... . .G.R. No.

102342 July 3, 1992 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
LUZ M. ZALDIVIA, petitioner,

vs.
In the present petition for review on certiorari, the petitioner first argues
HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge of
that the charge against her is governed by the following provisions of the
the Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo,
Rule on Summary Procedure:
Rizal, and PEOPLE OF THE PHILIPPINES, respondents.

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

The Court is asked to determine the applicable law specifying the

prescriptive period for violations of municipal ordinances.
xxx xxx xxx

The petitioner is charged with quarrying for commercial purposes without

B. Criminal Cases:
a mayor's permit in violation of Ordinance No. 2, Series of 1988, of the
Municipality of Rodriguez, in the Province of Rizal.

1. Violations of traffic laws, rules and regulations;

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 2. Violations of rental law;
filed with the Municipal Trial Court of Rodriguez on October 2, 1990. 3

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
therefrom. . . . (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
acts, prescribe in accordance with the following rules: . . . Violations
penalized by municipal ordinances shall prescribe after two months.
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 G.R. No. 167571 November 25, 2008
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
LUIS PANAGUITON, JR., petitioner
the problem here sought to be corrected.
vs.

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

Our conclusion is that the prescriptive period for the crime imputed to the
CAWILI, respondents.
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 DECISION
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 TINGA, J.:
had already prescribed.

This is a Petition for Review1 of the resolutions of the Court of Appeals

WHEREFORE, the petition is GRANTED, and the challenged Order dated dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which
October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his
Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of subsequent motion for reconsideration.2
prescription. It is so ordered.

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money

amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili
and his business associate, Ramon C. Tongson (Tongson), jointly issued in
favor of petitioner three (3) checks in payment of the said loans.
Significantly, all three (3) checks bore the signatures of both Cawili and
Tongson. Upon presentment for payment on 18 March 1993, the checks
were dishonored, either for insufficiency of funds or by the closure of the
account. Petitioner made formal demands to pay the amounts of the
checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995,
but to no avail.3
On 24 August 1995, petitioner filed a complaint against Cawili and
Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before the
Quezon City Prosecutor's Office. During the preliminary investigation, only
Tongson appeared and filed his counter-affidavit.6 Tongson claimed that
he had been unjustly included as party-respondent in the case since
petitioner had lent money to Cawili in the latter's personal capacity.
Moreover, like petitioner, he had lent various sums to Cawili and in
appreciation of his services, he was
offered to be an officer of Roma Oil Corporation. He averred that he was
not Cawili's business associate; in fact, he himself had filed several criminal
cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he
had issued the bounced checks and pointed out that his signatures on the
said checks had been falsified.
To counter these allegations, petitioner presented several documents
showing Tongson's signatures, which were purportedly the same as the
those appearing on the checks.7 He also showed a copy of an affidavit of
adverse claim wherein Tongson himself had claimed to be Cawili's business
associate.8
In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V.
Lara found probable cause only against Cawili and dismissed the charges
against Tongson. Petitioner filed a partial appeal before the Department of
Justice (DOJ) even while the case against Cawili was filed before the proper
court. In a letter-resolution dated 11 July 1997,10 after finding that it was
possible for Tongson to co-sign the bounced checks and that he had
deliberately altered his signature in the pleadings submitted during the
preliminary investigation, Chief State Prosecutor Jovencito R. 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 that the proceedings referred to in Act No. 3326, as amended, are judicial
Criminal Procedure because the initiative should come from petitioner proceedings, and not the one before the prosecutor's office.
himself and not the investigating prosecutor.14 Finally, ACP Sampaga
found that Tongson had no dealings with petitioner.15
Petitioner thus filed a petition for certiorari25 before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was
Petitioner appealed to the DOJ. But the DOJ, through Undersecretary dismissed by the Court of Appeals in view of petitioner's failure to attach a
Manuel A.J. Teehankee, dismissed the same, stating that the offense had proper verification and certification of non-forum
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
shopping. The Court of Appeals also noted that the 3 April 2003 resolution
his favor and declared that the offense had not prescribed and that the
of the DOJ attached to the petition is a mere photocopy.26 Petitioner
filing of the complaint with the prosecutor's office interrupted the running
moved for the reconsideration of the appellate court's resolution,
of the prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office
attaching to said motion an amended Verification/Certification of Non-
of the City Prosecutor of Quezon City was directed to file three (3)
Forum Shopping.27 Still, the Court of Appeals denied petitioner's motion,
separate informations against Tongson for violation of B.P. Blg. 22.19 On 8
stating that subsequent compliance with the formal requirements would
July 2003, the City Prosecutor's Office filed an information20 charging
not per se warrant a reconsideration of its resolution. Besides, the Court of
petitioner with three (3) counts of violation of B.P. Blg. 22.21
Appeals added, the petition is patently without merit and the questions
raised therein are too unsubstantial to require consideration.28

