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Criminal Jurisdiction

G.R. No. L-40527 June 30, 1976

PEOPLE OF THE PHILIPPINES, petitioner,

 

vs.

 

HERMOGENES MARIANO and HON. AMBROSIO M. GERALDEZ, in his

capacity as Presiding Judge of the Court of First Instance of Bulacan,

Branch V, respondents.

 

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Nathanael P. Pano, Jr., Solicitor Oswaldo D. Agcaoili, Provincial P.C. Kliachko and Assistant Provincial Fiscal C. G. Perfecto for petitioner.

Eustaquio Evangelista for respondent Hermogenes Mariano.

MUÑOZ PALMA, J:

This petition for certiorari postulates a ruling on the question of whether or not civil courts and military commissions exercise concurrent jurisdiction over the offense of estafa of goods valued at not more than six thousand pesos and allegedly committed by a civilian. 1

On December 18, 1974, the office of the Provincial Fiscal of Bulacan filed an Information (Criminal Case No. SM-649) accusing private respondent herein Hermogenes Mariano of estafa alleged to have been committed as follows:

That on or about and during the period from May 11 and June 8, 1971, in the municipality of San Jose del Monte, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Hermogenes Mariano, being then appointed as Liaison Officer by the then incumbent Municipal Mayor, Constantino Nolasco, acting for and in behalf of the municipality of San Jose del Monte, Bulacan and authorized to receive and be receipted for US excess property of USAID/NEC for the use and benefit of said municipality, received from the said USAID/NEC the following items, to wit:

150

ft. electric cable valued

at $15 or P100.50

525

ft. cable power valued at

$577-50 or P3,859.35

250

ft. electric cable at

$125.00 or P837.50

with a total value of $717.50 or P4,797.35, involving the duty of making delivery of said items to the said Municipal Mayor, but the said accused Hermogenes Mariano once in possession of the said items and far from complying with his aforesaid obligation and in spite of repeated demands, did then and there wilfully, unlawfully and feloniously, with grave abuse of confidence and with deceit, misappropriate, misapply and convert to his own personal use and benefit the said items valued at $717.50 or P4,797.35, belonging to the said USAID/NEC, to the damage and prejudice of the said owner in the said sum of $717,50 or P4,797.35. (pp. rollo).

On February 19, 1975, Hermogenes Mariano thru his counsel Filed a motion to quash the Information on the following grounds:

1. That the court trying the cause has no jurisdiction of the

offense charged or of the person of the defendant;

2. That the criminal action or liability has been extinguished;

3. That it contains averments which , if true, would constitute a

legal excuse or justification. (p. 19, rollo)

In his motion to quash, Mariano claimed that the items which were the subject matter of the Information against him were the same items for which Mayor Constantino A. Nolasco of San Jose del Monte, province of Bulacan, was indicted before a Military Commission under a charge of malversation of public property, and for which Mayor Nolasco had been found guilty and sentenced to imprisonment at hard labor for ten (10) years

and one (1) day to fourteen (14) years and eight (8) months with perpetual disqualification plus a fine of P19,646.15 (see pp. 23-24, rollo), and that inasmuch as the case against Mayor Nolasco had already been decided by the Military Tribunal, the Court of First Instance of Bulacan had lost jurisdiction over the case against him. (pp. 19-20, Ibid)

On March 14, 1975 respondent Judge issued an Order granting the motion to quash on the ground of lack of jurisdiction reasoning as follows:

Considering that the Military Commission had already taken cognizance of the malversation case against Mayor Nolasco involving the same subject matter in its concurrent jurisdiction with this Court, the case involving the subject properties had already been heard and decided by a competent tribunal, the Military Commission, and as such this Court is without jurisdiction to pass upon anew the same subject matter. (pp. 30-31, rollo, emphasis supplied)

Respondent Judge did not rule on the other grounds invoked in the motion to quash.

The people now seeks a review of the aforesaid Order and presents the sole issue of jurisdiction of respondent Court over the estafa case filed against respondent Mariano.

"Jurisdiction" is the basic foundation of judicial proceedings. 2 The word "jurisdiction" is derived from two Latin words "juris" and "dico" "I speak by the law" which means fundamentally the power or capacity given by the law to a court or tribunal to entertain, hear, and determine certain controversies. 3 Bouvier's own definition of the term "jurisdiction" has found judicial acceptance, to wit: "Jurisdiction is the right of a Judge to pronounce a sentence of the law in a case or issue before him, acquired through due process of law;" it is "the authority by which judicial officers take cognizance of and decide cases." 4

In Herrera vs. Barretto, September 10, 1913, 25 Phil. 245, 251, this Court, in the words of Justice Moreland, invoking American jurisprudence, defined "jurisdiction" simply as the authority to hear and determine a cause the right to act in a case. "Jurisdiction" has also been aptly described as the right to put the wheels of justice in notion and to proceed to the final determination of a cause upon the pleadings and evidence. 5

"Criminal Jurisdiction" is necessarily the authority to hear and try a particular offense and impose the punishment for it. 6

The conferment of jurisdiction upon courts or judicial tribunals is derived exclusively from the constitution and statutes of the forum. Thus, the question of jurisdiction of respondent Court of First Instance over the case filed before it is to be resolved on the basis of the law or statute providing for or defining its jurisdiction. That, We find in the Judiciary Act of 1948 where in its Section 44 (f) it is provided:

SEC. 44. Original jurisdiction. Courts of First Instance shall have original jurisdiction:

xxx xxx xxx

(f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months,or a fine of more than two hundred pesos, (emphasis supplied)

The offense of estafa charged against respondent Mariano is penalized with arresto mayor in its maximum period to prision correccional in its minimum period, or imprisonment from four (4) months and one (1) day to two (2) years and four (4) months. 7 By reason of the penalty imposed which exceeds six (6) months imprisonment, the offense alleged to have been committed by the accused, now respondent, Mariano, falls under the original jurisdiction of courts of first instance.

The above of course is not disputed by respondent Judge; what he claims in his Order is that his court exercises concurrent jurisdiction with the military commission and because the latter tribunal was the first to take cognizance of the subject matter, respondent court lost jurisdiction over it .That statement of respondent court is incorrect.

In People vs. Fontanilla, this Court speaking through then Justice now Chief Justice Fred Ruiz Castro, categorically reiterated the settled rule that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the action. 8 In the case at bar, it is rightly contended by the Solicitor General that at the time Criminal Case No. SM-649 was filed with the Court of First Instance of Bulacan, that was December 18, 1974, the law in force vesting jurisdiction upon said court was the Judiciary Act of 1948, the particular provision of which was not affected one way or

the other by any Presidential issuances under Martial Law. General Order No. 49 dated October 4, 1974, which repeals General Order No. 12 and the latter's amendments and related General Orders inconsistent with the former, redefines the jurisdiction of military tribunals over certain offense, and estafa and malversation are not among those enumerated therein. 9 In other words the Military Commission is not vested with jurisdiction over the crime of estafa. 9 *

Respondent court therefore gravely erred when it ruled that it lost jurisdiction over the estafa case against respondent Mariano with the filing of the malversation charge against Mayor Nolasco before the Military Commission. Estafa and malversation are two separate and distinct offenses and in the case now before Us the accused in one is different from the accused in the other. But more fundamental is the fact that We do not have here a situation involving two tribunals vested with concurrent jurisdiction over a particular crime so as to apply the rule that the court or tribunal which first takes cognizance of the case acquires jurisdiction thereof exclusive of the other. 10 The Military Commission as stated earlier is without power or authority to hear and determine the particular offense charged against respondent Mariano, hence, there is no concurrent jurisdiction between it and respondent court to speak of. Estafa as described in the Information filed in Criminal Case No. SM-649 falls within the sole exclusive jurisdiction of civil courts.

PREMISES CONSIDERED, the appealed Order dated March 14, 1975, is set aside and respondent Judge is directed to proceed with the trial of Criminal Case No. SM- 649 without further delay.

SO ORDERED.

RULE 110

G.R. No. 102342 July 3, 1992

LUZ M. ZALDIVIA, petitioner,

 

vs.

 

HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge of the

Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, and

PEOPLE OF THE PHILIPPINES, respondents.

 

CRUZ, J.:

The Court is asked to determine the applicable law specifying the prescriptive period for violations of municipal ordinances.

The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez, in the Province of Rizal.

The offense was allegedly committed on May 11, 1990.1 The referral-complaint of the police was received by the Office of the Provincial Prosecutor of Rizal on May 30, 1990. 2 The corresponding information was filed with the Municipal Trial Court of Rodriguez on October 2, 1990. 3

The petitioner moved to quash the information on the ground that the crime had prescribed, but the motion was denied. On appeal to the Regional Trial Court of Rizal, the denial was sustained by the respondent judge. 4

In the present petition for review on certiorari, the petitioner first argues that the charge against her is governed by the following provisions of the Rule on Summary Procedure:

Sec. 1. Scope This rule shall govern the procedure in the Metropolitan Trial Courts, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases:

B. Criminal Cases:

xxx xxx xxx

1. Violations of traffic laws, rules and regulations;

2. Violations of rental law;

3. Violations of municipal or city ordinances;

4. All other criminal cases where the penalty prescribed by law for the offenses charged does not exceed six months imprisonment, or a fine of one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising (Emphasis supplied.)

xxx xxx xxx

Sec. 9. How commenced. The prosecution of criminal cases falling within the scope of this Rule shall be either by complaint or by information filed directly in court without need of a prior preliminary examination or preliminary investigation: Provided, however, That in Metropolitan Manila and chartered cities, such cases shall be commenced only by information; Provided, further, That when the offense cannot be prosecuted de oficio, the corresponding complaint shall be signed and sworn to before the fiscal by the offended party.

She then invokes Act. No. 3326, as amended, entitled "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," reading as follows:

Sec. 1. Violations penalized by special acts shall, unless provided in such

Violations

penalized by municipal ordinances shall prescribe after two months.

acts, prescribe in accordance with the following rules:

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

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

Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of law not included in the Penal Code. (Emphasis supplied)

Her conclusion is that as the information was filed way beyond the two-month statutory period from the date of the alleged commission of the offense, the charge against her should have been dismissed on the ground of prescription.

For its part, the prosecution contends that the prescriptive period was suspended upon the filing of the complaint against her with the Office of the Provincial Prosecutor. Agreeing with the respondent judge, the Solicitor General also invokes Section 1, Rule 110 of the 1985 Rules on Criminal Procedure, providing as follows:

Sec. 1. How Instituted For offenses not subject to the rule on summary procedure in special cases, the institution of criminal action shall be as follows:

a) For offenses falling under the jurisdiction of the Regional

Trial Court, by filing the complaint with the appropriate officer

for the purpose of conducting the requisite preliminary investigation therein;

b) For offenses falling under the jurisdiction of the Municipal

Trial Courts and Municipal Circuit Trial Courts, by filing the complaint directly with the said courts, or a complaint with the fiscal's office. However, in Metropolitan Manila and other

chartered cities, the complaint may be filed only with the office of the fiscal.

In all cases such institution interrupts the period of prescription of the offense charged. (Emphasis supplied.)

Emphasis is laid on the last paragraph. The respondent maintains that the filing of the complaint with the Office of the Provincial Prosecutor comes under the phrase "such institution" and that the phrase "in all cases" applies to all cases, without distinction, including those falling under the Rule on Summary Procedure.

The said paragraph, according to the respondent, was an adoption of the following dictum in Francisco v. Court of Appeals: 5

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has re-examined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint.

It is important to note that this decision was promulgated on May 30, 1983, two months before the promulgation of the Rule on Summary Procedure on August 1, 1983. On the other hand, Section 1 of Rule 110 is new, having been incorporated therein with the revision of the Rules on Criminal Procedure on January 1, 1985, except for the last paragraph, which was added on October 1, 1988.

That section meaningfully begins with the phrase, "for offenses not subject to the rule on summary procedure in special cases," which plainly signifies that the section does not apply to offenses which are subject to summary procedure. The phrase "in all cases" appearing in the last paragraph obviously refers to the cases covered by the Section, that is, those offenses not governed by the Rule on Summary Procedure. This interpretation conforms to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure, to discover the true legislative intent.

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 Rule on Summary Procedure.

Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation." 6 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. 7

Going back to the Francisco case, we find it not irrelevant to observe that the decision would have been conformable to Section 1, Rule 110, as the offense involved was grave oral defamation punishable under the Revised Penal Code with arresto mayor in its maximum period to prision correccional in its minimum period. By contrast, the prosecution in the instant case is for violation of a municipal ordinance, for which the penalty cannot exceed six months, 8 and is thus covered by the Rule on Summary Procedure.

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.

Our conclusion is that the prescriptive period for the crime imputed to the petitioner commenced from its alleged commission on May 11, 1990, and ended two months thereafter, on July 11, 1990, in accordance with Section 1 of Act No. 3326. It was not interrupted by the filing of the complaint with the Office of the Provincial Prosecutor on May 30, 1990, as this was not a judicial proceeding. The judicial proceeding that could have interrupted the period was the filing of the information with the Municipal Trial Court of Rodriguez, but this was done only on October 2, 1990, after the crime had already prescribed.

WHEREFORE, the petition is GRANTED, and the challenged Order dated October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of prescription. It is so ordered.

G.R. No. 167571

November 25, 2008

LUIS PANAGUITON, JR., petitioner

 

vs.

 

DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G.

CAWILI, respondents.

 

D E C I S I O N

TINGA, J.:

This is a Petition for Review 1 of the resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his subsequent motion for reconsideration. 2

The facts, as culled from the records, follow.

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

On 24 August 1995, petitioner filed a complaint against Cawili and Tongson 4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22) 5 before the Quezon City Prosecutor's Office. During the preliminary investigation, only Tongson appeared and filed his counter-affidavit. 6 Tongson claimed that he had been unjustly included as party-respondent in the case since petitioner had lent money to Cawili in the latter's personal capacity. Moreover, like petitioner, he had lent various sums to Cawili and in appreciation of his services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business associate; in fact, he himself had filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he

had issued the bounced checks and pointed out that his signatures on the said checks had been falsified.

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

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

Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit.

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

Criminal Procedure because the initiative should come from petitioner himself and not the investigating prosecutor. 14 Finally, ACP Sampaga found that Tongson had no dealings with petitioner. 15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed the same, stating that the offense had already prescribed pursuant to Act No. 3326. 16 Petitioner filed a motion for reconsideration of the DOJ resolution. On 3 April 2003, 17 the DOJ, this time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the prescriptive period citing Ingco v. Sandiganbayan. 18 Thus, the Office of the City Prosecutor of Quezon City was directed to file three (3) separate informations against Tongson for violation of B.P. Blg. 22. 19 On 8 July 2003, the City Prosecutor's Office filed an information 20 charging petitioner with three (3) counts of violation of B.P. Blg. 22. 21

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

Petitioner thus filed a petition for certiorari 25 before the Court of Appeals assailing the 9 August 2004 resolution of the DOJ. The petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached to the petition is a mere photocopy. 26 Petitioner moved for the reconsideration of the appellate court's resolution, attaching to said motion an amended Verification/Certification of Non-Forum

Shopping. 27 Still, the Court of Appeals denied petitioner's motion, stating that subsequent compliance with the formal requirements would not per se warrant a reconsideration of its resolution. Besides, the Court of Appeals added, the petition is patently without merit and the questions raised therein are too unsubstantial to require consideration. 28

In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his petition on technical grounds and in ruling that the petition before it was patently without merit and the questions are too unsubstantial to require consideration.

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

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

The petition is meritorious.

First on the technical issues.

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

Indeed, the verification is merely a formal requirement intended to secure an assurance that matters which are alleged are true and correctthe court may simply order the correction of unverified pleadings or act on them and

waive strict compliance with the rules in order that the ends of justice may be served, 32 as in the instant case. In the case at bar, we find that by attaching the pertinent verification to his motion for reconsideration, petitioner sufficiently complied with the verification requirement.

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

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

Now, on the substantive aspects.

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

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

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

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

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

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

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

The historical perspective on the application of Act No. 3326 is illuminating. 41 Act No. 3226 was approved on 4 December 1926 at a time when the function of conducting the preliminary investigation of criminal offenses was vested in the justices of the peace. Thus, the prevailing rule at the time, as shown in the cases of U.S. v. Lazada 42 and People v. Joson, 43 is that the prescription of the offense is tolled once a complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the complaint signifies the

institution of the criminal proceedings against the accused. 44 These cases were followed by our declaration in People v. Parao and Parao 45 that the first step taken in the investigation or examination of offenses partakes the nature of a judicial proceeding which suspends the prescription of the offense. 46 Subsequently, in People v. Olarte, 47 we held that the filing of the complaint in the Municipal Court, even if it be merely for purposes of

preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. In addition, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender, 48 and hence, the prescriptive period should be interrupted.

In Ingco v. Sandiganbayan 49 and Sanrio Company Limited v. Lim, 50 which involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293), which are both special laws, the Court ruled that the

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

The following disquisition in the Interport Resources case 53 is instructive, thus:

While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326 appears before "investigation and punishment" in the old law, with the subsequent change in set-up whereby the investigation of the charge for purposes of prosecution has become the exclusive function of the executive branch, the term "proceedings" should now be understood either executive or judicial in character:

executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage. With this clarification, any kind of investigative proceeding instituted against the guilty person which may ultimately lead to his prosecution should be sufficient to toll prescription. 54

Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on account of delays that are not under his control. 55 A clear example would be this case, wherein petitioner filed his complaint-affidavit

on 24 August 1995, well within the four (4)-year prescriptive period. He likewise timely filed his appeals and his motions for reconsideration on the dismissal of the charges against

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

We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-affidavit before the Office of the City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had been charged under B.P. Blg. 22. Moreover, since there is a definite finding of probable cause, with the debunking of the claim of prescription there is no longer any impediment to the filing of the information against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE the information against the petitioner.

No costs.

SO ORDERED.

G.R. No. L-6481 May 17, 1954

JESUS GUIAO, petitioner-appellee, vs. ALBINO L. FIGUEROA,

in his capacity as Provincial Fiscal of the Province of

Pampanga, respondent-appellant.

Office of the Solicitor General Juan R. Liwag and Assistant

Solicitor General Francisco Carreon for appellant.

 

Macapagal, Punsalan and Yabut for appellee.

