EN BANC

[G.R. No. 132546. July 5, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSENDO
MENDEZ, accused-appellant.
DECISION
GONZAGA-REYES, J.:
ROSENDO MENDEZ (ROSENDO) was found guilty by the Regional Trial Court (Branch 81),
Romblon, Romblon, of raping his 16-year-old stepdaughter. The supreme penalty of death
was imposed upon him. His case is now before this Court on automatic review.
The Information upon which he was arraigned reads:
"UNDERSIGNED, on the basis of the criminal complaint instituted by the
offended party accused ROSENDO MENDEZ of the heinous crime of "Rape" as
penalized under Republic Act 7659, committed as follows:
That on or about the 11th day of December, 1996, at around 10:00 o’ clock in
the evening, in barangay Agbudia, municipality of Romblon, province of
Romblon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, did then and there willfully, unlawfully and feloniously had carnal
knowledge of his daughter VIRGINITA MENDEZ, a sixteen-year-old girl, against
her will.
Contrary to law."[1]
On July 9, 1997, ROSENDO pleaded not guilty to the charge embodied in the above-quoted
Information. Trial then ensued wherein the prosecution presented as its witnesses the victim,
VIRGINITA MENDEZ (VIRGINITA), an elementary school teacher, Milagros Thornton, and the
municipal health physician of Romblon, Romblon, Dr. Victorio Benedicto, and adduced in
evidence Exhibits "A" to "C" and their sub-markings. The defense for its part presented
another daughter of the accused, Marian Mendez (Marian) and the accused, ROSENDO, as
witnesses and offered no documentary evidence.
ROSENDO denied the charge against him and countered that VIRGINITA was not his true
daughter having been conceived and born before he married her mother.[2] He testified that on
December 11, 1996, he slept in one bed together with his daughter named Marian and
VIRGINITA;[3] that their sleeping arrangement is that Marian was in between him and
VIRGINITA;[4] and that he did not rape VIRGINITA on December 11, 1996.[5] The testimony of
Marian, ROSENDO‘s other daughter and half-sister of VIRGINITA, supported the claim of
ROSENDO that no rape occurred on that fateful night of December 11, 1996. Marian testified
that on December 11, 1996, she together with VIRGINITA and ROSENDO slept in one bed;
[6] that her sister slept between her and her father;[7] and that she did not notice nor witness
any unusual incident throughout the evening of December 11, 1996.[8]
On December 9, 1997, the trial court rendered its decision[9] that disregarded ROSENDO’s
version and found the facts of this case to be the following:
"On December 11, 1996, in the evening, private complainant Virginita was
staying in the house of the elder sibling of her father, the accused herein
Rosendo Mendez, in bgy. Agbudia, Romblon, Romblon. Her companion was her
 younger sister, Marian Mendez. At around 10:00 o’clock that evening, Marian
Mendez and she were already asleep. Her father, the accused, awakened her.
He instructed her to buy cigarette. She bought five (5) sticks of Fortune cigarette
from the store of Melba Montero. She handed the cigarettes to him. He ate. She
went back to her place where she sleeps. She fell asleep. After that, she noticed
that she had no panty anymore. Her father inserted his penis into her vagina
and made pumping motion. His penis entered her vagina. She was crying. She
did not shout because she was afraid because according to him if she would
reveal he would kill her and chop her to small pieces. In 1993, he raped her four
(4) times but she did not report these acts because she was afraid. That
evening of December 11, 1996 was the last that he did it to her. The following
day, December 12, she went to town with her auntie Norma Tome. In town, she
stayed with Mrs. Milagros Thornton as baby sitter. Her father visited her and he
was trying to get her. She trembled because he was trying to get her again. Mrs.
Thornton did not allow her to go with her father. She did not go along with him.