However, in a resolution dated 9 August 2004,22 the DOJ, presumably

acting on a motion for reconsideration filed by Tongson, ruled that the
In the instant petition, petitioner claims that the Court of Appeals
subject offense had already prescribed and ordered "the withdrawal of the
committed grave error in dismissing his petition on technical grounds and
three (3) informations for violation of B.P. Blg. 22" against Tongson. In
in ruling that the petition before it was patently without merit and the
justifying its sudden turnabout, the DOJ explained that Act No. 3326
questions are too unsubstantial to require consideration.
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 The DOJ, in its comment,29 states that the Court of Appeals did not err in
governs the prescription of offenses penalized thereunder.23 The DOJ also dismissing the petition for non-compliance with the Rules of Court. It also
cited the case of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled 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 correct–the 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. Lazada42 and People v.
Joson,43 is that the prescription of the offense is tolled once a complaint is
filed with the justice of the peace for preliminary investigation inasmuch as
the filing of the complaint signifies the
institution of the criminal proceedings against the accused.44 These cases
were followed by our declaration in People v. Parao and Parao45 that the
first step taken in the investigation or examination of offenses partakes the
nature of a judicial proceeding which suspends the prescription of the
offense.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. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which
involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No.
3019) and the Intellectual Property Code (R.A. No. 8293), which are both
special laws, the Court ruled that the
prescriptive period is interrupted by the institution of proceedings for
preliminary investigation against the accused. In the more recent case of
Securities and Exchange Commission v. Interport Resources Corporation,
et al.,51 the Court ruled that the nature and purpose of the investigation
conducted by the Securities and Exchange Commission on violations of the
Revised Securities Act,52 another special law, is equivalent to the
preliminary investigation conducted by the DOJ in criminal cases, and thus
effectively interrupts the prescriptive period.
The following disquisition in the Interport Resources case53 is instructive,
thus:
While it may be observed that the term "judicial proceedings" in Sec. 2 of
Act No. 3326 appears before "investigation and punishment" in the old
law, with the subsequent change in set-up whereby the investigation of
the charge for purposes of prosecution has become the exclusive function
of the executive branch, the term "proceedings" should now be
understood either executive or judicial in character: executive when it
involves the investigation phase and judicial when it refers to the trial and
judgment stage. With this clarification, any kind of investigative proceeding
instituted against the guilty person which may ultimately lead to his
prosecution should be sufficient to toll prescription.54
Indeed, to rule otherwise would deprive the injured party the right to
obtain vindication on account of delays that are not under his control.55 A
clear example would be this case, wherein petitioner filed his complaint-
affidavit on 24 August 1995, well within the four (4)-year prescriptive
period. He likewise timely filed his appeals and his motions for
reconsideration on the dismissal of the charges against
Tongson. He went through the proper channels, within the prescribed
periods. However, from the time petitioner filed his complaint-affidavit
with the Office of the City Prosecutor (24 August 1995) up to the time the
DOJ issued the assailed resolution, an aggregate period of nine (9) years
had elapsed. Clearly, the delay was beyond petitioner's control. After all,
he had already initiated the active prosecution of the case as early as 24
August 1995, only to suffer setbacks because of the DOJ's flip-flopping
resolutions and its misapplication of Act No. 3326. Aggrieved parties,
especially those who do not sleep on their rights and actively pursue their
causes, should not be allowed to suffer unnecessarily further simply
because of circumstances beyond their control, like the accused's delaying
tactics or the delay and inefficiency of the investigating agencies.
We rule and so hold that the offense has not yet prescribed. Petitioner 's
filing of his complaint-affidavit before the Office of the City Prosecutor on
24 August 1995 signified the commencement of the proceedings for the
prosecution of the accused and thus effectively interrupted the
prescriptive period for the offenses they had been charged under B.P. Blg.
22. Moreover, since there is a definite finding of probable cause, with the
debunking of the claim of prescription there is no longer any impediment
to the filing of the information against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of

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

No costs.