 

LABRADOR, J.:

This is an appeal from a judgment of the Court of First Instance of Pampanga in an action of mandamus, ordering the provincial fiscal to include Emiliano Manalo and Porfirio Dizon as accused in Criminal Case No. 1453 of said court.chanroblesvirtualawlibrary chanrobles virtual law library

The record discloses that in the trial of Criminal Case No. 1273, People of the Philippines vs. Atilano Gopez, et al., for the crime of kidnapping with murder (against one Felix Lampa), the provincial fiscal introduced said Porfirio Dizon and Emiliano Manalo as witnesses for the State. Porfirio Dizon testified that in the morning of November 23, 1950, the accused Atilano Gopez, Melchor Esguerra, and Benjamin Tolentino went to his house in Dolores, Bacolor, Pampanga; that the three accused carried firearms; that he was asked by them to act as guard for a certain sugar plantation; that while he was on guard, a certain person passed by and Esguerra whistled at him, and the latter approached and talked with Esguerra; that Esguerra told to him that the person (who was Felix Lampa) was brought by them to the backyard of one Iscong Lacsamana; and that after that Dizon left the three in said place.chanroblesvirtualawlibrary chanrobles virtual law library

Emiliano Manalo testified that in the afternoon of November 23, 1950, while he was going home, he saw Benjamin Tolentino, Melchor Esguerra, and Felix Lampa near the house of Francisco Lacsamana; that he asked Tolentino why Felix Lampa was with

them, and Tolentino answered that Jesus Guiao and Eulogio Serrano wanted to talk to him, that he went home and changed his working clothes, and after a while Eulogio Serrano, Jesus Guiao, Atilano Gopez, and Melchor Esguerra passed by his house, and Atilano Gopez called him, telling him that the captain wanted to see him; that the captain was Eulogio Serrano, who asked him to bring his gun along with him; that he went with them, and in the house of Iscong Lacsamana they saw Benjamin Tolentino and Felix Lampa; that Serrano charged Lampa with trying to convince Guiao to testify on the Maliwalu incident, and upon Guiao ratifying this charge, Serrano ordered Atilano Gopez to tie Felix Lampa, and Atilano Gopez in turn, asked Manalo to do so; that Serrano, Gopez, Guiao, Tolentino, Esguerra, and Manalo brought Lampa to a place called alfareza; reaching it between eight and nine o'clock in the evening; that upon reaching the place, they were ordered to dig a hole, and the three of them did so, including Manalo; that thereafter Felix Lampa was brought to the hole, and Serrano ordered Gopez to shoot him, which he did, notwithstanding the protestation of innocence on the part of Lampa. (See Annexes A and B attached to Petition.)chanrobles virtual law library

In view of the testimonies given by Porfirio Dizon and Emiliano Manalo in said Criminal case No. 1273, the lower court ordered a reinvestigation of the case and suspended its trial, with a view to including as accused all persons who might be guilty of the crime. After the reinvestigation an amended information was filed, and two new accused were included, namely, Jesus Guiao and Eulogio Serrano. But Porfirio Dizon and Emiliano Manalo were not included. In view of the failure of the provincial fiscal to include these two persons, a motion for contempt was filed against the fiscal, but this motion was dismissed on the ground that if the fiscal committed an error of judgment, or even an abuse of discretion, the recourse against him was not an action for contempt but one of mandamus. Due to this order of the court, the action for mandamus was filed by Jesus Guiao to compel the fiscal to include Porfirio Dizon and Emiliano Manalo as accused in

his information, in Criminal Case No. 1453.chanroblesvirtualawlibrary chanrobles virtual law library

In his answer to the petition for mandamus, the provincial fiscal admits the substance of the testimonies of Porfirio Dizon and Emiliano Manalo as above indicated. He alleges that after the reinvestigation ordered by the court had been conducted, he included Eulogio Serrano and Jesus Guiao in the amended information, but "did not include Porfirio Dizon and Emiliano Manalo as co-accused in said Criminal Case No. 1453 because they are indispensable witnesses for the prosecution aside from the fact that they are the least guilty." No trial was held and the Court of First Instance decided the petition for mandamuson the pleadings.chanroblesvirtualawlibrary chanrobles virtual law library

It will be noted that the transcript of the testimonies of Porfirio Dizon and Emiliano Manalo in Criminal Case No. 1273 is attached to the petition for mandamus as Annexes A and B. On the basis of the pleadings the lower court held that in accordance with section 1 of Rule 106 of the Rules of Court, it is the duty of the fiscal to include all the persons who are responsible for the crime, and that if any or some of them are the least guilty, the determination of this fact rests in the sound discretion of the trial court and not upon the fiscal, citing the cases of Monroe vs. Sanchez, G.R. No. L-2286 promulgated June 17, 1948. It, therefore, granted the petition.chanroblesvirtualawlibrary chanrobles virtual law library

The question now before this Court is whether a fiscal may be compelled by mandamus to include in an information persons who appear to be responsible for the crime charged therein, but whom the fiscal believes to be indispensable witnesses for the State. The provision of Section 1 of Rule 106 of the Rules of Court expressly states that criminal actions shall be brought "against all persons who appear to be responsible therefor." The original provisions contained in General Orders No. 58 provided that all prosecutions shall be "against the persons charged with the

offenses." The change in the law was introduced in Act No. 2709, two of whose provisions were as follows:

SECTION 1. Every prosecution for a crime shall be in the name of the United States against all persons who appear to be responsible therefor, except in the cases determined in section two of this Act.chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 2. When two or more persons are charged with the commission of a certain crime, the competent court at any time before they have entered upon their defense, may direct any of them to be discharged, that he may be witness for the Government when in the judgment of the Court:chanrobles virtual law library

(a) There is absolute necessity for the testimony of the accused

whose discharge is requested;chanrobles virtual law library

(b) There is no other direct evidence available for the proper

prosecution of the crime committed, except the testimony of the accused;chanrobles virtual law library

(c) The testimony of said accused can be substantially

corroborated by its material points;chanrobles virtual law library

(d) Said accused does not appear to be the most

guilty;chanrobles virtual law library

(e) Said accused has not at any time been convicted of the crime

of perjury or false testimony or of any other crime involving

moral turpitude.

The pertinent provision of section 1 of Rule 106 is taken from section 1, while section 9 of Rule 115 from section 2.chanroblesvirtualawlibrary chanrobles virtual law library

A perusal of Act 2709 discloses the legislative intent to require that all persons who appear to be responsible for an offense

should be included in the information. The use of the word "shall" and of the phrase "except in cases determined" shows that section 1 is mandatory, not directory merely. The mandatory nature of the section is demanded by a sound public policy, which would deprive prosecuting officers of the use of their discretion, in order that they may not shield or favor friends, protegees, or favorites. The law makes it a legal duty for them to file the charges against whomsoever the evidence may show to be responsible for an offense. This does not mean, however, that prosecuting officers have no discretion at all; their discretion lies in determining whether the evidence submitted is sufficient to justify a reasonable belief that a person has committed an offense. What the rule demands is that all persons who appear responsible shall be charged in the information, which implies that those against whom no sufficient evidence of guilt exists are not required to be included.chanroblesvirtualawlibrary chanrobles virtual law library

The other aim of act 2709 is a complement of the mandatory provision: to regulate the manner in which any of the accused may be excluded in order that he may be utilized as a State witness, and to rest the manner of the enforcement of the regulations in the sound discretion of the courts. (U.S. vs. Abanzado, 37 Phil., 658.)chanrobles virtual law library

In short, Act 2709 has laid down four principles, namely, (1) that all persons who appear to be responsible for an offense be included in the information charging that offense; (2) that even if it is necessary to utilize any of the above persons as State witness, he shall nevertheless be included as accused; (3) that fiscals have no discretion in excluding from prosecution persons who appear responsible for a crime, but that if it becomes necessary to do so, the procedure provided in the law must be followed; and (4) that the exclusion of accused from prosecution, in order that they may be used as State witnesses, is lodged in the sound discretion of the competent court, not in that of the prosecuting officer.chanroblesvirtualawlibrary chanrobles virtual law library

In the case at bar, there is no question that Porfirio Dizon and Emiliano Manalo participated either as principals or accomplices in the kidnapping and murder of Felix Lampa, and that the only reason why the fiscal excluded them from the amended information is because he thought it more convenient, or perhaps more expedient, to do so. When the fiscal chose to ignore his legal duty to include the said Porfirio Dizon and Emiliano Manalo as accused in the criminal case, and to follow the procedure outlined in the rules by which said persons may be discharged in order that they may be utilized as witnesses for the prosecution, it became proper and necessary for the competent court to require him to comply therewith.

One minor point needs to be considered, and that is the point raised in the brief of the Solicitor General that the petitioner- appellee Jesus Guiao has no right to institute the action of mandamus, because he has no clear right to the performance of the alleged legal duty by the provincial fiscal. We find no merit in this contention. Every person accused of a crime has a positive interest in the inclusion of all his co-conspirators; a right to demand that all of them be accorded equal treatment and be made to suffer the penalties imposed by law. Without deciding the question as to whether or not any private citizen may demand compliance by the fiscal with the provisions of section 1 of Rule 106, requiring him to file the information "against all persons who appear to be responsible for an offense," we hold that the other accused have an interest in the inclusion of their two other companions in the commission of the crime, because they are jointly and severally liable with them for indemnities that may be imposed upon them for the offense they may have committed together.

The judgment appealed from is hereby affirmed, without costs.

G.R. No. L-15139

April 28, 1961

FELIX DE CASTRO, JR., QUIRINO AMBROSIO and ANTONIO

 

CARAMBAS, petitioners-appellees,

 

vs.

 

EMITERIO M. CASTAÑEDA and RAMON G. LICERALDE, in their

capacity as Provincial Fiscal and Assistant Provincial Fiscal,

 

respectively, of Pangasinan, respondents-appellants.

 

Enrique Braganza and Rodolfo Aquino for petitioners-appellees.

Braganza and Rodolfo Aquino for petitioners-appellees. Emiterio M. Castañeda and Ramon Liceralde for
Emiterio M. Castañeda and Ramon Liceralde for respondents-appellants.

Emiterio M. Castañeda and Ramon Liceralde for respondents-appellants.

PADILLA, J.:

This is an appeal from a judgment of the Court of First Instance of Pangasinan, Branch VII, ordering the appellants (Provincial Fiscal and Assistant Provincial Fiscal of Pangasinan) to include Catalino Malanum and Laureano Pasag as defendants in the information filed by the assistant provincial fiscal, then special counsel in criminal case No. A-148, entitled "People of the Philippines vs. Felix de Castro, Jr., Quirino Ambrosio and Apolonio Carambas," for violation of section 11 in connection with section 76, Act No. 4003, as amended (civil No. A-147).

On 22 October 1958 the appellees (Felix de Castro, Jr., Quirino Ambrosio and Apolonio Carambas) filed a petition for mandamus in the Court of First Instance of Pangasinan, Branch VII, averring that on 12 June 1958 the appellant assistant provincial fiscal, then special counsel, subscribed and filed an information charging them with violation of section 11 in connection with section 76, Act No. 4003, as amended for fishing with the use of poison (crim. case No. A-147, Annex A, Exhibits A & 1), based upon the affidavits subscribed and sworn to by Catalino Malanum and Laureano Pasag (Annexes B and C; Exhibits B and C; Exhibits 2 and 3); that on 16 July 1958 the appellees filed a motion in Court praying that the appellants be ordered to conduct a reinvestigation of the case and thereafter to include in the information all persons who appear to be responsible therefor; that acting upon the said Motion, on the same day, 16 July 1958, the Court directed the appellant assistant provincial fiscal to conduct a reinvestigation of the case; that the said appellant filed a motion for

reconsideration of the foregoing order but the Court denied it, holding that a reinvestigation was necessary because from the affidavits accompanying the information and attached to the record of the case it was apparent that many persons had incurred criminal liability arising from the incident complained of; that at the reinvestigation conducted by the appellants the appellees asked them to include Catalino Malanum and Laureano Pasag as additional defendants; that in the latters' affidavits (Annexes B and C; Exhibits B and C; Exhibits 2 and 3) it appears that they had actively and directly taken part in the commission of the offense with which the appellees had been charged; that the appellants had refused to grant the appellees' request and by that refusal had "unlawfully neglected and/or refused the performance of an act which the law specifically enjoins as a duty resulting from their office;" and that they "have no other plain, speedy and adequate remedy in the ordinary course of law," and praying that a writ of mandamus be issued directing the appellants to include Catalino Malanum and Laureano Pasag as defendants in criminal case No. A-148 and to pay the costs. They further prayed for other just and equitable relief (civil No. A-147).

On 7 November 1958 the appellants filed an answer to the petition for mandamus, admitting the material averments of the petition except paragraphs 3, 8 and 9 and setting up the following affirmative and special defenses; that Laureano Pasag and Catilino Malanum did not actively and directly participate in the commission of the offense, the truth being that the former did nothing but witnessed what happened and gathered fishes that would be used as evidence in the future, and the latter merely acted upon orders of Felix de Castro, Jr., one of the defendants therein and one of the appellees herein; that the petition has no factual basis because the information filed was based not only upon the affidavits of Catalino Malanum and Laureano Pasag but also of other persons who had been investigated during the preliminary investigation conducted by the appellants, and has no legal basis because before the information was filed the appellants has conducted a preliminary investigation pursuant to the provisions of section 1687 of the Revised Administrative Code, as amended by Republic Acts Nos. 732 and 1799, and had found that only the herein appellees had committed the crime charged; that the determination of who are the persons to be charged with the commission of an offense, upon the evidence presented during the preliminary investigation, falls within the exclusive prerogative of the prosecuting officer; that after carefully weighing the evidence the appellants believed that there was no

sufficient evidence to hold Catalino Malanum and Laureano Pasag or any other person responsible for the commission of the crime charged, except the appellees; and that in view of the foregoing the appellees had no cause of action. The appellants prayed for the dismissal of the petition with costs against the appellees.

On 10 November 1958 the Court entered an order setting the case for hearing on 12 November 1958 at 2:00 o'clock in the afternoon. On 12 November 1958 the appellees filed a reply to the appellants' answer disputing the veracity of their allegations and validity of their defenses.

At the hearing held on the same day, 12 November 1958, the appellant assistant provincial fiscal, in his own behalf and in behalf of his co- appellant, and the appellees by counsel, appeared. After the oral arguments, the appellants prayed that they be given ten days from date within which to file a memorandum and the Court granted them the period prayed for, provided that there would be no extensions for that purpose. On 22 November 1958 the appellants filed their memorandum.

On 30 January 1959 the Court, relying upon the doctrine laid down in Guiao vs. Figueroa (promulgated 17 May 1954), 50 Off. Gaz. 4828, rendered judgment holding that the power of the prosecuting officer to determine the persons probably guilty of the commission of an offense and to include them in the information to be filed in court cannot extend to the point of encroaching upon the prerogative of the court; that persons who appear responsible for the commission of a crime should be included in the information; that if it is necessary to utilize any of the defendants as a witness for the prosecution, the provisions of the law for his discharge from the information should be followed; and that it is prima facie shown by the affidavits of Catalino Malanum and Laureano Pasag that they are responsible for the commission of the same offense with which the appellees had been charged (Annexes B and C; Exhibits B and C; Exhibits 2 and 3); granting the writ prayed for and ordering the appellants to include Catalino Malanum and Laureano Pasag as defendants in the information filed by the appellant provincial fiscal in criminal case No. A-148.

From the foregoing judgment, the appellants have interposed this appeal.

In Guiao vs. Figueroa, supra this Court held:

The question now before this Court is whether a fiscal may be compelled by mandamus to include in an information persons who appear to be responsible for the crime charged therein, but whom the fiscal believes to be indispensable witnesses for the State. The

provision of section 1 of Rule 106 of the Rules of Court expressly states that criminal actions shall be brought "against all persons who appear to be responsible therefor." The original provisions contained

in General Orders No. 58 provided that all prosecutions shall be

"against the persons charged with the offenses." The change in the

law was introduced in Act No. 2709,

section 1 of Rule 106 is taken from section 1, while section 9 of Rule

The pertinent provision of

115 from section 2 (of Act No. 2709).

A perusal of Act 2709 discloses the legislative intent to require that all

persons who appear to be responsible for an offense should be included in the information. The use of the word "shall" and of the phrase "except in the cases determined" shows that section 1 is

mandatory, not directory merely. The mandatory nature of the section

is demanded by a sound public policy, which would deprive

prosecuting officers of the use of their discretion, in order that they may not shield or favor friends, protegees, or favorites. The law makes it a legal duty for them to file the charges against whosoever the evidence may show to be responsible for an offense. This does not mean, however, that prosecuting officers have no discretion at all; their discretion lies in determining whether the evidence submitted is

sufficient to justify a reasonable belief that a person has committed an offense. What the rule demands is that all persons who appear responsible shall be charged in the information, which implies that those against whom no sufficient evidence of guilt exists are not required to be included.

It is for the prosecuting officer to determine whether the evidence at hand is sufficient to engender a reasonable belief that a person committed an offense. This power and prerogative of the prosecuting officer is not however, altogether absolute. It is subject to judicial review in proper cases, as where from the evidence submitted and gathered by the prosecuting officer a person appearing responsible for the commission of an offense is not included in the information. The question, therefore, for determination in this appeal is whether there is sufficient evidence against Catalino Malanum and Laureano Pasag to warrant their inclusion in the information

filed in criminal case No. A-148 and whether the appellants gravely abused their discretion in not including them in the information.

Catalino Malanum swore that at about 2:00 o'clock in the afternoon of 17 April 1958, while he was taking a nap, Apolonio Carambas and Felix de Castro, Jr. came to his house; that the former woke him up and invited him to go fishing; that he accepted the invitation and went with the to Bolo River, about 300 meters away from his house; that upon reaching the river de Castro asked him to borrow pail from one of the nearby houses; that after securing a pail, de Castro told him to fill it with water from the river; that after doing so, de Castro told him to pour in the pail of water the liquid contents of two bottles that h took from a buri bag held by Carambas; that upon order of de Castro he poured the solution in the pail into the river; that this process was repeated until the contents of the two bottles of liquid had been exhausted; that after about 10 to 15 minutes the fishes in the river were disturbed and later on died; that the dead fishes were picked up by the people in the vicinity numbering about 100; that de Castro and his men also picked up the fishes and the former took the big fishes and gave to the deponent and others the small ones as their share; that about five petroleum cans of dead fishes were gathered by them; that until about a week after the incident the fishes in the river continued to die; that when the deponent saw the fishes dying after throwing the solution into the river, he suspected the liquid mixed with water to be poison; that he did not inquire from de Castro whether or not the liquid was poison because he was excited in picking up the fishes; and that a few days after he was investigated by fishery agents about the incident, de Castro sent for him and requested him to change the affidavit he had subscribed and sworn to before them and assured him that he would take care of the agents, but he told de Castro that "if he (de Castro) could destroy his affidavit that was already in the hands of the agents, I would abide by his wish." (Annex B, Exhibits B & 2.)

Laureano Pasag stated under oath that about 2: 00 o'clock in the afternoon of 17 April 1958 Quirino Domenden and Apolinario Domenden came to his house and invited him to join them in going to Bolo River because de Castro would "poison the river so that I can help them gather the fishes;" that he went with them; that when they arrived there, he saw de Castro hand two bottles of liquid whitish in color to Catalino Malanum and told him to drop a little of their contents into the pail of water; that after doing so, he poured the solution into the river and the same procedure was repeated

until the contents of the two bottles were exhausted; that after the solution was poured into the river, the fishes in the river were disturbed and later on died; that De Castro and his companions gathered the big fishes and brought them to his motorboat while the rest of the persons in the neighborhood picked up the small ones; that believing that the fishpond owned by Sergio Reinoso, of which he was the overseer, would be adversely affected, he (Pasag) also gathered some fishes to show to his landlord; that the next day he saw that all the fishes and 20,000 bangus fry in the fishpond of his landlord had died; that "the fishes continued to die for one week until I noticed no more fish left alive;" that he reported the matter to his landlord who ordered him to make a list of persons who saw the incident and to look for the empty bottles containing the liquid; that after a few days he furnished his landlord with the list and brought to him the two bottles found on the bank of the river; and that he did not remonstrate to De Castro about what he (De Castro) did because the latter assured him that the fishes in his landlord's pond would not be affected by his act (Annex C; Exhibits C & 3).

Catalino Malanum took direct part in the commission of the violation of section 11 in connection with section 76, Act No. 4003, as amended. Whether he knew beforehand that the liquid he was told to pour, as he did, into the pail of water was poison must be determined by taking into account all the circumstances that attended the act of transgression. He suspected the liquid mixed with water that caused the death of the fishes in the river was poison. Yet he took his share in the large number of fishes that were poisoned. In his sworn statement Laureano Pasag admitted he was invited by Quirino and Apolinario surnamed Domenden to go to Bolo River where de Castro would "poison the river so that I can help them gather the fishes" knowingly that the fishes were poisoned he took his share in the large number of poisoned fishes gathered on the bank of the river. His purpose in taking his share may well be doubted. Going over the information filed against the appellees, Catalino Malanum and Laureano Pasag appear as the first two witnesses listed therein other three named witnesses being a fishery agent owner of the fishpond referred to by Laureano Pasag his statement sworn to before one of the appellants and a deputy fish warden. From this it maybe inferred the first two being eyewitnesses of the violation were necessary. This may have been the reason why they we not charged with the violation by the appellants. But then to avail of their testimony because no evidence, available to prove the violation charged, the appellant should follow the provisions of the Rules on exclusion defendants

from the information in criminal cases. Although Quirino Ambrosio, mentioned twice by Catalino Malanum in his affidavit and referred to but not named Laureano Pasag in high sworn statement, is the least guilt because he was in charge of running the motorboat a helped only and the fishes thereon and was under order of the appellee de Castro, yet he was included in the information.

There being no reason why the judgment appealed from should be disturbed, the same is affirmed without pronouncement as to costs.

G.R. No. L-38621 August 30, 1974

ROMERO ESTRELLA y DE VENECIA, petitioner,

 

vs.

 

Hon. G. JESUS B. RUIZ, Presiding Judge, Branch I, CFI of Cagayan

 

First Judicial District, Tuguegarao, Cagayan, and FLORENTINO DE LA

PEÑA Provincial Fiscal of Cagayan, respondents.

 

Jose J. Estrella Jr. for petitioner.

Florentino de la Peña for and in his own behalf.

FERNANDEZ, J.:p

In this original action of certiorari and prohibition with preliminary injunction, petitioner prays that the order 1 dated April 23, 1974 of the Court of First Instance of Cagayan (Branch I) in its Criminal Case No. 371 filed against the petitioner and one Dante Custodia be annulled and that respectively, respondents Provincial Fiscal Florentino de la Peña and Judge G. Jesus B. Ruiz be prohibited permanently from proceeding with the reinvestigation of the case and from hearing the same.

On July 21, 1973, at about 2:30 p.m., an owner jeep with a trailer driven by herein petitioner and a motorized tricycle driven by Dante Custodio both coming from opposite directions on the national highway of Barrio Ugac, Tuguegarao, Cagayan, collided with each other; and, as a result, one of the passengers sustained fatal injuries, three others were injured, and the two vehicles were damaged.