Mrs. Thornton, who knew later what happened to her, accompanied her to the
police and then to Dr. Benedicto who examined her (Exh. C),
Her parents Jocelyn Miñeque and Antonio Montero later separated but they
begot three (3) children, namely, Ruel, Lian and private complainant. Her natural
father was still alive. The accused nurtured her. He is not her natural father. Her
late mother lived with Rosendo Mendez. She was used first by Rosendo
Mendez in 1993. She was not schooling then. She was not allowed to go to
school. They were still small when their mother left them. She was about two (2)
years old then. In 1993, her companions in the house were her younger sister
Marian Mendez, a natural child of her father Rosendo Mendez, and the latter.
So also in December 11, 1996 when she was raped, they were only three (3) of
them in the house.
She was already awake and she knew what her father was doing to her that
evening. There was no blood that came out of her vagina; that was at first.
There was no pain and injuries. She was afraid to complain because she was
afraid to be killed. During the previous sexual intercourse against her by her
father she was threatened that if she would reveal, her body would not be
enough to be chopped into pieces. This was so because she was not his natural
child. He told her not to tell it to anybody because according to him it was only
he who had the right to use her body. There was no threat against her that
evening from the accused. He used to tell her every time he used her that if she
tells it to anybody her body was not enough to be chopped and he would kill her.
After he finished, her father returned to the place where he was sleeping. She
cried. She did not fall asleep that night anymore."[10]
The dispositive portion of the decision reads:
"WHEREFORE, this Court finds the accused ROSENDO MENDEZ GUILTY
beyond reasonable doubt of the heinous crime of rape and hereby sentences
him to suffer the supreme penalty of DEATH. He is ordered to pay his victim, his
step-daughter Virginita Mendez, the sum of P50,000.00 as indemnity, without
subsidiary imprisonment incase of insolvency, and to pay the costs."[11]
To stave off the imposition of the death penalty, ROSENDO maintains his innocence, faults
the information upon which he was charged as substantially defective and asserts that the
evidence was insufficient to warrant his conviction.[12] ROSENDO also points out that the
information does not charge an offense since it does not aver that the rape was committed by
means of force and intimidation. He also draws attention to the fact that the information
alleges an erroneous qualifying circumstance, that 16-year-old VIRGINITA is his daughter
when in truth she is only his stepdaughter. The lone assignment of error in this case claims
that:
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF
THE CRIME CHARGED AND IN IMPOSING THE DEATH PENALTY DESPITE
DEFECTIVE INFORMATION AND INSUFFICIENCY OF EVIDENCE.[13]
ROSENDO capitalizes on the failure of the information to allege that the rape was committed
through "force and intimidation"; he reasons that he "cannot be validly convicted in an
indictment which does not charge an offense".[14] Article 335 of the Revised Penal Code
enumerates three ways of committing rape, to wit:
1.....By using force or intimidation;
2.....When the woman is deprived of reason or otherwise unconscious; and
3.....When the woman is under twelve years of age or is demented.
As correctly pointed out by ROSENDO, the information or complaint for rape should expressly
allege the commission of the rape in the manner prescribed in Article 335.[15] Hence, in the
case of People vs. Oso[16] the allegation in the complaint that the accused had carnal
intercourse with the offended woman "against her will" or "without her consent" is insufficient
to warrant a conviction for rape, although the evidence proves the commission of the crime.
[17] However, in this case, the complaint filed by VIRGINITA expressly alleges that the rape
was committed "by means of force", viz:
"The undersigned Complainant after being duly sworn in accordance with law
accuses ROSENDO MENDEZ, a resident of Bgy. Agbudia, Romblon, Romblon
of the crime of RAPE, ARTICLE 335 REVISED PENAL CODE, committed as
follows:
That on or about the 11th day of December, 1996, in Bgy. Agbudia, Romblon,
Romblon and within the preliminary jurisdiction of this Honorable Court, said
accused ROSENDO MENDEZ, by means of force did then and there wilfully,
unlawfully and feloniously have carnal knowledge of the complainant VIRGINITA
MENDEZ, against the latters (sic) will and without her consent to the damage
and prejudice of said victim.