SO ORDERED.
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.
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, .... The pertinent
provision of section 1 of Rule 106 is taken from section 1, while section 9
of Rule 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-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. 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 order1 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 complaint2 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 complaint4 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 information7 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 case9 , 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 objections that are grounds for a motion to quash, except lack of
writing charging a person with an offense subscribed by the fiscal and filed jurisdiction or failure of the information to charge an offense 15 ,
with the court." Thus, it is obvious that such certification is not an essential specifically, he waived his right to a preliminary investigation. In a long line
part of the information itself and its absence cannot vitiate such. True, as of decisions, We have previously held that the right to a preliminary
already stated, section 14 of Rule 111 14 enjoin that "no information ... investigation must be asserted and invoked before or, at least, at the time
shall be filed, without first giving the accused a chance to be heard in a of the entry of his plea in the Court of First Instance, otherwise, it is
preliminary investigation," but, as can be seen, the injunction refers to the deemed waived. 16
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
It is true that the certification with respect to preliminary investigation
conducted, and the injunction that there should be a certification is only a
makes mention only of the petitioner's co-accused Dante Custodia. But
consequence of the requirement that a preliminary investigation should
petitioner does not deny the fact that a reinvestigation of the case filed
first be conducted. Logically, therefore, inasmuch as the settled doctrine in
against him originally in the Municipal Court and remanded to the Court of
this jurisdiction is that the light to the preliminary investigation itself must
First Instance, and of his own complaint against Dante Custodia have been
be asserted or invoked before the plea, otherwise, it is deemed waived, it
ordered investigated by the Provincial Fiscal. The Assistant Provincial Fiscal
stands to reason, that the absence of the certification in question is also
Leonardo Guiyab, Jr., to whom the investigation of said two cases had
waived by failure to allege it before the plea. After all, such certification is
been assigned, must have conducted the necessary reinvestigation of the
nothing but evidence of a fact, and if the omission of the fact itself to be
case against the petitioner and the investigation of the case filed by him
certified is waived, if not properly raised before the accused enters his
against Dante Custodia. And the Comment of the respondent Fiscal clearly
plea, why should the omission merely of the certification be given more
states that he concurred with the findings of the investigating Fiscal that
importance than the absence of the fact itself to be certified to? Is it to be
there is prima facie evidence against both respondents. As a matter of fact,
sustained that if in a given case, there were such a certification although in
petitioner's objects to the holding of another reinvestigation insofar as the
fact no preliminary investigation has been held, this Court is going to hold
case against him is concerned, as ordered by the respondent Judge. 17
that the requirement of a preliminary investigation has been complied
Petitioner, therefore, cannot say that there is no basis for accusing him
with? To ask the question is to immediately expose the absurdity of the
along with Dante Custodia. The basis thereof is not a certification that a
affirmative answer to it. (Emphasis Supplied)
preliminary investigation has been held, but more so, the actual holding
thereof.

Furthermore, herein petitioner did not question the validity of the

information on the ground of defective certification already adverted to
And even granting that no reinvestigation of the ease against herein
above with respect to preliminary investigation before he entered a plea of
petitioner was conducted by the Office of the Provincial Fiscal, the fact is
not guilty. He filed his motion to quash only after 1½ months thereafter.
that he has already previously waived his right to a preliminary
Consequently, when he entered a plea of not guilty, he thereby waived all
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 Zaldivar (Chairman), Bernando, Barredo, Antonio and Aquino, JJ, concur. .
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." SO ORDERED."

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:
G.R. No. 111399 November 14, 1994

WHEREFORE, considering the existence of a prima facie case, let an

ODON PECHO, petitioner,
information be filed against the respondent Dante Custodio, the same to
be incorporated in the information to be filed against Romero Estrella in vs.
Criminal Case No. 371, for homicide, thru Reckless Imprudence, defined
and penalized under Article 365 of the Revised Penal Code, in connection SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
with the death of Mamerto Camayang. (Emphasis supplied)

A.M. Navarro Law Office for petitioner.

