. On the same date Simeon Figalang, a parole officer assigned to investigate the case, submitted his report to the board, and, on
the strength thereof and papers supporting it, the acting chairman of the board addressed a communication to the President of the
Philippines, recommending the arrest and reincarceration of the petitioner. And on February 19, 1938, the President issued the following
order:
To any lawful officer:
Whereas, Eufemio P. Tesoro, convicted by the Court of First Instance of Manila of the crime of falsification of an official
document, and sentenced to an indeterminate term of from 2 years to 3 years, 6 months and 21 days' imprisonment,
plus P100 fine, was granted pardon on parole by His Excellency, the Governor-General, on November 14, 1935, under
certain conditions, one of which provides that he will not commit any other crime and will conduct himself in an orderly
manner, and
Whereas, said Eufemio P. Tesoro has violated this condition in that, in the latter part of September, 1937, and
continuously thereafter, he betrayed the confidence of his brother-in-law, Jose Nagar, by maintaining adulterous
relations with the latter's wife, under the following circumstances: Upon the death on September 18, 1937, of parolee
Tesoro's wife (sister of Jose Nagar) and in order to mitigate the grief of the bereaved family and to help in the keeping of
the house and caring of the children of said parolee, Jose Nagar and his wife came to live with the parolee in San Juan,
 Rizal; but taking advantage of the frequent absences of Jose Nagar from the house, parolee Tesoro made advances to
Jose Nagar's wife, Concordia Dairo, succeeded in having illicit relations with her and even went to the extent of taking
away the woman from her legitimate husband, after the couple had moved from his home, and he is now living with her
in adultery.
Therefore, by virtue of the authority conferred upon me by section 64 (i) of the Administrative Code, you are hereby
ordered to arrest parolee Eufemio P. Tesoro and to commit him to the custody of the Director of Prisons, Manila, who is
hereby authorized to confine said person for the service of the unexpired portion of the maximum sentence for which he
was originally committed to prison.
By virtue of this order, the petitioner was arrested and recommitted to the custody of the Director of Prisons. Thereupon, petitioner sued for
a writ of habeas corpus against the Director of Prisons, and upon denial thereof by the trial court, took the present appeal.
Section 63 (i) of the Administrative Code, by virtue of which the petitioner was granted parole, gives the Governor-General the following
powers and duties:
To grant to convicted persons reprieves or pardons, either plenary or partial, conditional or unconditional; to suspend sentences
without pardon, remit fines, and order the discharge of any convicted person upon parole, subject to such conditions as he may
impose; and to authorize the arrest and re-incarceration of any such person who, in his judgment, shall fail to comply with the
condition, or conditions, of his pardon, parole, or suspension of sentence.
Paragraph 6, section 11, Article VII, of the Constitution of the Philippines, provides as follows:
The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction, for all offenses, except in cases of impeachment, upon such conditions and with such restrictions and limitations as he
may deem proper to impose. He shall have the power to grant amnesty with the concurrence of the National Assembly.
Appellant contends that section 64 (i) of the Administrative Code, above quoted, in so far as it confers upon the Chief Executive the power
to grant and revoke paroles, has been impliedly repealed by the aforecited constitutional provision, as the latter omitted to specify such
power in connection with the powers granted therein to the President of the Philippines. This contention is untenable. The power to pardon
given the President by the Constitution, "upon such conditions and with such restrictions and limitations as he may deem proper to impose,"
includes the power to grant and revoke paroles. (20 R.C.L., 577; 46 C.J. 1205.) If the omission of the power of parole in the Constitution is to
be construed as a denial thereof to the President, the effect would be to discharge unconditionally parolees, who, before the adoption of
the Constitution, have been released conditionally by the Chief Executive. That such effect was never intended by the Constitutional
Convention is obviously beyond question.
Appellant also contends that the Board of Indeterminate Sentence has no legal authority to investigate the conduct of the petitioner, and
recommend the revocation of his parole. By the terms of his parole, petitioner agreed to report the executive secretary of the board once
a month during the first year of his parole, and, thereafter, once every three months. By his consent to this condition, petitioner has placed
himself under the supervision of the board. The duty to report on the part of the petitioner implies a corresponding power on the part of the
board to inquire into his conduct, and a fortiori to make recommendations to the President by whose authority it was acting. Besides, the
power to revoke paroles necessarily carries with it the power to investigate and to inquire into the conduct of the parolees, if such power of
revocation is to be rational and intelligent. In the exercise of this incidental power of inquiry and investigation, the President of the
Philippines is not precluded by law or by the Constitution from making use of any agency of the government, or even of any individual, to
secure the necessary assistance. When, therefore, the President chose to intrust his power of inquiry upon the Board of Indeterminate
Sentence, a government agency created precisely for the concern of persons released on parole, he acted both upon legal authority and
good judgment.
Appellant further contends that judicial pronouncement to the effect that he has committed a crime is necessary before he can be
properly adjudged as having violated his conditional parole. Under condition No. 2 of his parole, petitioner agreed that he "will
not commit any other crime and will conduct himself in an orderly manner." (Emphasis ours.) It was, therefore, the mere commission, not his
conviction by court, of any other crime, that was necessary in order that the petitioner may be deemed to have violated his parole. And
under section 64 (i) of the Administrative Code, the Chief Executive is authorized to order "the arrest and re-incarceration of any such
person who, in his judgment, shall fail to comply with the condition, or conditions, of his pardon, parole, or suspension of sentence."
(Emphasis ours.)
Appellant impugns the findings of the President regarding the violation of the conditional parole. He claims that, according to the weight
of the evidence, the violation took place, not "in the latter part of September, 1937," as found by the President, but after October 28, 1937,
the date when the parole was supposed to expire. But that as it may, where, as in the instant case, the determination of the violation of the
conditional parole rests exclusively in the sound judgment of the Chief Executive, the courts will not interfere, by way of review, with any of
his findings. The petitioner herein having consented to place his liberty on parole upon the judgment of the power that has granted it, he
cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered.
Besides, even conceding that the petitioner's violation of the parole took place after October 28, 1937, when his maximum penalty was to
have expired, we still find no error in the order of the arrest and recommitment. It is the petitioner's contention that, upon the expiration of
his maximum term of imprisonment, his conditional parole also expires, and, therefore, his liberty becomes absolute subject to no conditions
contained in his parole. In other words, he holds the view that the period during which he was out on parole should be counted as service
of his original sentence. We do not subscribe to this contention.
In People vs. Tapel (35 Off. Gaz., 1603), we said:
When a conditional pardon is violated, the prisoner is placed in the same state in which he was at the time the pardon was
granted. He may be rearrested and recommitted to prisons (See U.S. vs. Ignacio [1916}, 33 Phil., 202, 204; U.S. vs. Villalon [1917], 37
Phil., 322.) And the rule is well-settled that, in requiring the convict to undergo so much of the punishment imposed by his original
sentence as he had not suffered at the time of his release, the court should not consider the time during which the convict was at
large by virtue of the pardon as time served on the original sentence. (20 R.C.L., p. 570; State vs. Horne [1906], 52 Fla., 125; 42 So.,
388; 7 L.R.A. [N.S.}, 719, 725. Vide, also, Ex parte Bell [1879], Miss., 282.)
This rule applies, by analogy, to conditional parole. (46 C.J., 1209.)
The foregoing discussion brings us to the last contention of the appellant as to the duration of the penalty he has yet to serve after his
recommitment. Act No. 1561 provided that a convict released on parole and who, thereafter, violates its conditions, shall serve the full
sentence of the court as though no parole has ever been granted him, the time between the parole and the subsequent arrest not being
considered as part of the term of his sentence in computing the period of his subsequent confinement. But this Act has been repealed by
the Administrative Code, and section 64 (i) thereof omitted such provision. Act No. 4103, section 8, provides that any prisoner released on
parole who violates any condition thereof, shall, upon re-arrest and confinement, serve the remaining unexpired portion of the maximum
sentence for which he was originally committed to prison. This Act is not, however, applicable to the present case, as the petitioner was
paroled not under the provision thereof, but by virtue of section 64 (i) of the Administrative Code. There is, thus, no statutory provision
squarely governing the case with respect to the duration of the petitioner's confinement after his recommitment. In the absence of such
statutory provision, the terms of the parole shall govern. From the express terms of the parole that "should any of the conditions stated be
violated, the sentence imposed shall again be in full force and effect," it is evident that the petitioner herein should serve the unexpired
portion of the penalty originally imposed upon him by the court.
Judgment is affirmed, with costs against appellant.
Avancea, C.J., Villa-Real, Imperial, and Diaz, JJ., concur.

Separate Opinions
LAUREL, J., concurring in the result.
I concur in the result, but withhold my assent to the statement, unnecessarily made in my opinion that Act No. 4103 as amended by Act
No. 4225 is inapplicable to the present case.
CONCEPCION, J., concurring and dissenting:
I concur in the result, but I dissent with respect to the interpretation given by the majority to the second condition of the appellant's parole.
Said the decision: "Under condition No. 2 of his parole, petitioner agreed that he 'will not commit any other crime and will conduct himself
in an orderly manner.' (Emphasis ours.) It was, therefore, the mere commission, not his conviction by court, of any other crime, that was
necessary in order that the petitioner may be deemed to have violated his parole."
I am of the opinion that the "commission" of a crime may only be determined upon the "conviction" of the accused. It is not sufficient that a
person be charged with having committed a crime in order to consider that he is convicted thereof. His innocence is a legal presumption
which is overcome only by his conviction after he is duly and legally prosecuted. And the courts of justice are the only branch of the
government which has exclusive jurisdiction under the law to make a pronouncement on the conviction of an accused.
In the present case, however, a judicial pronouncement can not be required regarding the commission of the crime imputed to the
appellant because the information for adultery lodged against him was dismissed for failure of the complaining witness to appear.
In these circumstances and as an exception to the general rule, the Board of Indeterminate Sentence was justified in conducting the
investigation of the crime complained of and in recommending to the President of the Philippines the arrest and recommitment of the
appellant for violation of his conditional pardon, for it is not just that by the omission or negligence of a witness who fails to appear in court,
the violation of the pardon granted conditionally to the appellant should be left unpunished.
G.R. No. L-46437 May 23, 1939
EUFEMIO P. TESORO, petitioner-appellant,
vs.
THE DIRECTOR OF PRISONS, respondent-appellee.
Antonio Barredo y Padagas for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney Kapunan, Jr. for appellee.
MORAN, J.:
On October 10, 1934, petitioner, Eufemio P. Tesoro, was convicted in the Court of First Instance of Manila of the crime of falsification of a
public document and sentenced to an indeterminate penalty of from two (2) to three (3) years, six (6) months and twenty-one (21) days, to
pay a fine of one hundred pesos (100), or undergo subsidiary imprisonment in case of insolvency. This penalty was to expire on October 28,
1937. On November 14, 1935, the then Governor-General Frank Murphy granted the petitioner a parole, which the latter accepted, subject
to the following conditions:
1. That he will live in the City of Manila and will not change his residence without first obtaining the consent of the Board of
Indeterminate Sentence;
2. That he will not commit any other crime and will conduct himself in an orderly manner;
3. That he will report, during the period of his parole, to the Executive Secretary of the Board of Indeterminate Sentence, during
the first year, once a month, and thereafter, once every three months.
Should any of the conditions stated be violated, the sentence imposed shall again be in full force and effect.
On December 3, 1937, petitioner was charged in the justice of the peace court of San Juan, Rizal, with the crime of adultery alleged to
have been committed with one Concordia Dairo, wife of petitioner's brother-in-law, Jose Nagar. To the complaint were attached the
affidavits of the complainant Jose Nagar, of Luz Nagar and of Epimaco Nagar. The case was thereafter forwarded to the Court of First
Instance of Rizal where the provincial fiscal filed the corresponding information which, however, was dismissed for non-appearance of the
complainant.
Sometime in the month of February, 1938, the same Jose Nagar lodged a complaint with Board of Indeterminate Sentence, and upon the
same facts supporting the criminal action aforementioned, charged the petitioner with violation of the conditions of his parole. On
February 3, 1938, petitioner was summoned to appear before the board for a hearing on the aforecited complaint, but petitioner asked for
postponement until the day following. On February 4, 1938, petitioner addressed a letter to the board denying the charge of illicit relations
with the complainant's wife the included therewith the supposed retraction of Epimaco Nagar of what the latter had stated in his former
affidavit. On the same date Simeon Figalang, a parole officer assigned to investigate the case, submitted his report to the board, and, on
the strength thereof and papers supporting it, the acting chairman of the board addressed a communication to the President of the
Philippines, recommending the arrest and reincarceration of the petitioner. And on February 19, 1938, the President issued the following
order:
To any lawful officer:
Whereas, Eufemio P. Tesoro, convicted by the Court of First Instance of Manila of the crime of falsification of an official
document, and sentenced to an indeterminate term of from 2 years to 3 years, 6 months and 21 days' imprisonment,
plus P100 fine, was granted pardon on parole by His Excellency, the Governor-General, on November 14, 1935, under
certain conditions, one of which provides that he will not commit any other crime and will conduct himself in an orderly
manner, and
Whereas, said Eufemio P. Tesoro has violated this condition in that, in the latter part of September, 1937, and
continuously thereafter, he betrayed the confidence of his brother-in-law, Jose Nagar, by maintaining adulterous
relations with the latter's wife, under the following circumstances: Upon the death on September 18, 1937, of parolee
Tesoro's wife (sister of Jose Nagar) and in order to mitigate the grief of the bereaved family and to help in the keeping of
the house and caring of the children of said parolee, Jose Nagar and his wife came to live with the parolee in San Juan,
Rizal; but taking advantage of the frequent absences of Jose Nagar from the house, parolee Tesoro made advances to
Jose Nagar's wife, Concordia Dairo, succeeded in having illicit relations with her and even went to the extent of taking
 away the woman from her legitimate husband, after the couple had moved from his home, and he is now living with her
in adultery.
Therefore, by virtue of the authority conferred upon me by section 64 (i) of the Administrative Code, you are hereby
ordered to arrest parolee Eufemio P. Tesoro and to commit him to the custody of the Director of Prisons, Manila, who is
hereby authorized to confine said person for the service of the unexpired portion of the maximum sentence for which he
was originally committed to prison.
By virtue of this order, the petitioner was arrested and recommitted to the custody of the Director of Prisons. Thereupon, petitioner sued for
a writ of habeas corpus against the Director of Prisons, and upon denial thereof by the trial court, took the present appeal.
Section 63 (i) of the Administrative Code, by virtue of which the petitioner was granted parole, gives the Governor-General the following
powers and duties:
To grant to convicted persons reprieves or pardons, either plenary or partial, conditional or unconditional; to suspend sentences
without pardon, remit fines, and order the discharge of any convicted person upon parole, subject to such conditions as he may
impose; and to authorize the arrest and re-incarceration of any such person who, in his judgment, shall fail to comply with the
condition, or conditions, of his pardon, parole, or suspension of sentence.
Paragraph 6, section 11, Article VII, of the Constitution of the Philippines, provides as follows:
The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction, for all offenses, except in cases of impeachment, upon such conditions and with such restrictions and limitations as he
may deem proper to impose. He shall have the power to grant amnesty with the concurrence of the National Assembly.
Appellant contends that section 64 (i) of the Administrative Code, above quoted, in so far as it confers upon the Chief Executive the power
to grant and revoke paroles, has been impliedly repealed by the aforecited constitutional provision, as the latter omitted to specify such
power in connection with the powers granted therein to the President of the Philippines. This contention is untenable. The power to pardon
given the President by the Constitution, "upon such conditions and with such restrictions and limitations as he may deem proper to impose,"
includes the power to grant and revoke paroles. (20 R.C.L., 577; 46 C.J. 1205.) If the omission of the power of parole in the Constitution is to
be construed as a denial thereof to the President, the effect would be to discharge unconditionally parolees, who, before the adoption of
the Constitution, have been released conditionally by the Chief Executive. That such effect was never intended by the Constitutional
Convention is obviously beyond question.
Appellant also contends that the Board of Indeterminate Sentence has no legal authority to investigate the conduct of the petitioner, and
recommend the revocation of his parole. By the terms of his parole, petitioner agreed to report the executive secretary of the board once
a month during the first year of his parole, and, thereafter, once every three months. By his consent to this condition, petitioner has placed
himself under the supervision of the board. The duty to report on the part of the petitioner implies a corresponding power on the part of the
board to inquire into his conduct, and a fortiori to make recommendations to the President by whose authority it was acting. Besides, the
power to revoke paroles necessarily carries with it the power to investigate and to inquire into the conduct of the parolees, if such power of
revocation is to be rational and intelligent. In the exercise of this incidental power of inquiry and investigation, the President of the
Philippines is not precluded by law or by the Constitution from making use of any agency of the government, or even of any individual, to
secure the necessary assistance. When, therefore, the President chose to intrust his power of inquiry upon the Board of Indeterminate
Sentence, a government agency created precisely for the concern of persons released on parole, he acted both upon legal authority and
good judgment.