Contrary to law."[18] (Emphasis ours)
What we have here is a complaint specifically accusing ROSENDO of rape committed "by
means of force" and an information that failed to allege this essential element. The case
of People vs. Oso[19] also established the principle that in case of variance between the
complaint filed by the offended party and the information in crimes against chastity, the
complaint controls.[20] The failure of the information to state that ROSENDO raped VIRGINITA
"through force or intimidation" is not a fatal omission in this case because the complaint
alleged the ultimate fact that ROSENDO raped VIRGINITA "by means of force". So, at the
outset, ROSENDO could have readily ascertained that he was being accused of rape
committed through force, a charge that sufficiently complies with Article 335.[21]
As to the crucial issue of whether ROSENDO raped VIRGINITA, a careful evaluation of the
evidence points to the conclusion that ROSENDO raped VIRGINITA. The victim in this case is
sixteen (16) years old. We have held that when the offended parties are young and immature
girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of
what transpired, considering not only their relative vulnerability but also the shame and
embarrassment to which they would be exposed by court trial if the matter about which they
testified is not true.[22] Moreover, VIRGINITA has no evil motive in prosecuting this case, in
fact, her regard for ROSENDO as the one who nurtured her, buttresses the belief that she
was mainly moved by her quest for justice in charging her stepfather with a crime which he
could pay for with his life.
In ruling that ROSENDO is guilty of rape, the trial court relied mainly on the testimony of
VIRGINITA. We find no reason to disagree with the finding of the trial court that the version of
VIRGINITA is believable and credible. When it comes to the issue of credibility, the trial court
is in a better position than the appellate court to properly evaluate testimonial evidence having
the full opportunity to observe directly the witnesses’ deportment and manner of testifying.
[23] Hence, in the absence of a palpable error or grave abuse of discretion on the part of the
trial judge, the trial court’s evaluation of the credibility of witnesses will not be disturbed on
appeal.[24]
The testimony of VIRGINITA is far from being perfect in all details; nevertheless, she gave a
straightforward and faithful account of the rape that occurred on December 11, 1996, as can
be seen from the following:
PROS. MORTEL:
Q:....Now Virginita, on the December 11, 1996 in the evening of that date, where
do (sic) you stay?
A:....In Bgy. Agbudia, Romblon, Romblon.
Q:....In whose house?
A:....Our house.
Q:....When you say your house, is that the house of your father and mother?
A:....No sir, but we were residing there.
Q:....Whose house was that?
A:....To the elder sibling of my father.
Q:....Now that evening of December 11, 1996, who were your companions in the
house?
A:....My younger sister Marian Mendez.
Q:....How about your Auntie, was she there that night?
A:....No, sir.
Q:....Now at around 10:00 o’clock that night, what were you doing?
A:....We were already asleep.
Q:....When you said you were already asleep together, with whom were you
asleep (sic)?
A:....My younger sister.
Q:....What is her name?
A:....Marian Mendez.
Q:....Now at around that time, do you remember having been awakened?
A:....Yes, sir.
Q:....Why were you awakened?
A:....My father awakened me (sic).
Q:....When you said your father, what is the name of your father?
A:....Rosendo Mendez.
Q:....And look around please and tell us if your father is inside this courtroom?
A:....Yes, sir.
Q:....Will you please point to (sic) him?
A:....There, sir.
INTERPRETER:
....Witness is pointing to the man who when asked his name answered Rosendo
Mendez.
PROS. MORTEL continuing:
Q:....And because your father awakened (sic) you that night, did you wake up?
A:....Yes, sir.
Q:....How about your younger sister Marian, did you wake her up?
A:....No, sir.
Q:....And when you have already awaken (sic), what did your father do?
A:....He instructed me to buy cigarette.
Q:....By the way, do you know how to observe a person whether he is drank
(sic), or in his physical appearance, his movements and in speaking?
A:....Yes, sir.
Q:....When your father arrived that night, how did you observe him?
A:....He just awakened (sic) me.
Q:....No my question is, did you observe him whether he was drank (sic) or not?
A:....Yes, sir.
Q:....When you said yes sir, what do you mean?
COURT:
....Please avoid leading questions.
PROS. MORTEL:
....Yes, Your Honor.