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."

DAVIDE, JR., J.:

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 Is the attempted or frustrated stage of the offense defined in Section 3(e)
complaint need not to be made, without pronouncement as to costs. 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 information2 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.:
 The investigating prosecutor3 made the following certification in the
information:
1. Contr. No. EKLU-2673966 20' — containing 60 pcs./units 4DR50A
diesel engines

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
2. Contr. No. ITLU-6078177 20' — containing 60 pcs./units 4DR50A that a crime has been committed and that the accused are probably guilty
diesel engines thereof. 4

3. Contr. No. UFCO-3976925 20' — containing 60 pcs./units 4DR50A Warrants for the arrest of the accused were issued. Only the petitioner
diesel engines was brought under the Sandiganbayan's jurisdiction when he voluntarily
surrendered on 15 March 1991. He posted bail.5

4. Contr. No. KLTU-1010988 20' — containing 60 pcs./units 4DR50A

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

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.
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

CONTRARY TO LAW.
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 If the absence of a certification would not even invalidate the information,
sufficient. His failure to state therein that the accused was informed of the then its presence, although deficient because of some missing clauses or
complaint and of the evidence submitted against him and that he was phrases required under Section 4, Rule 112 of the Rules of Court, can do
given an opportunity to submit controverting evidence, which the nothing worse than the former.
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
The rule is also settled that the right to a preliminary investigation may be
conducted in this case," he gave the solemn assurance that such
waived by the failure to invoke the right prior to or at least at the time of
preliminary investigation conformed with the requirements set forth in the
the accused's plea. 16 Where the accused pleaded to the charge, he is
said sections. The certification in question is similarly worded as that
deemed to have foregone the right of preliminary investigation and the
involved in Alvizo vs. Sandiganbayan 14 which this Court explicitly declared
right to question any irregularity that surrounds it. 17 The right to a
to be sufficient. This Court also reiterated therein the doctrine laid down in
preliminary investigation is not a fundamental right and may be waived
People vs. Marquez 15 that the absence of a certification as to the holding
expressly or by silence. 18
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:
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
It should be observed that section 3 of Rule 110 defines an information as
of the investigating Prosecutor was not rebutted. Moreover, the failure to
nothing more than "an accusation in writing charging a person with an
furnish the respondent with a copy of an adverse resolution pursuant to
offense subscribed by the fiscal and filed with the court." Thus, it is obvious
Section 6 which reads:
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 Sec. 6. Notice to parties. — The parties shall be served with a copy of the
can be seen, the injunction refers to the non-holding of the preliminary resolution as finally approved by the Ombudsman or by the proper Deputy
investigation, not the absence of the certification. In other words, what is Ombudsman.
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 does not affect the validity of an information thereafter filed even if a copy
that a preliminary investigation should first be conducted. 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 On 21 March 1989 Dennis met again with Catre for the processing of the
examination request. After filing the request with the arrastre operator,
25 sets Centrifugal Water Pump Diesel engine 10 HP Dennis checked the respective serial numbers of each container. Dennis
did not join anymore in the actual examination of the containers.
100 sets Centrifugal Water Pump Diesel engine 25 HP

On 27 March 1989, Baltazar Morales, Chief Intelligence Officer of the

Based on the foregoing information and the unit HCV in currency per
Bureau of Customs, addressed a formal request (Exhibit "B") to the District
invoice, the customs duties and taxes due were computed at P53,164.00.
Intelligence Officer of the Bureau for a 100% examination of the shipment
consigned to Eversun Commercial Trading.

On 16 March 1989, Calica instructed his son Dennis, also a customs broker,
to file the documents with the Manila International Container Port (MICP)
On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a
and to proceed to K-Line Shipping in Makati, Metro Manila, for the
spot check on the questioned shipment to verify the contents of the
processing of the delivery permits. Dennis first dropped by at K-Line
container van. It was discovered that the contents were automotive diesel
Shipping where he was approached by the petitioner and Catre who
engines instead of agricultural disc blades and irrigation pumps as declared
introduced themselves as the clients of his father. They invited Dennis to
in the import entry and revenue declaration. The engines are more
ride with them in petitioner's car in going to the MICP. Dennis agreed.
particularly described as follows:
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 1. Contr. No. EKLU-2673966 20' — containing 60 pcs./units DR50A
revenue declaration. They then proceeded to Section 6, the Examiner's diesel engine
Group, of the Bureau of Customs for further processing.