Appellant further contends that judicial pronouncement to the effect that he has committed a crime is necessary before he can be
properly adjudged as having violated his conditional parole. Under condition No. 2 of his parole, petitioner agreed that he "will
not commit any other crime and will conduct himself in an orderly manner." (Emphasis ours.) It was, therefore, the mere commission, not his
conviction by court, of any other crime, that was necessary in order that the petitioner may be deemed to have violated his parole. And
under section 64 (i) of the Administrative Code, the Chief Executive is authorized to order "the arrest and re-incarceration of any such
person who, in his judgment, shall fail to comply with the condition, or conditions, of his pardon, parole, or suspension of sentence."
(Emphasis ours.)
Appellant impugns the findings of the President regarding the violation of the conditional parole. He claims that, according to the weight
of the evidence, the violation took place, not "in the latter part of September, 1937," as found by the President, but after October 28, 1937,
the date when the parole was supposed to expire. But that as it may, where, as in the instant case, the determination of the violation of the
conditional parole rests exclusively in the sound judgment of the Chief Executive, the courts will not interfere, by way of review, with any of
his findings. The petitioner herein having consented to place his liberty on parole upon the judgment of the power that has granted it, he
cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered.
Besides, even conceding that the petitioner's violation of the parole took place after October 28, 1937, when his maximum penalty was to
have expired, we still find no error in the order of the arrest and recommitment. It is the petitioner's contention that, upon the expiration of
his maximum term of imprisonment, his conditional parole also expires, and, therefore, his liberty becomes absolute subject to no conditions
contained in his parole. In other words, he holds the view that the period during which he was out on parole should be counted as service
of his original sentence. We do not subscribe to this contention.
In People vs. Tapel (35 Off. Gaz., 1603), we said:
When a conditional pardon is violated, the prisoner is placed in the same state in which he was at the time the pardon was
granted. He may be rearrested and recommitted to prisons (See U.S. vs. Ignacio [1916}, 33 Phil., 202, 204; U.S. vs. Villalon [1917], 37
Phil., 322.) And the rule is well-settled that, in requiring the convict to undergo so much of the punishment imposed by his original
sentence as he had not suffered at the time of his release, the court should not consider the time during which the convict was at
large by virtue of the pardon as time served on the original sentence. (20 R.C.L., p. 570; State vs. Horne [1906], 52 Fla., 125; 42 So.,
388; 7 L.R.A. [N.S.}, 719, 725. Vide, also, Ex parte Bell [1879], Miss., 282.)
This rule applies, by analogy, to conditional parole. (46 C.J., 1209.)
The foregoing discussion brings us to the last contention of the appellant as to the duration of the penalty he has yet to serve after his
recommitment. Act No. 1561 provided that a convict released on parole and who, thereafter, violates its conditions, shall serve the full
sentence of the court as though no parole has ever been granted him, the time between the parole and the subsequent arrest not being
considered as part of the term of his sentence in computing the period of his subsequent confinement. But this Act has been repealed by
the Administrative Code, and section 64 (i) thereof omitted such provision. Act No. 4103, section 8, provides that any prisoner released on
parole who violates any condition thereof, shall, upon re-arrest and confinement, serve the remaining unexpired portion of the maximum
sentence for which he was originally committed to prison. This Act is not, however, applicable to the present case, as the petitioner was
paroled not under the provision thereof, but by virtue of section 64 (i) of the Administrative Code. There is, thus, no statutory provision
squarely governing the case with respect to the duration of the petitioner's confinement after his recommitment. In the absence of such
statutory provision, the terms of the parole shall govern. From the express terms of the parole that "should any of the conditions stated be
violated, the sentence imposed shall again be in full force and effect," it is evident that the petitioner herein should serve the unexpired
portion of the penalty originally imposed upon him by the court.
Judgment is affirmed, with costs against appellant.
Avancea, C.J., Villa-Real, Imperial, and Diaz, JJ., concur.

Separate Opinions
LAUREL, J., concurring in the result.
I concur in the result, but withhold my assent to the statement, unnecessarily made in my opinion that Act No. 4103 as amended by Act
No. 4225 is inapplicable to the present case.
CONCEPCION, J., concurring and dissenting:
I concur in the result, but I dissent with respect to the interpretation given by the majority to the second condition of the appellant's parole.
Said the decision: "Under condition No. 2 of his parole, petitioner agreed that he 'will not commit any other crime and will conduct himself
in an orderly manner.' (Emphasis ours.) It was, therefore, the mere commission, not his conviction by court, of any other crime, that was
necessary in order that the petitioner may be deemed to have violated his parole."
I am of the opinion that the "commission" of a crime may only be determined upon the "conviction" of the accused. It is not sufficient that a
person be charged with having committed a crime in order to consider that he is convicted thereof. His innocence is a legal presumption
which is overcome only by his conviction after he is duly and legally prosecuted. And the courts of justice are the only branch of the
government which has exclusive jurisdiction under the law to make a pronouncement on the conviction of an accused.
In the present case, however, a judicial pronouncement can not be required regarding the commission of the crime imputed to the
appellant because the information for adultery lodged against him was dismissed for failure of the complaining witness to appear.
In these circumstances and as an exception to the general rule, the Board of Indeterminate Sentence was justified in conducting the
investigation of the crime complained of and in recommending to the President of the Philippines the arrest and recommitment of the
appellant for violation of his conditional pardon, for it is not just that by the omission or negligence of a witness who fails to appear in court,
the violation of the pardon granted conditionally to the appellant should be left unpunished.
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an
otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an appeal. The law
expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of
speculation on the part of the accused to wager on the result of his appeal that when his conviction is finally affirmed on appeal, the
moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an "escape hatch" thus
rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation should be availed of at the first opportunity
by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to control his outburst and blurted
You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . . Mga anak ng puta .
. . . Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate Informations instituted by five (5)
of his employees, each Information charging him with gravely maligning them on four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner guilty of grave oral defamation
in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of
one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed on each date of each
case, as alleqed in the information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda
Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit. 1 He was however
acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his favor a mitigating circumstance
analogous to passion or obfuscation. Thus
. . . (he) was angry and shouting when he uttered the defamatory words complained of . . . . he must have been angry
and worried "about some missing documents . . . as well as the letter of the Department of Tourism advising ASPAC about
its delinquent tax of P1.2 million . . . . " the said defamatory words must have been uttered in the heat of anger which is a
mitigating circumstance analogous to passion or obfuscation. 2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . . " 3 After he failed to
interpose an appeal therefrom the decision.of the RTC became final. The case was then set for execution of judgment by the MeTC which,
as a consequence, issued a warrant of arrest. Butbefore he could be arrested petitioner filed an application for probation which the MeTC
denied "in the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ." 4
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the following grounds
Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91 of
September 4, 1991. Violation of the circular is sufficient cause for dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to reconsider
its above order; in fact, he had failed to give the court an.opportunity to correct itself if it had, in fact, committed any
error on the matter. He is, however, required to move for reconsideration of the questioned order before filing a petition
for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a ground for dismissal of his petition (Santos
v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public Service Commission, 31-
SCRA 372).
Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical exercise of
power in denying the petitioner's application for probation . . . .
Fourthly, the petition for probation was filed by the petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon an application by the
defendant within the period of appeal, upon terms and conditions and period appropriate to each case, but expressly rules out probation
where an appeal has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing with the minor technicalities
which may militate against his petition as he now argues before us that he has not yet lost his right to avail of probation notwithstanding his
appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of the benefits of the
Probation Law because the original Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to
probation." 6 He contends that "he appealed from the judgment of the trial court precisely for the purpose of reducing the penalties
imposed upon him by the said court to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his conviction to the RTC which
affirmed the MeTC except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included. Probation is not a right of an
accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the court to a seemingly
deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands
convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the
grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of organized society, and
only incidentally for the benefit of the accused. 10 The Probation Law should not therefore be permitted to divest the state or its government
of any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no person
should benefit from the terms of the law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets
the quoted provision, offers any ambiguity or qualification. As such, the application of the law should not be subjected to any to suit the
case of petitioner. While the proposition that an appeal should not bar the accused from applying for probation if the appealis solely to
reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this interpretation under existing
law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en banc in Llamado v. Court of Appeals
. . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's argument to
be really that any statutory language that appears to favor the accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal interpretation" or "the spirit of the law" where the words of
the statute themselves, andas illuminated by the history of that statute, leave no room for doubt or interpretation. We do
not believe that "the spirit ofthe law" may legitimately be invoked to set at naught words which have a clear and
definite meaning imparted to them by our procedural law. The "true legislative intent" must obviously be given effect by
judges and all others who are charged with the application and implementation of a statute. It is absolutely essential to
bear in mind, however, that the spirit of the law and the intent that is to be given effect are derived from the words
actually used by the law-maker, and not from some external, mystical or metajuridical source independent of and
transcending the words of the legislature.
The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a
disciplined and principled search for the meaning which the law-making authority projected when it promulgated the
language which we must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as the
nose on a man's face. The Courtis simplyreading Section 4 as it is in fact written. There is no need for the involved
process of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects
the conclusion or meaning which shines through the words of the statute. The first duty of the judge is to take and apply
a statute as he finds it, not as he would likeit to be. Otherwise, as this Court in Yangco v. Court of First Instance warned,
confusion and uncertainty will surely follow, making, we might add, stability and continuity in the law much more difficult
to achieve:
. . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a
particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so
much confusion in the law, which has made it so difficult for the public to understand and know what
the law is with respect to a given matter, is in considerable measure the unwarranted interference by
judicial tribunals with the English language as found in statutes and contracts, cutting the words here
and inserting them there, making them fit personal ideas of what the legislature ought to have done
or what parties should have agreed upon, giving them meanings which they do not ordinarily have
cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their
clients as to the meaning of a given statute or contract until it has been submitted to some court for its
interpretation and construction.
The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated. 12
Therefore, that an appeal should notbar the accused from applying for probation if the appeal is taken solely to reduce the penalty is
simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no
application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction."
In Bersabal v. Salvador, 13 we said
By its very language, the Rule is mandatory. Under the rule of statutory construction. negative words and phrases are to
be regarded as mandatory while those in the affirmative are merely directory. . . . the use of the term "shall" further
emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be
enforced.
And where the law does not distinguish the courts should not distinguish; where the law does not make exception the court should not
except.
Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no need to appeal if only to
reduce the penalties to within the probationable period. Multiple prison terms imposed against an accused found guilty of several offenses
in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not
be determinative of his eligibility for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if
none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he is
otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the
probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of this
Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law
does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if
petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as
alleged in the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4) private
complainants on four (4) different, separate days, he was stilleligible for probation, as each prison term imposed on petitioner was
probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to
higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrong doing but because of
the gravity and serious consequences of the offense they might further commit. 14 The Probation Law, as amended, disqualifies only those
who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 15 and not necessarily those
who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the
disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a
maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation.
To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13) counts of grave oral
defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to a total prison term of thirteen (13) years, and
another who has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to
twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin. Obviously, the latter offender is more perverse and is
disqualified from availing of probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed of the benefits of probation.
Since he could have, although he did not, his appeal now precludes him from applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties imposed against him should be
summed up, still he would not have qualified under the Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and eight (8) months,
which is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To illustrate: 8 months
multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence, following his argument,
petitioner cannot still be eligible for probation as the total of his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4) Informations thereby allowing
petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to understand. The penalties imposed by the MeTC cannot
be any clearer "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each crime committed on
each date of each case, as alleged in the information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16) times. On the
other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration of each penalty imposed by the MeTC "in
each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating circumstance for each case, count or
incident of grave oral defamationThere is no valid reason therefore why the penalties imposed by the RTC should be multiplied only four
(4) times, and not sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner in each of
the sixteen (16) cases and reducing only the duration of the penalties imposed therein. Thus
Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in each of the
above entitled cases and appreciating in his favor the mitigating circumstance which is analogous to passion or
obfuscation, the Court hereby sentences the said accused in each case to a straight penalty of EIGHT (8) MONTHS
imprisonment, with the accessory penalties prescribed by law; and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of the four (4) counts under
each of the four (4) Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the cases, counts or incidents
was dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that
the judgment of conviction rendered by the was affirmed with the sole modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality of all the penalties is not the
test, petitioner should have immediately filed an application for probation as he was already qualified after being convicted by the MeTC,
if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability. Consequently, in
appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal and probation
mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to assert his innocence.
Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for the sole purpose of reducing his penalties to make
him eligible for probation since he was already qualified under the MeTC Decision but rather to insist on his innocence. The appeal
record is wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly
committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established because of his positive
identification by the witness for the prosecution; (b) in giving full faith and credence to the bare statements of the private complainants
despite the absence of corroborating testimonies; and, (c)in not acquitting him in all the cases," 18 Consequently, petitioner insisted that the
trial court committed an error in relying on his positive identification considering that private complainants could not have missed
identifying him who was their President and General Manager with whom they worked for a good number of years. Petitioner further
argued that although the alleged defamatory words were uttered in the presence of other persons, mostly private complainants, co-
employees and clients, not one of them was presented as a witness. Hence, according to petitioner, the trial court could not have
convicted him on the basis of the uncorroborative testimony of private complainants. 19
Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do not simply put in issue the
propriety of the penalties imposed. For sure, the accused never manifested that he was appealing only for the purpose of correcting a
wrong penalty to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after asserting his innocence
therein, petitioner should be precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative
remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of an accused
who although already eligible does not at once apply for probation, but doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does not necessarily mean that
his appeal to the RTC was solely to reduce his penalties. Conversely, he was afraid that the Court of Appeals would increase his penalties,
which could be worse for him. Besides, the RTC Decision had already become final and executory because of the negligence, according
to him, of his former counsel who failed to seek possible remedies within the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should
have moved to quash as each of the four (4) Informations filed against him charged four (4) separate crimes of grave oral defamation,
committed on four (4) separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same Rule 21 and he
can be validly convicted, as in the instant case, of as many crimes charged in the Information.
Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond the period allowed by law
and crucial. From the records it is clear that the application for probation was filed "only after a warrant for the arrest of petitioner had
been issued . . . (and) almost two months after (his) receipt of the Decision" 22 of the RTC. This is a significant fact which militates against the
instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals
Nathanael P. De Pano, Jr., on the specific issue
. . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as amended,
provides thus:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, and upon application by said defendant within the
period for perfecting an appeal. . . . place the defendant on probation . . . .
Going to the extreme, and assuming that an application for probation from one who had appealed the trial court's
judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the petition is a clear statement
that the petitioner was up for execution of judgment before he filed his application for probation. P.D. No. 968 says that
the application for probation must be filed "within the period for perfecting an appeal;" but in this case, such period for
appeal had passed, meaning to say that the Regional Trial Court's decision had attained finality, and no appeal
therefrom was possible under the law. Even granting that an appeal from the appellate court's judgment is
contemplated by P.D. 968, in addition to the judgment rendered by the trial court, that appellate judgment had
become final and was, in fact, up for actual execution before the application for probation was attempted by the
petitioner. The petitioner did not file his application for probation before the finality of the said judgment; therefore, the
petitioner's attempt at probation was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted even if it was filed only after
judgment has become final, the conviction already set for execution and a warrant of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC
had become final, for him to file the application for probation with the trial court, is to stretch the law beyond comprehension. The law,
simply, does not allow probation after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and petitioner
appealed from his conviction by the MeTC although the imposed penalties were already probationable, and in his appeal, he asserted
only his innocence and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an application for
probation outside the period for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review
should be as it is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

Separate Opinions

MENDOZA, J., dissenting:

I vote to reverse the judgment of the Court of Appeals in this case.
I.
The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the fact that petitioner had appealed his
sentence before filing his application for probation. Reliance is placed on the literal application of 4 of the Probation Law of 1976 ,as
amended, which provides as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only probation shall be filed
with the trial court application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
Thus, under 4 the accused is given the choice of appealing his sentence or applying for probation. If he appeals, he cannot later apply
for probation. If he opts for probation, he can not appeal. Implicit in the choice, however, is that the accused is not disqualified for
probation under any of the cases mentioned in 9, to wit:
Sec. 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of subversion or any crime against the national security or the public order;
(c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one
month and one day and/or a fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant
to Section 33 hereof.
Consequently, if under the sentence given to him an accused is not qualified for probation, as when the penalty imposed on him by the
court singly or in their totality exceeds six (6) years but on appeal the sentence is modified so that he becomes qualified, I believe that the
accused should not be denied the benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed even encouraged speculation on the outcome of appeals by permitting the
accused to apply for probation after he had appealed and failed to obtain an acquittal. 1It was to change this that 4 was amended by
P.D. No. 1990 by expressly providing that "no application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to appeal in
the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his conviction is affirmed. 2
There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of either appealing from the
decision of the trial court or applying for probation, the purpose is to deny him the right to probation in cases like the one at bar where he
becomes eligible for probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears repeating, is
simply to prevent speculation or opportunism on the part of an accused who; although eligible for probation, does not at once apply for
probation, doing so only after failing in his appeal.
In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally motivated by a desire to be acquitted.
While acquittal might have been an alluring prospect for him, what is clear is that he had a reason for appealing because under the
sentence given to him he was disqualified to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1 year
and 8 months of prision correccional for "each crime committed on each date of each case, as alleged in the information[s]." This meant,
as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times,
since he was found guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties imposed on petitioner
(26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment allowed by 9(a) and disqualified him for probation. It was
only after this penalty was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term of 2 years
and 8 months in the four cases that petitioner became eligible for probation. Then he did not appeal further although he could have done
so.