A:....He awakened (sic) me and instructed me to buy cigarette.
Q:....Now, going to my previous question, did you observe a person if he has
taken drinks through his physical appearance, mannerism, movements and in
speaking. When your father arrived, did you observe him whether he had taken
intoxicating drinks?
ATTY. MADRONA:
....No basis, Your Honor.
COURT:
....Leading.
PROS. MORTEL continuing:
Q:....Now, when he told you to buy for him to buy (sic) cigarette, did you obey
him?
A:....Yes, sir.
Q:....And did you go out to buy cigarette?
A:....Yes, sir.
Q:....And to whose store did you buy cigarette?
A:....Melba Montero.
Q:....What kind of cigarette did your father tell you to buy for him?
A:....Fortune.
Q:....How many sticks of cigarette of fortune?
A:....Five (5), sir.
Q:....And after buying cigarette, where did you go?
A:....I returned to our house.
Q:....And when you returned to your house, what did you do with your cigarette?
A:....I handed the cigarette to him.
Q:....And after you have handed the cigarette to him, what did your father do?
A:....He ate.
Q:....And you, what did you do?
A:....I went back to my place where I sleep.
Q:....Now while you were already in your place where you were sleeping, what
happened?
A:....I fall (sic) asleep.
Q:....And were you awaken?
A:....Yes, sir.
Q:....When you awoke, what did you observe?
A:....I fall (sic) asleep.
Q:....When you fell asleep, what happened after that?
A:....I noticed that I had no panty anymore.
Q:....And when you had already no more panty, what happened?
A:....He inserted his penis into my vagina and make (sic) pumping motion.
Q:....Who was that?
A:....My father Rosendo Mendez.
Q:....Did his penis enter your private organ when he inserted it?
A:....Yes, sir.
Q:....And how did you feel?
A:....I was crying.
Q:....Did you not shout?
A:....No sir, because I was afraid.
Q:....Why were you afraid?
A:....Because according to him if I would reveal he would kill me and chopped
(sic) to small pieces.
Q:....Now you said that the penis of your father when he inserted it in your
vagina entered (sic), was that the first time that your father did this to you in the
past?
A:....That was the last.
Q:....When you said that was the last, were there other occasions in the past
that he did this to you?
A:....No more.
Q:....In 1993, do you remember if anything had happen (sic) to you and which
was done by your father?
ATTY. MADRONA:
....That is leading, Your Honor.
COURT:
....Answer.
A:....Yes, sir.
PROS. MORTEL continuing:
Q:....What did your father do to you in 1993?
A:....He raped me.
Q:....How many times in 1993 did he did (sic) this to you?
A:....Four (4) times.
 Q:....Did you not report this (sic) acts which your father did in 1993 to anyone?
A:....No, sir.
Q:....Why?
A:....Because I was afraid.
Q:....According to you, the last time that he did this act to you was in 1996
December 11. On December 12, 1996, do you remember (sic) did you go
anywhere?
A:....I went (sic) home here in town.
Q:....Who was your companion in going to town?
A:....Auntie Norma Tome.
Q:....Now when you were going to town you were with your Auntie Norma, did
you tell her what happened to you the night before?
ATTY. MADRONA:
....Leading.
COURT:
....Leading. Please avoid leading question. This is a very serious case.
PROS. MORTEL continuing:
Q:....Now, when you were together with your Auntie Norma in going to town,
what was the conversation or whether you have (sic) any conversation with her?
A:....None, sir.
Q:....And when you were already in town, where did you stay?
A:....With Mrs. Thornton."[25]
xxx
COURT CONDUCTING CLARIFICATORY QUESTIONS:
Q:....Virginita, that evening you said that he inserted his penis to your vagina,
right?
A:....Yes, sir.
Q:....You were awake at that moment?
A:....Already awake.
Q:....So you know (sic) what your father was doing to you?
A:....Yes, sir.
Q:....So he was doing it then he finished it, right?
A:....Yes, sir.
Q:....What did he do next after he finished?
A:....He left and returned to the place where he was sleeping.
Q:....He left and returned to the place where he was sleeping?