2. Contr. No. ITLU-6078177 20' — containing 60 pcs./units 4DR50A

Two days after the documents were submitted to the Entry Processing diesel engine
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.
3. Contr. No. UFCO-3976925 20' — containing 60 pcs./units 4DR50A side. As a result, Tugday and Tamparong prepared an Investigation Report
diesel engine (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
4. Contr. No. KLTU-1010988 20' — containing 60 pcs./units 4DR50A
petitioner under Section 3610, in relation to Section 3512.
diesel engine

Subsequently, after appropriate preliminary investigation, the information

5. Contr. No. KXTU-2027369 20' — containing 60 pcs./units 4DR50A
was filed with the Sandiganbayan.
diesel engine

On the basis of the evidence, the Sandiganbayan concluded that all the
The computation of the taxes due thereon made on 30 March 1989 by
elements of Section 3 (e) of R.A. No. 3019, to wit:
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. 1. The accused is a public officer or private person charged in
conspiracy with him;

Per the directive of the Commissioner of Customs dated 20 April 1989,

Attys. Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and 2. Said public officer commits the prohibited acts during the
Prosecution Division conducted an investigation on the circumstances
surrounding the interception and seizure of the shipment. Their performance of his official duties or in relation to his public position;
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 3. He causes undue injury to any party, whether the government or
Eversun in making the Import Entry Declaration was non-existent. private party;

During their investigation, Tugday and Tamparong issued two subpoenas 4. Such undue injury is caused by giving unwarranted benefits,
to the petitioner to appear before them. He did not appear to explain his 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, in Alejandro 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 Art. 315. Swindling (estafa). — Any person who shall defraud another by
Anti-Graft and Corrupt Practices Act is that there should be undue injury any of the means mentioned herein below.
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
xxx xxx xxx
paid on 27 October 1982 their salaries for the entire third quarter of 1982.

2. By means of any of the following false pretenses or fraudulent

In Fernando vs. Sandiganbayan, 36 this Court, quoting the ruling in
acts executed prior to or simultaneously with the commission of the
Alejandro, also stated:
fraud:

There is no evidence whatsoever to show that the acts of the petitioners

(a) By using fictitious name, or falsely pretending to possess power,
were done with evident bad faith or gross negligence. Neither is there
influence, qualifications, property, credit, agency, business or imaginary
proof that there was undue injury caused to any party. Who is the party
transactions, or by means of other similar deceits.
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. 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
No actual injury or damage having been caused to the Government due to
agricultural disc blades and irrigation water pumps in the container van
the timely 100% examination of the shipment and the subsequent issuance
when, in truth and in fact, said importer is non-existent or fictitious with an
of a hold order and a warrant of seizure and detention, the petitioner
equally spurious Tax Account Number, and that the cargoes imported were
must, perforce, be acquitted of the violation of Section 3(e) of R.A. No.
not as declared but 300 units of diesel engines, which fraudulent acts were
3019. Fortunately, for the State, the offense charged in the information in
done with the use of falsified documents such as import entry declaration,
Criminal Case No. 14844 necessarily includes the complex crime of estafa
packing list, commercial invoice and bill of lading; (2) the false pretenses or
(under paragraph 2(a), Article 315, Revised Penal Code) through
fraudulent acts were executed prior to the commission of the fraud; and
falsification of public documents (under Article 171, Revised Penal Code).
(3) the defraudation of the Government in the amount of P1,027,321.00 in
Article 315 reads:
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 proof cannot justify conviction for either the offense charged or the
constitute the essential requisites of estafa through falsification of official offense proved unless either is included in the other.
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
Section of Rule 120 states when an offense includes or is included in the
official and commercial documents, an offense which is, as stated earlier,
other:
included in that which is charged.

Sec. 5. When an offense includes or is included in another. — An offense

Section 4, Rule 120 of the Rules of Court provides:
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
Sec. 4. Judgment in case of variance between allegation and proof. — necessarily included in the offense proved, when the essential ingredients
When there is variance between the offense charged in the complaint or of the former constitute or form a part of those constituting the latter.
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
In view of the aforesaid rules, it follows then that:
that which is charged, or of the offense charged included in that which is
proved.

a. When the offense proved is less serious than, and is necessarily

included in, the offense charged (as when the offense proved is homicide
Analyzing this provision, this Court stated in Esquerra vs. People: 37
and the offense charged is murder), in which case the defendant shall be
convicted of the offense proved (U.S. vs. Macalintal, 2 Phil.