The Court of Appeals, while acknowledging that "there may be some space not covered by the present law on probation . . . where in its
original state, the petitioner was disqualified from applying for probation under Sec. 9 of the Decree, becoming eligible for probation only
under the terms of the judgment on appeal," nevertheless felt bound by the letter of 4: "No application for probation shall be entertained
or granted if the defendant has perfected the appeal from the judgment of conviction." The majority opinion, affirming the ruling, states
that to allow probation in this case would be to go against the "clear and express mandate of sec. 4 of the Probation Law, as amended."
(p. 9)
To regard probation, however, as a mere privilege, to be given to the accused only where it clearly appears he comes within its letter is to
disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law
it is not but to achieve its beneficent purpose. (Santos To v. Pao, 120 SCRA 8, 14 (1983)). The niggardly application of the law would
defeat its purpose to "help the probationer develop into a law-abiding and self-respecting individual" (Baclayon v. Mutia, 129 SCRA 148,
149 (1984), per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save
government funds that may otherwise be spent for his food and maintenance while incarcerated, and to decongest the jails of the
country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.)
The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law was never intended to limit the right of an accused person to
present all relevant evidence he can avail of in order to secure a verdict of acquittal or a reduction of the penalty.
Neither does the law require a plea of guilty on the part of the accused to enable him to avail of the benefits of
probation. A contrary view would certainly negate the constitutional right of an accused to be presumed innocent until
the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the penalty imposed on him by the MeTC
had been reduced by the RTC so that he thereby became qualified for probation, he did not appeal further. The majority says that this was
because he was afraid that if he did the penalty could be increased. That possibility, however, was also there when he appealed from the
MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the penalty would be raised as the chance
that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not simply questioned the propriety of his
sentence, but no more so does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied
probation if he is otherwise eligible for probation.
It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning, later acknowledges his guilt and shows
contrition after he is found guilty. So does an accused who appeals a sentence because under it he is not qualified for probation, but after
the penalty is reduced, instead of appealing further, accepts the new sentence and applies for probation.
This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which it was held that because the petitioner
had appealed his sentence, he could not subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that
case could have applied for probation as his original sentence of one year of prision correccional did not disqualify him for probation. That
case fell squarely within the ambit of the prohibition in 4 that one who applies for probation must not "have perfected an appeal from the
judgment of conviction."
II.
It is contended that petitioner did not have to appeal because under the original sentence meted out to him he was not disqualified for
probation. The issue here is whether the multiple prison terms imposed on petitioner are to be considered singly or in their totality for the
purpose of 9(a) which disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than six years."
I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was for "one (1) year and one (1) day to
one (1) year and eight (8) months of prision correccional in each crime committed on each date of each case" and as there are four
offenses of grave oral defamation against petitioner in each of the four cases, the total prison term which he would have to serve was 26
years and 8 months. This is clearly beyond the probationable maximum allowed by law.
It is said, however, that even if the totality of the prison terms is the test, the modified sentence imposed by the RTC would not qualify the
petitioner for probation because he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the
said accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means eight (8) months times four (4), since there
are four cases, or 32 months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases which are jointly tried and decided.
For example, 9(c) disqualifies from probation persons "who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137
SCRA 121 (1985) that the accused, who had been found guilty of estafa in five criminal cases, was qualified for probation because
although the crimes had been committed on different dates he was found guilty of each crime on the same day. As this Court noted, "Rura
was sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal case the sentence was three (3)
months and fifteen (15) days.
That the duration of a convict's sentence is determined by considering the totality of several penalties for different offenses committed is
also implicit in the provisions of the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70)
It is said that the basis of disqualification under 9 is the gravity of the offense committed and the penalty imposed. I agree. That is why I
contend that a person who is convicted of multiple grave oral defamation for which the total prison term is, say, 6 years and 8 months, is
guilty of a graver offense than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty of 1 year
and 8 months. The relevant comparison is between an accused convicted of one offense of grave oral defamation and another one
convicted of the same offense, say four or more times. The relevant comparison is not, as the majority says, between an accused found
guilty of grave oral defamation four or more times and another one found guilty of mutilation and sentenced to an indeterminate term of 6
years and 1 day of prision mayor to 12 years and 1 day of reclusion temporal.
III.
Finally, it is said that there is a more fundamental reason for denying probation in this case and that is that petitioner applied for probation
only after his case had been remanded to the MeTC for the execution of its decision as modified. But that is because 4 provides that "an
application for probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await the remand of the
case to the MeTC, which necessarily must be after the decision of the RTC had become final.
The decision of the Court of Appeals should be REVERSED and respondent judge of the Metropolitan Trial Court of Makati, Metro Manila
should be ORDERED to GRANT petitioner's application for probation.
VITUG, J., concurring:
While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting opinion that an accused, who originally is not
qualified for probation because the penalty imposed on him by a court a quo exceeds six (6) years, should not be denied that benefit of
probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to second the other
proposition that multiple prison terms imposed by a court should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this
respect, I concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for
probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the probationable period." The use of the word maximum instead of the word total in
Section 9, paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the legislative intent.
Thus, I still must vote for the denial of the petition.

Separate Opinions
MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this case.
I.
The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the fact that petitioner had appealed his
sentence before filing his application for probation. Reliance is placed on the literal application of 4 of the Probation Law of 1976 ,as
amended, which provides as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only probation shall be filed
with the trial court application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
Thus, under 4 the accused is given the choice of appealing his sentence or applying for probation. If he appeals, he cannot later apply
for probation. If he opts for probation, he can not appeal. Implicit in the choice, however, is that the accused is not disqualified for
probation under any of the cases mentioned in 9, to wit:
Sec. 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of subversion or any crime against the national security or the public order;
(c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one
month and one day and/or a fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant
to Section 33 hereof.
Consequently, if under the sentence given to him an accused is not qualified for probation, as when the penalty imposed on him by the
court singly or in their totality exceeds six (6) years but on appeal the sentence is modified so that he becomes qualified, I believe that the
accused should not be denied the benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed even encouraged speculation on the outcome of appeals by permitting the
accused to apply for probation after he had appealed and failed to obtain an acquittal. 1It was to change this that 4 was amended by
P.D. No. 1990 by expressly providing that "no application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to appeal in
the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his conviction is affirmed. 2
There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of either appealing from the
decision of the trial court or applying for probation, the purpose is to deny him the right to probation in cases like the one at bar where he
becomes eligible for probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears repeating, is
simply to prevent speculation or opportunism on the part of an accused who; although eligible for probation, does not at once apply for
probation, doing so only after failing in his appeal.
In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally motivated by a desire to be acquitted.
While acquittal might have been an alluring prospect for him, what is clear is that he had a reason for appealing because under the
sentence given to him he was disqualified to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1 year
and 8 months of prision correccional for "each crime committed on each date of each case, as alleged in the information[s]." This meant,
as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times,
since he was found guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties imposed on petitioner
(26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment allowed by 9(a) and disqualified him for probation. It was
only after this penalty was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term of 2 years
and 8 months in the four cases that petitioner became eligible for probation. Then he did not appeal further although he could have done
so.
The Court of Appeals, while acknowledging that "there may be some space not covered by the present law on probation . . . where in its
original state, the petitioner was disqualified from applying for probation under Sec. 9 of the Decree, becoming eligible for probation only
under the terms of the judgment on appeal," nevertheless felt bound by the letter of 4: "No application for probation shall be entertained
or granted if the defendant has perfected the appeal from the judgment of conviction." The majority opinion, affirming the ruling, states
that to allow probation in this case would be to go against the "clear and express mandate of sec. 4 of the Probation Law, as amended."
(p. 9)
To regard probation, however, as a mere privilege, to be given to the accused only where it clearly appears he comes within its letter is to
disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law
it is not but to achieve its beneficent purpose. (Santos To v. Pao, 120 SCRA 8, 14 (1983)). The niggardly application of the law would
defeat its purpose to "help the probationer develop into a law-abiding and self-respecting individual" (Baclayon v. Mutia, 129 SCRA 148,
149 (1984), per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save
government funds that may otherwise be spent for his food and maintenance while incarcerated, and to decongest the jails of the
country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.)
The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law was never intended to limit the right of an accused person to
present all relevant evidence he can avail of in order to secure a verdict of acquittal or a reduction of the penalty.
Neither does the law require a plea of guilty on the part of the accused to enable him to avail of the benefits of
probation. A contrary view would certainly negate the constitutional right of an accused to be presumed innocent until
the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the penalty imposed on him by the MeTC
had been reduced by the RTC so that he thereby became qualified for probation, he did not appeal further. The majority says that this was
because he was afraid that if he did the penalty could be increased. That possibility, however, was also there when he appealed from the
MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the penalty would be raised as the chance
that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not simply questioned the propriety of his
sentence, but no more so does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied
probation if he is otherwise eligible for probation.
It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning, later acknowledges his guilt and shows
contrition after he is found guilty. So does an accused who appeals a sentence because under it he is not qualified for probation, but after
the penalty is reduced, instead of appealing further, accepts the new sentence and applies for probation.
This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which it was held that because the petitioner
had appealed his sentence, he could not subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that
case could have applied for probation as his original sentence of one year of prision correccional did not disqualify him for probation. That
case fell squarely within the ambit of the prohibition in 4 that one who applies for probation must not "have perfected an appeal from the
judgment of conviction."
II.
It is contended that petitioner did not have to appeal because under the original sentence meted out to him he was not disqualified for
probation. The issue here is whether the multiple prison terms imposed on petitioner are to be considered singly or in their totality for the
purpose of 9(a) which disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than six years."
I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was for "one (1) year and one (1) day to
one (1) year and eight (8) months of prision correccional in each crime committed on each date of each case" and as there are four
offenses of grave oral defamation against petitioner in each of the four cases, the total prison term which he would have to serve was 26
years and 8 months. This is clearly beyond the probationable maximum allowed by law.
It is said, however, that even if the totality of the prison terms is the test, the modified sentence imposed by the RTC would not qualify the
petitioner for probation because he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the
said accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means eight (8) months times four (4), since there
are four cases, or 32 months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases which are jointly tried and decided.
For example, 9(c) disqualifies from probation persons "who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137
SCRA 121 (1985) that the accused, who had been found guilty of estafa in five criminal cases, was qualified for probation because
although the crimes had been committed on different dates he was found guilty of each crime on the same day. As this Court noted, "Rura
was sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal case the sentence was three (3)
months and fifteen (15) days.
That the duration of a convict's sentence is determined by considering the totality of several penalties for different offenses committed is
also implicit in the provisions of the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70)
It is said that the basis of disqualification under 9 is the gravity of the offense committed and the penalty imposed. I agree. That is why I
contend that a person who is convicted of multiple grave oral defamation for which the total prison term is, say, 6 years and 8 months, is
guilty of a graver offense than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty of 1 year
and 8 months. The relevant comparison is between an accused convicted of one offense of grave oral defamation and another one
convicted of the same offense, say four or more times. The relevant comparison is not, as the majority says, between an accused found
guilty of grave oral defamation four or more times and another one found guilty of mutilation and sentenced to an indeterminate term of 6
years and 1 day of prision mayor to 12 years and 1 day of reclusion temporal.
III.
Finally, it is said that there is a more fundamental reason for denying probation in this case and that is that petitioner applied for probation
only after his case had been remanded to the MeTC for the execution of its decision as modified. But that is because 4 provides that "an
application for probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await the remand of the
case to the MeTC, which necessarily must be after the decision of the RTC had become final.
The decision of the Court of Appeals should be REVERSED and respondent judge of the Metropolitan Trial Court of Makati, Metro Manila
should be ORDERED to GRANT petitioner's application for probation.
VITUG, J., concurring:
While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting opinion that an accused, who originally is not
qualified for probation because the penalty imposed on him by a court a quo exceeds six (6) years, should not be denied that benefit of
probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to second the other
proposition that multiple prison terms imposed by a court should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this
respect, I concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for
probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the probationable period." The use of the word maximum instead of the word total in
Section 9, paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the legislative intent.
Thus, I still must vote for the denial of the petition.
Footnotes
1 Decision penned by Judge Andres B. Reyes. Jr., pp. 13-14; Rollo, pp. 46-47.
2 Decision penned-by Judge Lucia V. Isnani, pp. 12-13; Rollo, pp. 59-60.
3 Ibid.
4 Order of Judge Maximo C. Contreras, Metropolitan Trial Court of Makati, Br. 61, Rollo, p. 67.
5 Decision of the Special Eleventh Division penned by then Associate Justice Nathanael P. De Pano, Jr. (now Presiding
Justice), concurred in by Associate Justices Jesus M. Elbinias and Consuelo Y. Santiago.
6 Urgent Petition for Review, p, 15; Rollo, p, 16.
7 Id., p, 10; Rollo, p.11.
8 Baclayon v. Mutia, G.R. No. 59298, 30 April 1984, 129 SCRA 149; Amandy v. People, G.R. No. 76258, 23 May 1988, 161
SCRA 436.
9 34 Words and Phrases 111.
10 Bala v. Martinez, G.R. No. 67301, 29 January 1990, 181 SCRA 459.
11 G.R. No. 84850, 29 June 1989, 174 SCRA 566.
12 See Note 11, pp. 577-578.
13 No. L - 35910, 21 July 1978, 84 SCRA 176, citing McGee v. Republic, 94 Phil. 820 (1954).
14 Bautista, E., Statutory Concept and Objectives, Coverage and Selection Criteria for Probation. Lecture delivered
during the 1977 Regional Seminar on Probation, Philippine International Convention Center.
15 Art. 9 defines grave felonies as those to which the law attaches the capital punishment or penalties which in any of
their periods are afflictive, in accordance with Art. 25. Art. 25 On the other hand lists death as capital punishment,
and reclusion perpetua, reclusion temporal, perpetual or temporary absolute disqualification, perpetual or temporary
special disqualification, and prision mayor as afflictive penalties.
16 Decision of the RTC, p. 13; Rollo, p. 60.
17 Bernardo v. Balagot, G.R. No. 86561, 10 November 1992, 215 SCRA 526.
18 Decision of the RTC, p. 2; Rollo, p. 49.
19 Ibid.
20 Section 3, par. (e), Rule 117, Rules of Court, provides: "The accused may move to quash the complaint or information
on any of the following grounds: . . . that more than one offense is charged . . . .
21 Section 8, Rule 117, Rules of Court, provides: "The failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he did not file a motion to quash or failed to alleged
the same in the said motion shall be deemed a waiver of the grounds of a motion to quash . . . .
22 Urgent Petition for Review, p. 5; Rollo, P 6.
MENDOZA, J., dissenting:
1 As originally promulgated on July 24, 1976, P.D. No. 968, 4 provided:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have convicted and
sentenced a defendant and upon application at any time of said defendant, suspend the execution of said sentence
and place the defendant on probation for such period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the
sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic
withdrawal of a pending appeal.
An order granting or denying probation shall not be appealable. (Emphasis added)
Thus, under the law as originally promulgated, any time after the trial court had convicted and sentenced the accused
and even if he had taken an appeal, the trial court could grant him probation in the event he is convicted.
On December 1, 1977, 4 of the law was again amended by P.D. No. 1257 so as to read as follows:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have convicted and
sentenced a defendant but before he begins to serve his sentence and upon his application, suspend the execution of
said sentence and place the defendant on probation for such period and upon such terms and conditions as it may
deem best.
The prosecuting officer concerned shall be notified by the court of the filing of the application for probation and he may
submit his comment on such application within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine with subsidiary imprisonment
in case of insolvency. An application for probation shall be filed with the trial court, with notice to the appellate court if
an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of
the right to appeal, or the automatic withdrawal of a pending appeal. In the latter case, however, if the application is
filed on or after the date of the judgment of the appellate court, said application shall be acted upon by the trial court
on the basis of the judgment of the appellate court.
An order granting or denying probation shall not be appealable. (Emphasis added)
This amendment limited the period for applying for probation to the point just "before he begins to serve his sentence."
This meant not only after an appeal had been taken but even after a judgment had been rendered by the appellate
 court and after the latter's judgment had become final. Hence the proviso that "the application [for probation] shall be
acted upon by the trial court on the basis of the judgment of the appellate court."
On October 5, 1985, 4 of the Probation Law was again amended to further limit the period for applying for probation to
the "period for perfecting an appeal." The purpose was to confine the accused to the choice of either applying for
probation or appealing. While heretofore an accused could appeal and, after his appeal had failed, apply for
probation, under the amendatory Decree, this is no longer possible. If he appeals he cannot later apply for probation. If
he applies for probation he cannot later appeal. As amended by P.D. No. 1990, 4 reads:
Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. (Emphasis added)
2 The preamble of P.D. No. 1990 states:
WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be entitled to
probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time and effort, not
to mention the huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused persons from the
lower courts up to the Supreme Court, are often times rendered nugatory when, after the appellate court finally affirms
the judgment of conviction, the defendant applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the
administration of justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and
rehabilitated; (Emphasis added)
RONALD SORIANO, petitioner, vs. COURT OF APPEALS; HON. RODOLFO V. TOLEDANO, Presiding Judge of the Regional Trial Court, Branch 69,
Third Judicial Region, Iba, Zambales; THE PROVINCIAL SHERIFF, Third Judicial Region, Iba, Zambales; Ms. NELDA DA MAYCONG,
Supervising Parole and Probation Officer and Officer-in-Charge, Zambales Parole and Probation Office; and THE PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals in C.A. G.R. SP No. 35550,[1] which upheld the trial courts
orders holding petitioner in contempt and revoking his probation.