The vehicular accident was investigated by a patrolman of the Tuguegarao Police Department, and, on July 25, 1973, a complaint 2 for "Homicide through Reckless Imprudence" against the herein petitioner was filed before the Municipal Court. The latter did not conduct any preliminary investigation on the strength of a "Waiver" 3 signed by the petitioner wherein the same was numbered as Criminal Case No. 371.

Came August 3, 1973, petitioner (driver of the jeep) filed a complaint 4 in the Office of the Provincial Fiscal against Dante Custodio (driver of the tricycle)

for "Criminal Negligence Resulting to Homicide, with Multiple Physical Injuries and Damage to Property."

That same day, petitioner, through his counsel requested the Provincial Fiscal to conduct a reinvestigation of the complaint filed against him before the Municipal Court and remanded to the Court of First Instance and the preliminary investigation of the complaint filed by him against Dante Custodio before the Provincial Fiscal. 5 The latter granted the request and directed Assistant Provincial Fiscal Leonardo Guiyab, Jr. to conduct an investigation of both cases. 6

On December 19, 1973, after the investigation, the respondent Provincial Fiscal filed an information 7 for "Homicide with Multiple Physical Injuries and Damage to Property through Reckless Imprudence" against both petitioner and Dante Custodio before the Court of First Instance of Cagayan.

On March 15, 1974, petitioner was arraigned and he pleaded not guilty to the charge. 8

On April 19, 1974, petitioner filed a motion to dismiss the case 9 , on the ground that the information was, invalid in view of the fact that the certification of the Fiscal with respect to the preliminary investigation conducted by him was limited to his co-accused Dante Custodia. The motion was heard and argued on April 23, 1974, with the Fiscal opposing the same. The respondent Judge denied the motion and the motion for reconsideration which was filed afterwards, 10 but directed the Office of the Provincial Fiscal to re-investigate the complaint with respect to the herein petitioner for "the satisfaction of defense counsel." 11

Petitioner, in his present petition for a writ of certiorari filed with Us, maintains that the information filed against him and his co-accused Dante Custodio is null and void insofar as he is concerned, because the certification of the Investigating Fiscal, embodied at the bottom of the information, which states that a preliminary investigation was conducted and that there exists a probable cause, referred to Dante Custodio alone. 12 Petitioner then concludes that the respondent Judge acted with grave abuse of discretion in not dismissing the case against him and in further ordering the reinvestigation of the complaint insofar as he is concerned.

The present case may be compared with the case of People vs. Marquez 13 , wherein, notwithstanding the absence of a certification as to the holding of a preliminary investigation in the information, We declared the information to be valid, for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. This Court, speaking through Mr. Justice Barredo, held:

the question to determine in this case is, what was the effect of appellee's failure to object to the information before or at the time he entered his plea of not guilty. Assuming that said information was defective because it did not contain the requisite certification regarding the fiscal's having held a preliminary investigation where the accused was given an opportunity to be present personally or thru counsel, such an omission is not necessarily fatal. It should be observed that section 3 of Rule 110 defines an information as nothing more than an "accusation in writing

charging a person with an offense subscribed by the fiscal and filed with the court." Thus, it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate such. True, as

already stated, section 14 of Rule 111 14 enjoin that "no information

be filed, without first giving the accused a chance to be heard in a preliminary investigation," but, as can be seen, the injunction refers to the non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted. Logically, therefore, inasmuch as the settled doctrine in this jurisdiction is that the light to the preliminary investigation itself must be asserted or invoked before the plea, otherwise, it is deemed waived, it stands to reason, that the absence of the certification in question is also waived by failure to allege it before the plea. After all, such certification is nothing but evidence of a fact, and if the omission of the fact itself to be certified is waived, if not properly raised before the accused enters his plea, why should the omission merely of the certification be given more importance than the absence of the fact itself to be certified to? Is it to be sustained that if in a given case, there were such a certification although in fact no preliminary investigation has been held, this Court is going to hold that the requirement of a preliminary investigation has been complied with? To ask the question is to immediately expose the absurdity of the

affirmative answer to it. (Emphasis Supplied)

shall

Furthermore, herein petitioner did not question the validity of the information on the ground of defective certification already adverted to above with respect to preliminary investigation before he entered a plea of not guilty. He filed his motion to quash only after 1½ months thereafter. Consequently, when he entered a plea of not guilty, he thereby waived all objections that are grounds for a motion to quash, except lack of jurisdiction or failure of the information to charge an offense 15 , specifically, he waived his right to a preliminary investigation. In a long line of decisions, We have previously held that the right to a preliminary investigation must be asserted and invoked before or, at least, at the time of the entry of his plea in the Court of First Instance, otherwise, it is deemed waived. 16

It is true that the certification with respect to preliminary investigation makes mention only of the petitioner's co-accused Dante Custodia. But petitioner does not deny the fact that a reinvestigation of the case filed against him originally in the Municipal Court and remanded to the Court of First Instance, and of his own complaint against Dante Custodia have been ordered investigated by the Provincial Fiscal. The Assistant Provincial Fiscal Leonardo Guiyab, Jr., to whom the investigation of said two cases had been assigned, must have conducted the necessary reinvestigation of the case against the petitioner and the investigation of the case filed by him against Dante Custodia. And the Comment of the respondent Fiscal clearly states that he concurred with the findings of the investigating Fiscal that there is prima facie evidence against both respondents. As a matter of fact, petitioner's objects to the holding of another reinvestigation insofar as the case against him is concerned, as ordered by the respondent Judge. 17 Petitioner, therefore, cannot say that there is no basis for accusing him along with Dante Custodia. The basis thereof is not a certification that a preliminary investigation has been held, but more so, the actual holding thereof.

And even granting that no reinvestigation of the ease against herein petitioner was conducted by the Office of the Provincial Fiscal, the fact is that he has already previously waived his right to a preliminary investigation when the case was still with the Municipal Court. Thus, in the Comment of the respondent Fiscal he notes that the herein petitioner made an express waiver of his right to a preliminary investigation in the Municipal Court; so, when the case was remanded to the Court of First Instance, he "saw no necessity in including the name of the petitioner in his certification in the Information."

Petitioner claims that the resolution 18 of the investigating fiscal, recommending the incorporation of the information against Dante Custodio to that against petitioner, is of no import. On the contrary, this resolution, which reads in its dispositive portion:

WHEREFORE, considering the existence of a prima facie case, let an information be filed against the respondent Dante Custodio, the same to be incorporated in the information to be filed against Romero Estrella in Criminal Case No. 371, for homicide, thru Reckless Imprudence, defined and penalized under Article 365 of the Revised Penal Code, in connection with the death of Mamerto Camayang. (Emphasis supplied)

marks out the clear intention to include petitioner and Dante Custodio as the two accused in the information, "considering the existence of a prima facie case."

WHEREFORE, finding no error in the order of the, respondent Judge denying petitioner's motion to dismiss, the herein petition is hereby dismissed with the modification that a new reinvestigation of the complaint need not to be made, without pronouncement as to costs.

Zaldivar (Chairman), Bernando, Barredo, Antonio and Aquino, JJ,

SO ORDERED."

G.R. No. L-30485 May 31, 1984

BENJAMIN H. AQUINO, as Provincial Fiscal of Rizal, petitioner,

 

vs.

 

HON. HERMINIO C. MARIANO, Judge of the Court of First Instance of

Rizal (Branch X), and LUCIO ADRIANO, JR., respondents.

 

The Solicitor General for respondents.

RELOVA, J.:

On October 9, 1968, then Rizal Provincial Fiscal Benjamin H. Aquino filed an information in the then Court of First Instance at Pasig, Rizal, docketed as Criminal Case No. 18425 and entitled: The People of the Philippines vs. Rodolfo Ceñidoza, Jose R. Baricua, Cesario B. Ong, Lucio Adriano, Jr. and

Adriano Castillo, for estafa thru falsification of official and/or public documents. Said criminal case, which arose from the huge expansion in the area after a resurvey and subdivision of a certain parcel of registered land in Muntinlupa, Rizal, and the approval by certain officials of the Land Registration Commission of the corresponding plans and technical descriptions prepared by the surveyor who resurveyed and subdivided the property, was assigned to the branch of the then Court of First Instance of Rizal presided by Hon. Pedro Revilla.

On October 27, 1968, Lucio Adriano, Jr., one of the defendants in said Criminal Case No. 18425, instituted a petition for mandamus in the then Court of First Instance of Rizal praying for an order directing Fiscal Aquino to include as defendants in the information filed by him in Criminal Case No. 18425 (not 18245) all persons of whom he found a prima facie case as stated by him in Annex "B " of his Petition, particularly, Commissioner Antonio Noblejas of the Land Registration Commission, who, in the meantime, resigned from the office. The mandamus case, docketed as Civil Case No. 11307, was assigned to Branch X, presided by herein respondent Judge Herminio C. Mariano, who, thereafter, rendered a decision, dated March 28, 1969, granting the petition for mandamus, the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, decision is hereby rendered in favor of the petitioner and against the respondent, granting petitioner's prayer for the issuance of a Writ of Mandamus, directing the respondent Benjamin H. Aquino, Provincial Fiscal of Rizal, to include as accused in the information filed by him in Criminal Case No. 18425 (not 18245) of this Court, all persons, including Commissioner Antonio Noblejas, against whom he found a prima facie case as stated by him in his second indorsement dated June 20, 1968 address to the Secretary of Justice, a copy of which is attached to the present petition as Annex "B" thereof.

Let the corresponding Writ of mandamus issue.

Hence, this petition for review by certiorari praying that the decision of respondent Court of First Instance be set aside and declaring that herein petitioner cannot be compelled to include former Commissioner Antonio Noblejas as one of the accused in Criminal Case No. 18425.

There is merit in the petition.

As stated in the decision sought to be reviewed, herein petitioner conducted the corresponding preliminary investigation in the case assigned to him and, in a second indorsement to the then Secretary of Justice, dated June 20, 1968, he had expressed the view that a strong prima facie case exists against Commissioner Noblejas and, therefore, recommended strongly that he be allowed to file the corresponding information against said commissioner and all other persons whom he found in his investigation to be criminally liable for the offense complained of. However, Fiscal Aquino, after a period of more than two months from the tune he made his second indorsement, addressed a memorandum, dated September 2, 1968, to the then Secretary of Justice stating, among others, that in view of the offer of Commissioner Noblejas to resign from office and in the fight of the Commissioner's explanation, he (herein petitioner) found the responsibility of said commissioner, if any, to be only administrative in nature. Thus, the information was filed without including Commissioner Noblejas as one of the accused.

In the light of the foregoing facts, is the proper remedy of private respondent Adriano, Jr., an action for mandamus, or a simple motion in Criminal Case No. 18425 with prayer for an order directing Fiscal Aquino to include in the information Commissioner Antonio Noblejas as one of the defendants therein?

The Revised Rules of Court (Section 3, Rule 65) on Petition for mandamus provides that "[w]hen any tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner, by reason of the wrongful acts of the defendant." Stated differently, mandamus is an extraordinary remedy that can be resorted to only in cases of extreme necessity where the ordinary forms of procedure are powerless to afford relief where there is no other clear, adequate and speedy remedy.

Before a writ of mandamus may be issued, it is obligatory upon the petitioner to exhaust all remedies in the ordinary course of law. He must show that the duty sought to be performed must be one which the law specifically enjoins as a duty resulting from an office. (Quintero vs. Martinez, 84 Phil. 496; Perez vs. City Mayor of Cabanatuan, 3 SCRA 431; Alzate vs. Aldana, 8 SCRA 219; and, Caltex Filipino Managers and Supervisors Association vs. Court of Industrial Relations, 23 SCRA 492).

Thus, if appeal or some other equally adequate remedy is still available in the ordinary course of law, the action for mandamus would be improper. In the case at bar, private respondent Adriano, Jr. did not request Fiscal Aquino to include in the information Commissioner Noblejas as one of the accused. Had he done so and the same was met with a denial Adriano, Jr. could have appealed to the Secretary of Justice who may reverse petitioner and designate another to act for the purpose. That way, the filing of a simple motion with the Fiscal to include or to amend the information is much more speedy and adequate than a petition for mandamus. As aptly stated by the Solicitor General in his brief for the petitioner:

By just presenting the motion, there will be no need of paying

any docket fee and the numbering of another case; there will be

no issuance and service of a summons or of an order

equivalent thereto; there win be no more raffles to determine

the sala of the court to which the case will be assigned; and

there will be no pre-trial all of which necessarily consume time. At least, there is no prohibition in the rules against this procedure. After all, a motion is defined as 'every application for an order not included in a judgment' (Sec. 1, Rule 15, of the

Revised Rules of Court).

xxx xxx xxx

The conclusion is therefore inevitable that the filing of a mere motion in the criminal case to achieve the same purpose as prayed for in the petition for mandamus is not only an adequate remedy but even a plainer, speedier, and more adequate remedy in the ordinary course of law than mandamus.

Another substantial argument in favor of filing only a motion in

the criminal case instead of the petition for mandamus is that it

will avoid multiplicity of suits which modern procedure abhors (3 Moran's Comments on the Rules of Court, 1963 ed., p. 134)

Otherwise stated, before filing the present action for mandamus in the court below, private respondent Adriano, Jr. should have availed of this administrative remedy and his failure to do so is fatal. To place his case beyond the pale of this rule, it must be shown that his case falls which it did not within the cases where, in accordance with this Court's decisions, the aggrieved party need not exhaust administrative remedies within his reach in the ordinary course of the law (Tapales vs. the President and the Board of Regents of the U.P., G.R. No. L-17523, March 30, 1963; Mangubat vs. Osmena, G.R. No. L-12837, April 30, 1959; Baguio vs. Honorable Jose Rodriguez, G.R. No. L-11078, May 27, 1959; Pascual vs. Provincial Board, G.R. No. L-11959, October 31, 1959; Marinduque Iron Mines, etc. vs. Secretary of Public Works, G.R. No. L-15982, May 31, 1963; Alzate vs. Aldaba, G.R. L-14407, February 29, 1960 and Demaisip vs. Court of Appeals, G.R. No. L-13000, September 25, 1959).

Neither is there merit in the argument that if a motion is presented before the trial judge he would be prejudging the case if he should grant the same because such a resolution win be presented only on a prima facie evidence, while a judgment of conviction must be based on evidence beyond reasonable doubt.

WHEREFORE, the petition is GRANTED and the decision dated March 28, 1969, of respondent judge is SET ASIDE.

SO ORDERED.

G.R. No. 111399 November 14, 1994

ODON PECHO, petitioner,

 

vs.

 

SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

A.M. Navarro Law Office for petitioner.

DAVIDE, JR., J.:

Is the attempted or frustrated stage of the offense defined in Section 3(e) of R.A. No. 3019, 1 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, punishable? If it is not, may an accused be, nevertheless, convicted for an offense penalized by the Revised Penal Code which is included in that of the former as charged?

These are the core issues in this case. The first was resolved in the affirmative by the Sandiganbayan. The petitioner and the Office of the Solicitor General disagree. The second is an outcrop of the first.

In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one Jose Catre were charged in an information 2 with the violation of Section 3(e) of R.A. No. 3019, as amended, allegedly committed as follows:

That on or about March 16, 1989 and/or sometime prior thereto at Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused ODON PECHO, a public officer being then the Customs Guard, Miscellaneous Bonded Warehouse Division, Bureau of Customs, South Harbor, Manila, with the indispensable cooperation and assistance of the accused JOSE CATRE, whose position, whether public or private, and address are unknown but representing himself to be a representative of Eversun Commercial Trading of Cotabato City, a corporation, firm or partnership which turned-out to be non-existent, fake or fictitious as it is not registered in the Department of Trade and Industry nor in the Securities and Exchange Commission and with a fake, spurious or fictitious Tax Account No. as it was not issued by the Revenue Information Systems, Inc., Bureau of

Internal Revenue, acting in the capacities aforesaid, with the former taking advantage of his official position and both accused, motivated and impelled by personal gain, financial and pecuniary interest, with deliberate intent to cause damage and undue injury to the Government, through manifest partiality and evident bad faith, conspiring, confabulating, conniving, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously act, pretend and feign to be agents or representatives of Eversun Commercial Trading in the importation of 5 x 20 foot containers STC agricultural disc blades and irrigation water pumps, and engage, solicit and contract the services of one Constantino Calica of Labatique, a CPA Customs Broker for the release of said shipment and/or preparation of the necessary import entry with the two (2) accused, furnishing, presenting and producing the necessary shipping documents such as packing list, commercial invoice, bill of lading and import entry declaration, which led and prompted said Customs Broker to file BOC Import Entry No. 14081-89 with the computed taxes and duties amounting to P53,164.00 declaring the shipment as five (5) containers STC agricultural disc blades and irrigation water pumps, more particularly described as follows:

5 CONTAINERS STC:

200 pcs. Agricultural Disc Blades 24 inches in

diameter

100 pcs. Agricultural Disc Blades 30 inches in

diameter

50

sets Centrifugal Water Pump 5 HP

25

sets Centrifugal Water Pump Diesel Engine 10

H.P.

100

sets Centrifugal Water Pump Diesel engine 25

H.P.

but contrary to the entry declaration, the subject shipment before its release, upon examination was found and/or discovered to contain 300 units diesel engines Model 4DR50A, to wit, viz.:

1.

Contr. No. EKLU-2673966 20' containing 60

pcs./units 4DR50A diesel engines

2. Contr. No. ITLU-6078177 20' containing 60

pcs./units 4DR50A diesel engines

3. Contr. No. UFCO-3976925 20' containing 60

pcs./units 4DR50A diesel engines

4. Contr. No. KLTU-1010988 20' containing 60

pcs./units 4DR50A diesel engines

5. Contr. No. KXTU-2027369 20' containing 60

pcs./units 4DR50A diesel engines

and the correct taxes and duties is P1,080,485.00, to the damage and prejudice of the government in the difference of said amounts or to be exact in the amount of P1,027,321.00, said offense having been committed in relation to the office of the above-named accused.

CONTRARY TO LAW.

The investigating prosecutor 3 made the following certification in the information:

This is to certify that a preliminary investigation has been conducted in this case; that there is a reasonable ground to engender a well-founded belief that a crime has been committed and that the accused are probably guilty thereof. 4

Warrants for the arrest of the accused were issued. Only the petitioner was brought under the Sandiganbayan's jurisdiction when he voluntarily surrendered on 15 March 1991. He posted bail. 5

After the petitioner had pleaded not guilty at his arraignment on 20 March 1991, 6 trial on the merits as against him ensued.

In its decision 7 promulgated on 28 June 1993, the Sandiganbayan (Second Division) found the petitioner guilty as charged and, applying the Indeterminate Sentence Law, sentenced him "to suffer imprisonment for an

indeterminate period of Six (6) years and One (1) month as minimum penalty, to Ten (10) years and One (1) day, as maximum penalty, with perpetual disqualification to hold public office; and to pay the Bureau of Customs, by way of civil liability, the sum of P1,027,321.00 and to pay the costs." 8

The petitioner's motion for reconsideration based on the following grounds, to wit:

(1) Invalidity of the information as a consequence of non- compliance with the mandatory provisions of Sections 3 and 4, Rule 112, 9 Rules of Court, and of Sections 6 and 7, Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 07);

(2) Failure of the prosecution to overcome by proof beyond reasonable doubt the presumption of innocence in favor of accused Odon Pecho;

(3) Failure of the prosecution to establish the attendance of the concurring essential elements of the crime charged; and

(4) There is no such crime as attempted violation of Section 3(e), RA 3019. 10

having been denied in the resolution of the Sandiganbayan of 12 August 1993, 11 he now comes before us with a reiteration of the said grounds.

In its Manifestation in Lieu of Comment 12 filed after having obtained six extensions of time to file its Comment, or for a total of one hundred and fifty days, the Office of the Solicitor General submits that there is no merit to the petitioner's claim that the information is invalid for non-compliance with Sections 3 and 4, Rule 112 of the Rules of Court and with Sections 6 and 7 of the Rules of Procedure of the Ombudsman (Administrative Order No. 07), but agrees with the petitioner that the prosecution failed to prove the elements of the crime charged and the consummation thereof, and, hence, he should be acquitted. However, it recommends that the petitioner be charged administratively for the violation of Section 36(b) [28] of P.D. No. 807, otherwise known as the Civil Service Decree of the Philippines.