Stated differently, an accused may be convicted of an offense provided it is 448; . . .).

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
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 medium as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor
period. maximum as maximum, with the accessories thereof and to pay a fine of
Two Thousand Pesos (P2,000.00).

The foregoing disquisitions clearly suggest that those in charge of

investigating criminal complaints against public officials and employees Costs against the petitioner.
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
SO ORDERED.
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,
G.R. No. L-23654 March 28, 1969
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 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
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 vs.
the same offense. 46
VICENTE MARQUEZ, defendant-appellee.

WHEREFORE, the instant petition is DENIED; however, the judgment of the

Office of the Solicitor General Arturo A. Alafriz,
Sandiganbayan in Criminal Case No. 14844 is modified, and, as modified,
the petitioner is hereby declared guilty beyond reasonable doubt of the Assistant Solicitor General Antonio G. Ibarra and Solicitor Oscar C.
complex crime of attempted estafa through falsification of official and Fernandez for plaintiff-appellant.
commercial documents and, applying the Indeterminate Sentence Law, is
hereby sentenced to suffer an imprisonment penalty ranging from TWO (2) Madrid Law Office for defendant-appellee.
YEARS, FOUR (4) MONTHS, and ONE (1) DAY of prision correccional
BARREDO, J.: her victim-son or offended party — was null and void and the court had no
jurisdiction to hear, try and decide the case.

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 Resolving the grounds raised in said motion to dismiss as well as those in
the appellee, Vicente Marquez. 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
On November 12, 1962, a complaint for frustrated homicide was filed
the dismissal aforesaid directly to this Court.
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 The People's appeal is premised on the following assignment of errors:
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
I. The lower court erred in dismissing the case after the appellee had
stage of the preliminary investigation, the accused, thru counsel, waived
already pleaded to the information.
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.
II. The lower court erred in holding that it did not acquire jurisdiction to try
the case.

Upon being arraigned on August 22, 1964, appellee entered a plea of not
guilty to the charge.
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
On the day of the trial on September 25, 1964, without asking for leave to
of the peace court was invalid because under Section 2 of Rule 110, a
withdraw his previously-entered plea, appellee filed a motion to dismiss on
complaint may be subscribed and sworn to only by "the offended party,
the ground that the information filed by the Provincial Fiscal of Albay —
any peace officer or other employee of the government or governmental
based on the complaint signed by Consolacion Musa Solano in behalf of
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 ...
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. 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 entering his plea of not guilty and otherwise submitting to the jurisdiction
waived, 3 it stands to reason, that the absence of the certification in of the court for trial.lâwphi1.ñet
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
WHEREFORE, the order appealed from is reversed, and this case is hereby
accused enters his plea, why should the omission merely of the
remanded to the lower court for further proceedings, with costs against
certification be given more importance than the absence of the fact itself
appellee.
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.

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

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 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant
investigation having been conducted by the municipal court concerned.
After all, under the Rules, a criminal action may also be initiated by the vs.
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 EDILBERTO GOMEZ, PRUDENCIO N. CICHON, CESAR V. CASTILLO, PEDRO
defense of absence of a preliminary investigation must be raised before CUENTO and JOHN DOE, defendant-appellees.
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 G.R. No. L-29087 September 30, 1982
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
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
information is sufficient in form and substance, and the absence of a
preliminary investigation may only be raised before the accused enters his vs.
plea, otherwise, it is waived, it follows that appellee forfeited his right to
question both the complaint and the information under discussion by 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 June 26, 1966, all the accused pleaded not guilty to the charge (pp. 31-32,
pleaded not guilty to the offense charged in the information (pp. 60, 70, Rec.).
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.).
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.