The facts of the case are as follows:
Petitioner Ronald Soriano was convicted of the crime of Reckless Imprudence resulting to homicide, serious physical injuries and
damage to property on December 7, 1993.[2] His application for probation was granted on March 8, 1994, and among the terms and
conditions imposed by the trial court were the following:[3]
"x x x x x x x x x
7. He shall meet his family responsibilities.
8. He shall devote himself to a specific employment and shall not change employment without prior notice to the supervising officer;
and/or shall pursue a prescribed secular study or vocational training.
xxxxxxxxx
11. He is to indemnify the heirs of the victim Isidrino Daluyong in the amount of P98,560.00 as ordered by the Court.
xxxxxxxxx
On April 26, 1994, Assistant Prosecutor Benjamin A. Fadera filed a motion to cancel petitioners probation due to his failure to satisfy his
civil liability to the heirs of the victim, and a supplemental motion alleging petitioners commission of another crime for which at that time he
was awaiting arraignment. The Zambales Parole and Probation Office filed a comment recommending that petitioner be allowed to
continue with his probation and that he be required instead to submit a program of payment of his civil liability.
On June 20, 1994, the trial court denied the prosecutors motion and directed petitioner to submit a program of payment of the civil
liability imposed upon him.
Thereafter, probation officer Nelda Da Maycong received information that petitioners father, who owned the vehicle involved in the
accident which killed Daluyong, received P16,500.00 as insurance payment. This amount was not turned over to the heirs of Daluyong and
Da Maycong considered this a violation of the terms and conditions of the probation. She submitted a manifestation to the trial court
praying that petitioner be made to explain his non-compliance with the courts order of June 20, 1994, or that he be cited for contempt for
such non-compliance. Da Maycong also asked that petitioner be made to submit a program of payment as soon as possible. The trial
court granted her prayers in an order dated August 15, 1994. Petitioner was once again ordered to submit his program of payment.
Petitioner instead filed a motion for reconsideration explaining that he did not receive any notice of the order dated June 20, 1994. His
counsel received a copy of said order on June 23, 1994 but failed to notify petitioner. Thus, the latter failed to comply with said order.
On October 4, 1994, the trial court issued an order declaring petitioner in contempt of court for his failure to comply with its orders of
June 20, 1994 and August 15, 1994. The court likewise revoked the grant of probation to petitioner and ordered that he be arrested to serve
the sentence originally imposed upon him. According to the trial court, among the violations committed by petitioner as regards his
probation are his failure to (1) meet his responsibilities to his family, (2) engage in a specific employment, and (3) cooperate with his
program of supervision.
Petitioner then filed a special civil action for certiorari with the Court of Appeals. He claimed that respondent judge committed grave
abuse of discretion amounting to lack of, or in excess of, jurisdiction in holding petitioner in contempt and revoking his probation. The Court
of Appeals dismissed the petition, holding that petitioners stubborn unwillingness to comply with the orders of the trial court shows his refusal
to reform himself and to correct a wrong.[4]
According to the Court of Appeals:
Where probation was approved and probationer has proven to be unrepentant and disrespectful and even showed clear defiance to two
lawful court orders, as in the case of herein petitioner, the court is not barred from revoking the same.[5]
Petitioners motion for reconsideration was likewise denied by the Court of Appeals for lack of merit.
 Hence, this petition for review, in which petitioner makes the following assignment of errors: [6]
1. Respondent Court of Appeals erred in failing to rule that respondent judge committed grave abuse of discretion in finding
that there was deliberate refusal on the part of petitioner to comply with his orders dated June 20, 1994 and August 15, 1994
and subsequently declaring petitioner in contempt.
2. Respondent Court of Appeals erred in failing to rule that respondent judge committed grave abuse of discretion in revoking
the probation order he earlier issued in favor of petitioner on the ground that petitioner failed to satisfy the award of civil
indemnity for the heirs of the accident victim.
3. Respondent Court of Appeals erred in failing to rule that respondent judge committed grave abuse of discretion in revoking
the probation order he earlier issued in favor of petitioner on the ground that the latter violated the conditions of his probation
three times.
Petitioner asserts that he had no intention to ignore the orders of the trial court. The courts order of June 20, 1994 was received by his
counsel who, however, did not notify petitioner. Petitioner says that his former counsels irresponsible delay (in informing him of the order)
should not prejudice him.[7]
He explains that his non-compliance with the order to submit a program of payment of his civil liability is, ultimately, due to his poor
financial condition. He only relies on his parents for support. He claims that it is impossible for him to formulate a payment program
because, in the first place, he is in no position to comply with the same.
Petitioner avers that to require him to satisfy his civil liability in order to continue to avail of the benefits of probation is to violate the
constitutional proscription against unequal protection of the law. He says only moneyed probationers will be able to benefit from probation
if satisfaction of civil liability is made a condition.
Petitioner contends that his enjoyment of probation should not be made to depend on the satisfaction of his civil liability. He invokes
the separate opinion of Justice Isagani A. Cruz in Salgado v. Court of Appeals,[8] particularly Justice Cruz reservation about the validity of
imposing satisfaction of civil liability as a condition for probation. Based on this opinion, petitioner claims that such an imposition is in the
nature of an amendment of the decision of the trial court in the criminal case against him, which cannot be allowed since the decision is
already final and executory. He further invokes the majority decision in Salgado and asserts that any program of payment of civil liability
must take into consideration the needs and capacity of petitioner.[9]
Petitioner claims that his failure to meet his responsibilities to his family and to engage in gainful employment is not deliberate but is
due to his poverty. He adds that his being unskilled, with a criminal record to his name, does not exactly enhance his chances for
employment.
Finally, petitioner cites our decision in Baclayon v. Mutia:[10]
x x x Conditions should be interpreted with flexibility in their application and each case should be judged on its own merits -- on the
basis of the problems, needs and capacity of the probationer. The very liberality of the probation should not be made a tool by trial
courts to stipulate instead unrealistic terms.[11]
In his comment, the Solicitor General asks for the dismissal of the petition. The only issue to be resolved according to him is whether or
not petitioner has violated the terms and conditions of his probation as to warrant its revocation. The Solicitor General argues that petitioner
has committed violations, thus justifying the trial courts revocation of the grant of probation. He further points out that our ruling
in Salgado is inapplicable to the case of petitioner since what was involved in Salgado was a program of payment already imposed upon
petitioner therein. In this case, however, it is petitioner who is being asked to submit his own program of payment and he had not submitted
any such program.
The only issue for us to resolve in this case is whether or not the revocation of petitioners probation is lawful and proper.
Petitioner asserts that his non-compliance with the orders of the trial court requiring him to submit a program of payment was not
deliberate. To our mind, his refusal to comply with said orders cannot be anything but deliberate. He had notice of both orders, although
the notice of the order of June 20, 1994 came belatedly. He has, up to this point, refused to comply with the trial courts directive, by
questioning instead the constitutionality of the requirement imposed and harping on his alleged poverty as the reason for his failure to
comply.
Contrary to his assertion, this requirement is not violative of the equal protection clause of the Constitution. Note that payment of the
civil liability is not made a condition precedent to probation. If it were, then perhaps there might be some basis to petitioners assertion that
only moneyed convicts may avail of the benefits of probation. In this case, however, petitioners application for probation had already
been granted. Satisfaction of his civil liability was not made a requirement before he could avail of probation, but was a condition for his
continued enjoyment of the same.
The trial court could not have done away with imposing payment of civil liability as a condition for probation, as petitioner
suggests. This is not an arbitrary imposition but one required by law. It is a consequence of petitioners having been convicted of a
crime,[12] and petitioner is bound to satisfy this obligation regardless of whether or not he is placed under probation.
We fail to see why petitioner cannot comply with a simple order to furnish the trial court with a program of payment of his civil
liability. He may, indeed, be poor, but this is precisely the reason why the trial court gave him the chance to make his own program of
payment. Knowing his own financial condition, he is in the best position to formulate a program of payment that fits his needs and
capacity.
Petitioner blames his former counsels irresponsible delay in informing him of the trial courts order to come up with a program of
payment for his failure to make such a program. Petitioner wants to take exception to the rule that notice to counsel is notice to client.
We find no reason to make an exception in this case. Petitioners counsel has not been shown to be grossly irresponsible as to cause
prejudice to petitioners rights.[13] Moreover, we note that petitioner later on discovered that such a court order was received by his
counsel. He could have endeavored to comply with the order then. In the June 20, 1994 order, he was given 10 days from receipt of the
order within which to comply. The same period was given him in the order of August 15, 1994. Petitioner does not claim that he failed to
receive notice of the latter order. In fact, he submitted a motion for reconsideration of said order, but still without the required program of
payment.
No justifiable reason has been given by petitioner for ignoring those two orders. The trial court could not be faulted for citing him in
contempt for his failure to comply with its orders. Nor did it abuse gravely its discretion in issuing said orders. Hence, we are in full agreement
with respondent appellate courts decision as well.
Moreover, petitioners continued refusal to submit a program of payment, along with his prayer for the deletion of the requirement of
payment of civil liability from his probation order, creates the impression that he wants to completely avoid paying his civil liability. This he
cannot do. He cannot escape payment of his civil liability, with or without a program of payment.
Petitioners reliance on Salgado is misplaced. In that case, the trial court itself formulated the manner by which Salgado was to satisfy
his civil liability. He was able to comply for a few months. When he started skipping his payments, his victim sought the issuance of a writ of
execution to enforce full payment of the civil liability. The trial court granted this motion and it was sustained by the Court of Appeals which
ruled that the program of payment amounted to an amendment of the decision of the trial court ordering payment of civil liability but
without a program of payment. Since the trial courts decision had already become final, it can no longer be amended by imposing a
program of payment, in installments, of the civil liability.
We held in Salgado that the program of payment is not an amendment of the decision of the trial court because it does not increase
or decrease the liability and the obligation to pay is to be fulfilled during the period of probation.
Unlike in Salgado, herein petitioner was being asked to make a program of payment. But he failed to do so. Hence, in this case, there
is yet no program of payment to speak of, because of petitioners stubborn refusal and delay as well as failure to abide by the trial courts
orders.
Petitioners reliance on Baclayon is likewise misplaced. In that case, what was being assailed as an unrealistic condition was the trial
courts requirement that petitioner therein, a teacher convicted of Serious Oral Defamation, refrain from exercising her profession. This
condition was deemed unreasonable because teaching was the only profession she knew and it appeared that she excelled in
teaching. No unrealistic condition similar to the one in Baclayon has been imposed upon petitioner herein.
As regards the other violations committed by petitioner, the question of whether or not petitioner has, indeed, violated the terms and
conditions of his probation is evidently a factual one which had already been passed upon by both the trial court and the Court of
Appeals. Settled is the rule in this jurisdiction that findings of fact of the trial court are entitled to great weight, more so when they are
affirmed by the Court of Appeals,[14] as in this case.
Besides, petitioner himself admits in his petition that he is unemployed and only depends on his parents for support. He can barely
support his family.[15] Petitioner ought to be reminded of what is incumbent on a probationer, including those requirements that the trial
court may set.
As Section 10 of the Probation Law states:
SEC. 10. Conditions of Probation. -- xxx
The court may also require the probationer to:
(a) Cooperate with a program of supervision;
(b) Meet his family responsibilities;
(c) Devote himself to a specific employment and not to change said employment without the prior written approval of the probation
officer;
xxxxxxxxx
(e) Pursue a prescribed secular study or vocational training;
x x x x x x x x x[16]
Clearly, these conditions are not whims of the trial court but are requirements laid down by statute. They are among the conditions
that the trial court is empowered to impose and the petitioner, as probationer, is required to follow. Only by satisfying these conditions may
the purposes of probation be fulfilled. These include promoting the correction and rehabilitation of an offender by providing him with
individualized treatment, and providing an opportunity for the reformation of a penitent offender which might be less probable if he were
to serve a prison sentence.16a Failure to comply will result in the revocation of the order granting probation, pursuant to the Probation Law:
SEC. 11. Effectivity of Probation Order. -- A probation order shall take effect upon its issuance, at which time the court shall inform the
offender of the consequences thereof and explain that upon his failure to comply with any of the conditions prescribed in the said order or
his commission of another offense, he shall serve the penalty imposed for the offense under which he was placed on
probation.16b (Emphasis supplied.)
Probation is not an absolute right. It is a mere privilege whose grant rests upon the discretion of the trial court.[17] Its grant is subject to
certain terms and conditions that may be imposed by the trial court.Having the power to grant probation, it follows that the trial court also
has the power to order its revocation in a proper case and under appropriate circumstances.
Moreover, having admittedly violated the terms and conditions of his probation, petitioner cannot now assail the revocation of his
probation. Regrettably, he has squandered the opportunity granted him by the trial court to remain outside prison bars, and must now
suffer the consequences of those aforecited violations.
WHEREFORE, the petition is hereby DENIED and the assailed decision of the Court of Appeals in C.A. G.R. SP No. 35550 is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Puno, Mendoza, and Buena, JJ., concur.

JOSE G. GARCIA, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and ADELA TEODORA P. SANTOS, respondents.
DECISION
DAVIDE, JR., J.:
The issue here is whether the Court of Appeals committed reversible error in affirming the trial court's order granting the motion to
quash the information for bigamy based on prescription.
On 28 August 1991, petitioner Jose G. Garcia filed with the Quezon City Prosecutor's Office an "Affidavit of Complaint" [1] charging his
wife, private respondent Adela Teodora P. Santos alias "Delia Santos," with Bigamy, Violation of C.A. No. 142, as amended by R.A. No. 6085,
and Falsification of Public Documents. However, in his letter of 10 October 1991 to Assistant City Prosecutor George F. Cabanilla, the
petitioner informed the latter that he would limit his action to bigamy. [2]
After appropriate proceedings, Assistant Prosecutor Cabanilla filed on 8 January 1992 with the Regional Trial Court (RTC) of Quezon
City an information, [3] dated 15 November 1991, charging the private respondent with Bigamy allegedly committed as follows:
That on or before the 2nd day of February, 1957, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being previously united in lawful marriage with REYNALDO QUIROCA, and without the said marriage having been
dissolved, (or before the absent spouse has been declared presumptively dead by a judgment rendered in the proper proceedings), did
then and there wilfully, unlawfully and feloniously contract a second marriage with JOSE G. GARCIA, which marriage has [sic] discovered in
1989, to the damage and prejudice of the said offended party in such amount as may be awarded under the provisions of the Civil Code.
CONTRARY TO LAW.
The information was docketed as Criminal Case No. Q-92-27272 and assigned to Branch 83 of the said court. On 2 March 1992, the
private respondent filed a Motion to Quash alleging prescription of the offense as ground therefor. She contended that by the petitioner's
admissions in his testimony given-on 23 January 1991 in Civil Case No. 90-52730, entitled "Jose G. Garcia v. Delia S. Garcia," and in his
complaint filed with the Civil Service Commission (CSC) on 16 October 1991, the petitioner discovered the commission of the offense as
early as 1974. Pursuant then to Article 91 of the Revised Penal Code (RPC), [4] the period of prescription of the offense started to run
therefrom. Thus, since bigamy was punishable by prision mayor, [5] an afflictive penalty [6] which prescribed in fifteen years pursuant to
Article 92 of the RPC, then the offense charged prescribed in 1989, or fifteen years after its discovery by the petitioner.
The private respondent quoted [7] the petitioner's testimony in Civil Case No.90-52730 as follows:
 Q No, no, just answer. What did you learn from her (Eugenia) about the private respondent?
A That she has been married previously in case I don't know it. But she said she has been previously married, in fact I saw her
husband - Rey, a few days ago and they said, "Baka magkasama pa silang muli:"
xxx
ATTY. EVANGELISTA:
Q When did Eugenia R. Balingit told [sic] that private respondent was already married to another man?
A That was when I told her that we are separating now. I told her in tagalog, "na maghihiwalay na kami ni Delia ngayon." "Ang
unang tanong niya sa akin, 'si Rey ba ang dahilan,' ang alam ko po, Rey ang dating boyfriend niya, kaya ang sabi ko,
'hindi po, Mario ang pangalan, ' napabagsak po siya sa upuan, sabi niya, 'hindi na nagbago."'
Q When was that when you came to know from Eugenia Balingit, the judicial guardian, that private respondent was already
married to another man when she married you?
A That was when the affair was happening and I found out.
Q What year?