In the challenged resolution, the Sandiganbayan rejected the first ground invoked by the petitioner in his motion for reconsideration because of waiver, having voluntarily entered his plea of not guilty, participated at the trial, and offered his evidence. As to the second and third grounds, it ruled that the decision "is supported with proof beyond reasonable doubt." And as to the fourth ground, it held that the provisions of the Revised Penal Code on attempted or frustrated felonies do not apply to offenses penalized by special laws, like the Anti-Graft and Corrupt Practices Act; hence:

violation of Section 3(e) of RA 3019 is always consummated irrespective of whether or not the accused has achieved his purpose. The accused's argument that he did not realize his purpose of depriving the government in the form of customs tax and duties is of no moment. It is enough that the accused committed an act that would cause undue injury to the government to make him liable. 13

We agree with the respondent Sandiganbayan and the Office of the Solicitor General that, indeed, the procedural issue raised is without merit. Firstly, the certification of the investigating Prosecutor in the information is sufficient. His failure to state therein that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence, which the petitioner claims is fatal because it is mandatorily required by Sections 3 and 4, Rule 112 of the Rules of Court, is untenable. When the Prosecutor stated under oath that, inter alia, "a preliminary investigation has been conducted in this case," he gave the solemn assurance that such preliminary investigation conformed with the requirements set forth in the said sections. The certification in question is similarly worded as that involved in Alvizo vs. Sandiganbayan 14 which this Court explicitly declared to be sufficient. This Court also reiterated therein the doctrine laid down in People vs.Marquez 15 that the absence of a certification as to the holding of a preliminary investigation does not invalidate an information because such certification is not an essential part of the information itself. In Marquez, this Court held:

It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." Thus, it is obvious that such certification is

not an essential part of the information itself and its absence cannot vitiate it as such. True, as already stated, section 14 of

Rule 112 enjoins that "no information

shall be filed, without

first giving the accused a chance to be heard in a preliminary investigation," but, as can be seen, the injunction refers to the non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that

a preliminary investigation should first be conducted.

If the absence of a certification would not even invalidate the information, then its presence, although deficient because of some missing clauses or phrases required under Section 4, Rule 112 of the Rules of Court, can do nothing worse than the former.

The rule is also settled that the right to a preliminary investigation may be waived by the failure to invoke the right prior to or at least at the time of the accused's plea. 16 Where the accused pleaded to the charge, he is deemed to have foregone the right of preliminary investigation and the right to question any irregularity that surrounds it. 17 The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 18

Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman. The presumption of regularity in the performance of official duty 19 on the part of the investigating Prosecutor was not rebutted. Moreover, the failure to furnish the respondent with a copy of an adverse resolution pursuant to Section 6 which reads:

Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the proper Deputy Ombudsman.

does not affect the validity of an information thereafter filed even if a copy of the resolution upon which the information is based was not served upon the respondent. The contention that the provision is mandatory in order to allow the respondent to avail of the 15-day period to file a motion for

reconsideration or reinvestigation is not persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be filed and acted upon by the Ombudsman if so directed by the court where the information was filed. Finally, just as in the case of lack of or irregularity in the conduct of the preliminary investigation, a party, like the petitioner herein, should have seasonably questioned the procedural error at any time before he entered his plea to the charge. His failure to do so amounted to a waiver or abandonment of what he believed was his right under Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman.

We shall now direct our attention to the core issue in this case, viz., whether the attempted or frustrated stage of the crime defined in Section 3(e) of R.A. No. 3019 is punishable. From the facts proved by the prosecution, the plan of the petitioner and his co-conspirators to defraud the government was foiled. The Sandiganbayan stated:

However, the felonious plan of the two accused to defraud the government was exposed and foiled through the combined efforts of the employees of the Bureau of Customs. A spot check on the shipment was conducted on March 9, 1989 by the Customs Senior Agent Ruperto Santiago. They discovered that the contents are automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration (Exh. A-6) filed with the Bureau of Customs, more particularly as follows:

xxx xxx xxx

On March 30, 1989, a random computation was made by Customs Appraiser Mamerto Fernandez based on the information provided by the Legal Division and he found out that a discrepancy exists in the total amount of taxes equivalent to P1,627,321.00 20 (Exh. E). Consequently, a hold order and also a warrant of seizure and detention were issued by the District Collector of Customs covering said goods. 21

The evidence for the prosecution, as summarized in the challenged decision 22 and in the Manifestation of the Office of the Solicitor

General, 23 established beyond doubt how the petitioner and his co- accused, Jose Catre, carried out their plan to defraud the Government.

The petitioner and Catre are from Surigao del Norte. On 15 March 1989, Catre and the petitioner, then a Customs Guard of the Bureau of Customs assigned at the Miscellaneous Bonded Warehouse Division, South Harbor, Manila, went to the office of Constantino Calica, a certified public accountant and a customs broker, at Magallanes Street, Intramuros, Manila. They introduced themselves to Calica as the duly authorized representatives of Eversun Commercial Trading, and then engaged him, for an amount equal to fifty percent (50%) of the authorized brokerage fee, to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration covering Eversun's shipment. The petitioner and Catre submitted to Calica the packing list (Exhibit "A-3"), the commercial invoice (Exhibit "A-4"), the bill of lading (Exhibit "A-5"), and the sworn import entry declaration (Exhibit "A-6"). The shipment was declared as agricultural disc blades and irrigation water pumps more particularly described as follows:

200 pcs. Agricultural Disc Blades 24 inches in

diameter

100 pcs. Agricultural Disc Blades 30 inches in

diameter

50

sets Centrifugal Water Pump Diesel engine 5

HP

25

sets Centrifugal Water Pump Diesel engine 10

HP

100

sets Centrifugal Water Pump Diesel engine 25

HP

Based on the foregoing information and the unit HCV in currency per invoice, the customs duties and taxes due were computed at P53,164.00.

On 16 March 1989, Calica instructed his son Dennis, also a customs broker, to file the documents with the Manila International Container Port (MICP) and to proceed to K-Line Shipping in Makati, Metro Manila, for the processing of the delivery permits. Dennis first dropped by at K-Line Shipping where he was approached by the petitioner and Catre who introduced themselves as the clients of his father. They invited Dennis to ride with them in petitioner's car in going to the MICP. Dennis agreed. Upon

arrival at the MICP, Dennis proceeded to the Entry Processing Division of the Bureau of Customs and filed the import entry and internal revenue declaration (Exhibit "A") and other supporting documents. Dennis handed to the petitioner and Catre a copy of the import entry and internal revenue declaration. They then proceeded to Section 6, the Examiner's Group, of the Bureau of Customs for further processing.

Two days after the documents were submitted to the Entry Processing Division, Catre called up Calica and requested Calica to assist him and the petitioner when the cargo will be submitted for actual examination. Calica agreed.

On 21 March 1989 Dennis met again with Catre for the processing of the examination request. After filing the request with the arrastre operator, Dennis checked the respective serial numbers of each container. Dennis did not join anymore in the actual examination of the containers.

On 27 March 1989, Baltazar Morales, Chief Intelligence Officer of the Bureau of Customs, addressed a formal request (Exhibit "B") to the District Intelligence Officer of the Bureau for a 100% examination of the shipment consigned to Eversun Commercial Trading.

On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a spot check on the questioned shipment to verify the contents of the container van. It was discovered that the contents were automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration. The engines are more particularly described as follows:

1. Contr. No. EKLU-2673966 20' containing 60 pcs./units

DR50A diesel engine

2. Contr. No. ITLU-6078177 20' containing 60 pcs./units

4DR50A diesel engine

3. Contr. No. UFCO-3976925 20' containing 60 pcs./units

4DR50A diesel engine

4. Contr. No. KLTU-1010988 20' containing 60 pcs./units

4DR50A diesel engine

5.

Contr. No. KXTU-2027369 20' containing 60 pcs./units

4DR50A diesel engine

The computation of the taxes due thereon made on 30 March 1989 by Mamerto Fernandez, Customs Appraiser, showed a discrepancy in the total amount of P1,027,321.00 (Exhibit "E"). Consequently, a hold order and a warrant of seizure and detention were issued by the District Collector of Customs.

Per the directive of the Commissioner of Customs dated 20 April 1989, Attys. Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and Prosecution Division conducted an investigation on the circumstances surrounding the interception and seizure of the shipment. Their verification with the Securities and Exchange Commission (SEC) and the Department of Trade and Industry (DTI) disclosed that Eversun Commercial Trading is a non-existent firm and that the tax account number used by Eversun in making the Import Entry Declaration was non-existent.

During their investigation, Tugday and Tamparong issued two subpoenas to the petitioner to appear before them. He did not appear to explain his side. As a result, Tugday and Tamparong prepared an Investigation Report (Exhibit "I") containing their findings and recommendations, among which were the filing of criminal charges against the petitioner, Jose Catre, and a certain Pablito Ampal pursuant to Section 3602 of the Tariff and Customs Code of the Philippines and the filing of criminal charges against the petitioner under Section 3610, in relation to Section 3512.

Subsequently, after appropriate preliminary investigation, the information was filed with the Sandiganbayan.

On the basis of the evidence, the Sandiganbayan concluded that all the elements of Section 3 (e) of R.A. No. 3019, to wit:

1. The accused is a public officer or private person charged in

conspiracy with him;

2. Said public officer commits the prohibited acts during the

performance of his official duties or in relation to his public

position;

3.

He causes undue injury to any party, whether the

government or private party;

4. Such undue injury is caused by giving unwarranted benefits,

advantage or preference to such parties; and

5. The public officer has acted with manifest partiality, evident

bad faith or gross inexcusable negligence. 24

are present in this case. More specifically, it said:

Accused Odon Pecho acted in bad faith from the very start when he conspired with his co-accused Mr. Jose Catre in misleading the government on the actual contents of the shipments belonging to Eversun Commercial Trading and thereby evading the payment of correct taxes due to the government. "Bad faith" does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel vs. Beacon Participations 8 NE 2nd Series, 895, 1007). It contemplates a statement of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes (Air France vs. Carrascoso, 18 SCRA 155). Evident bad faith connotes a manifest deliberate intent on the part of accused to do wrong or cause damage.

As Customs Guard, the accused is supposed to safeguard the interest of the government particularly the Bureau of Customs to which he is employed. Nonetheless, he allowed himself to be used in this illegal scheme to give unwarranted benefits or advantage to the importer at the expense of the government. The accused's participation is positively established by the testimonies of Messrs. Constantino Calica and his son Dennis Calica. These two represent the Calica Brokerage contracted by the two accused Mr. Pecho and Mr. Catre to prepare and file with the Bureau of Customs the required import entry declaration. The two accused went straight to Mr. Calica's office and introduced themselves as the duly authorized

representatives of Eversun Commercial Trading which is based at Surigao del Norte. The contract of services entered into by the two accused and Mr. Constantino Calica may be said to be peculiar from the usual contract of this kind. It is limited only to the preparation of the import entry declaration, the computation of taxes due to the Bureau of Customs and filing the same with the latter. It was the two accused who handed Mr. Calica the shipping documents necessary for the preparation of an import entry declaration such as the packing list (Exh. A-3), the commercial invoice (Exh. A-4), bill of lading (Exh. A-3) and the importer's sworn statement. These documents declare the shipment as five (5) containers of STC agricultural disc blades and irrigation water pumps more particularly described as follows:

xxx xxx xxx

Based on the information given by the two accused, the taxes and duties was computed at P53,164.00.

As the customs representative of Calica Brokerage, Dennis Calica is in-charge with the filing and posting of documents with the Bureau of Customs. On March 16, 1989, his father instructed him to file the import entry declaration covering the importations of Eversun Commercial Trading with the Bureau of Customs. He dropped first at the head office of K Line Shipping Company in Makati to process the delivery permits. While he was there, two men approached him and introduced themselves as Mr. Pecho and Mr. Catre, the clients of his father. The two accused invited him to go with them and they boarded Mr. Pecho's car and the three of them proceeded to the Manila International Container Port. The two accused accompanied him when the import entry declaration (Exh. A-6) was filed with the Entry Processing Division, Bureau of Customs. The services of the Calica Brokerage were again solicited by the two accused in the actual examination of the goods. So, on March 21, 1989, Dennis Calica met again with the two accused for the said purpose.

There is a deliberate intent on the part of the accused to do wrong or cause damage to the government. This may be inferred from the actuations of two accused. Their concerted actions show that they cooperated with each other towards the accomplishment of a common felonious purpose, in this case, the defraudation of the government through non-payment of the correct amount of taxes and duties to the latter (People vs. Catubig, 195 SCRA 505). Accused Pecho assisted his co- accused Catre in his official capacity as a customs guard in processing the documents required to insure that the goods consigned to Eversun Commercial Trading be released without delay and without arousing suspicion from the government authorities. Accused Pecho's act defeats the very objective of the government to upgrade the system of collection with regard to taxes and duties due to the government. Moreover, this is tantamount to an act of betrayal of the confidence reposed in him when he was employed as Customs Guard of the Bureau of Customs. 25

There is no doubt in our minds that without the early discovery of the fraud through the timely recommendation by the Chief Intelligence Officer for a 100% examination of the shipment and the spot check of the shipment by Customs Senior Agent Ruperto Santiago, the Government would have been defrauded in the sum of P1,027,321.00 corresponding to the deficiency in taxes. Such discovery and the immediate issuance of a hold order and a warrant of seizure and detention by the District Collector of Customs against the said articles effectively prevented the consummation of the offense. The Government incurred no undue injury or damage. At most then, the violation of Section 3(e) of R.A. No. 3019 reached only the attempted stage because the perpetrators had commenced the commission of the offense directly by overt acts but failed to perform all the acts of execution which would have produced the felony as a consequence by reason or some cause other than their own spontaneous desistance, 26 namely, the timely intervention of alert customs officials before the release of the cargoes.

Except then as to the third requisite of the offense penalized by Section 3 (e) of R.A. No. 3019, as amended, viz.: "causing undue injury to any party, including the Government," we agree with the findings and conclusion of the Sandiganbayan that the requisites thereof, as laid down in Ponce de

Leon vs. Sandiganbayan, 27 are present in this case. Would the absence of the third requisite, which, therefore, makes the petitioner's act only an attempted violation of Section 3(e), subject him to the same penalty as if he had committed the consummated crime? The answer would depend on whether Article 6 28 of the Revised Penal Code is applicable to offenses punished by special laws, like R.A. No. 3019, as amended, more specifically to that covered by Section 3(e) thereof, which is involved in this case.

In United States vs. Basa, 29 this Court held that the last paragraph of Article 3 of the Old Penal Code relating to attempts to commit crimes is not applicable to offenses punished "by acts of the Commission," i.e., special laws. In People vs. Ngan Te, 30 this Court also held that an accused cannot be convicted of a frustrated violation of a crime punished by a special law (Section 4 of the Gold Reserve Act of Congress of 30 January 1934).

In People vs. Jolliffe, 31 involving a prosecution for the violation of Section 34 of R.A. No. 265, in relation to Section 4 of Central Bank Circular No. 21 which provides:

Any person desiring to export gold in any form, including jewelry, whether for refining abroad or otherwise, must obtain a license from the Central Bank. Applicants for export licenses must present satisfactory evidence that the import of the gold into the country of the importer will not be in violation of the rules and regulations of such country.

this Court, in rejecting the contention of the defense that the penalty for violations of the circular refer to consummated exportation not to "attempted or frustrated exportation," declared:

This section explicitly applies to "any person desiring to export gold" and, hence, it contemplates the situation existing prior to the consummation of the exportation. Indeed, its purpose would be defeated if the penal sanction were deferred until after the article in question had left the Philippines, for jurisdiction over it, and over the guilty party, would be lost thereby.

It may thus be said that the application of Article 6 of the Revised Penal Code to offenses penalized by special laws would depend on how the latter

defines the offense. This would give life to Article 10 thereof which provides that the Code shall be supplementary to special laws, unless the latter should specifically provide the contrary. In the case of Section 4 of Central Bank Circular No. 21, it is clear from the phrase "desiring to export" that even a mere attempt to export which is necessarily included in desiring is punishable.

There are two principal reasons why Section 3(e) of R.A. No. 3019, as amended, can be said to penalize only consummated offenses. Firstly, the penalty imposed therefor per Section 9 is "imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income." The imposable imprisonment penalty does not have the nomenclature and duration of any specific penalty in the Revised Penal Code. Accordingly, there can be no valid basis for the application of, inter alia, Articles 50 and 51 on the penalty to be imposed on the principal of a frustrated and attempted felony. The penalty of perpetual disqualification is only from office, unlike either the perpetual absolute and perpetual special disqualifications under Articles 30 and 31 of the Revised Penal Code. Secondly, the third requisite of Section 3(e), viz., "causing undue injury to any party, including the government," could only mean actual injury or damage which must be established by evidence. The word causing is the present participle of the word cause. As a verb, the latter means "to be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; to make to induce; to compel." 32 The word undue means "more than necessary; not proper; illegal." 33 And the word injury means "any wrong or damage done to another, either in his person, rights, reputation or property. The invasion of any legally protected interest of another." 34 Taken together, proof of actual injury or damage is required. Thus, inAlejandro vs. People, 35 which involves a prosecution for the violation of Section 3(e) of R.A. No. 3019, as amended, this Court, in acquitting the accused declared:

Moreover, one of the elements of the crime described in Sec. 3(e) of the Anti-Graft and Corrupt Practices Act is that there should be undue injury caused to any party. However, in the 30 July 1987 decision of the respondent Sandiganbayan, it is recognized that there was no proof of damage caused to the

employees of the hospital since they were in fact paid on 27 October 1982 their salaries for the entire third quarter of 1982.

In Fernando vs. Sandiganbayan, 36 this Court, quoting the ruling in Alejandro, also stated:

There is no evidence whatsoever to show that the acts of the petitioners were done with evident bad faith or gross negligence. Neither is there proof that there was undue injury caused to any party. Who is the party injured? There is nothing in the records to show injury to any party, least of all the government. The urgent repairs were completed. The Bureau of Customs personnel and the public dealing with them were benefited but nobody was injured. But most of all, there was no evident partiality.

No actual injury or damage having been caused to the Government due to the timely 100% examination of the shipment and the subsequent issuance of a hold order and a warrant of seizure and detention, the petitioner must, perforce, be acquitted of the violation of Section 3(e) of R.A. No. 3019. Fortunately, for the State, the offense charged in the information in Criminal Case No. 14844 necessarily includes the complex crime of estafa (under paragraph 2(a), Article 315, Revised Penal Code) through falsification of public documents (under Article 171, Revised Penal Code). Article 315 reads:

Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned herein below.

xxx xxx xxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.

The information alleges in no uncertain terms the essential ingredients of estafa under said paragraph 2 (a), viz., (1) false or fraudulent representation of co-accused Jose Catre that he was the duly authorized representative of Eversun Commercial Trading, the alleged importer of agricultural disc blades and irrigation water pumps in the container van when, in truth and in fact, said importer is non- existent or fictitious with an equally spurious Tax Account Number, and that the cargoes imported were not as declared but 300 units of diesel engines, which fraudulent acts were done with the use of falsified documents such as import entry declaration, packing list, commercial invoice and bill of lading; (2) the false pretenses or fraudulent acts were executed prior to the commission of the fraud; and (3) the defraudation of the Government in the amount of P1,027,321.00 in taxes representing the difference between the correct taxes and duties due and that earlier computed on the basis of the false declaration. In other words some of the essential ingredients of the offense charged constitute the essential requisites of estafa through falsification of official documents. If duly proved by the evidence for the prosecution that satisfies the quantum of proof required for conviction, the petitioner can, under the information be convicted of estafa through falsification of official and commercial documents, an offense which is, as stated earlier, included in that which is charged.

Section 4, Rule 120 of the Rules of Court provides:

Sec. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved.

Analyzing this provision, this Court stated in Esquerra vs. People: 37

Stated differently, an accused may be convicted of an offense provided it is included in the charge, or of an offense charged which is included in that proved. Still stated differently, an

accused can be convicted of an offense only when it is both charged and proved. If it is not charged although proved, or if it is not proved although charged, the accused cannot be convicted thereof. In other words, variance between the allegation and proof cannot justify conviction for either the offense charged or the offense proved unless either is included in the other.

Section of Rule 120 states when an offense includes or is included in the other:

Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter.

In view of the aforesaid rules, it follows then that:

a. When the offense proved is less serious than, and is necessarily included in, the offense charged (as when the offense proved is homicide and the offense charged is murder), in which case the defendant shall be convicted of the offense proved (U.S. vs. Macalintal, 2 Phil.