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
Upon a motion for reconsideration filed by the accused, thru counsel, the
accused pleaded not guilty to the charge (p. 33, Rec.).
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
4. Criminal Case No. 3128.—On October 1, 1962, Prudencio Cichon, for the provisional liberty of the accused.
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
From the said order of dismissal, the prosecution appealed to this Court
Criminal Case No. 3128. Since the information did not contain a
alleging that the trial court erred "in dismissing Criminal Cases Nos. 3083,
certification that a preliminary investigation of the case had been made by
3084, 3088 and 3128 on the ground that the preliminary investigations
the prosecutors, the District Judge himself made the preliminary
conducted therein were not in accordance with Sections 13 and 14 of Rule
investigation and once satisfied that a prima facie case against the three
112, in relation to Rule 144 of the Revised Rules of Court.
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
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:
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.

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.
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.

SEC. 14. Preliminary examination and investigation by provincial or city

fiscal or by state attorney in cases cognizable by the Court of First Likewise, in Criminal Cases Nos. 3084 and 3088, there appear the
Instance.—Except where an investigation has been conducted by a judge certifications of Special Prosecutor Edilberto Barot, Jr. and Special Counsel
of first instance, municipal judge or other officer in accordance with the Vicente G. Largo. And, in Criminal Case No. 3128, it was District Judge
provisions of the preceding sections, no information for an offense Gregorio Montejo who conducted the preliminary investigation and,
cognizable by the Court of First Instance shall be filed by the provincial or finding the existence of a prima facie case, ordered the arrest of the
city fiscal, or state attorney, without first giving the accused a chance to be defendant.
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,
It is clear, therefore, that the required investigations were complied with.
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.
But then, assuming that the informations did not contain the requisite All the defendants in the four (4) cases had already entered the plea of not
certificates regarding the Fiscal's having held a preliminary investigation, guilty when they filed the motion to declare the informations and warrants
the omissions are not necessarily fatal. The absence of preliminary of arrest null and void.
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
ACCORDINGLY, the order dated November 2, 1966 of the Court of First
entering their plea, invite the attention of the court to their absence, the
Instance of Zamboanga is set aside and the said court is hereby ordered to
court, "instead of dismissing the information, should conduct such
proceed with the trial of the said criminal cases.
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 SO ORDERED.
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 EN BANC
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.
[G.R. No. L-37836 : July 31, 1981.]

Inasmuch as the settled doctrine in this jurisdiction is that the right to the
preliminary investigation itself must be asserted or invoked before the THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. CLAUDIO
plea, otherwise, it is deemed waived, it stands to reason, that the absence BULAONG and FONSO LAURECIO, Accused-Appellants.
of the certification in question is also waived by failure to allege it before
the plea." (Estrella vs. Ruiz, 58 SCRA 779)

DECISION

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, 8 cranad(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 investigation cranad(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 fiscal cranad(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 him for a long time 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 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 house cranad(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 register cranad(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 in at the hotel in the evening and checked out in the following morning, to
that Delena, with her beauty, youth, and elementary education, would corroborate his story. On its face, said entry belied the claim that Claudio
allow herself to be rightly called his sweetheart, knowing very well that he Bulaong was with somebody as he appeared to be alone in Room 304.
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
“Secondly, the exhibition of a very wonderful memory of Carlos Ma, in
Bila-ans to protect the honor and integrity of their women.
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
“4. Throughout his testimony, both in the direct and in the cross, nay, even never returned, at the same time forgetting all his recent guests, made the
in answers to questions of the court, defendant vehemently denied having plot of a date very unbelievable.
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
“Thirdly, this documentary evidence of the defense is contradicted by its
that he admitted was his statement to Delena’s father that he wanted her
other evidence, that is, the class record of Grade II pupils identified by Mrs.
to be his second wife and his statements to Delena that he liked her. That
Mildred Areno which shows that on November 21 and 22, 1972, Nena
is not courtship. Love begets love and there can be no sweethearts where
Segapo was present in her classes for said days cranad(See Exh. 2-B, J-1,
one does not confess to be in love.
school register in connection with hotel register, p. 114, marked as Exhibit
8-B).

“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
“7. The demand initiated by Maria and Delena Segapo as mother and
outright lie, considering his admission of the presence of Nena Segapo, an
daughter accompanied by barrio councilman Rudy Ante in the morning of
eight-year-old sister of Delena. Experience has taught us that sweethearts
December 6, 1972 for a dowry of P2,000.00 and a carabao is rather
bent on satisfying their lusts, as we are made to believe in this case, would
extraordinary, there having been no proposal of marriage previous to said
have avoided the presence of strangers, more especially a close relative of
date by Claudio Bulaong who in the first place could not have done so. For
the girl cranad(in this case a sister of the victim). The third party will make
a dowry is only demandable after there is a proposal of marriage by a man
it a crowd.
to the parents of the woman.