A 1974. [8]
The portion of the complaint filed on 16 October 1991 before the CSC which the private respondent alluded to, reads as follows:
5. At the time the respondent married the herein complainant she never informed him that she was previously married to a certain
"REYNALDO QUIROCA" on December 1, 1951 wherein she used the name of "ADELA SANTOS" which was part of her true name
"ADELA TEODORA P. SANTOS" as per her genuine Baptismal Certificate issued by the Parish of San Guillermo, Bacolor, Pampanga,
a copy of the said Baptismal Certificate is hereto attached as ANNEX "D";
6. x x x
7. These facts were discovered only by the herein complainant in the year 1974 where they separated from each other because of
her illicit relations with several men continued use of her alias name "DELIA", without proper authority from the Courts; and
committing a series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is evidenced by a certification
issued by the Local Civil Registrar of Manila, a copy of which is hereto attached as ANNEX "F"; [9]
In its 29 June 1992 order, [10] the trial court granted the motion to quash and dismissed the criminal case, ruling in this wise:
This court believes that since the penalty prescribed under Article 349 of the Revised Penal Code for the offense of bigamy is prision mayor,
which is classified as an afflictive penalty under Article 25 of the same Code, then said offense should prescribe in fifteen (15) years as
provided in Article 92 of the Code. The complainant having discovered the first marriage of the accused to one Reynaldo Quiroca in 1974
when he was informed of it by one Eugenia Balingit, the offense charged has already prescribed when the information was filed in this case
on November 15, 1991. The argument presented by the prosecution that it was difficult for the complainant to obtain evidence of the
alleged first marriage, hence, the prescriptive period should be counted from the time the evidence was secured will not hold
water. Article 91 of the Revised Penal Code specifically provides, thus:
"The period of prescription shall commence to run from the day on which the crime is discovered x x x"
it did not state "on the day sufficient evidence was gathered," thus this Court cannot change the requirements of the law.
The petitioner moved for reconsideration of the above order on 26 August 1992, [11] to which he filed "numerous" supplements thereto,
focusing on the private respondent's many trips abroad which the petitioner claimed suspended the running of the prescriptive
period. These trips were enumerated in the certification [12] issued by Associate Commissioner Ramon M. Morales of the Bureau of
Immigration (BID), which reads as follows:
This is to certify that the name GARCIA/DELIA/S. appears in the Bureau's files of Arrivals and Departures as having the following travel
records:
Departed for HKG on 06/03/77 aboard PR
Arrived from HKG on 07/02/77 aboard PA
Arrived from SYD on 07/09/77 aboard BR
Arrived from GUM on 06/14/80 aboard PA
Arrived from MEL on 07/17/81 aboard PR
Arrived from TYO on 05/20/83 aboard BA
Departed for HKG on 09/22/83 aboard PR
Arrived from SIN on 09/28/83 aboard PR
Departed for TYO on 04/30/84 aboard PA
Arrived from SFO on 07/03/84 aboard PA
Departed for TYO on 11/19/84 aboard PA
Departed for TYO on 08/05/85 aboard PA
Departed for TYO on 11/17/86 aboard UA
Arrived from LAX on 12/12/87 aboard UA
Departed for LAX on 11/30/87 aboard UA
Departed for CHI on 11/14/88 aboard UA
The trial court disallowed reconsideration of its 29 June 1992 order, finding "no urgent or justifiable reason to disturb or set [it] aside." As to
the sojourns abroad of the private respondent as shown in the certification, the trial court held that the same "is not that kind of absence
from the Philippines which will interrupt the period of prescription of the offense charged . . . " [13]
The petitioner then appealed to the Court of Appeals which docketed the appeal as CA-G.R. CR No. 14324. He contended therein
that: (a) the trial court erred in quashing the information on the ground of prescription; and (b) the counsel for the accused was barred
from filing the motion to quash the information against the accused. [14] As to the first, the petitioner argued that bigamy was a public
offense, hence "the offended party is not the first or second (innocent) spouse but the State whose law/policy was transgressed." He tried to
distinguish bigamy from private offenses such as adultery or concubinage "where the private complainant is necessarily the offended
party," thus, the prescriptive period for the former should commence from the day the State, being the offended party, discovered the
offense, which in this case was on 28 August 1991 when the petitioner filed his complaint before the Prosecutor's Office. The petitioner
added that the "interchanging use" In Article 91 of the RPC of the terms "offended party," "authorities," and "their agents" supports his view
that the State is the offended party in public offenses.
Additionally, the petitioner referred to the general rule stated in People v. Alagao [15] "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 information in this case
mentioned that the bigamy was discovered in 1989. He admitted, however, that this rule admits of exceptions, such as when the ground for
the motion to quash is prescription of the offense, as provided in Section 4 of the old Rule 117 of the Rules of Criminal
Procedure. Nonetheless, he advanced the view that this exception is no longer available because of the implied repeal of Section 4, as the
amended Rule 117 no longer contains a similar provision under the rule on motions to quash; and that granting there was no repeal, the
private respondent failed to introduce evidence to "support her factual averment in her motion to quash," which is required by Rule 117. He
further asserted that the factual bases of the motion to quash, viz., the petitioner's testimony in Civil Case No. 90-52730 and his complaint
filed with the CSC are not conclusive because the testimony is hearsay evidence, hence inadmissible, while the complaint is vague,
particularly the following portion quoted by the private respondent:
7. These facts where discovered only by the herein complainant in the year 1974 when they separated from each other because of
her illicit relations with several men continued use of her alias name "DELIA", without proper authority from the Courts; and
committing a series of fraudulent acts; her previous marriage to a certain "Reynaldo Quiroca" is evidenced by a certification
issued by the Local Civil Registrar of Manila, a copy of which is hereto attached a ANNEX "F";
The petitioner alleged that the phrase "These facts" in said paragraph 7 does not clearly refer to his discovery of the private respondent's
first marriage. Moreover, he doubted whether the term "discovered" in the said paragraph was used in the sense contemplated by law. At
best, the petitioner theorized, the discovery only referred to the "initial, unconfirmed and uninvestigated raw, hearsay information" which he
received from Balingit.
Finally, the petitioner reiterated that the prescriptive period was interrupted several times by the private respondent's numerous trips
abroad.
As regards his second contention, the petitioner argued that the counsel for the private respondent had already stated that he
represented only Delia S. Garcia and not Adela Teodora P. Santos. Consequently, the private respondent's counsel could not ask for the
quash of the information in favor of Adela Teodora P. Santos alias Delia Santos. The petitioner opined that the counsel for the private
respondent should have sought a dismissal of the case in favor of Delia Garcia alone.
The Court of Appeals gave credence to the private respondent's evidence and concluded that the petitioner discovered the private
respondent's first marriage in 1974. Since the information in this case was filed in court only on 8 January 1992, or eighteen years after the
discovery of the offense, then the 15-year prescriptive period had certainly lapsed. [16] It further held that the quash of an information based
on prescription of the offense could be invoked before or after arraignment and even on appeal, [17] for under Article 89(5) of the RPC, the
criminal liability of a person is "'totally extinguish[ed]' by the prescription of the crime, which is a mode of extinguishing criminal liability." Thus,
prescription is not deemed waived even if not pleaded as a defense. [18]
Undaunted, the petitioner is now before us on a petition for review on certiorari to annul and set aside the decision of the Court of
Appeals and to compel the respondent court to remand the case to the trial court for further proceedings. He submits the following
assignment of errors:
I
BIGAMY IS A PUBLIC OFFENSE, CONSEQUENTLY, PRESCRIPTION SHOULD HAVE BEEN COUNTED FROM THE TIME THE STATE DISCOVERED ITS
COMMISSION;
II
A MOTION TO QUASH CANNOT ALSO GO BEYOND WHAT IS STATED IN THE INFORMATION;
III
BY THEMSELVES, THE FACTUAL BASES OF THE MOTION TO QUASH ARE NOT ALSO CONCLUSIVE;
IV
ASSUMING THE PRESCRIPTIVE PERIOD STARTED IN 1974, SAID PERIOD HOWEVER WAS INTERRUPTED SEVERAL TIMES.
We notice that except for the first two pages of the petition, the deletion of a few paragraphs, the substitution of the term "petitioner"
for "appellant," and the deletion of the contention on the counsel for the private respondent being barred from filing a motion to quash,
the herein petition is a reproduction of the Appellant's Brief filed by the petitioner with the Court of Appeals.Verily then, the instant petition is
a rehash of an old tale. However, the Court of Appeals failed to-sufficiently address several issues raised by the petitioner, most probably
prompting him to seek redress from this Court.
We resolved to give due course to the petition and required the parties to submit their respective memoranda. The Office of the
Solicitor General was the last to submit a Memorandum for the public respondent. Both the private and public respondents ask for the
dismissal of this petition and the affirmance of the challenged decision.
Petitioner's position is untenable. Denial then of this petition is all it merits.
We shall take up the assigned errors in seriatim.
I
It is true that bigamy is a public offense. But, it is entirely incorrect to state, as the petitioner does, that only the State is the offended
party in such case, as well as in other public offenses, and, therefore, only the State's discovery of the crime could effectively commence
the running of the period of prescription therefor. Article 91 of the RPC provides that "[t]he period of prescription shall commence to run
from the day on which the crime is discovered by the offended party, the authorities, or their agents . . . ." This rule makes no distinction
between a public crime and a private crime. In both cases then, the discovery may be by the "offended party, the authorities, or their
agents."
Article 91 does not define the term "offended party." We find its definition in Section 12, Rule 110 of the Rules of Court as "the person
against whom or against whose property, the offense was committed." [19] The said Section reads as follows:
SEC. 12. Name of the offended party. -- A complaint or information must state the name and surname of the person against whom or
against whose property the offense was committed, or any appellation or nickname by which such person has been or is known, and if
there is no better way of identifying him, he must be described under a fictitious name.
More specifically, it is reasonable to assume that the offended party in the commission of a crime, public or private, is the party to whom
the offender is civilly liable, in light of Article 100 of the RPC, which expressly provides that "[e]very person criminally liable for a felony is also
civilly liable." [20] Invariably then, the private individual to whom the offender is civilly liable is the offended party.
This conclusion is strengthened by Section 1, Rule 111 of the Rules of Court which reads:
SEC. 1. Institution of criminal and civil actions. -- When a criminal action is instituted, the civil action for the recovery of civil liability is
impliedly instituted with a criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action
Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines arising from the same act or omission of the accused. x x x
It is settled that in bigamy, both the first and the second spouses may be the offended parties depending on the circumstances. [21]
The petitioner even admits that he is the offended party in Criminal Case No. Q-92-27272. The information therein, [22] which he copied
in full in the petition in this case, describes him as the "offended party" who suffered "damage and prejudice . . . in such amount as may be
awarded under the provisions of the Civil Code." [23]
 The distinction he made between public crimes and private crimes relates not to the discovery of the crimes, but to their prosecution.
Articles 344 and 360 of the RPC, in relation to Section 5, Rule 110 of the Rules of Court, are clear on this matter.
II
The petitioner's contention that a motion to quash cannot go beyond the information in Criminal Case No. Q-92-27272 which states
that the crime was discovered in 1989, is palpably unmeritorious. Even People v. Alagao, [24] which he cites, mentions the exceptions to the
rule as provided in paragraphs (f) and (h) of Section 2, and Sections 4 and 5 of the old Rule 117 viz., (a) extinction of criminal liability, and
(b) double jeopardy. His additional claim that the exception of extinction can no longer be raised due to the implied repeal of the former
Section 4, [25] Rule 117 of the Rules of Court occasioned by its non-reproduction after its revision, is equally without merit. No repeal, express
or implied, of the said Section 4 ever took place. While there is no provision in the new Rule 117 that prescribes the contents of a motion to
quash based on extinction of criminal liability, Section 2 thereof encapsulizes the former Sections 3,4, and 5 of the old Rule 117. The said
Section 2 reads as follows:
SEC. 2. Form and contents. - The motion to quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the
factual and legal grounds therefor and the court shall consider no grounds other than those stated therein, except lack of jurisdiction over
the offense charged. (3a, 4a, 5a). (underscoring supplied for emphasis)
It is clear from this Section that a motion to quash may be based on factual and legal grounds, and since extinction of criminal liability
and double jeopardy are retained as among the grounds for a motion to quash in Section 3 of the new Rule 117, it necessarily follows that
facts outside the information itself may be introduced to prove such grounds. As a matter of fact, inquiry into such facts may be allowed
where the ground invoked is that the allegations in the information do not constitute the offense charged. Thus, in People v. De la
Rosa, [26] this Court stated:
As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or
any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically
admitted. However, as held in the case of People vs. Navarro, 75 Phil. 516, additional facts not alleged in the information, but admitted or
not denied by the prosecution may be invoked in support of the motion to quash. Former Chief justice Moran supports this theory. [27]
In Criminal Case No. 92-27272, the trial court, without objection on the part of the prosecution, allowed the private respondent to
offer evidence in support of her claim that the crime had prescribed. Consequently, the trial court, upon indubitable proof of prescription,
correctly granted the motion to quash. It would have been, to quote De la Rosa, "pure technicality for the court to close its eyes to [the
fact of prescription] and still give due course to the prosecution of the case" - a technicality which would have meant loss of valuable time
of the court and the parties.
As noted by Dr. Fortunato Gupit, Jr., consultant of the Rules of Court Revision Committee, the aforequoted Section 2 of the new Rule
117 on "factual and legal grounds" of a motion to quash is based on the De la Rosa case. [28]
III
The petitioner likewise claims that the factual bases of the private respondent's motion to quash are inconclusive. The petitioner
cannot be allowed to disown statements he made under oath and in open court when it serves his purpose. This is a contemptible practice
which can only mislead the courts and thereby contribute to injustice. Besides, he never denied having given the pertinent testimony. He
did, however, term it vague in that it was not clear whether the prior marriage which Eugenia Balingit disclosed to him was that entered
into by the private respondent with Reynaldo Quiroca. It is immaterial to whom the private respondent was first married; what is relevant in
this case is that the petitioner was informed of a prior marriage contracted by the private respondent.
Neither may the petitioner be heard to cast doubt on the meaning of his statements in his sworn complaint filed before the CSC. We
find no hint of vagueness in them. In any event, he has not denied that he in fact discovered in 1974 that the private respondent had been
previously married.
Finally, the petitioner draws our attention to the private respondent's several trips abroad as enumerated in the certification of the
Bureau of Immigration, and cites the second paragraph of Article 91 of the RPC, viz.: "[t]he term of prescription shall not run when the
offender is absent from the Philippine Archipelago." We agree with the Court of Appeals that these trips abroad did not constitute the
"absence" contemplated in Article 91. These trips were brief, and in every case the private respondent returned to the Philippines. Besides,
these were made long after the petitioner discovered the offense and even if the aggregate number of days of these trips are considered,
still the information was filed well beyond the prescriptive period.
WHEREFORE, the instant petition is DENIED for lack of merit and the challenged decision of 13 February 1995 of the Court of Appeals in
CA-G.R. CR No.14324 is AFFIRMED.
Costs against the petitioner.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

PEOPLE OF THE PHILIPPINES, appellee, vs. HERMINIANO SATORRE @ EMIANO SATORRE, appellant.
DECISION
YNARES-SANTIAGO, J.:
Appellant Herminiano Satorre alias Emiano Satorre was charged with Murder in an information which reads:
That on or about the 25th day of May, 1997 at 2:00 oclock dawn, more or less, in Sitio Kamari, Barangay Calidngan, Municipality of Carcar,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with the use
of .38 paltik revolver and by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack
and shoot ROMERO PANTILGAN, hitting the latter at the head which caused his instantaneous death.
CONTRARY TO LAW.[1]
On arraignment, appellant pleaded not guilty. Trial on the merits then ensued.
Gliceria Saraum, wife of the victim Romero Pantilgan, testified that at 2:00 a.m. of May 25, 1997, she and her two children were asleep
inside the house of her parents at Tagaytay, Calidngan, Carcar, Cebu. Her mother, Florida Saraum, was also in the house. Her husband,
Romero, went out to attend a fiesta. While she was asleep, she was awakened by a gunshot.Gliceria got up and went out to the porch,
where she found her dead husband lying on the ground. Blood oozed out of a gunshot wound on his head.
Rufino Abayata, a barangay kagawad, testified that around 7:00 a.m. of May 25, 1997, his fellow barangay kagawad, Pio Alvarado,
fetched him from his house and, together, they went to verify a report regarding a dead person on the porch of the Saraum
residence. Upon confirming the incident, they reported the matter to the Carcar Police. Rufino further narrated that appellants father,
Abraham Satorre, informed them that it was appellant who shot Pantilgan. They looked for appellant in the house of his brother, Felix
Satorre, at Dumlog, Talisay, Cebu, but were told that he already left. Nevertheless, appellants brothers, Margarito and Rosalio Satorre, went
to Rufinos house and surrendered the gun which was allegedly used in killing Pantilgan.
 Flavio Gelle narrated that he accompanied appellant and his father, Abraham, to the Barangay Captain of Can-asohan, Carcar,
Cebu where appellant admitted killing Pantilgan.Thereafter, appellant was detained.
Corroborating Gelles story, Cynthia Castaares, Barangay Captain of Can-asuhan, Carcar, Cebu testified that Abraham Satorre and
Gelle brought appellant to her residence where he confessed having killed Pantilgan. Appellant allegedly informed her that he killed
Pantilgan because the latter struck him with a piece of wood. That same evening, she went to the Carcar Police Station with appellant
where she executed an affidavit. She further averred that appellant voluntarily narrated that he killed Pantilgan with the use of a handgun
which he wrestled from his possession.