448;

.).

b. When the offense proved is more serious than and includes the offense charged (as when the offense proved is serious physical injuries and the offense charged is slight physical injuries), in which case the defendant shall be convicted only of

the offense charged (U.S. vs. Guzman, 8 Phil. 21

.). 38

As earlier adverted to, the evidence established by the prosecution proves beyond reasonable doubt that the crime of estafa was only at its attempted stage and that it was sought to be consummated through the falsification of the following documents: the packing list (Exhibit "A-3") and Invoice (Exhibit "A-4"), which appear to be prepared by the exporter, Kowa Tsusho Co. Ltd. through one Masayuki Higuchi, its general manager; Bill of Lading (Exhibit

"A-5") which appears to be issued in Yokohama by the Kisen Kaishe Ltd.; the sworn Import Entry Declaration (Exhibit "A-6") all of which show that the cargoes imported were "agricultural disc blades and irrigation water pumps; as well as the Import Entry and Internal Revenue Declaration signed by customs broker Constantino Calica and prepared on the basis of the foregoing documents. The falsifications consist in making it appear that the importer-consignee indicated is a legitimate importer or an existing importer which had participated in such importation and authorized the accused to request the release of the imported articles although, in truth, it is non- existent and, therefore, had no participation in the importation; and in the untruthful statements that what were imported were agricultural disc blades and irrigation water pumps when in truth they were automotive diesel engines.

The information in this case can also be considered as charging two offenses: the violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted estafa through falsification of official and commercial documents. The accused having failed to object before trial to the duplicitous information, he may be validly convicted of both or either of the offenses charged and proved. 39

The Import Entry Declaration (Exhibit "A-6"), a public and official document, is required by Section 1301 of the Revised Tariff and Customs Code of the Philippines. 40 Under the said section, the parties authorized to make the import entry are (a) the importer, being the holder of the bill of lading, (b) a duly licensed customs broker acting under authority from a holder of the bill of lading, or (c) a person duly empowered to act as agent or attorney in fact for such holder. If the entry is filed by a party other than the importer, the importer shall himself be required to declare under oath and under penalties for falsification or perjury that the declarations and statements contained in the entry are true and correct. Such statements under oath shall constitute prima facie evidence of knowledge and consent of the importer of a violation against applicable provisions of the Code should the importation turn out to be unlawful or irregular.

The falsifications then of the aforesaid official and commercial documents were the necessary means for the commission of the attempted estafa.

There was no direct proof that the petitioner and his co-conspirator, Jose Catre, were the authors of the falsification. Nevertheless, since it was

shown with moral certainty from the testimony of the Calicas that the petitioner and Catre were in possession of the falsified documents and personally delivered them to Dennis Calica and that they showed extraordinary personal interest in securing the release of the cargoes for a fictitious importer, then the petitioner and Catre are presumed to be the authors of the falsified documents. A rule, well-buttressed upon reason, is that in the absence of satisfactory explanation one found in possession of and who used a forged document is the forger and therefore guilty of falsification. 41 It is, however, essential that the use must be so closely connected in time with the forging such that the utterer or user may be proved to have the capacity of forging, or such close connection with the forger that it becomes, when so accomplished, probable proof of complicity in the forgery. 42

In People vs. Sendaydiego, 43 this Court reiterated the rule thus:

The rule is that if a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery, or to have close connection with the forgers, and, therefore, had complicity in the forgery. (U.S. vs. Castillo, 6 Phil. 453; People vs. De Lara, 45 Phil. 754; People vs. Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil. 338; People vs. Manansala, 105 Phil. 1253).

In the absence of a satisfactory explanation, one who is found in possession of a forged document and who used or uttered it is presumed to be the forger (Alarcon vs. Court of Appeals, L- 21846, March 31, 1967, 19 SCRA 688; People vs. Caragao, L- 28258, December 27, 1969, 30 SCRA 993).

No explanation at all having been given by the petitioner as to why he and his co-accused were in possession of and used the falsified official and commercial documents, they are deemed to be the forgers thereof.

Accordingly, the petitioner is liable for and can be validly convicted of the complex crime of attempted estafa through falsification of official and commercial documents under paragraph 2(a) of Article 315 and Article 171 of the Revised Penal Code. Pursuant to Article 48, the penalty for the more serious crime shall be applied in its maximum period.

If the crime of estafa had been consummated, the Government would have been defrauded in the amount of P1,027,321.00. Hence, the applicable penalty under Article 315 of the Revised Penal Code would have been prision correccional in its maximum period to prision mayor in its minimum period, with an additional one (1) year for every P10,000.00 in excess of the first P22,000.00; provided, that the total penalty should not exceed twenty years.

Since what was established was only attempted estafa, then the applicable penalty would be that which is two degrees lower than that prescribed by law for the consummated felony pursuant to Article 51, in relation to Article 61(5), of the Revised Penal Code, viz., arresto mayor in its medium period to arresto mayor in its maximum period.

On the other hand, the penalty for falsification under Article 171 is prision mayor and a fine not exceeding P5,000.00. Obviously then, this is the more serious crime which shall be imposed upon the petitioner pursuant to Article 48. Since he is entitled to the benefits of the Indeterminate Sentence Law, 44 he can be sentenced to an indeterminate penalty ranging from two (2) years, four (4) months, and one (1) day of prision correccional medium as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum and a fine of P2,000.00. The maximum of the duration is in conformity with Article 48 which mandates that the penalty for the more serious crime shall be applied in its maximum period.

The foregoing disquisitions clearly suggest that those in charge of investigating criminal complaints against public officials and employees and of filing the corresponding informations in court must carefully determine under what law the offenders should be prosecuted. They should note that the offenses enumerated in Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended) are but in addition to acts or omissions of public officers already penalized by existing law. Thus, to attain the very purpose of said law and further enhance the constitutional mandate that a public

office is a public trust and all public officers and employees "must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency," 45 prosecutors should not limit their action to the additional offenses. To be more logical, they should initially consider if the questioned acts are already penalized by the Revised Penal Code and should the rule on double jeopardy be inapplicable, to exhaust all the available remedies of the State against the offender. It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense. 46

WHEREFORE, the instant petition is DENIED; however, the judgment of the Sandiganbayan in Criminal Case No. 14844 is modified, and, as modified, the petitioner is hereby declared guilty beyond reasonable doubt of the complex crime of attempted estafa through falsification of official and commercial documents and, applying the Indeterminate Sentence Law, is hereby sentenced to suffer an imprisonment penalty ranging from TWO (2) YEARS, FOUR (4) MONTHS, and ONE (1) DAY of prision correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor maximum as maximum, with the accessories thereof and to pay a fine of Two Thousand Pesos (P2,000.00).

Costs against the petitioner.

SO ORDERED.

G.R. No. L-23654

March 28, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.

 

VICENTE MARQUEZ, defendant-appellee.

 

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio G. Ibarra and Solicitor Oscar C. Fernandez for plaintiff-appellant. Madrid Law Office for defendant-appellee.

BARREDO, J.:

Appeal by the People from the order of the Court of First Instance of Albay in its Criminal Case No. 3544, granting the motion to dismiss filed by the appellee, Vicente Marquez.

On November 12, 1962, a complaint for frustrated homicide was filed with the then Justice of the Peace Court of Camalig, Albay, against appellee Vicente Marquez. The said complaint was signed by one Consolacion Musa Solano, mother of the offended party, Wenceslao Solano, who was then confined in the Albay Provincial Hospital, in consequence of the crime charged. A warrant of arrest was issued, but this was not carried out because the accused had filed a bail bond in the amount of P12,000.00. When the case was later called for purposes of conducting the second stage of the preliminary investigation, the accused, thru counsel, waived his right thereto; accordingly, the record of the case was remanded to the court a quo; and on July 9, 1963, the Provincial Fiscal of Albay filed the corresponding information with the said court.

Upon being arraigned on August 22, 1964, appellee entered a plea of not guilty to the charge.

On the day of the trial on September 25, 1964, without asking for leave to withdraw his previously-entered plea, appellee filed a motion to dismiss on the ground that the information filed by the Provincial Fiscal of Albay based on the complaint signed by Consolacion Musa Solano in behalf of her victim-son or offended party was null and void and the court had no jurisdiction to hear, try and decide the case.

Resolving the grounds raised in said motion to dismiss as well as those in the oppositions thereto, separately filed by the private prosecutor and the Assistant Provincial Fiscal of Albay, on October 1, 1964, the court dismissed the case, with costs de oficio, and ordered the cancellation of the bail bond of appellee. The Assistant Provincial Fiscal concerned has appealed from the dismissal aforesaid directly to this Court.

The People's appeal is premised on the following assignment of errors:

I. The lower court erred in dismissing the case after the appellee had already pleaded to the information.

II. The lower court erred in holding that it did not acquire jurisdiction to try the case.

On the other hand, as herein earlier intimated, the main point of appellee which was sustained by the trial court is that the complaint signed by the mother of the offended party which initiated the proceedings in the justice of the peace court was invalid because under Section 2 of Rule 110, a complaint may be subscribed and sworn to only by "the offended party, any peace officer or other employee of the government or governmental institution in charge of the enforcement or execution of the law violated" and, consequently, the information based on the said complaint filed by the Provincial Fiscal of Albay, without said fiscal having conducted another preliminary investigation, did not grant jurisdiction to the court.

The People's appeal should be sustained.

We do not hesitate to agree with the Solicitor General that the trial court's questioned order of dismissal is erroneous, being based, as it is, on the ground that it had no jurisdiction over this case because the initial complaint filed with the justice of the peace court was not signed by the offended party and was, therefore, invalid. It may be conceded that, as appellee argues, apart from what is provided in the Rule cited, there are precedents to the effect that, except as to the government officers authorized by said Rule, the filing of a complaint is personal to the offended party. 1 This is not, however, the only principle involved under the complete factual setting of this case. It must be remembered that appellee did not attack the said complaint while his case was still in the justice of the peace court, where, on the contrary, he waived the preliminary investigation proper; he allowed the case to be remanded to the court of first instance

and folded his arms when the provincial fiscal filed the corresponding information; and, he did not object to his being arraigned, instead he merely entered a plea of not guilty at said arraignment. In this circumstances, We hold that the initial complaint has lost his importance and the case can be viewed only in the light of the information subsequently filed by the provincial fiscal, as suggested by the Solicitor General.

We do not lose sight of the fact that in the truth the fiscal did not conduct any preliminary investigation of his own and, as a matter of fact, the information filed by him with the court a quo did not carry with it the sworn certification of the fiscal, required by section 14 of Rule 112, that the appellee was "given a chance to appear in person or by counsel at said examination and investigation." Neither are We overlooking precedents to the effect that absence of a preliminary investigation is a grave irregularity which nullifies the proceedings because it violates the right to due process. 2 We perceive, however, that the situations involved in those precedents cannot be equated with the circumstances obtaining here, for while there, the objections to the procedure followed were opportunately raised before here, appellee sought the dismissal of this case long after he had already entered his plea of not guilty to the information filed by the fiscal.

Therefore, the question to determine in this case is, what was the effect of appellee's failure to object to the information before or at the time he entered his plea of not guilty. Assuming that said information was defective because it did not contain the requisite certification regarding the fiscal's having held a preliminary investigation where the accused was given an opportunity to be present personally or thru counsel, such an omission is not necessarily fatal. It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing

charging a person with an offense subscribed by the fiscal and filed with the court." Thus, it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. True, as

already stated, section 14 of Rule 112 enjoin that "no information

be filed, without first giving the accused a chance to be heard in a preliminary investigation," but, as can be seen, the injunction refers to the

non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is, the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a

shall

consequence of the requirement that a preliminary investigation should first be conducted. Logically, therefore, inasmuch as the settled doctrine in this jurisdiction is that the right to the preliminary investigation petition itself must be asserted or invoked before the plea, otherwise, it is deemed waived, 3 it stands to reason, that the absence of the certification in question is also waived by failure to allege it before the plea. After all, such certification is nothing but evidence of a fact and if the ommision of the fact itself to be certified is waived, if not properly raised before the accused enters his plea, why should the omission merely of the certification be given more importance than the absence of the fact itself to be certified to? Is it to be sustained that if in a given case, there were such a certification although in fact no preliminary investigation has been held, this Court is going to hold that the requirement of a preliminary investigation has been complied with? To ask the question is to immediately expose the absurdity of the affirmative answer to it.

To be sure, the situation of appellee may be compared with another case where the fiscal, for one reason or another, files an information without holding any preliminary investigation and without any such preliminary investigation having been conducted by the municipal court concerned. After all, under the Rules, a criminal action may also be initiated by the fiscal filing an information with the proper court. (section 3, Rule 110) On the other hand, as already stated, this Court hag consistently held that the defense of absence of a preliminary investigation must be raised before the entry of the plea, otherwise, it is waived. Accordingly, even assuming, for the sake of argument, that the complainant in the justice of the peace court was void, as contended by appellee, on the other hand, the filing of the information in question with the court a quo made the issue of validity of said complaint already academic, considering that the said complaint held already been superseded by the said information. And since the said information is sufficient in form and substance, and the absence of a preliminary investigation may only be raised before the accused enters his plea, otherwise, it is waived, it follows that appellee forfeited his right to question both the complaint and the information under discussion by entering his plea of not guilty and otherwise submitting to the jurisdiction of the court for trial.lâwphi1.ñet

WHEREFORE, the order appealed from is reversed, and this case is hereby remanded to the lower court for further proceedings, with costs against appellee.

G.R. No. L-29086 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant

 

vs.

 

EDILBERTO GOMEZ, PRUDENCIO N. CICHON, CESAR V. CASTILLO,

PEDRO CUENTO and JOHN DOE, defendant-appellees.

 

G.R. No. L-29087 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

 

vs.

 

LORENZO DELANTAR, PRUDENCIO N. CICHON, JESUS F. ATILANO,

JOHN DOE and RICHARD DOE, defendants-appellees.

 

G.R. No. L-29088 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

 

vs.

 

PRUDENCIO N. CICHON and PAULINO T. DUMA, defendants-appellees.

G.R. No. L-29089 September 30, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

 

vs.

 

JESUS F. ATILANO, PRUDENCIO N. CICHON and PEDRO

CUENTO, defendants-appellees.

 

RELOVA, J.:

In 1962, four (4) informations were filed by the prosecuting fiscals before the Court of First Instance of Zamboanga City. They were as follows:

1. Criminal Case No. 3083.On May 24, 1962, Edilberto Gomez, Prudencio N. Cichon, Cesar V. Castillo, Pedro Cuento and John Doe were charged in the Court of First Instance of Zamboanga City with the crime of Estafa thru falsification of public/official documents. The case was docketed as Criminal Case No. 3083.

The prosecuting officers certified under oath that they had conducted a preliminary investigation of the case in accordance with law; and that they believed that the offense charged had been committed and the accused were probably guilty thereof. The corresponding warrant of arrest for each of the accused was accordingly issued and the accused subsequently filed their bond for provisional liberty (pp. 10, 11, 15- 18,21, 25-26, Rec.). On June 26, 1964, the accused Pedro Cuento and Cesar Castillo pleaded not guilty to the information (p. 54, Rec.); Edilberto Gomez and Prudencio Cichon pleaded not guilty on October 21, 1964 (p. 61, Rec.).

2. Criminal Case No. 3084.On May 24, 1962, the state prosecutors filed

another information in the lower court for the crime of Estafa thru falsification of public/official documents against Lorenzo Delantar, Prudencio Cichon, Jesus F. Atilano and two other unidentified persons, Richard Doe and John Doe. The case was docketed as Criminal Case No. 3084. As in the preceding case, the prosecution certified under oath that they conducted a preliminary investigation of the case, in accordance with law; that they believed the offense was committed and the accused were probably guilty thereof (pp. 1-3, Rec.). The accused Prudencio Cichon and Lorenzo Delantar, filed their respective bond for provisional liberty (pp. 23- 24, 2930, Rec.).

Upon arraignment, Jesus Atilano, Prudencio Cichon and Lorenzo Delantar pleaded not guilty to the offense charged in the information (pp. 60, 70, Rec.).

3. Criminal Case No. 3088.On May 24, 1962, another information for

Estafa thru falsification of public/official documents was filed in the Court of First Instance of Zamboanga City against Prudencio Cichon and Paulino Duma, This case was docketed as Criminal Case No. 3088. The information carries also the certification of the State Prosecutors that they

had conducted a preliminary investigation in the case and that they believed that the offense charged had been committed and that the accused were probably guilty thereof (pp. 1-3, Rec.).

After their arrest, the accused were released provisionally upon filing a bond of P1,000.00 each (pp. 14-15; 16-17, Rec.). On April 26, 1964, the two accused pleaded not guilty to the charge (p. 33, Rec.).

4. Criminal Case No. 3128.On October 1, 1962, Prudencio Cichon, Jesus F Atilano and Pedro Cuento were charged in an information for Estafa thru falsification of public/official documents in the Court of First Instance of Zamboanga City (pp. 1-2, rec.). This case was docketed as Criminal Case No. 3128. Since the information did not contain a certification that a preliminary investigation of the case had been made by the prosecutors, the District Judge himself made the preliminary investigation and once satisfied that a prima facie case against the three accused existed, issued warrants for their arrest on the same day, October 1, 1962 (p. 6, Rec.). The accused, however, were released on a bail of P1,000.00 each (pp. 9-10, 1 112, and 15-16, Rec.). At the arraignment on June 26, 1966, all the accused pleaded not guilty to the charge (pp. 31-32, Rec.).

On June 22, 1966, the accused in the four (4) cases, thru their counsel, filed a MOTION TO DECLARE INFORMATIONS AND WARRANTS OF ARREST null and void on the ground that the prosecution failed to observe the provisions of Section 13 and 14 of Rule 112 of the New Rules of Court regarding preliminary investigation and prayed the court to cancel the warrants of arrest issued.

On September 27, 1966, the lower court, for lack of merit, denied the aforesaid motion.

Upon a motion for reconsideration filed by the accused, thru counsel, the lower court, on November 2, 1966, reversed its former ruling and ordered the dismissal of all the four (4) cases against them, without prejudice to the refiling of the same, and ordered the cancellation of the bonds posted for the provisional liberty of the accused.

From the said order of dismissal, the prosecution appealed to this Court alleging that the trial court erred "in dismissing Criminal Cases Nos. 3083, 3084, 3088 and 3128 on the ground that the preliminary investigations conducted therein were not in accordance with Sections 13 and 14 of Rule 112, in relation to Rule 144 of the Revised Rules of Court.

The People's appeal should be sustained. The trial court's questioned order of dismissal is erroneous. Sections 13 and 14 of Rule 112 of the New Rules of Court provide:

SEC. 13. Preliminary examination and investigation by the judge of the Court of First Instance.Upon complaint filed

directly with the Court of First Instance, without previous preliminary examination and investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the municipal judge referred to in the second paragraph of section 2 hereof for preliminary examination and investigation, or himself conduct both preliminary examination and investigation simultaneously in the manner provided in the preceding sections, and should he find reasonable ground to believe that the defendant has committed the offense charged, he shall issue a warrant for is arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information.

SEC. 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance.Except where an investigation has been conducted by a judge of first instance, municipal judge or other officer in accordance with the provisions of the preceding sections, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. If the accused appears the investigation shall be conducted in his presence and he shall have the right to be heard, to cross- examine the complainant and his witnesses, and to adduce evidence in his favor. If he cannot be subpoenaed, or if subpoenaed he does not appear before the fiscal, the investigation shall proceed without him.

The fiscal or state attorney shall certify under oath in the information to be filed by him that the defendant was given a chance to appear in person or by counsel at said examination and investigation.

The preliminary investigations in these four (4) cases were terminated in 1962, or before the New Rules of Court took effect on January 1, 1964. Rules 112 and 113 thereof cannot, therefore, apply to these cases at bar.

Besides, in Criminal Case No. 3803, the government prosecutors certified under oath that they had conducted a preliminary investigation in said case

in accordance with law, and on the basis thereof, then Judge Carmelo Alvendia issued the corresponding warrant of arrest against all the accused.

Likewise, in Criminal Cases Nos. 3084 and 3088, there appear the certifications of Special Prosecutor Edilberto Barot, Jr. and Special Counsel Vicente G. Largo. And, in Criminal Case No. 3128, it was District Judge Gregorio Montejo who conducted the preliminary investigation and, finding the existence of a prima facie case, ordered the arrest of the defendant.

It is clear, therefore, that the required investigations were complied with.

But then, assuming that the informations did not contain the requisite certificates regarding the Fiscal's having held a preliminary investigation, the omissions are not necessarily fatal. The absence of preliminary investigations does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective. If there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, "instead of dismissing the information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted." (People vs. Casiano, 1 SCRA 478). The defendants in these cases did not question the validity of the informations on the ground of defective certifications or the right to preliminary investigations before they entered the plea of not guilty. They filed the motion to declare informations and warrants of arrest null and void only after more than one (1) year thereafter. Consequently, when they entered a plea of not guilty, they thereby waived all objections that are grounds for a motion to quash, except lack of jurisdiction or failure of the information to charge an offense. Thus, they waived the right to a preliminary investigation when they failed to invoke it prior to, or at least at, the time of the entry of their plea in the Court of First Instance.