“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
“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
Dimalanta cranad(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:
“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;

“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
“4. As a faithful record of attendance of her pupils including hers, it did not
her job was at the whims and caprices of the powers that be that soon
show her absence when in court awaiting for her turn to testify. Not only
after she finished testifying in this case, she was rewarded with a transfer
that. Nena Segapo appears to be present on November 21 and 22, 1972
to a school in her residence in Spring Camp, Polomolok, South Cotabato;
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
“2. The school register itself and its pages are very clean, written in is, whom to believe?
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-
“5. Picturing the defense counsel to be prophets, she said that she was not
millionth cranad(Exhibits 2-C). Considering further that she has to travel
interviewed by anyone of them nor by any relative of the defendants as
everyday from her residence to the school and return on public
equally neither had she shown them the school register and the test
conveyances along a dusty road during sunny days and muddy during rainy
papers of her pupils saved by her and brought to Court. Having in mind the
season, its neatness is quite surprising. It appears to be accomplished in a
seriousness of the offenses involved, the affluent client defended and the
day! It is not so with the Class Records cranad(Exh. D);
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, already a defense witness before the trial, executing an affidavit on
declared that on December 6, 1972, Maria Segapo and her daughter January 24, 1973 cranad(Exh. G).
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
“He never talked about Claudio Bulaong marrying Delena as he
there met Claudio Bulaong informing him about the complaint of Maria
emphasized that he was the one who tried to settle the case by convincing
and Delena. Upon his suggestion, defendant asked him to call for Dalama
Claudio Bulaong to pay P2,000.00 and one carabao cranad(See Exh. G-1). In
Segapo, and he obliged. Thus, at about eight o’clock in the morning of
other words, except for the date, that is, January 6, 1973 instead of
December 6, 1972, Delema Segapo, his wife, Maria, daughter, Delena with
December 5, 1972, and the fact that Delena was in the house of Eusebio
one named Bong, Ilong, Ading cranad(accused) and himself were in the
until she left their house on January 6, 1973 upon regaining her freedom,
house of Eusebio Bulaong. He opened the conversation by telling Claudio
the testimony of Rudy Ante in a way confirmed that of Dalama Segapo and
Bulaong that the parents of Delena were willing to ‘enter into an amicable
Delena Segapo as to what happened in the afternoon of January 6, 1973.
settlement’ if defendant would pay them P2,000.00 and one carabao.
We leave him, as all other matters were already discussed by us with
regards to the testimony of the defendant Bulaong himself.

“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
“The testimony of Carlos Ma that Claudio Bulaong checked in at the hotel
father you should not sell your daughter for that price’. He cried to
only on November 21, 1972 and he had never returned thereto, especially
convince Claudio Bulaong to settle but he failed, so he left the house at
during the whole month of December 1972 has been sufficiently alluded
about 4:00 o’clock in the morning with Gorio Lakim and Maria Segapo,
by us. But if more is needed, he admitted that he allowed customers who
leaving Delena in the house who told them that she did not like to go
are his friends from General Santos City under a short-time basis, two or
home anymore because she wanted to stay with Ading as she was afraid
four days, to stay in their hotel, without registering their names.
because her father was mad.

“This practice is a matter of public knowledge. That this can happen to

“Like Venancio Dianga, he is a Bila-an barrio official who owed his election
defendant considering their being publicly known in General Santos City as
to the defendant. Testifying on April 3, 1973, he checked in with Venancio
members of the rich family is very much reasonable. Then, a scrutiny of the
Dianga as early as April 1, 1973 and the hotel register did not state when
hotel register readily shows that from December 5, in the afternoon up to
did he check out of Room 217. Until April 4, no one occupied Room 217.
December 6, in the afternoon, Room 304, an airconditioned room, was not
Taking cue from what happened to witness Venancio Dianga, he came to
occupied by anybody cranad(See pp. 101-102, hotel register, Exh. 8). This is
Court ready to tell us the respective dates of birth of his children. He was
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.