Dr. Plebia Villanueva, Municipal Health Officer of Carcar, Cebu certified that the cause of Pantilgans death was gunshot wound.[2]
Bonifacio Ayag, NBI Ballistician, testified that the deformed bullet taken from Pantilgans head wound was fired from the gun
surrendered by appellants brothers to the Carcar Police.[3]
Denying the charges against him, appellant claimed that he was asleep inside his house at the time of the incident. He alleged that
Rufino Abayata had a grudge against him because of an incident when he tied Rufinos cow to prevent it from eating the corn in his
farm. He denied having confessed to the killing of Pantilgan. He disclaimed ownership over the paltik .38 revolver and stated that he could
not even remember having surrendered a firearm to Castaares.
Abraham Satorre corroborated appellants testimony. He denied having accompanied appellant to Castaares house to surrender
him.
Appellants brother, Rosalio Satorre, claimed that he never accompanied appellant to Castaares house to surrender. His other
brother, Felix, also testified that he never surrendered any firearm to anybody.
After trial, the court a quo gave credence to the prosecutions evidence and rendered a decision convicting appellant of
Murder,[4] the dispositive portion of which reads:
WHEREFORE, IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, accused Herminiano Satorre is found guilty beyond reasonable doubt of
the crime of Murder and is hereby imposed the penalty of RECLUSION PERPETUA, with accessory penalties of the law; to indemnify the heirs
of Romero Pantilgan in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole period of his
detention provided he will signify in writing that he will abide by all the rules and regulations of the penitentiary.
SO ORDERED.
Appellant interposed this appeal, contending that the trial court erred: (1) in giving full faith and credence to the testimonies of
prosecution witnesses; (2) in proceeding with the trial of the instant case amounting to lack of due process provided by law due to its
denial of accuseds motion for preliminary investigation or reinvestigation; and (3) in rejecting the testimony of the defenses witnesses.
The appeal has merit.
In particular, appellant claims that his alleged confession or admission, which was concocted by the Barangay Captain, is
inadmissible in evidence for being hearsay and for being obtained without a competent and independent counsel of his choice. In effect,
the quantum of evidence adduced by the prosecution was not sufficient to overcome the constitutional presumption of innocence. The
bare allegation that he confessed or admitted killing Romero Pantilgan is not proof of guilt.
Rule 130, Section 26 of the Rules of Court defines an admission as an act, declaration or omission of a party as to a relevant fact. A
confession, on the other hand, under Section 33 of the same Rule is the declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein. Both may be given in evidence against the person admitting or confessing. On the
whole, a confession, as distinguished from an admission, is a declaration made at any time by a person, voluntarily and without compulsion
or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. [5]
Evidently, appellants alleged declaration owning up to the killing before the Barangay Captain was a confession. Since the
declaration was not put in writing and made out of court, it is an oral extrajudicial confession.
The nexus that connects appellant to the killing was his alleged oral extrajudicial confession given to Barangay Captain Cynthia
Castaares and two barangay kagawads. According to the trial court, their testimonies were positive and convincing. Appellants retraction
of his oral extrajudicial confession should not be given much credence in the assessment of evidence.However, appellant disputes the
admissibility and sufficiency of the testimonial evidence offered to prove the alleged oral extrajudicial confession.
There is no question as to the admissibility of appellants alleged oral extrajudicial confession. Indeed, as far as admissibility is
concerned, Rule 130, Section 33 of the Rules of Court makes no distinction whether the confession is judicial or extrajudicial.
The rationale for the admissibility of a confession is that if it is made freely and voluntarily, a confession constitutes evidence of a high
order since it is supported by the strong presumption that no sane person or one of normal mind will deliberately and knowingly confess
himself to be the perpetrator of a crime, unless prompted by truth and conscience.[6]
Accordingly, the basic test for the validity of a confession is was it voluntarily and freely made. The term voluntary means that the
accused speaks of his free will and accord, without inducement of any kind, and with a full and complete knowledge of the nature and
consequences of the confession, and when the speaking is so free from influences affecting the will of the accused, at the time the
confession was made, that it renders it admissible in evidence against him. [7] Plainly, the admissibility of a confession in evidence hinges on
its voluntariness.
The voluntariness of a confession may be inferred from its language such that if, upon its face, the confession exhibits no suspicious
circumstances tending to cast doubt upon its integrity, it being replete with details which could only be supplied by the accused reflecting
spontaneity and coherence, it may be considered voluntary.[8] The problem with appraising voluntariness occurs when the confession is an
oral extrajudicial confession because the proof of voluntariness cannot be inferred from the testimony of a witness who allegedly heard the
confessant since there is no written proof that such confession was voluntarily made. Neither can the confessant be appraised by the court
since, precisely, it was made outside the judicial proceeding. The problem posed therefore by an oral extrajudicial confession is not only
the admissibility of the testimony asserting or certifying that such confession was indeed made, but more significantly whether it was made
voluntarily.
On the question of whether a confession is made voluntarily, the age, character, and circumstances prevailing at the time it was
made must be considered. Much depends upon the situation and surroundings of the accused. This is the position taken by the courts,
whatever the theory of exclusion of incriminating statements may be. The intelligence of the accused or want of it must also be taken into
account. It must be shown that the defendant realized the import of his act.[9]
In the case at bar, appellant was a 19-year old farmer who did not even finish first grade. Granting that he made the confession in
the presence of Barangay Captain Castaares, he may not have realized the full import of his confession and its consequences. This is not to
say that he is not capable of making the confession out of a desire to tell the truth if prompted by his conscience. What we are saying is
that due to the aforesaid personal circumstances of appellant, the voluntariness of his alleged oral confession may not be definitively
appraised and evaluated.
At any rate, an extrajudicial confession forms but a prima facie case against the party by whom it is made. Such confessions are not
conclusive proof of that which they state; it may be proved that they were uttered in ignorance, or levity, or mistake; and hence, they are,
at best, to be regarded as only cumulative proof which affords but a precarious support and on which, when uncorroborated, a verdict
cannot be permitted to rest.[10]
Main prosecution witness Castaares testified that after appellants alleged oral confession, she brought the latter to the office of the
police at the Municipal Hall of Carcar, Cebu.[11] At the police station, Castaares was investigated, after which she executed her sworn
statement.[12] Also at the police station, appellant allegedly admitted before policemen that he killed Pantilgan. [13] His statement was not
taken nor was his confession reduced into writing. This circumstance alone casts some doubt on the prosecutions account that appellant
freely and voluntarily confessed killing Pantilgan. It raises questions not only as to the voluntariness of the alleged confession, but also on
whether appellant indeed made an oral confession.
To be sure, a confession is not required to be in any particular form. It may be oral or written, formal or informal in character. It may be
recorded on video tape, sound motion pictures, or tape.[14] However, while not required to be in writing to be admissible in evidence, it is
advisable, if not otherwise recorded by video tape or other means, to reduce the confession to writing.This adds weight to the confession
and helps convince the court that it was freely and voluntarily made. If possible the confession, after being reduced to writing, should be
read to the defendant, have it read by defendant, have him sign it, and have it attested by witnesses.[15]
The trial court gave credence to appellants oral extrajudicial confession relying on jurisprudence which we find are not applicable. In
the cases cited by the trial court,[16] the convictions were based on circumstantial evidence in addition to the appellants confessions, or the
extrajudicial confessions were reduced to writing and were replete with details which only appellants could have supplied. In the case at
bar, however, there was no circumstantial evidence to corroborate the extrajudicial confession of appellant. More importantly, the said
confession does not contain details which could have only been known to appellant.
Furthermore, the events alleged in the confession are inconsistent with the physical evidence. According to Barangay Captain
Castaares, appellant narrated to her that during the struggle between him and the deceased, he fell to the ground after the latter hit him
on the head with a piece of wood. In the autopsy report, however, Dr. Plebia Villanueva found that the entrance wound on the deceased
was located at the top of the head or the crown, indicating that the victim was probably lying down when he was shot.[17]
Indeed, an extrajudicial confession will not support a conviction where it is uncorroborated. There must be such corroboration that,
when considered in connection with confession, will show the guilt of accused beyond a reasonable doubt. Circumstantial evidence may
be sufficient corroboration of a confession. It is not necessary that the supplementary evidence be entirely free from variance with the
extrajudicial confession, or that it show the place of offense or the defendants identity or criminal agency. All facts and circumstances
attending the particular offense charged are admissible to corroborate extrajudicial confession.[18]
Nonetheless, the fatal gun and the slug extracted from Pantilgans brain can not be considered as corroborative evidence. While the
slug embedded in Pantilgans brain came from the fatal gun, the prosecution was not able to conclusively establish the ownership of the
gun other than the bare testimony of prosecution witnesses that appellants brothers surrendered the gun to them. This was denied by
appellant and his brothers and there was no other proof linking the gun to him.
On the whole, it appears that the trial court simply based appellants conviction on the testimonial evidence of prosecution witnesses
that appellant orally owned up to the killing. We cannot affirm appellants conviction on mere testimonial evidence, considering that the
voluntariness of said confession cannot be conclusively established because of appellants personal circumstances and the failure of the
police to reduce the alleged oral confession into writing. The doubts surrounding the alleged oral confession, the conduct of the
investigation as well as the inapplicable jurisprudential precedents cited by the trial court do not lead to the same moral certainty of
appellants guilt.
To conclude, it must be stressed that in our criminal justice system, the overriding consideration is not whether the court doubts the
innocence of the accused, but whether it entertains a reasonable doubt as to their guilt. Where there is no moral certainty as to their guilt,
they must be acquitted even though their innocence may be questionable. The constitutional right to be presumed innocent until proven
guilty can be overthrown only by proof beyond reasonable doubt.[19] In fact, unless the prosecution discharges the burden of proving the
guilt of the accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.[20]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 18, Cebu City, convicting appellant Herminiano
Satorre alias Emiano Satorre of Murder and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the heirs in the
amount of P50,000.00 as well as costs, is REVERSED and SET ASIDE. For lack of evidence to establish guilt beyond reasonable doubt,
appellant Herminiano Satorre alias Emiano Satorre is ACQUITTED and is ordered immediately RELEASED from confinement, unless he is
lawfully held in custody for another cause.
SO ORDERED.
Vitug, Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman), dissent, guilt of the appellant was proved beyond reasonable doubt.

PETER ANDRADA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari filed by Peter Andrada, petitioner, assailing the Decision[1] of the Court of Appeals dated
September 18, 1997 in CA-G.R. CR No. 15851 and its Resolution[2] dated August 13, 1998.
In an Information dated January 7, 1987, the Office of the City Prosecutor of Baguio City charged petitioner with frustrated murder
committed as follows:
That on or about the 24th day of September 1986, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused with intent to kill, with evident premeditation and with treachery, did then and there willfully, unlawfully, and
feloniously attack, assault and hack one ARSENIO UGERIO on the head twice with a bolo thereby inflicting upon latter: hacking wound,
head, resulting in 1) skull and scalp avulsion vertex; 2) depressed comminuted skull fracture, right parieto occipital with significant brain
laceration; operation done; craniectomy; vertex debridement; craniectomy; right parieto occipital; dural repair; debridement, thus
performing all the acts of execution which would produce the crime of Murder as a consequence thereof, but nevertheless, the felony was
not consummated by reason of causes independent of the will of the accused, that is, by the timely medical attendance extended to
Arsenio Ugerio which prevented his death.
CONTRARY TO LAW.[3]
When arraigned on February 9, 1987, petitioner, with the assistance of counsel de parte, pleaded not guilty to the crime charged. The
hearing of the case ensued.
Evidence for the prosecution shows that on September 23, 1986, at around 11:30 in the evening, T/Sgt. Teodolfo Sumabong, of the
defunct Philippine Constabulary (PC), was resting in the PC barracks at Camp Dado Dangwa, La Trinidad, Benguet when one Rommel
Alcate called up requesting police assistance. Alcate claimed that a group of persons was suspiciously roaming around his boarding house
in Ferguson Street, Baguio City.
Sgt. Sumabong and two of his companions, Sgt. Gaces and Cpl. Arsenio Ugerio, went to Alcetes boarding house, arriving there past
midnight. However, according to Alcate, the suspicious persons have left.
On their way back to the camp at around 1:15 in the morning, the group dropped by Morlows Restaurant, Bokawkan Street, Baguio
City, for a snack. They ordered coffee and sandwiches.
While they were waiting to be served, a woman passed by their table. While Cpl. Ugerio was talking to her, a man, later identified as
Peter Andrada, herein petitioner, approached the former and scolded him. Sgt. Sumabong, identifying himself as a PC non-commissioned
officer, advised petitioner to pay his bill and go home as he was apparently drunk.
Petitioner heeded Sgt. Sumabongs advice for he paid his bill and left the restaurant with his companions. While Sgt. Sumabong was
paying his bill, he heard Cpl. Ugerio, seated about a meter away, moaning in pain. When Sgt. Sumabong turned around, he saw Cpl.
Ugerio sprawled on the floor. Petitioner was hacking him on the head with a bolo. Sgt. Sumabong approached them but petitioner ran
away, followed by a companion. Sgt. Sumabong chased them but to no avail.
Upon Sgt. Sumabongs instruction, Sgt. Gaces brought Cpl. Ugerio, the victim, to the St. Louis University Hospital. Then Sgt. Sumabong
reported the incident to the police station at Camdas Road and thereafter proceeded to the hospital. When he returned to the police
station, he learned that petitioner was arrested in a waiting shed at the corner of Camdas Road and Magsaysay Avenue.
The arresting officers then brought petitioner back to the restaurant where they recovered the bolo used in hacking the victim.
Witnesses to the incident were interviewed by the police and they pointed to petitioner as the culprit.
Dr. Francisco Fernandez, a neuro-surgery consultant, found that the victim suffered two (2) major injuries. The first was a scalping
avulsion, around 5 centimeters wide, i.e., the chopping off of a part of the victims skull. The second was a depressed fracture, about 6
centimeters wide, found on the right parieto occipital area of the skull. Either wound, being fatal, would have caused the death of the
victim had it not been for a timely medical treatment. After three (3) days, the victim was transferred to the V. Luna Hospital in Quezon City.
Because of the injuries he sustained, he has remained incapable to remember or recall visual stimuli or information.
Petitioner interposed self-defense and invoked the mitigating circumstance of voluntary surrender. His version is that he and one Romy
Ramos were drinking beer with a hospitality girl named Liza inside Morlows Restaurant, when three military men occupied the table next to
them. They had pistols tucked in their waists. Without any warning or provocation, two of the men, whom he identified as Cpl. Ugerio and
Sgt. Sumabong, approached him, slapped his face several times and pointed their guns to his head. They cursed him and threatened to
summarily execute him because he was so boastful. Cpl. Ugerio then collared him and dragged him outside the restaurant, while Sgt.
Sumabing followed. Fearful that he might be killed, petitioner pulled out his bolo, wrapped in a newspaper, from his waist and swung it at
the two military men. He did not see if he hit any of them. Then he ran to his house in Camdas Subdivision. He checked to see if his mother
or grandmother was at home so either of them could assist him in surrendering to the police. But neither was present. On his way to
surrender to the police, he met his mother accompanied by a policeman. They then proceeded to the police sub-station at Magsaysay
Avenue where he surrendered.
After hearing, the trial court rendered its Decision, the dispositive portion of which is quoted below, thus:
WHEREFORE, premises considered, the Court finds the accused PETER ANDRADA guilty beyond reasonable doubt of the crime of frustrated
murder.
The Court hereby sentences him to suffer the penalty of imprisonment of 8 years and 20 days as MINIMUM to 14 years, 10 months and 20
days as MAXIMUM; to indemnify the sum of P3,000.00, representing part of the victims expenses for medical services and medicine, and to
pay the costs.
SO ORDERED.[4]
On appeal, the Court of Appeals affirmed with modification the trial courts Decision, thus:
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED WITH THE MODIFICATION THAT THE APPELLANT IS SENTENCED TO AN
INDETERMINATE PENALTY OF FOUR (4) YEARS AND TWO (2) MONTHS OF PRISION CORRECIONAL, AS MINIMUM, TO EIGHT (8) YEARS AND
TWENTY (20) DAYS OF PRISION MAYOR, AS MAXIMUM.
SO ORDERED.[5]
The Court of Appeals, in modifying the imposable penalty, found that petitioner is entitled to the privileged mitigating circumstance
of minority as he was only 17 years, 9 months and 20 days old at the time of the incident.
Petitioner then filed a motion for reconsideration, but this was denied by the Appellate Court in its Resolution dated August 13, 1998.
Hence, the instant petition.
The issues for our resolution are: (1) whether petitioners right to due process was violated; (2) whether his plea of self-defense is in
order; (3) whether the crime committed is frustrated murder or frustrated homicide; and (4) whether he is entitled to any mitigating
circumstance, assuming he is guilty.
On the first issue, petitioner argues that the Court of Appeals erred in not holding that the trial court violated his constitutional right to
due process. He contends that his counsel:
1. Failed to present all the witnesses who could have testified that he is innocent of the crime charged;
2. Failed to present the medical certificate showing the injuries inflicted upon him by the victim;
3. Did not notify him to attend the hearing when Sgt. Sumabong was cross-examined; and
4. Failed to submit a memorandum.
In sum, petitioner ascribes gross incompetence or gross negligence to his counsel.