Inasmuch as the settled doctrine in this jurisdiction is that the right to the preliminary investigation itself must be asserted or invoked before the plea, otherwise, it is deemed waived, it stands to reason, that the absence of the certification in question is also waived by failure to allege it before the plea." (Estrella vs. Ruiz, 58 SCRA 779)

All the defendants in the four (4) cases had already entered the plea of not guilty when they filed the motion to declare the informations and warrants of arrest null and void.

ACCORDINGLY, the order dated November 2, 1966 of the Court of First Instance of Zamboanga is set aside and the said court is hereby ordered to proceed with the trial of the said criminal cases.

SO ORDERED.

[G.R. No. L-37836 : July 31, 1981.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.

CLAUDIO BULAONG and FONSO LAURECIO, Accused-

vs. CLAUDIO BULAONG and FONSO LAURECIO, Accused- Appellants . D E C I S I O

Appellants.

D E C I S I O N

AQUINO, J.:

Claudio Bulaong appealed from the decision dated September 28, 1973 of the Court of First Instance of South Cotabato, General Santos City Branch I, convicting him of eight complex crimes of forcible abduction with rape, sentencing him to eight penalties of reclusion perpetua and ordering him to pay the victim, Delena Segapo, a total indemnity cranad(including attorney’s fees) of P130,000 cranad(Criminal Case No. 559).

In that same decision, Alfonso Laurecio was convicted as an accomplice and sentenced to an indeterminate penalty of four years, two months and one day of prision correccional as minimum to ten years and one day of prision mayor as maximum and to pay the same indemnity to Delena Segapo.

In this Court’s resolution of February 1, 1979, Laurecio’s petition to withdraw his appeal was granted cranad(p. 183, Rollo).

In the afternoon of December 5, 1972, Delena Segapo, 14, and her sister, Nena, 8cranad(both Bilaans), left their house at Barrio Landan, Polomolok, South Cotabato, to perform an errand for their father. After walking for about forty minutes, they boarded a passenger jeepney and arrived in the public market of General Santos City at around six o’clock in the evening.

Their destination was Barrio Kiblat, Malungon, South Cotabato where they were going to collect an account from a person named Tamigo. But as there was no more jeepney going to Malungon at that hour, the sisters decided to take a tricycle to convey them to the house of Pedro Mula, their relative residing at Laurel Street in that city.

Before the two girls could ride in a tricycle, Claudio Bulaong, 35- year-old married man with five children, appeared at the market place. He was well-known to the two sisters because, as an only son, he administered his family lands in Barrio Landan where many Bilaans resided. Bulaong alighted from his jeep, pointed his gun at the two sisters, held Delena’s neck and forced her and her sister to board his jeep.

He conducted them to the New Bay View Hotel in the city where Bulaong forced them to enter Room 304. He was still holding his gun with one hand and with his other hand, he held Delena’s arm. He threatened to kill the two sisters if they would escape and refuse to enter the hotel room.

After they had entered the room, Bulaong locked the door. He removed Delena’s jeans and panties and pushed her to one of the beds. He undressed. When Delena was on the bed, he stripped her of her blouse and bra and placed himself on top of her.

She resisted, spitting at him and kicking and scratching him. She was crying. Her sister, Nena, was also in tears, a helpless spectator of the ravishment being committed against Delena. Bulaong spread Delena’s legs, inserted his penis into her vagina and made push- and-pull movements. He succeeded in having sexual congress with her.

After satisfying his lust, Bulaong went out of the room. He took the precaution of locking it to prevent the two sisters from escaping. He obtained food from the restaurant on the ground floor. He reentered the room with the food. Delena refused to eat.

Bulaong had sexual intercourse with Delena eight times in the hotel. She suffered pain in her genital organ. It was bleeding. At about six o’clock in the afternoon of the following day, December 6, Bulaong and the two sisters left the hotel. He brought them in his jeep to his parents’ bungalow in Barrio Landan which was then unoccupied. They were locked in a room. Fonso Laurecio, a houseboy armed with a gun, guarded them. Bulaong had sexual intercourse with Delena in that place.

On December 31, 1972, while Bulaong and Delena were taking lunch, the eight-year-old Nena cranad(who had already been detained for twenty-six days) was able to escape by passing through the ceiling and holding on to the pipe which led to the ground. She did not take the road. She traversed the savanna with cogon grass and followed the creek leading to her house.

Nena recounted the outrage to her mother, Maria Malid, and later to her father, Dalama Segapo, when he arrived on January 2, 1973 from Malungon. Dalama reported the incident to Lieutenant Torcuator of the city police department who, instead of taking direct action, advised Dalama to complain to the barrio captain who in turn told Dalama to ask Rudy Ante, a barrio councilor, to accompany him to Bulaong’s house.

On January 6, 1973, Dalama and Ante repaired to Bulaong’s house. Dalama asked Bulaong to deliver to him his daughter, Delena. Laurecio, armed with a gun, brought Delena to her father. Dalama took her home.

Two days later, or on January 8, the city health officer examined Delena and found that there were recent multiple lacerations in her hymen which admitted two fingers. He concluded that she was no longer a virgin and that she was the victim of “recent sexual intercourse” chanroblesvirtualawlibrary(Exh. A).

A Constabulary investigator took the statements of Dalama and his two daughters. On January 9, 1973, a complaint for forcible abduction with rape, signed by Delena and Dalama, was filed in the city court against Bulaong as principal and Laurecio as an accomplice. At past four o’clock in the afternoon of that day, the city judge interrogated Delena. The examination was reduced to writing in the form of searching questions and answers. The next day the city judge conducted a similar examination of Nena and Dalama.

A warrant was issued for the arrest of Bulaong and Laurecio. No bail was recommended. Bulaong and Laurecio surrendered voluntarily on January 10 and 12, respectively cranad(pp. 31 and 46, Record). They waived the preliminary investigation. On January 23, 1973, the city fiscal filed in the Court of First Instance against

Bulaong and Laurecio an information for forcible abduction with rape. The two accused entered a plea of not guilty.

After trial, the lower court rendered the judgment of conviction already stated. In this appeal, Bulaong contends through his counsel de oficio that the lower court did not acquire jurisdiction over the case because the information filed by the city fiscal is fatally defective for not containing the verification required in Form 24 of the Appendix to the Rules of Court.

That contention has no merit. The forms prescribed in the Rules of Court “serve as mere illustrations”. Jurisdiction over the crime charged in this case is conferred by law, not by the complaint or information which is merely the means by which jurisdiction is invoked or which gives the court the occasion for exercising its jurisdiction. cranad(Valdepeñas vs. People, 123 Phil. 734.)

In this case, the complaint for abduction with rape against Bulaong was filed in the city court by the offended girl and her father. That complaint was sworn to before the city judge cranad(Exh. B). It was the basis of the preliminary examination. The judge examined the witnesses under oath. The examination was reduced to writing in the form of searching questions and answers. On the basis of that examination, a warrant of arrest was issued.

The accused waived in writing the second stage of the preliminary investigation. In such a case, the fiscal is not called upon to conduct another preliminary investigationcranad(People vs. Pervez, 110 Phil. 214).

He could file an information on the basis of the preliminary investigation conducted by the inferior court because the prosecution of the offense is under his direction and control. He could not have certified that he held a preliminary investigation because the preliminary examination was actually conducted by the city court and the second stage of the preliminary investigation was waived by the accused.

In a case, like the instant case, involving crimes against chastity, the prosecution may be conducted by the fiscal on the basis of the complaint filed in the inferior court. There is no need to file an

information. cranad(People vs. Imas, 64 Phil. 419; People vs. Varela, 64 Phil. 1066; People vs. Roa, 60 Phil. 1013; U.S. vs. Garcia, 27 Phil. 254; People vs. Zurbano, L-32673, February 22, 1971, 37 SCRA 565.)

Hence, the other contention of the accused that the information should have been signed by the offended girl is wrong. Article 344 of the Revised Penal Code, reproduced in section 4, Rule 110 of the Rules of Court, does not require that the offended girl in a crime against chastity should sign the information filed by the fiscalcranad(People vs. Cerena, 106 Phil. 570).

The accused contends that the information dated January 22, 1973, which was filed on the following day, January 23, is void because it was “received and filed on January 9, 1973” and, consequently, the case against the accused was “railroaded”.

That contention is baseless and preposterous. The information was filed on January 23, not on January 9. Evidently, counsel de oficio is mistaken. He did not examine the record carefully.

Another baseless contention of counsel de oficio, which shows his failure to peruse the record with due care, is that it is not alleged in the information that the forcible abduction with rape was committed with lewd design. The incontestable fact is that in both complaint and information “lewd design” is explicitly averred.

Counsel de oficio’s fifth assignment of error is that the trial court erred in not finding that the victim’s father and accused Bulaong entered into a compromise. Counsel then argues that, because of such a compromise, Bulaong is not guilty.

The argument is feeble and flimsy. The testimonies quoted by counsel show that the victim’s father pretended to agree to a dowry of one carabao and two thousand pesos just to be able to secure the release of his daughter who was held in captivity by Bulaong. There is no showing that Bulaong was pardoned by the victim and her father. It is appropriate pardon that extinguishes criminal liability for a crime against chastity.

The other assignments of error of counsel de oficio involve the issue of whether the crime of forcible abduction with rape was

proven beyond reasonable doubt. The resolution of that issue requires an examination of Bulaong’s evidence.

Bulaong, who finished the third year high school, set up the defense that Delena was his mistress, who with her parents’ consent, lived with him. He did not deny that he cohabited with Delena in his father’s house at Barrio Landan from December 6, 1972 to January 6, 1973 cranad(896 tsn).

He was infatuated with Delena. He told her that he wanted her to be his second wife. He planned to ask his wife to consent that Delena would be his mistress. He testified that it was customary among the Bilaans to have a second wife.

When Bulaong allegedly told Delena that he loved her, she replied

that she had liked

already cranad(782). cranad(However, on cross-examination, Bulaong said that he never told Delena that he loved her, 855.)

About the end of October, 1972, he informed Dalama that he wanted Delena to be his second wife. Dalama said that he should talk with Delena. Bulaong and Delena allegedly became sweethearts on November 16, 1972 while they were in the house of Palaguyan Lakim, Dalama’s neighbor. On that occasion Bulaong kissed Delena several times while they were seated on the floor and he touched her private parts cranad(883). Maria Segapo saw Bulaong kissing Delena cranad(857).

On November 21, 1972, Nena Segapo told Bulaong that Delena wanted to talk with him. He went to Delena’s house and stayed there from ten in the morning up to one o’clock in the afternoon. They allegedly agreed to have an assignation in General Santos City. She borrowed from Bulaong one hundred pesos to be used in buying a dress for her sister Nena cranad(783-4). cranad(On cross-examination, Bulaong testified that it was Dalama who borrowed one hundred pesos from him, 856).

Nena was to participate as a second princess in the barrio fiesta to be held on November 24. cranad(Bulaong’s daughter was the first princess.) Nena’s dress would be made by Bulaong’s wife who was operating a dress shop in the city. Nena and Delena went to the

long time

him

for

a

city in the afternoon of November 21. Bulaong followed later. He waited for them near the theater on Pioneer Street, where he met Moreno Delfin, his friend.

When the sisters arrived, Bulaong and Delfin brought them to Satea’s restaurant located on the ground floor of the New Bay View Hotel where they took a merienda. After they had finished eating, Bulaong directed Delfin to take the girls to Room 304 of the hotel.

Bulaong allegedly stayed with the two girls in Room 304. Nena slept in one bed. Bulaong and Delena had sexual intercourse twice in the other bed. He discovered that she was not a virgin. She allegedly confessed that she had sexual relations with four men, namely, Roberto Daniel, her cousins Kamad and Nonoy and her uncle cranad(911-913).

He told Delena that he could not take her as his second wife but if she behaved, he would support any offspring that they might beget. They checked out of the hotel in the morning.

Bulaong went to the office of the family corporation, Bulaong Enterprises. He took breakfast in his mother’s house in the city. He did not offer any breakfast to the two girls. He later saw them near the public market seated in a jeepney bound for Barrio Lamdan. They were sitting beside his mother who was also going to Landan cranad(803).

According to Bulaong, he met Delena at the dance on the coronation night, November 24, 1972 in Barrio Landan. He asked her to dance with him but she allegedly refused because his wife was present.

They met on November 28 or December 28, near the creek behind the sheller of the Bulaong family and had sexual intercourse on the ground cranad(809-10, 870).

On December 6, 1972, Delena was allegedly brought to Bulaong in his father’s house in Barrio Landan by Rudy Ante, a barrio councilor. Delena asked for a dowry. Bulaong denied the request. At Ante’s behest, Fonso Laurecio, the family houseboy cranad(a Bilaan, 917), fetched Dalama, the father of Delena.

Dalama allegedly asked Bulaong to give a dowry cranad(sungod) consisting of two thousand pesos cash and a carabao. Bulaong also denied the request. Dalama was infuriated. He wanted to kill his daughter.

Dalama left the place. Ante, Maria Segapo, Delena, Elon cranad(Maria’s brother) and Lakim, a relative of Delena, remained with Bulaong. They allegedly agreed to entrust Delena to Bulaong because, if she went home, she would be killed by Dalama. Delena said that she would stay with Bulaong wherever he would go because she loved him cranad(816-7). They had sexual intercourse on December 6 cranad(892).

Bulaong testified that four days later Delena went home because her father was no longer angry. Bulaong talked with her parents. Dalama told Bulaong not to abandon Delena and to help the Segapo family.

Bulaong and Delena and their companions left Dalama’s house at nine o’clock in the evening. Dalama went with them because Bulaong was going to give him sardines. After Dalama received the sardines and salmon, he did not insist anymore on the dowry cranad(822).

Bulaong said that Delena did not stay all the time with him in his father’s house in Barrio Landan: “just come and go”. Nena sometimes slept with Delena in that housecranad(835). Delena would stay for sometime, then leave and go home and then return to Bulaong’s house. At that time his parents were allegedly in Manila, having gone there at the end of November and returned before January 10, 1973 when Bulaong was arrested cranad(331). His wife stayed in her dress shop in the city.

Bulaong testified that on Christmas day and New Year’s day he was in the house of his father-in-law in the city cranad(835-6).

Delena left Bulaong on January 7, 1973 because Bulaong told her to return to her father’s house before his parent’s arrival. He gave her ten pesos cranad(838-40). After Bulaong discovered that Delena was not a virgin, he lost interest in making her his second wife cranad(873).

The trial court characterized the foregoing version of Bulaong as improbable, incredible and contrary to human experience, a veritable “fairy tale”

Delena, her father Dalama and her sister Nena returned to the witness stand to rebut Bulaong’s testimony. Delena denied that she had lost her virginity by having had sexual intercourse with a certain Daniel and with her two cousins and her uncle. She did not know Daniel. She did not have sexual congress with her two cousins and her uncle because, as she said: “I am not an animal” chanroblesvirtualawlibrary(1042).

Nonoy, whose full name is Reynaldo Dueñas, testified that as Delena’s first cousin, he treated her as a sister. He denied having had sexual intercourse with Delena.

One serious discrepancy in Bulaong’s evidence shows its untrustwortiness and fabricated character. Mildred Areno, a defense witness, admitted, when asked to testify as a rebuttal witness for the prosecution, that according to the school registercranad(Exh. 2 or F), which was prepared by her as the Grade two teacher of Nena Segapo, the latter was present in class on November 21, 1972 cranad(1005).

Yet, according to Bulaong and his witness Moreno Delfin, Nena was with Delena in the afternoon of November 21, 1972 when Bulaong and Delena allegedly had an assignation in the New Bay View Hotel and that the sisters returned to their residence on the following day. That testimony of Bulaong, which is the core of his defense in this case, is false as shown in the school register cranad(Exh. 2) and as rebutted by his own witness, Mildred Areno.

It should be borne in mind that Delena and the members of her family are Bilaans or non-Christians and, as such, are ethnically, socially and economically inferior to Bulaong and his family, one of the two richest families in Barrio Landan. This circumstance serves to explain why it took Dalama a long time to recover custody of Delena from Bulaong and why the two girls were easily cowed and frightened into submission by Bulaong.

We agree with the trial court’s evaluation of the evidence and with its conclusion that Bulaong’s guilt was proven beyond reasonable doubt. The following observations and conclusions of the trial court are well-taken:

“One need not stretch his imagination to conclude that this strange story of a love affair, followed by a demand of a dowry by the parents accompanying their daughter, dismissed outright by the man, with the woman choosing to remain in the house of her lover, a married man, still smiling and professing to be in love with him, stayed willingly with him as a wife for about a month and thereafter filing a case of forcible abduction with rape against him, is very unusual and improbable, contrary as it is to human experience, to deserve any modicum of credence cranad(People vs. Alto, 26 SCRA 342, 357). The reasons are:

“1. It was vigorously denied by Delena, Nena and Dalama Segapo in their rebuttal testimonies and directly opposed to their story narrated in the direct evidence whereby in spite of their being native Bilaans, their tender age cranad(with respect to Delena and Nena Segapo) and his illiteracy cranad(with respect to Dalama Segapo), they stuck to their versions notwithstanding the long and searching cross-examinations of two defense attorneys. Bereft of artificiality and hesitancy, usually detected in one who testifies a concocted story, they were frank and straight- forward in answering questions, . cra .

“x x x

“3. Defendant having been publicly known to be a married man in Landan, Polomolok, South Cotabato, with five children, some of whom were studying in Landan Elementary School cranad(were transferred to North Elementary School at General Santos City after the present incident) to Flora Manansala, also known in the locality as a dressmaker, as in fact Nena Segapo herself with Delena had her dress sewed by her immediately before their barrio fiesta on November 24, 1972, aside from the couple having a house of their own in

Landan, it will be very difficult to believe that Delena, with her beauty, youth, and elementary education, would allow herself to be rightly called his sweetheart, knowing very well that he will not be in a position to marry her, even under Bila-an traditions. That her parents would give aid and comfort to such an illicit relationship is impossible. For our judicial records are replete with incidents of killings by Bila-ans to protect the honor and integrity of their women.

“4. Throughout his testimony, both in the direct and in the cross, nay, even in answers to questions of the court, defendant vehemently denied having expressed his love and promise of marriage to Delena Segapo, as all the time, he had been conscious that he had promised the same love and fulfilled it in that grand wedding of May 1, 1960 with Flora Manansala. All that he admitted was his statement to Delena’s father that he wanted her to be his second wife and his statements to Delena that he liked her. That is not courtship. Love begets love and there can be no sweethearts where one does not confess to be in love.

“5. That they had agreed to have a date and sleep as man and wife in the New Bay View Hotel on November 21, 1972 can easily be dismissed as an outright lie, considering his admission of the presence of Nena Segapo, an eight-year-old sister of Delena. Experience has taught us that sweethearts bent on satisfying their lusts, as we are made to believe in this case, would have avoided the presence of strangers, more especially a close relative of the girlcranad(in this case a sister of the victim). The third party will make it a crowd.

“6. No comfort can be had of the registry book for guests of the New Bay View Hotel showing that on November 21, 1972, Claudio Bulaong checked in at the hotel in the evening and checked out in the following morning, to corroborate his story. On its face, said entry belied the claim that Claudio Bulaong was with somebody as he appeared to be alone in Room 304.

“Secondly, the exhibition of a very wonderful memory of Carlos Ma, in charge of the hotel, remembering Claudio

Bulaong to be with Delena Segapo and her sister on November 21, 1972 in checking in and checking out, considering that was the first time that they were his guests who never returned, at the same time forgetting all his recent guests, made the plot of a date very unbelievable.

“Thirdly, this documentary evidence of the defense is contradicted by its other evidence, that is, the class record of Grade II pupils identified by Mrs. Mildred Areno which shows that on November 21 and 22, 1972, Nena Segapo was present in her classes for said days cranad(See Exh. 2-B, J-1, school register in connection with hotel register, p. 114, marked as Exhibit 8-B).

“7. The demand initiated by Maria and Delena Segapo as mother and daughter accompanied by barrio councilman Rudy Ante in the morning of December 6, 1972 for a dowry of P2,000.00 and a carabao is rather extraordinary, there having been no proposal of marriage previous to said date by Claudio Bulaong who in the first place could not have done so. For a dowry is only demandable after there is a proposal of marriage by a man to the parents of the woman.

“8. Claudio Bulaong outrightly dismissed the demand of a dowry by Dalama Segapo. In such a setting, we cannot understand why this conversation commenced at eight o’clock in the morning lasted until about three o’clock in the afternoon when Dalama Segapo left and until four o’clock when his wife left, the parties not being served with lunch and merely made to content themselves with soft drinks and biscuits. And to make this Court believe that in spite of the refusal of Claudio Bulaong to pay the dowry in the presence of Delena, she was still happy and smiling, telling her parents that she would not leave his house because she loved him, thus she voluntarily and consciously lived with him as man and wife until January 6, 1973 is futile.

“That is beyond the realm of realities. It is a fairy tale when taken with the very serious case of forcible abduction with rape commenced soon after her liberation in the court below.

Inherently improbable, it was in itself a lie, pure and simple, when we take into account his accusation of Delena after his alleged first carnal knowledge of her on November 21, 1972, in the New Bay View Hotel that she was not a virgin and the latter freely confessed about the four men in her life, some of whom were her own relatives.

“Such a very unkind charge of the defendant is controverted by the medical findings of Dr. Jose Alvarado, who examined Delena on January 8, 1973, aside from being denied by Delena herself and rebuttal witness, Reynaldo Dueñas. It succeeded only, if it did succeed at all, in adding insult to a very painful injury .cra . The story of the defendant should not have been dignified by an exhaustive dissertation. For like an ostrich which hid its head into the sand, its body was fully exposed to public view. It is only because we are faced with a crime involving a capital punishment that we have chosen to do so.

“Neither is his denial of the use of a gun and of their own Toyota jeep convincing. To buttress his testimony, his own affidavit subscribed and sworn to before Notary Public Gregorio Daproza, Jr. on April 12, 1972 was offered as evidencing the transfer of his gun to his brother-in-law, Charlie Dimalantacranad(Exh. 11). This affidavit is self- serving and could have been executed by him at any time with an antedated date before aforesaid notary public because an examination of the records of this Court will show that Atty. Gregorio Daproza, Jr. as a notary public has not submitted any notarial report from February 16, 1971 cranad(See Record, p. 105).

“And as the only son of Eusebio Bulaong, his claim that at the time he was not using their Toyota jeep does not ring true, taking cranad(into account) the mentality of Filipino parents who have so many children but with only one son. That he was the administrator of a vast agricultural land in the distant barrio of Landan, Polomolok, South Cotabato and at the time, his parents were in Manila, its veracity is nil.

“As the principal and basic evidence upon which the defense rests its case fails, all evidence intended to support or corroborate must likewise fail cranad(See People vs. Marcos, 70 Phil. 468, 478-479). It is only for more enlightenment that we will attempt to take them one by one, demanded by the gravity of the offense involved.

“As stated at the outset, a retinue of public school and barrio officials were marshalled in an effort to destroy, if not minimize, the credibility of the People’s witnesses, brought to Court by the mother of the accused, in their own Toyota jeep cranad(used in the commission of the crime), some of whom were billeted in the New Bay View Hotel like Barrio Captain Venancio Dianga and Barrio Councilman Rudy Ante, evidently showing how the defendant has been a customer of said hotel in a city riddled with hotels cranad(See pp. 156, 166, Hotel Register, Exh. 1).

“Armed with school register and her pupil’s test papers, Mrs. Mildred Areno declared that for the school days in December, 1972, Nena Segapo, her grade two pupil, was absent only thrice, these were on December 11, 14 and 18. In short, it was impossible for her to be with Delena from December 5 to December 31 when she escaped from the defendant’s clutches. Unfortunately, we have these observations:

“1. Not a civil service eligible and teaching in a barrio school built in a place controlled by the Bulaong family, her impartiality is debatable. Her hold on her job was at the whims and caprices of the powers that be that soon after she finished testifying in this case, she was rewarded with a transfer to a school in her residence in Spring Camp, Polomolok, South Cotabato;

“2. The school register itself and its pages are very clean, written in perfection, without any erasure and uniformly by one ballpen which she used from September until she testified on March 6, 1973, but with a filler, as correctly observed by the public prosecutor, not even used one- millionth cranad(Exhibits 2-C). Considering further that

she has to travel everyday from her residence to the school and return on public conveyances along a dusty road during sunny days and muddy during rainy season, its neatness is quite surprising. It appears to be accomplished in a day! It is not so with the Class Records cranad(Exh. D);

“3. This school register does not bear the signature of any public school official or any official mark when issued or inspected that it can be changed at will at anytime by its possessor. Indeed, it can be bought at anytime in any store dealing with school supplies. Given to her by Mr. Mauro Espe, their head teacher, in her testimony on March 6, 1973, it was bought by her in a store by her declaration in the cross on March 7, 1973. Which is which? Only God knows. Far more important is the fact that all documentary evidence submitted by the District Office of said school to this Court from the Landan Elementary School, to support the school register, were of the same category no signature of its receipt and the date thereof cranad(See Exhs. No. 7). To our knowledge, such is not the regular procedure in dealing with official records. This cam either be a case of negligence or mass intercalations. In either, it cannot deserve official integrity;

“4. As a faithful record of attendance of her pupils including hers, it did not show her absence when in court awaiting for her turn to testify. Not only that. Nena Segapo appears to be present on November 21 and 22, 1972 when she was supposed to be with Delena in the afternoon of November 21 and was seen by Claudio Bulaong in the parking place in General Santos City about nine o’clock in the morning of November 22. The $64 question is, whom to believe?

“5. Picturing the defense counsel to be prophets, she said that she was not interviewed by anyone of them nor by any relative of the defendants as equally neither had she shown them the school register and the test papers

of her pupils saved by her and brought to Court. Having

in mind the seriousness of the offenses involved, the affluent client defended and the experience of the principal counsel, such a blind request for the issuance of a subpoena and subpoena duces tecum is beyond

comprehension cranad(See, Record, pp. 56, 62);

“6. Of the 30 pupils she had in Grade II, she presented

46 test papers, 16 of which belong to Nena Segapo, while her classmates Mercy Ante, Rebecca Julie, Ana Gulada, Roberto Palate, Antonia Villalon and Merlyn Tel have 9, 8, 8, 7, 4, and 2, respectively cranad(Exhibits 1 to 1-0, 3 to 3-Z). Her reason that Nena was a bright and

a model pupil that she preserved her test papers as

samples was a contradiction to her subsequent testimony that Nena was always absent and a liar. Apart from the tearful denial of Nena that those test papers in December were not her own, one need not use a magnifying glass to decipher that the handwriting of Nena when she signed her affidavit and those on the test papers denied by her is an ocean of difference, the latter being evidently written by one who is not a Grade II pupil

in a barrio school. Besides, the grades on the test papers

before December, 1972 will speak for themselves. She cannot be a model pupil.’cralaw cranad(Exhs. 1-90%; 1- A-85%, 1-B-75%; 1-C-90%; 1-D-95% & 1-E-95%).

“Granting in gratia argumenti that the testimony of Nena Segapo is seriously impeached, which we are far from believing that it was, the rule in this jurisdiction is well-settled that in crimes of rape the sole testimony of the offended parties is sufficient to sustain a conviction. cranad(U.S. vs. Ramos, 1 Phil. 81; People vs. Dazo, 58 Phil. 421; People vs. Macaya, et al., G.R. No. L-925, February 27, 1970; People vs. Ganal, et al., G.R. No. L-1990, March 15, 1950, cited in People vs. Selfaison, supra, p. 243).

“Mauro Espe, teacher in charge of Landan Elementary School, brought to Court Form 137-B, the school register of Delena Segapo, where she appears to be born on September 21,

1955 cranad(Exhs. 5,5-A). Its purpose is to contradict the testimony of Delena and her father, Dalama, that she was 14 years old at the time of the incident for she was born on November 10, 1958. There being no showing that this entry was furnished either by Delena Segapo or by her father, Dalama Segapo, it is worthless for impeachment purposes. Mauro Espe, whom we noticed to have taken a very unusual interest in defending the accused, especially after Rebecca Julie, 9 years old, one of the five cranad(5) grade two pupils of the Landan Elementary School, testified on July 2, 1973 that she and four cranad(4) of her classmates were brought by Mr. Espe to the house of Atty. Mirabueno and thereafter to this Court as sur-rebuttal witnesses, exaggerated his memory by declaring that during the enrollment of Delena on August 3, 1964, he heard and still remembers that Dalama Segapo was the one who furnished aforesaid date of birth to Mr. Decano, the enrolling teacher.

“He failed though to tell us the date when Martial Law was declared by the President. That enrollment was almost 9 years ago when he testified on March 7, 1973 while the declaration of Martial Law was less than a year. At any rate, the entries in Exhibit 5 will speak for themselves. It could not have been furnished by Dalama Segapo whose name appears there as Dalama Segapo and whose wife, Maria Malid cranad(Record, p. 10), was identified as Maria Dilion.

“That the date of birth of Delena was simply placed there by the school teacher to comply with the school age, an effort to increase the enrollment in this school, is possible. Dalama Segapo, being an illiterate Bila-an, could not tell us the days of the week and months of the year when he testified in Court. At any rate, whether Delena Segapo was 14 years old as she appears to the Court while testifying or 17 years old, is an immaterial issue, having in mind the complex crime charged.

“Francisco Mandar, district supervisor of Polomolok, South Cotabato, identified B.P.S. Form No. 3 which is the principal’s report of enrollment and attendance of all the schools in his district, one of which is Landan Elementary School. It appears

that the subpoena calls for him to bring Form 2 which is the record of pupils’ attendance prepared by the classroom teacher. Instead he brought this Form No. 3. As a piece of evidence, Exhibit 6 is worthless as it did not show the specific attendance of Nena Segapo in her classes as a grade two pupil. The same can be said of Form No. 2 identified by Mr. Adronico Sotelo, principal teacher of Polomolok Central School. Mr. Sotelo categorically stated that he was not the one who personally received Form No. 2 as it was received by a clerk under the office of the district supervisor cranad(Exh. 7). No such signature of the receiving clerk appears on the face of the document and the same could have been submitted by Mrs. Mildred Areno even after this case was commenced.

“Venancio Dianga, barrio captain of Landan, asserted that on December 5, 1972, Dalama Segapo went to his house asking his help in getting a dowry from Claudio Bulaong because his daughter and Claudio Bulaong were often going together. He refused because he had a misunderstanding with Claudio Bulaong and that existed until he testified on April 2, 1973. And to bolster that cause, he wanted to make us believe that while he took the Toyota jeep of Claudio Bulaong in going to General Santos City in order to testify in this case, this was done because he requested the mother of Claudio Bulaong to take that jeep and it was not otherwise.

“To us, he is a rehearsed witness, if not biased, and was not telling the truth. Elected as such barrio captain from 1968 until 1973 with the help or at least with the acquiescence of this controlling family in Landan, his claim for having a quarrel is shallow. It appears that when this case was called in the first week of March 1973 and the second week of April 1973, he checked in at Room 202 with Mrs. Dianga and thence in Room 208, with his departure in both not specified cranad(See pp. 156, 166, hotel register, Exhibit 8).

“As supposed protector of his people, being a barrio captain, he collected from the landowners P5.00 each for accomplishing their sworn statements of the current and fair

market value of their properties in compliance with Presidential Decree No. 76, earning as much as P1,000.00. We are unaware if there is any law which allows him, even as a barrio captain, to make such collection, considering that he is only a first year high school. A public official with such a corrupt mind is not worthy of credence. While vigorously maintaining that the date was December 5, 1972 and not January 6, 1973 as testified to by Dalama Segapo, his memory for dates is very treacherous.

“He could not even tell us the dates when all his eight children were born and his claim for a serious altercation with the defendant is directly opposed to his admission that before he testified, he conversed with Claudio Bulaong.

“The testimony of Juan Barieses, Jr., public school teacher of Alegria Elementary School, is so harmless as to deserve the cross-examination of the prosecuting Fiscal.

“Rudy Ante, a barrio councilor of Landan, Polomolok, South Cotabato, declared that on December 6, 1972, Maria Segapo and her daughter Delena went to his house with Delena complaining to him that the accused had carnal knowledge of her in the hotel and asked his help for a settlement. He accompanied her to the house of Eusebio Bulaong and there met Claudio Bulaong informing him about the complaint of Maria and Delena. Upon his suggestion, defendant asked him to call for Dalama Segapo, and he obliged. Thus, at about eight o’clock in the morning of December 6, 1972, Delema Segapo, his wife, Maria, daughter, Delena with one named Bong, Ilong, Ading cranad(accused) and himself were in the house of Eusebio Bulaong. He opened the conversation by telling Claudio Bulaong that the parents of Delena were willing to ‘enter into an amicable settlement’ if defendant would pay them P2,000.00 and one carabao.

“The indictee outrightly refused because he could not afford that amount and went to the extent of even warning Dalama as follows: ‘If you are a father you should not sell your daughter for that price’. He cried to convince Claudio Bulaong

to settle but he failed, so he left the house at about 4:00 o’clock in the morning with Gorio Lakim and Maria Segapo, leaving Delena in the house who told them that she did not like to go home anymore because she wanted to stay with Ading as she was afraid because her father was mad.

“Like Venancio Dianga, he is a Bila-an barrio official who owed his election to the defendant. Testifying on April 3, 1973, he checked in with Venancio Dianga as early as April 1, 1973 and the hotel register did not state when did he check out of Room 217. Until April 4, no one occupied Room 217. Taking cue from what happened to witness Venancio Dianga, he came to Court ready to tell us the respective dates of birth of his children. He was already a defense witness before the trial, executing an affidavit on January 24, 1973 cranad(Exh. G).

“He never talked about Claudio Bulaong marrying Delena as he emphasized that he was the one who tried to settle the case by convincing Claudio Bulaong to pay P2,000.00 and one carabao cranad(See Exh. G-1). In other words, except for the date, that is, January 6, 1973 instead of December 5, 1972, and the fact that Delena was in the house of Eusebio until she left their house on January 6, 1973 upon regaining her freedom, the testimony of Rudy Ante in a way confirmed that of Dalama Segapo and Delena Segapo as to what happened in the afternoon of January 6, 1973. We leave him, as all other matters were already discussed by us with regards to the testimony of the defendant Bulaong himself.

“The testimony of Carlos Ma that Claudio Bulaong checked in at the hotel only on November 21, 1972 and he had never returned thereto, especially during the whole month of December 1972 has been sufficiently alluded by us. But if more is needed, he admitted that he allowed customers who are his friends from General Santos City under a short-time basis, two or four days, to stay in their hotel, without registering their names.

“This practice is a matter of public knowledge. That this can happen to defendant considering their being publicly known

in General Santos City as members of the rich family is very much reasonable. Then, a scrutiny of the hotel register readily shows that from December 5, in the afternoon up to December 6, in the afternoon, Room 304, an airconditioned room, was not occupied by anybody cranad(See pp. 101-102, hotel register, Exh. 8). This is confirmatory of an actual occupation by a close friend of Carlos Ma, now entangled for ravishing a young Bila-an and whose witnesses were billeted in their own hotel as a loyal customer.

“Moreno Delfin, a close friend of Claudio, both being childhood playmates and children of original settlers, was very evasive, exhibiting a demeanor of one who was made to narrate a rehearsed testimony. He was very positive that it was only on June 2, 1973, when he met the defendant in the city jail, that he was requested to testify regarding the incidents on November 21, 1972, these were, their meeting at the Pioneer Theater, their taking a tricycle to the Satea House with Delena and Nena, their eating in the aforesaid restaurant and his conducting the two girls to Room 304 after he was given by the accused the key of the room.

“That is the only date he remembers and he failed to tell us of all the other dates directly involving his family as the dates when his brothers were incarcerated at the city jail as well as their release and the dates he visited them. We dismiss him with those observations.

“Alfonso Laurecio, like Benito, has been the faithful servant of Eusebio Bulaong, father of the defendant, and was made to take care of the house while his master was in the City of Manila from the later part of November, 1972 to the early part of January, 1973. He denied having guarded, with the use of a shotgun, Delena Segapo and Nena Segapo as the former stayed in the house of his master voluntarily and slept with Claudio in one of the rooms from December 6, 1972 up to January 6, 1973, while Nena was a frequent visitor.

“Defended by a counsel de parte, engaged by the Bulaongs, he admitted that there was in fact a shotgun in the house of

Eusebio Bulaong, locked in one of the rooms, and that Delena was in that house from December 6, 1972 up to January 6, 1973. His denial on other points cannot be at par with the positive testimonies of Nena Segapo, Delena Segapo and Dalama Segapo, absent at any important motive shown convincingly for these witnesses to testify falsely against him and Claudio Bulaong in prosecuting so serious a crime as forcible abduction with rape.

“Taken as a whole and with due fidelity to the constitutional mandate that all accused shall be presumed innocent until the contrary is proven, we regret to conclude that in the case at bar, the People’s evidence has complied with the statutory requirement of proof beyond reasonable doubt.”

The trial court found that Bulaong committed the eight complex crimes of forcible abduction with rape, aggravated by the use of a motor vehicle and mitigated by voluntary surrender to the authorities.

Although the imposable penalty is death, the trial court imposed eight reclusion perpetuas out of compassion for Bulaong because he is a married man with five minor children.

The trial court erred in imposing eight reclusion perpetuas. Bulaong committed the continuing complex offense of forcible abduction with rape cranad(People vs. Manguiat and Sanqui, 51 Phil. 406; People vs. Pineda, 56 Phil. 688).

As the rape was committed with the use of a deadly weapon, and the crime is complex, the death penalty should be imposed. However, for lack of necessary votes, the same is commuted to reclusion perpetua.

WHEREFORE, the lower court’s judgment is modified. Bulaong is sentenced to reclusion perpetua and to pay an indemnity to the offended girl in the sum of fifty thousand pesos. Costs de oficio.

SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio- Herrera, JJ., concur.

Makasiar, J., The trial court’s decision should be affirmed in its entirety.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. My mind cannot rest easy that the appellant committed the crime of abduction with rape and I base my doubts on the following:

1. The alleged abduction is said to have taken place at the public market of General Santos City at 6:00 p.m. on December 5, 1972. I take notice of the fact that at that time of the day many persons are still in public markets and yet neither Delena nor Nena shouted for help.

2. Similarly the two sisters did not cry for help when the appellant allegedly brought them to the New Bay View Hotel and forced them to enter Room 304 while holding his gun.

The appellant could not have pre-registered at the hotel for his meeting with the girls was casual if we are to believe the evidence for the prosecution. Hence he must have registered when he arrived with the two girls. At that time the two girls had the opportunity to cry for help but they remained silent.

3. When the group left the hotel in General Santos City for Barrio Landan the following day on board the appellant’s jeep, it is inconceivable that the girls had no opportunity to cry for help during the long ride. But they did not.

4. The two girls were allegedly detained by the appellant from December 5 to 31, 1972, until Nena Segapo was able to

escape on the latter date. I find it equally inconceivable that neither of the two could have escaped during that long period if there was a will to do so.

5. Delena and Nena left the family home on December 5, 1972, and it was only on December 31, 1972, after Nena was supposed to have escaped from the appellant’s bungalow when she returned home to tell her mother what happened. And yet the parents did nothing to locate the two girls of tender age who failed to return home over a long period. As to Delena, it was only on January 6, 1973, when her father was said to have gone to the appellant’s house to ask for her return. The relaxed and nonchalant attitude of the parents is incredible. As a parent I would have gotten excited and moved heaven and earth so to speak in order to locate a missing child. In fact the loss of only a dog is sufficient to cause the concern. But the Segapo parents appeared unconcerned and unaffected.

6. The appellant is supposed to have used a gun when he committed the crime imputed to him. Where is the gun? It was never presented during the trial. On the contrary, Exhibit 11 shows that the appellant had transferred his Smith and Wesson .22 caliber revolver to Charlie B. Dimalanta on April 12, 1972. Exhibit 11 was executed ante litis motam and deserves credence. Moreover, on December 5, 1972, the Martial Law regime was relatively new and it is a fact that during the early days of martial law the people were very obedient to its strictures one of which was the prohibition against the carrying of firearms even if licensed outside one’s residence.

7. Judge Pedro Samson C. Animas who convicted the appellant describes him thus:

“. cra . a rich man’s son whose parents acquired and owned valuable properties not only in General Santos City, but also in Landan, Polomolok, South Cotabato, where the family has a vast agricultural land, a corn sheller and two residential houses cranad(one for his

parents and another for him). Defendant as the only son, before his incarceration, had been administering these properties in Landan, populated mostly by Bila-ans. Awed and revered by the constituents, if not feared, no public function moved in this remote place without the nod of this oligarch. Schools were opened, roads were constructed and all public improvements were materialized upon their proddings. For such status of wealth amounted to control during the aegis of the old Society, determinative of the result of any election, national and local, nay, even for barrio officials.”