The Office of the Solicitor General (OSG) counters that there was no violation of petitioners right to due process. Petitioner was
represented by counsel of his choice. If the latters performance and competence fell short of petitioners expectations, then he should not
blame either the trial court or the Court of Appeals.
In criminal cases, the negligence or incompetence of counsel to be deemed gross must have prejudiced the constitutional right of
an accused to be heard.[6]
In the following cases, we held that there has been gross negligence or incompetence on the part of counsel for the accused, thus:
In US v. Gimenez,[7] we remanded a criminal case for new trial when counsel for an accused inadvertently substituted a plea of guilty
for an earlier plea of not guilty, thus resulting in the precipitate conviction of his client.
In Aguilar v. Court of Appeals and People,[8] we ordered a dismissed appeal from a conviction for estafa to be reinstated after it was
shown that the failure to file the appellants brief on time was due to sheer irresponsibility on the part of appellants counsel.
In De Guzman v. Sandiganbayan,[9] we remanded the case for reception of evidence after counsel for the accused filed a demurrer
to the evidence notwithstanding that his motion for leave of court was denied, thus precluding the accused to present his evidence.
In Reyes v. Court of Appeals,[10] we ordered a new trial after a showing that counsel for the accused abandoned her without
explanation.
 In People v. Bascuiguin,[11] we held that the arraignment is not valid. The accused was not properly represented by counsel de
officio since he merely conferred with his client for a few minutes and advised him to plead guilty to the crime of rape with homicide.
None of the foregoing incidents is present in the instant case. Instead, records show that counsel for petitioner actively participated in
the cross-examination of the witnesses for the prosecution to test their credibility. At any rate, the fact that he did not choose to present
other witnesses did not affect any of petitioners substantial rights. Besides, said counsel might have valid reasons why he did not call to the
witness stand those witnesses.
We note that petitioner was present during the hearing. If he believed that his counsel de parte was not competent, he could have
secured the services of a new counsel. He did not. Having decided to retain the services of his counsel during the entire proceedings,
petitioner must be deemed bound by any mistake committed by him. For if an accused feels that his counsel is inept, he should take action
by discharging him earlier, instead of waiting until an adverse decision is rendered and thereupon blame his counsel for incompetence.[12]
The long-standing rule in this jurisdiction is that a client is bound by the mistakes of his lawyer. Mistakes of attorneys as to the
competency of a witness, the sufficiency, relevancy or irrelevancy of certain evidence, the proper defense or the burden of proof, failure
to introduce evidence, to summon witnesses, and to argue the case, unless they prejudice the client and prevent him from properly
presenting his case, do not constitute gross incompetence or negligence.[13]
Having found that petitioners counsel was not so inept or motivated by bad faith, or so careless and negligent of his duties as to
seriously prejudice the substantial rights of petitioner or prevent him from putting up a proper defense, we hold that he is bound by the
decisions of his counsel regarding the conduct of the case.[14]
On the second issue, petitioner invokes self-defense. Hence, it is incumbent upon him to prove by clear and convincing evidence
that he indeed acted in defense of himself. For in invoking self-defense, the accused admits killing or seriously wounding the victim and
thus, has the burden to justify his act.[15] The requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means
employed to repel or prevent it; and (3) lack of sufficient provocation of the part of the person defending himself. [16]
We find that the petitioner has not adequately discharged his burden of proving the elements of self-defense. The trial court and the
Court of Appeals found that at the time he hacked the victim, the latter was still seated while he (petitioner) was behind him. Indeed, how
could there be an unlawful aggression on the part of the victim at that instance? Petitioners bare assertions that the victim slapped him,
poked a handgun at him, and threatened to salvage him were not duly proved by the evidence for the defense. Rather, the prosecution
established that it was petitioner who unexpectedly attacked the victim from behind. Clearly, the aggressor was petitioner. Since the first
element of self-defense is not present here, such defense must fail.
On the third issue, petitioner contends that assuming he is guilty, he should only be convicted of frustrated homicide, not frustrated
murder. He insists that treachery was not present. His hacking the victim was a spur-of-the-moment act prompted by self-preservation.
We are not persuaded. There is alevosia when the offender commits any of the crimes against persons employing means, methods, or
forms in the execution thereof which tend directly and especially to ensure the execution of the crime without risk to himself from any
defense which the offended party might make.[17] We agree with the lower courts that the petitioner planned to kill the victim with
treachery in mind. At that time, the victim was seated, having just finished a meal at a late hour. His back was towards petitioner when the
latter, without warning, hacked him twice on his head with a bolo. The attack was so sudden and unexpected that the victim had no
opportunity either to avert the attack or to defend himself.
Considering that petitioner had performed all the acts of execution which would have resulted in the death of the victim, had it not
been for timely medical assistance, a cause not of the will of the petitioner, and considering further the presence of treachery, then, the
crime committed is frustrated murder, not frustrated homicide.
On the fourth issue, petitioner insists that the mitigating circumstance of voluntary surrender should have been appreciated in his
favor.
Evidence for the prosecution shows that petitioner, after attacking the victim, ran away. He was apprehended by responding police
officers in the waiting shed at the corner of Cambas Road and Magsaysay Avenue. For voluntary surrender to be appreciated, the
surrender must be spontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the
authorities, either because he acknowledges his guilt or wishes to save them the trouble and expenses that would be necessarily incurred in
his search and capture.[18] Here, the surrender was not spontaneous.
Anent the modification of the penalty by the Court of Appeals, the same is in order.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 18, 1997 and its Resolution dated August
13, 1998 in CA-G.R. CR No. 15851 are AFFIRMED. Costs against petitioner.
SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. HEIRS OF EDUARDO MANGAWANG and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 78149 affirming the Decision[2] of the
Regional Trial Court (RTC) in Criminal Case No. 743-C(93) convicting the accused Ernesto Ancheta of reckless imprudence resulting in
homicide.
The Antecedents
Ernesto Ancheta was employed by the Philippine Rabbit Bus Lines, Inc. (PRBLI) as driver of one of its passenger buses. On July 23, 1993,
an Information was filed with the RTC of Capas, Tarlac, Branch 66, charging Ancheta with reckless imprudence resulting in homicide. The
inculpatory portion of the Information reads:
That on November 23, 1992 at around 11:50 oclock (sic) in the morning, at Brgy. Dolores, Municipality of Capas, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then the driver and person-in-charge of a Philippine
Rabbit Bus bearing Plate No. CVE-707 with MVRR No. 63044987, registered in the name of the Philippine Rabbit Bus Lines, Inc. of Tarlac,
Tarlac, did then and there, willfully, unlawfully and feloniously and with reckless imprudence and managed the said Philippine Rabbit Bus at
Brgy. Dolores, Capas, Tarlac, in a careless, negligent and imprudent manner, without due regard to laws, regulations, ordinances and
traffic code and without taking the necessary precaution to prevent accident to persons and damage to property and in violation of the
Land Transportation Laws, said bus driven by the accused while cruising the MacArthur Highway towards the south direction, bumped the
left rear side of a Toyota jeep with Plate No. TAB 929 with MVRR No. 64284647 owned by Zenaida B. Dizon of 193 M. Santos St., Pasay City,
Metro Manila, and driven by Eduardo Mangawang towards the north direction, and as a result thereof said Eduardo Mangawang
ultimately died and the jeep he was then driving sustained damages of an undetermined amount, to the damage and prejudice of the
deceased and the owner thereof.
Contrary to law.[3]
 The accused was assisted by Atty. Crispiniano Lamorena, Jr., whom the PRBLI assigned as counsel de parte. Atty. Andres Pangilinan
entered his appearance as private prosecutor.
The trial court rendered judgment on November 12, 1999, convicting the accused of the crime charged. The fallo of the decision
reads:
WHEREFORE, premises considered, judgment is hereby rendered finding the accused, ERNESTO ANCHETA, guilty beyond reasonable doubt
of the crime of Reckless Imprudence Resulting to Homicide.
Accordingly, the said accused is hereby sentenced to suffer the indeterminate penalty of imprisonment of two (2) years and four (4)
months of prision correccional in its minimum period as minimum to six (6) years of prision correccional in its maximum period as maximum.
For the civil liability of the accused, Ernesto Ancheta is hereby ordered to indemnify the heirs of Eduardo Mangawang the amounts
of P28,600.00 as actual or compensatory damages and P1,436,466.30 representing loss of earning capacity. The accused is similarly
ordered to pay the amounts of P50,000.00 by way of indemnification for the death of Eduardo Mangawang and another P50,000.00 as
moral damages.
SO ORDERED.[4]
The accused appealed the decision to the CA. On November 10, 2000, the appellate court issued a Resolution dismissing the appeal
due to Anchetas failure to file his brief as accused-appellant.[5] The resolution of the CA dismissing the appeal became final and executory,
thus, entry of judgment was made of record on December 7, 2000. After the transmission of the records to the RTC, it issued an Order on
June 5, 2001 for the arrest of the accused.[6]
On June 29, 2001, the PRBLI, as Anchetas employer, filed a Notice of Appeal of the decision of the RTC. On July 18, 2001, the RTC
issued an Order denying due course to the notice of appeal, on its finding that the notice was filed long after the judgment of the RTC had
become final and executory.[7] The PRBLI filed a motion for the reconsideration of the order, claiming that it was not served with a copy of
the decision of the RTC convicting the accused of the crime charged; hence, could not have appealed the same. On August 1, 2001, the
trial court issued an Order denying the said motion. The PRBLI filed an urgent motion, this time for clarification of the said order, which the
trial court denied in an Order dated August 31, 2001. Undaunted, the PRBLI filed a manifestation with motion, citing the ruling of this Court
in Ozoa v. Vda. de Madula.[8] On October 17, 2001, the trial court issued an Order, this time, granting the motion and giving due course to
the appeal of the PRBLI. The trial court, likewise, ordered the records to be transmitted to the CA for the consideration of the appeal, where
the latter made the following assignment of errors:
I
THE TRIAL COURT SERIOUSLY ERRED IN THE APPRECIATION OF THE FACTS AND THE EVIDENCE.
II
THE TRIAL COURT SERIOUSLY ERRED IN ATTRIBUTING SUPPOSED NEGLIGENCE AND LACK OF FORESIGHT ON THE PART OF THE ACCUSED
ANCHETA.
III
THE TRIAL COURT SERIOUSLY ERRED IN SO GENEROUSLY AWARDING UNCONSCIONABLE AMOUNTS IN SUPPOSED DAMAGES TO THE HEIRS OF
EDUARDO MANGAWANG.[9]
On October 10, 2003, the CA rendered judgment affirming with modification the decision of the RTC. The fallo of the decision reads:
WHEREFORE, premises considered, the Decision dated November 12, 1999 of the Regional Trial Court of Capas, Tarlac, Branch 66, in
Criminal Case No. 743-C(93) is hereby AFFIRMED with the correction that the actual damages to be awarded should only be P5,000.00. All
other respects remain. Costs against appellant.
SO ORDERED.[10]
The appellate court dismissed the appeal on the ground that the decision of the RTC had long become final and executory when the
PRBLI appealed the decision. It ruled that the PRBLI was bound by the said decision against the accused therein. [11] Nevertheless, the
appellate court resolved the appeal on its merits and affirmed the decision of the RTC, but with modification. [12]
The PRBLI forthwith filed the present petition for review on certiorari, assailing the decision of the CA on the following grounds:
A.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE CONVICTION OF THE ACCUSED HAS ATTAINED FINALITY AS AGAINST PETITIONER.
B.
PETITIONER MUST BE AFFORDED THE STANDING AND THE OPPORTUNITY TO QUESTION THE ACCUSEDS CONVICTION. [13]
The petitioner submits the ruling of this Court in Pajarito v. Seneris[14] and Miranda v. Malate Garage & Taxicab, Inc.,[15] that the
decision of the trial court convicting the employee is binding and conclusive upon the employer not only with regard to the civil liability but
also, with regard to its amount, should not apply to it. It avers that unlike in Pajarito and Miranda, the counsel of the accused therein was
given ample opportunity to defend the accused during the trial and on appeal in the CA. The petitioner laments that in this case, the
counsel it provided to defend the accused was remiss in the performance of his duties and failed to notify it of the RTC decision, the
November 10, 2000 Resolution of the CA, as well as the June 5, 2001 Order of the RTC; consequently, it was not apprised of its civil liability to
the heirs of the deceased, thus depriving the petitioner of its right to due process. It avers that it was only on account of its own diligence
that it discovered the decision of the RTC, the November 10, 2000 Resolution of the CA and the June 5, 2001 Order of the RTC.
The petitioner further avers that it was not furnished with a copy of the said CA Resolution, and of the Arrest Order of the RTC dated
June 5, 2001. The petitioner posits that until it is furnished with such copies, the period within which to assail the decision of the RTC on its civil
liability to the heirs of the deceased had not commenced to run.
The petitioner submits that it is unjust and unreasonable for the CA to deprive it of its right to question its civil liability to the heirs of the
deceased, considering the gross negligence of the counsel that it had provided the accused.
By way of comment on the petition, the Office of the Solicitor General (OSG) contends that the decision of the RTC convicting
Ancheta of the crime charged had become final and executory, following the dismissal of his appeal before the CA. The decision of the
RTC was conclusive on the petitioner, not only with regard to its civil liability but also as to the amount thereof, absent any collusion
between the accused-employee and the private complainant. The petitioner was not a direct party in the criminal case; hence, was not
entitled to a copy of the decision of the RTC or to appeal therefrom; it was, likewise, not entitled to be furnished a copy of the CA
Resolution dated November 10, 2000 and the Order of the RTC dated June 5, 2001. Hence, according to the OSG, it cannot complain of
denial of its right to due process. The OSG further asserts that the petition at bar is premature, considering that no writ of execution has yet
been issued by the RTC, and cites the ruling of this Court in Philippine Rabbit Bus Lines, Inc. v. People[16] to buttress its stance.
The petition is denied for lack of merit.
The ruling of the CA dismissing the petitioners appeal of the RTC decision convicting Ancheta of reckless imprudence resulting in
homicide is correct. However, the Court of Appeals erred in modifying the decision of the RTC.
The petitioner, as the employer of the said accused, had no right to appeal from the said decision because, in the first place, it was
not a party in the said case. While the subsidiary liability provided for by Articles 102 and 103 of the Revised Penal Code may render the
petitioner a party in substance and, in effect, it is not, for this reason, entitled to be furnished a copy of the decision of the RTC, as well as
the resolution and decision of the CA.
Indeed, the petitioner was entitled to protect its interest by taking actual participation in the defense of its employee, Ancheta, by
providing him with counsel. It cannot leave its employee to his own fate because his failure is its failure.[17] The petitioner, as the employer of
the accused, would thereby be apprised of the progress of the case and the outcome thereof from time to time through the said counsel.
The failure of such counsel to apprise the petitioner of the progress of the case is thus not equivalent to lack of due process. The
pronouncement of the Court in Miranda v. Malate Garage & Taxicab, Inc. [18] is instructive on this score:
It is true that an employer, strictly speaking, is not a party to the criminal case instituted against his employee but in substance and, in
effect, he is considering the subsidiary liability imposed upon him by law. It is his concern, as well as of his employee, to see to it that his
interest be protected in the criminal case by taking virtual participation in the defense of his employee. He cannot leave him to his own
fate because his failure is also his. And if because of his indifference or inaction the employee is convicted and damages are awarded
against him, he cannot later be heard to complain, if brought to court for the enforcement of his subsidiary liability, that he was not given
his day in court. It was not without purpose that this Court sounded the following stern warning:
It is high time that the employer exercised the greatest care in selecting his employees, taking real and deep interest in their
welfare; intervening in any criminal action brought against them by reason of or as a result of the performance of their duties, if only in the
way of giving them the benefit of counsel; and, consequently, doing away with the practices of leaving them to their fates. If these be
done, the American rule requiring notice on the part of the employer shall have been satisfied. (Martinez v. Barredo, supra.)[19]
In Ozoa v. Vda. de Madula,[20] the Court explained the effect of a judgment of conviction against the employee on the subsidiary
liability of the employer, as follows:
To be sure, the correctness of the legal principles cited by the Court a quo cannot be gainsaid. A person criminally liable is also civilly liable;
and upon the institution of the criminal action, the civil action for the recovery of the civil liability arising from the crime is also impliedly
instituted unless waived, or the filing of a separate action therefor is reserved. The employer is subsidiarily answerable for the adjudicated
civil liability ex delicto of his employee in the event of the latters insolvency; and the judgment in the criminal action pronouncing the
employee to be also civilly liable is conclusive on the employer not only as to the actuality of that liability but also as to its amount.[21]
Since the petitioner was not a party in the RTC and in the CA on the appeal of its employee (Ancheta), the petitioner cannot
justifiably claim that it was deprived of its right to due process. As explained by this Court in Martinez v. Barredo:[22]
The employer cannot be said to have been deprived of his day in court, because the situation before us is not one wherein the employer is
sued for a primary liability under Article 1903 of the Civil Code, but one in which enforcement is sought of a subsidiary civil liability incident
to and dependent upon his drivers criminal negligence which is a proper issue to be tried and decided only in a criminal action. In other
words, the employer becomes ipso facto subsidiarily liable upon his drivers conviction and upon proof of the latters insolvency, in the same
way that acquittal wipes out not only the employees primary civil liability but also his employers subsidiary liability for such criminal
negligence. (Almeida, et al. v. Abaroa, 8 Phil. 178, affirmed in 218 U.S. 476; 54 Law ed., 1116; Wise & Co. v. Larion, 45 Phil. 314, 320; Francisco
v. Onrubia, 46 Phil. 327; Province of Ilocos Sur v. Tolentino, G.R. No. 34186, 56 Phil. 829; Moran, Comments on the Rules of Court, Vol. II, p.