I wonder if the good judge did not get carried away by his rhetoric. Before us the appellant is represented by a counsel de oficio, not de parte, and the tragedy of it is that the appellant’s counsel does not appear to possess the requisite competence to handle the serious charge if we judge him on the basis of statements made in the main opinion, thus:

“The accused contends that the information dated January 22, 1973, which was filed on the following day, January 23, is void because it was ‘received and filed on January 9, 1973’ and, consequently, the case against the accused was ‘railroaded’.

“That contention is baseless and preposterous. The information was filed on January 23, not on January 9. Evidently, counsel de oficio is mistaken. He did not examine the record carefully.

“Another baseless contention of counsel de oficio, which shows his failure to peruse the record with due care, is that it is not alleged in the information that the forcible abduction with rape was committed with lewd design. The incontestable fact is that in both complaint and information ‘lewd design’ is explicitly averred.

“Counsel de oficio’s fifth assignment of error is that the trial court erred in not finding the victim’s father and accused Bulaong entered into a compromise. Counsel then argues that, because of such a compromise, Bulaong is not guilty.

“The argument is feeble and flimsy. The testimonies quoted by counsel show that the victim’s father pretended to agree to a dowry of one carabao and two thousand pesos just to be able to secure the release of his daughter who was held in captivity by Bulaong. There is no showing that Bulaong was pardoned by the victim and her father. It is the appropriate pardon that extinguishes criminal liability for a crime against chastity.”

I am not bothered by the fact that in the decision dated September 28, 1973, the trial court found Alfonso Laurecio guilty as an accomplice and sentenced him to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional as minimum and 10 years and 1 day of prision mayor as maximum, and that on February 1, 1979, he was allowed to withdraw his appeal. Did Alfonso Laurecio admit guilt thereby and by inference should we consider the appellant guilty also because there can be no accomplice without a principal? Not necessarily. For if Laurecio had not withdrawn his appeal, its resolution would have to be linked to the resolution of the principal’s appeal which is time consuming. But the withdrawing his appeal as he did, he immediately became eligible for parole and having served as a member of the Board of Pardons and Parole for over eight years cranad(not to mention being its ex-oficio chairman for a like period), I will hazard the statement that he has long been released on parole.

In view of the foregoing, I vote to acquit on reasonable doubt.

G.R. No. 77120 April 6, 1987

ARTURO QUIZO, petitioner,

 

vs.

 

The HON. SANDIGANBAYAN, represented by HON. FRANCIS E.

GARCHITORENA, LUCIANO A. JOSON, RAMON V.

 

JABSON, respondents.

 

Mamerto P. Galledo for petitioner.

R E S O L U T I O N

FERNAN, J.:

In this petition for certiorari, petitioner Arturo Quizo assails the resolution of the respondent Sandiganbayan in Criminal Case No. 9777 promulgated on September 23, 1986 which denied the motion to dismiss filed by the Tanodbayan as well as the resolution of October 22, 1986 which denied the motion for reconsideration thereto. Petitioner contends that said resolutions were rendered without or in excess of jurisdiction and/or with grave abuse of discretion.

It appears that after an audit conducted by the Commission on Audit on September 13, 1983, petitioner, the Money Order Teller of Cagayan de Oro Post Office, was found to have incurred a shortage in his cash and other accounts of P17,421.74, as follows:

Vales granted to various

employees but disallowed

P16,720.00

Accommodated private checks

700.00

Actual cash

1.74

shortage

 

P17,421.74

On the same day, petitioner reimbursed the amount of P406.18; three days thereafter, P10,515.56; and on September 19, 1983, the balance of

P6,500.00.

Notwithstanding full restitution, an information for malversation of public funds against petitioner was filed by the Tanodbayan before the Sandiganbayan. On a motion for reinvestigation and/or reconsideration, the Tanodbayan filed a motion to dismiss on the following grounds:

1. No damage was inflicted on the government as there was full

restitution of the malversed funds within a reasonable time;

2. The accused never pocketed the money, the shortages, it is

admitted, being 'vales' of his co-employees. (Annex A, p. 14, Rollo).

On September 23, 1986, the Sandiganbayan denied the prosecutor's motion to dismiss. It ruled that damage to the government is not an essential element of the crime of malversation and that restitution of the malversed funds before the filing of a complaint is neither a defense that would exempt the offender from criminal liability nor a valid ground for dismissal. A motion for reconsideration was filed but it was denied on October 22, 1986. Hence this petition.

Petitioner questions the propriety and advisability of the Sandiganbayan's actuation in seeming to substitute its judgment on matters within the discretion of the prosecution. Petitioner further argues that there are sufficient and compelling reasons for the dismissal of the criminal case, namely:

1. There was no criminal intent, no malice or any animus

lucrandi;

2. If there was negligence,the same was noti nexcusable;

3. There was full restitution made within a reasonable time; and

4. Similar cases were dismissed at the Sandiganbayan and

Tanodbayan level on the ground of restitution.

The petition is impressed with merit.

In the case of People vs. Pineda, 20 SCRA 748, the Court ruled:

A prosecuting attorney, by the nature of his office, is under no

compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction. In case of doubt, we should give him the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped with unmeritorious case. Worse stilt a criminal suspect's right to due process the sporting idea of fair play may be transgressed.

The question of instituting a criminal charge is one addressed to the sound discretion of the investigating Fiscal. The information he lodges in court must have to be supported by facts brought about by an inquiry made by him It stands to reason then to say that in a clash of views between the judge who did not investigate and the fiscal who did or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail (Emphasis supplied.)

In Alberto vs. de la Cruz, 98 SCRA 406, reiterated in Bautista vs. City Fiscal of Dagupan 131 SCRA 132, the Court further held:

It is the rule that a fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegrations thereof. Although this power and prerogative of the FiscaL to determine whether or not the evidence at hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion he does not have the necessary evidence to secure

a conviction, or he is not convinced of the merits of the case.

Against the foregoing and considering that after a reinvestigation conducted by a prosecutor, no less than the Tanodbayan himself directed the dismissal of the case based on findings that "it is clear that the accused never pocketed the money" and that "the shortage were vales of co- employees" (Annex "D," p. 39, Rollo), the Court is inclined to sustain petitioner's contention that the Sandiganbayan gravely abused its discretion when it refused to grant the motion to dismiss. It is not fair to compel the prosecutor to secure the conviction of an accused on evidence which in his opinion, is insufficient and weak to establish even a prima facie case.

Besides, the Court is convinced that there is no sufficient evidence to show a prima facie case against petitioner.

Article 217 of the Revised Penal Code provides that the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. Hence, an accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to explain satisfactorily (De Guzman vs. People, 119 SCRA 337). This is because the law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima facie evidence of conversion. However, the presumption is merely prima facie and a rebuttable one. The accountable officer may overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has not put said funds or property to personal use, then that presumption is at an end and the prima facie case destroyed (US vs. Catolico, 18 Phil. 504).

In the case at bar, petitioner successfully overthrew the presumption of guilt. He satisfactorily proved that not a single centavo of the missing funds was used by him for his own personal interest, a fact conceded by the Tanodbayan 'the bulk of the reported shortage actually referred to the items disallowed by the Audit Team representing cash advances extended to co- employees. In fact, evidence disclosed that the itemized list of the cash advances (Annex "B " of Motion for Re-Investigation and/or Reconsideration, p. 31, Rollo) was verified and found to be correct by an

Auditing Examiner, Petitioner explained that the granting of the cash advances was done in good faith, with no intent to gain and borne out of goodwill considering that it was a practice tolerated in the office. Such being the case, negligence evidentiary of malice or intent to defraud the government cannot be imputed to him. Also to be considered is the circumstance that the actual cash shortage was only P1.74 which, together with the disallowed items, was fully restituted within a reasonable time from date of audit,

Significantly, in the recent case of Villacorta vs. People, G.R. No. 68268, November 12, 1986, the Court acquitted the accused. the municipal treasurer of Pandan, Catanduanes. of the crime of malversation of public funds on grounds that he did not put the missing funds to personal uses, that his having "allowed others to freely participate of the chits/vouchers" was a practice which seemed to have been tolerated even during the time of his predecessor and that there was no negligence approximating malice or fraud because the wrong payments were made in good faith.

WHEREFORE, the writ of certiorari is granted and the resolutions of the respondent Sandiganbayan dated September 23, 1986 and October 22, 1986 are SET ASIDE. Criminal Case No. 9777, entitled "People of the Philippines vs. Arturo C. Quizo" is hereby DISMISSED. No costs.

SO ORDERED.

G.R. No. L-53373

MARIO FL. CRESPO, petitioner,

 

vs.

 

HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL

COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE

 

PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO

BAUTISTA, ET AL., respondents.

 

GANCAYCO, J.:

The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits.

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of

the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo

in the Circuit Criminal Court of Lucena City which was docketed as Criminal

Case No. CCCIX-52 (Quezon) '77. 1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford time for petitioner to elevate the

matter to the appellate court. 3

A petition for certiorari and prohibition with prayer for a preliminary writ of

injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment

that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court

of Appeals granting the writ and perpetually restraining the judge from

enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraigniment stating:

O R D E R

For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal.

The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED.

WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming.

SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of

the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15

Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16

In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition.

Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information.

It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting

officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima faciecase. 22

It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. 30

However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority

to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice.

The answer is simple.1âwphi1 The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his

opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court.

WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs.

SO ORDERED.

G.R. No. L-38634 June 20, 1988

REPUBLIC OF THE PHILIPPINES, (PEOPLE OF THE

 

PHILIPPINES), petitioner,

 

vs.

 

HON. DELFIN VIR. SUNGA, as Presiding Judge, CFI Branch I,

 

Camarines Sur, ARISTON ANADILLA, RAFAEL ANADILLA and JOSE

ANADILLA, respondents.

 

PADILLA, J.:

This is a petition for review on certiorari of the order * of the Court of First Instance of Camarines Sur, 10th Judicial District, Branch I, dated 20 March 1974, dismissing motu proprio Criminal Case No. L-244, entitled "People of the Philippines, Complainant versus Ariston Anadilla, Rafael Anadilla and Jose Anadilla, Accused," as well as of the order dated 22 April 1974 of the same court denying the motion for reconsideration of said earlier order.

The facts are not disputed.

On 10 August 1964, an information for Attempted Homicide was filed by the Provincial Fiscal of Camarines Sur against accused-private respondents Rafael Anadilla, Ariston Anadilla and Jose Anadilla. Trial of the case was set on 11 and 12 March 1974. The hearing set on 11 March 1974 was, however, postponed in view of the absence of one of the accused, respondent Rafael Anadilla who had not yet been arrested by the police authorities. On the same date, the court a quo issued an order for the arrest of said accused, and at the same time set the trial of the case for 29 and 30 July 1974.

On 20 March 1974, the court a quo issued the now assailed order which reads:

Considering that the offended party, Jose Dadis is no longer interested in the further prosecution of this case and there being no objection on the part of the accused Ariston Anadilla, Rafael Anadilla and Jose Anadilla, this case is hereby DISMISSED with costs de oficio.

Consequently, the order of arrest issued by this Court against the accused Rafael Anadilla dated March 11, 1974, is hereby ordered lifted and has no force and effect.

The bail bond posted for the provisional liberty of the accused is hereby ordered cancelled.

In the case of Ariston Anadilla and Jose Anadilla, the Provincial Warden is hereby ordered to release said accused from their detention immediately upon receipt of this order.

SO ORDERED. 1

The affidavit of desistance, relied upon by the aforequoted order, was executed by the offended party on 20 March 1974 and subscribed and sworn to before the branch Clerk of Court Atty. R.B. Torrecampo. It alleged, among others, that:

That he was the complainant in Criminal Case No. L-244, entitled, People vs. Ariston Anadilla, et al., for Attempted Homicide, which case is pending before the first branch of this Court; that he is no longer interested in the further prosecution of this case and that he has already forgiven the accused for their acts; that his material witnesses could no longer be contacted and that without their testimonies, the guilt of the accused cannot be proven beyond reasonable doubt, and that in view of these circumstances, he requests the Prosecuting Fiscal for the dismissal of the said case. 2

The Provincial Fiscal moved to reconsider the order of dismissal. This was denied by the court a quo in an order dated 22 April 1974. 3 This petition was thereupon filed before this Court.

The issue in this petition is whether the courta a quo may dismiss a criminal case on the basis of an affidavit of desistance executed by the offended party, but without a motion to dismiss filed by the prosecuting fiscal.

The issue presented is not novel. In Crespo v. Mogul, 4 promulgated on 30 June 1987, the Court had occasion to state the rule in regard to the respective powers of the prosecuting fiscal and the court, after the complaint or information has been filed in court. In said case, the issue

raised was whether the trial court, acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial of the case on the merits.

In the Crespo case, an information for Estafa had already been filed by the Assistant Fiscal before the Circuit Criminal Court of Lucena City. Arraignment of the accused and trial of the case were, however, deferred because of a pending appeal by the accused/respondent to the Secretary of Justice. Reversing the resolution of the Office of the Provincial Fiscal, the Undersecretary of Justice directed the fiscal to move for immediate dismissal of the information filed against the accused. Upon such instructions, the Provincial Fiscal filed a motion to dismiss for insufficiency of evidence. The Judge denied the motion and set the arraignment. On a certiorari recourse to the Court of Appeals, the petition was dismissed. Review of the Court of Appeals decision was then sought by the accused with this Court, raising the issue previously stated herein, Resolving, the Court held:

xxx xxx xxx

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon

the filing of the information in the proper court. In turn, as above

stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage,

the permission of the Court must be secured. After such

reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it

is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not [sic], once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation." (Emphasis supplied). 5

In the case at bar, the Court has taken note that before the case was set for trial, almost ten (10) years had elapsed from the date of filing of the information. It was not, therefore, unusual that the complainant-offended party, in his affidavit of desistance manifested that his material witnesses could no longer be contacted, but, without their testimony, the guilt of the accused could not be proved beyond reasonable doubt.

The prosecuting fiscal in his motion for reconsideration of the order dismissing the case, obviously believed that despite such manifestation of the complainant, he (fiscal) could prove the prosecution's case.

To avoid similar situations, the Court takes the view that, while the Crespo doctrine has settled that the trial court is the sole judge on

whether a criminal case should be dismissed (after the complaint or information has been filed in court), still, any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He is, after all, in control of the prosecution of the case and he may have his own reasons why the case should not be dismissed. It is only after hearing the prosecuting fiscal's view that the Court should exercise its exclusive authority to continue or dismiss the case.

WHEREFORE, the petition is hereby DISMISSED. Without costs.

SO ORDERED.

G.R. No. 74231 April 10, 1987

CORAZON J. VIZCONDE, petitioner,

 

vs.

 

INTERMEDIATE APPELLATE COURT & PEOPLE OF THE

PHILIPPINES, respondents.

 

NARVASA, J.:

Corazon J. Vizconde has appealed as contrary to law and the evidence, the Decision of the Court of Appeals 1affirming her conviction of the crime of estafa by the Court of First Instance of Rizal Quezon City Branch, in Criminal Case No. Q- 5476.

Vizconde and Pilar A. Pagulayan were charged in the Trial Court with misappropriation and conversion of an 8-carat diamond ring belonging to Dr. Marylon J. Perlas in an information which avers that they:

* * * wilfully, unlawfully and feloniously, with intent of gain and with unfaithfulness and/or abuse of confidence, defraud(ed) DRA. MARYLOU J. PERLAS in the following manner, to wit:

the said accused received from the offended party one (1) 8- karat solo diamond ring, white, double cut, brilliant cut with multiple bentitos, valued at P85,000.00, to be sold by them on commission basis, with the obligation to tum over the proceeds of the sale to the offended party, or to return the said ring if unsold, but the Id accused, once in possession thereof, contrary to their obligation, misapplied, misappropriated and converted the same to their own personal use and benefit, and in spite of repeated demands made upon them, both accused failed, omitted and refused, and still fait omit and refuse up to the present, to comply with their aforesaid obligation, to the damage and prejudice of the offended party, in the aforementioned amount of P85,000.00, Philippine currency. 2

After trial both accused were convicted and each sentenced to serve an indeterminate prison term of from eight (8) years, four (4) months and one (1) day to ten (10) years and two (2) months of prision mayor, with the accessory penalties provided by law, and jointly and severally to indemnify

the offended party in the sum of P55,000.00 for the unaccounted balance of the value of the ring with legal interest from April 22, 1975, the further sum of P30,000.00 as and for moral damages and the sum of P10,000.00 for attorney's fees. 3

Both accused appealed to the Court of Appeals, but as Pilar A. Pagulayan had evaded promulgation of sentence in the Trial Court and had appealed only through counsel the Appellate Court vacated her appeal as ineffectual. 4 On Vizconde's part, the Court of Appeals affirmed the judgment of the Trial Court in all respects except the penalty of imprisonment, which it increased to a term of from ten (10) years and one (1) day of prision mayor to twelve (12) years ten (10) months and twenty- one (21) days of reclusion temporal. A motion for reconsideration was denied. Vizconde thereafter filed the present petition for review on certiorari. 5

Required to comment on the petition, the Solicitor General, despite having argued for affirmance of Vizconde's conviction in the Court of Appeals, now recommends that she be acquitted, but nonetheless held civilly liable to the complainant in the sum of P55,000.00 (the unaccounted balance of the value of the ring as found by the Trial Court) " * * * or whatever portion thereof which remains unpaid. * * * 6

From the record and the findings of the courts below, it appears that sometime in the first week of April, 1975, the complainant, Dr. Marylon J. Perlas, called up the appellant Vizconde, a long-time friend and former high school classmate, asking her to sen Perlas' 8-carat diamond ring. Shortly afterwards, Perlas delivered the ring to Vizconde to be sold on commission for P 85,000.00. Vizconde signed a receipt for the ring. 7

About a week and a half later, Vizconde returned the ring to Perlas, who had asked for it because she needed to show it to a cousin However, Vizconde afterwards called on Perlas at the latter's home, with another lady, Pilar A. Pagulayan, who claimed to have a "sure buyer" for the ring. 8 Perlas was initially hesitant to do so, but she eventually parted with the ring so that it could be examined privately by Pagulayan's buyer when the latter' gave her a postdated check for the price (P 85,000.00) and, together with Vizconde, signed a receipt prepared by Perlas. This receipt- people's Exhibit "A"- reads as follows:

RECEIPT

Received from Dra. Marylon Javier-Perlas one (1) solo 8 karat diamond ring, white, double cut, brilliant cut with multiple brilliantitos, which I agree to sell for P85,000.00 (eighty-five thousand pesos) on commission basis and pay her in the following manner:

P85,000.00 postdated check

PNB check 730297

dated April 26, 1975

for P85,000.00

It is understood that in the event the above postdated check is dishonored for any reason whatsoever on its due date, the total payment of the above item shall become immediately due and demandable without awaiting further demand.

I guarantee that the above check will be sufficiently funded on the respective due date.

Quezon City, Philippines

22 April 1975

(SGD.) PILAR A. PAGULAYAN

PILA

R A.

PAG

ULA

YAN

16

Rd. 8

Proje

I guarantee jointly and severally

(SGD.) CORAZON J. VIZCONDE

COR

AZO

N J.

VIZC

OND

E 9

After Pagulayan's postdated check matured, Perlas deposited it to her account at Manila Bank. It was dishonored for the reason, "No arrangement," stated in the debit advice. Perlas then called up Vizconde to inform her about the dishonor of the check. The latter suggested that Perlas re-deposit the check while she (Vizconde) followed up the sale of the ring. Perlas re-deposited the check, but again it was dishonored because drawn against insufficient funds. 10 So Perlas took the matter to counsel who sent separate letters of demand to Vizconde and Pagulayan for return of the ring or payment of P85,000.00. 11

After nine days, Vizconde and Pagulayan called on Perlas. Pagulayan paid Perlas P5,000.00 against the value of the ring. She also gave into Perlas' keeping three certificates of title to real estate to guarantee delivery of the balance of such value. A receipt for the money and the titles was typed and signed by Perlas, which she also made the two sign. 12 The receipt Exhibit "D" of the prosecution reads:

Received from Mrs. Pilar Pagulayan, the sum of FIVE THOUSAND PESOS ONLY (P5,000.00) representing part of the proceeds of the sale of one (1) solo 8 carat diamond ring, white, double cut, brilliant cut w/multiple brilliantitos, given to Mrs. Pilar Pagulayan and Mrs. Corazon de Jesus Vizconde on 22 April 1975, to be sold on commission basis for eighty- five thousand pesos (P85,000.00).

Received also owner's duplicate copies of TCT Nos. 434907, 434909, 434910, which will be returned upon delivery of the

remaining balance of the proceeds of the sale of said diamond ring for eighty five thousand pesos (P85,000.00).

This receipt is being issued without prejudice to legal action.

Quezon City, Philippines

7 May 1975

 

(Sgd.