403.)[23]
Besides, as gleaned from the brief of the petitioner, as appellant in the CA, in CA-G.R. CV No. 78149, it sought the reversal of the
decision of the RTC and the acquittal of its employee. In Philippine Rabbit Bus Lines, Inc. v. People,[24] this Court held that such an appeal
would be impermissible for the following reasons:
An appeal from the sentence of the trial court implies a waiver of the constitutional safeguard against double jeopardy and throws the
whole case open to a review by the appellate court. The latter is then called upon to render judgment as law and justice dictate, whether
favorable or unfavorable to the appellant. This is the risk involved when the accused decides to appeal a sentence of conviction. Indeed,
appellate courts have the power to reverse, affirm or modify the judgment of the lower court and to increase or reduce the penalty it
imposed.
If the present appeal is given [due] course, the whole case against the accused-employee becomes open to review. It thus follows that a
penalty higher than that which has already been imposed by the trial court may be meted out to him. Petitioners appeal would thus
violate his right against double jeopardy, since the judgment against him could become subject to modification without his consent.[25]
Indeed, to allow an employer to dispute its civil liability in the criminal case via an appeal from the decision of the RTC would be to
annul, nullify or defeat a final judgment rendered by a competent court.[26]
The Court cannot second guess whether Anchetas failure to file his brief as appellant in the CA was through the negligence of his
counsel or because of the belief that, indeed, he was guilty of the crime charged and it was purposeless and futile for him to still file such
brief.
We agree with the contention of the OSG that the right of the petitioner as the employer of the accused to due process occurs
during the hearing of the motion for the issuance of an alias writ of execution, on the basis of the sheriffs return that the writ of execution
issued by the court for the enforcement of its decision on the civil liability of the accused was not satisfied because of the latters insolvency,
the sheriff being unable to locate any property in the name of the accused. Such return is prima facie evidence of the insolvency of the
accused.[27]
During the hearing of the motion for the issuance of an alias writ of execution, the prosecution must prove that (a) the petitioner PRBLI
was the employer of the accused; (b) it was engaged in some kind of industry; (c) the crime was committed by the employee in the
discharge of his duties; and (d) execution against the employee is unsatisfied. [28] The prosecution may offer in evidence the sheriffs return
as prima facie evidence of the insolvency of the accused.
The petitioner, as the employer of the accused, may adduce evidence on questions which may be involved in the execution since
the trial court which rendered the decision has a general supervisory control over the process of execution.[29]
From a ruling adverse to the employer, it may appeal by writ of error on questions of facts, or mixed questions of facts and of law, or
by certiorari on questions of jurisdiction or grave abuse of discretion of the trial court, thus:
It goes without saying that the determination thus made as regards the employers subsidiary civil liability is not conclusive in the sense of
being non-reviewable by higher judicial authority. It may be appealed to a higher court at the instance of the aggrieved party either the
offended party or the employer by writ of error seeking review of questions of fact or mixed questions of fact and law, or through a petition
for review on certiorari, limited to a consideration only of questions of law. Or review may be sought by the institution of a special civil
action of certiorari, upon the theory that the determination was made by the trial court without or in excess of its jurisdiction, or with grave
abuse of discretion.[30]
Hence, the Court of Appeals erred in modifying the decision of the RTC which had long become final and executory. A final and
executory decision, even if erroneous, can no longer be modified.
 IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Resolution of the Court of Appeals dismissing the appeal
of the petitioner is AFFIRMED. However, that portion of the Decision of the Court of Appeals modifying the decision of the Regional Trial
Court, dated November 12, 1999, is SET ASIDE.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

G.R. No. 158995 September 26, 2006

L.G. FOODS CORPORATION and VICTORINO GABOR, Vice-President and General Manager, petitioners,
vs.
HON. PHILADELFA B. PAGAPONG-AGRAVIADOR, in her capacity as Presiding Judge of Regional Trial Court, Branch 43, Bacolod City, and
SPS. FLORENTINO and THERESA VALLEJERA, respondents.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review on certiorari is the Decision1 dated April 25, 2003 of the Court of Appeals (CA),
as reiterated in its Resolution of July 10, 2003,2 in CA-G.R. SP No. 67600, affirming an earlier Order of the Regional Trial Court (RTC) of Bacolod
City, Branch 43, which denied the petitioners' motion to dismiss in Civil Case No. 99-10845, an action for damages arising from a vehicular
accident thereat instituted by the herein private respondents - the spouses Florentino Vallejera and Theresa Vallejera - against the
petitioners.
The antecedent facts may be briefly stated as follows:
On February 26, 1996, Charles Vallereja, a 7-year old son of the spouses Florentino Vallejera and Theresa Vallejera, was hit by a Ford Fiera
van owned by the petitioners and driven at the time by their employee, Vincent Norman Yeneza y Ferrer. Charles died as a result of the
accident.
In time, an Information for Reckless Imprudence Resulting to Homicide was filed against the driver before the Municipal Trial Court in Cities
(MTCC), Bacolod City, docketed as Criminal Case No. 67787, entitled People of the Philippines v. Vincent Norman Yeneza.
Unfortunately, before the trial could be concluded, the accused driver committed suicide, evidently bothered by conscience and
remorse. On account thereof, the MTCC, in its order of September 30, 1998, dismissed the criminal case.
On June 23, 1999, in the RTC of Bacolod City, the spouses Vallejera filed a complaint3 for damages against the petitioners as employers of
the deceased driver, basically alleging that as such employers, they failed to exercise due diligence in the selection and supervision of their
employees. Thereat docketed as Civil Case No. 99-10845, the complaint was raffled to Branch 43 of the court.
In their Answer with Compulsory Counterclaim,4 the petitioners as defendants denied liability for the death of the Vallejeras' 7-year old son,
claiming that they had exercised the required due diligence in the selection and supervision of their employees, including the deceased
driver. They thus prayed in their Answer for the dismissal of the complaint for lack of cause of action on the part of the Vallejera couple.
During pre-trial, the defendant petitioners insisted that their dismissal prayer be resolved. Hence, the trial court required them to file within
ten days a memorandum of authorities supportive of their position.
Instead, however, of the required memorandum of authorities, the defendant petitioners filed a Motion to Dismiss, principally arguing that
the complaint is basically a "claim for subsidiary liability against an employer" under the provision of Article 1035 of the Revised Penal Code.
Prescinding therefrom, they contend that there must first be a judgment of conviction against their driver as a condition sine qua non to
hold them liable. Ergo, since the driver died during the pendency of the criminal action, the sine qua non condition for their subsidiary
liability was not fulfilled, hence the of lack of cause of action on the part of the plaintiffs. They further argue that since the plaintiffs did not
make a reservation to institute a separate action for damages when the criminal case was filed, the damage suit in question is thereby
deemed instituted with the criminal action. which was already dismissed.
In an Order dated September 4, 2001,6 the trial court denied the motion to dismiss for lack of merit and set the case for pre-trial. With their
motion for reconsideration having been denied by the same court in its subsequent order7 of September 26, 2001, the petitioners then went
on certiorari to the CA in CA-G.R. SP No. 67600, imputing grave abuse of discretion on the part of the trial judge in refusing to dismiss the
basic complaint for damages in Civil Case No. 99-10845.
In the herein assailed decision8 dated April 25, 2003, the CA denied the petition and upheld the trial court. Partly says the CA in its
challenged issuance:
xxx xxx xxx
It is clear that the complaint neither represents nor implies that the responsibility charged was the petitioner's subsidiary liability
under Art. 103, Revised Penal Code. As pointed out [by the trial court] in the Order of September 4, 2001, the complaint does not
even allege the basic elements for such a liability, like the conviction of the accused employee and his insolvency. Truly enough,
a civil action to enforce subsidiary liability separate and distinct from the criminal action is even unnecessary.
xxx xxx xxx
Specifically, Civil Case No. 99-10845 exacts responsibility for fault or negligence under Art. 2176, Civil Code, which is
entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code. Verily, therefore, the
liability under Art. 2180, Civil Code, is direct and immediate, and not conditioned upon prior recourse against the negligent
employee or prior showing of the latter's insolvency. (Underscoring in the original.)
In time, the petitioners moved for a reconsideration but their motion was denied by the CA in its resolution9 of July 10, 2003. Hence, the
petitioners' present recourse on their submission that the appellate court committed reversible error in upholding the trial court's denial of
their motion to dismiss.
We DENY.
As the Court sees it, the sole issue for resolution is whether the spouses Vallejeras' cause of action in Civil Case No. 99-10845 is founded on
Article 103 of the Revised Penal Code, as maintained by the petitioners, or derived from Article 218010 of the Civil Code, as ruled by the two
courts below.
It thus behooves us to examine the allegations of the complaint for damages in Civil Case No. 99-10845. That complaint alleged, inter alia,
as follows:
xxx xxx xxx
3. That defendant [LG Food Corporation] is the registered owner of a Ford Fiera Van with Plate No. NMS 881 and employer
sometime February of 1996 of one Vincent Norman Yeneza y Ferrer, a salesman of said corporation;
4. That sometime February 26, 1996 at around 2:00 P.M. at Rosario St., Bacolod City, the minor son of said plaintiffs [now
respondents], Charles Vallejera, 7 years old, was hit and bumped by above-described vehicle then driven by said employee,
Vincent Norman Yeneza y Ferrer;
 5. That the mishap was due to the gross fault and negligence of defendant's employee, who drove said vehicle, recklessly,
negligently and at a high speed without regard to traffic condition and safety of other road users and likewise to the fault and
negligence of the owner employer, herein defendants LG Food Corporation who failed to exercise due diligence in the selection
and supervision of his employee, Vincent Norman Yeneza y Ferrer;
6. That as a result of said incident, plaintiffs' son suffered multiple body injuries which led to his untimely demise on that very day;
7. That a criminal case was filed against the defendant's employee, docketed as Criminal Case No. 67787, (earlier filed as Crim.
Case No. 96-17570 before RTC) before MTC-Branch III, entitled "People v. Yeneza" for "Reckless Imprudence resulting to Homicide,"
but the same was dismissed because pending litigation, then remorse-stricken [accused] committed suicide;
xxx xxx xxx
8. That the injuries and complications as well as the resultant death suffered by the late minor Charles Vallejera were due to the
negligence and imprudence of defendant's employee;
9. That defendant LG Foods Corporation is civilly liable for the negligence/imprudence of its employee since it failed to exercise
the necessary diligence required of a good father of the family in the selection and supervision of his employee, Vincent Norman
Yeneza y Ferrer which diligence if exercised, would have prevented said incident. (Bracketed words and emphasis ours.)
Nothing in the foregoing allegations suggests, even remotely, that the herein petitioners are being made to account for their subsidiary
liability under Article 103 of the Revised Penal Code. As correctly pointed out by the trial court in its order of September 4, 2001 denying the
petitioners' Motion to Dismiss, the complaint did not even aver the basic elements for the subsidiary liability of an employer under Article 103
of the Revised Penal Code, such as the prior conviction of the driver in the criminal case filed against him nor his insolvency.
Admittedly, the complaint did not explicitly state that plaintiff Vallejeras were suing the defendant petitioners for damages based on quasi-
delict. Clear it is, however, from the allegations of the complaint that quasi-delict was their choice of remedy against the petitioners. To
stress, the plaintiff spouses alleged in their complaint gross fault and negligence on the part of the driver and the failure of the petitioners,
as employers, to exercise due diligence in the selection and supervision of their employees. The spouses further alleged that the petitioners
are civilly liable for the negligence/imprudence of their driver since they failed to exercise the necessary diligence required of a good
father of the family in the selection and supervision of their employees, which diligence, if exercised, could have prevented the vehicular
accident that resulted to the death of their 7-year old son.
Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause of action as the "act or omission by which a party violates the right of
another." Such act or omission gives rise to an obligation which may come from law, contracts, quasi contracts, delicts or quasi-delicts.11
Corollarily, an act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., 1)
civil liability ex delicto;12 and 2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as felony
(e.g., culpa contractual or obligations arising from law;13 the intentional torts;14 and culpa aquiliana15); or (b) where the injured party is
granted a right to file an action independent and distinct from the criminal action.16 Either of these two possible liabilities may be enforced
against the offender.17
Stated otherwise, victims of negligence or their heirs have a choice between an action to enforce the civil liability arising from culpa
criminal under Article 100 of the Revised Penal Code, and an action for quasi-delict (culpa aquiliana) under Articles 2176 to 2194 of the
Civil Code. If, as here, the action chosen is for quasi-delict, the plaintiff may hold the employer liable for the negligent act of its employee,
subject to the employer's defense of exercise of the diligence of a good father of the family. On the other hand, if the action chosen is
for culpa criminal, the plaintiff can hold the employer subsidiarily liable only upon proof of prior conviction of its employee.18
Article 116119 of the Civil Code provides that civil obligation arising from criminal offenses shall be governed by penal laws subject to the
provision of Article 217720 and of the pertinent provision of Chapter 2, Preliminary Title on Human Relation, and of Title XVIII of this Book,
regulating damages. Plainly, Article 2177 provides for the alternative remedies the plaintiff may choose from in case the obligation has the
possibility of arising indirectly from the delict/crime or directly from quasi-delict/tort. The choice is with the plaintiff who makes known his
cause of action in his initiatory pleading or complaint,21 and not with the defendant who can not ask for the dismissal of the plaintiff's cause
of action or lack of it based on the defendant's perception that the plaintiff should have opted to file a claim under Article 103 of the
Revised Penal Code.
Under Article 2180 of the Civil Code, the liability of the employer is direct or immediate. It is not conditioned upon prior recourse against the
negligent employee and a prior showing of insolvency of such employee.22
Here, the complaint sufficiently alleged that the death of the couple's minor son was caused by the negligent act of the petitioners' driver;
and that the petitioners themselves were civilly liable for the negligence of their driver for failing "to exercise the necessary diligence
required of a good father of the family in the selection and supervision of [their] employee, the driver, which diligence, if exercised, would
have prevented said accident."
Had the respondent spouses elected to sue the petitioners based on Article 103 of the Revised Penal Code, they would have alleged that
the guilt of the driver had been proven beyond reasonable doubt; that such accused driver is insolvent; that it is the subsidiary liability of
the defendant petitioners as employers to pay for the damage done by their employee (driver) based on the principle that every person
criminally liable is also civilly liable.23Since there was no conviction in the criminal case against the driver, precisely because death
intervened prior to the termination of the criminal proceedings, the spouses' recourse was, therefore, to sue the petitioners for their direct
and primary liability based on quasi-delict.
Besides, it is worthy to note that the petitioners, in their Answer with Compulsory Counter-Claim,24 repeatedly made mention of Article 2180
of the Civil Code and anchored their defense on their allegation that "they had exercised due diligence in the selection and supervision of
[their] employees." The Court views this defense as an admission that indeed the petitioners acknowledged the private respondents' cause
of action as one for quasi-delict under Article 2180 of the Civil Code.
All told, Civil Case No. 99-10845 is a negligence suit brought under Article 2176 - Civil Code to recover damages primarily from the
petitioners as employers responsible for their negligent driver pursuant to Article 2180 of the Civil Code. The obligation imposed by Article
2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. Thus, the employer is
liable for damages caused by his employees and household helpers acting within the scope of their assigned tasks, even though the
former is not engaged in any business or industry.
Citing Maniago v. CA,25 petitioner would argue that Civil Case No. 99-10845 should have been dismissed for failure of the respondent
spouses to make a reservation to institute a separate civil action for damages when the criminal case against the driver was filed.
The argument is specious.
To start with, the petitioners' reliance on Maniago is obviously misplaced. There, the civil case was filed while the criminal case against the
employee was still pending. Here, the criminal case against the employee driver was prematurely terminated due to his death. Precisely,
Civil Case No. 99-10845 was filed by the respondent spouses because no remedy can be obtained by them against the petitioners with the
dismissal of the criminal case against their driver during the pendency thereof.
The circumstance that no reservation to institute a separate civil action for damages was made when the criminal case was filed is of no
moment for the simple reason that the criminal case was dismissed without any pronouncement having been made therein. In reality,
therefor, it is as if there was no criminal case to speak of in the first place. And for the petitioners to insist for the conviction of their driver as a
condition sine qua non to hold them liable for damages is to ask for the impossible.
IN VIEW WHEREOF, the instant petition is DENIED for lack of merit.
Costs against the petitioners.
SO ORDERED.
Puno, Chairperson, Sandoval-Gutierrez, Corona, Azcuna, J.J., concur.

Footnotes