A:....Yes, sir.
Q:....How about you, what did you do?
A:....I cried.
Q:....You cried, what else did you do?
A:....I was afraid.
Q:....What else?
A:....I did not fall asleep that night anymore.
Q:....So your (sic) still awake?
A:....Yes, sir.
Q:....So, where is the threat you are talking about?
....According to you he went back to the place where he was sleeping, where is
that threat you are talking (sic)?
A:....While he was using me.
Q:....While he was using you, what?
A:....That if I reveal it to anybody he would kill me.
Q:....Tell us that in the Romblomanon, Rosendo was talking in English?
A:....Vernacular.
Q:....Tell us in Bisaya?
A:....He told me that if I tell it to anybody my body is not enough to be chopped
and he would kill me.
Q:....When he was (sic) saying that you?
A:....Everytime (sic) he used me he tells (sic) me that.
Q:....No, we are talking only of that evening 10:00 o’clock in the evening of
December 11, 1996, you mean to say Rosendo told you that?
A:....He told me not to tell it to anybody because according to him it is only he
who has the right to use my body.
Q:....That is another one you also said that something about your body not
being enough to be chopped into pieces and he would kill me (sic), right?
A:....Yes, sir.
Q:....When did he tell you that?
A:....When he was using me.
Q:....When was that?
A:....I can no longer remember.
Q:....How about December 11, 1996 evening around 10:00 o’clock he did not tell
you that?
A:....No, sir.
Q:....So while he was raping you he was not talking, is that it?
A:....No, sir.
Q:....He was not saying anything?
A:....None, sir.
Q:....So, there was no threat on (sic) him?
A:....The first time he used me he threatened me.
Q:....But we are talking of December 11, 1996 at around 10:00 o’clock?
A:....He just told me that the following morning I would come (sic) along with him
in going to Auntie Norma.
Q:....That is all?
A:....Yes, sir.
Q:....The evening before while he was raping you he was not talking anything he
was not saying anything?
A:....None, sir.
Q:....You are sure?
A:....Yes, sir.
Q:....So, where is that threat you are telling us that your body will be chopped
into pieces that he will kill us (sic), tell us you only invented these things?
A:....No, sir.
Q:....What do you mean by no, sir?
A:....That was not invented by me it came from his mouth.
Q:....Whose mouth?
A:....Of Rosendo Mendez.
Q:....Not from Mrs. Thornton?
A:....From Rosendo Mendez.
Q:....When did it come from the mouth Rosendo?
A:....I can no longer remember because of (sic) many times that he used me.
Q:....How many times that (sic) he used (sic) you?
A:....Many times already.
Q:....How many times?
A:....I can no longer remember but many times.
Q:....1, 2, 3, 4, 5, 6, 7, 8, 9, 10 times. Court showing extended two (2) hands?
(sic)
A:....I can no longer remember.
Q:....More than ten (10) times?
 A:....But many times.
Q:....You cannot estimate?
A:....No, Your Honor.
Q:....About five (5) times?
A:....I can no longer remember because many times (sic).
Q:....So there was no threat on the evening of December 11, 1996 against you
by Rosendo there was no threat?
A:....None, sir.
COURT:
....Thank you, Virginita."[26]
The fact that VIRGINITA was raped is supported by the medico-legal certificate prepared by
Dr. Victorio F. Benedicto (Dr. Benedicto), Municipal Health Officer of Romblon, Romblon.
Based on the certificate, VIRGINITA’s "vagina easily admits thumb" and has "old lacerations,
multiple".[27] Dr. Benedicto explained in his testimony that the laceration in the labia menora
may have been inflicted by a hard object, or an erect penis.[28]
VIRGINITA positively identified ROSENDO as her assailant and she even recounted that the
rape that took place on December 11, 1996 was only the last of the many rapes perpetrated
by ROSENDO against her. To support his claim that no rape happened on December 11,
1996, ROSENDO presented Marian, the half-sister of VIRGINITA. Marian testified that she
did not witness anything unusual that fateful night. However, the positive declaration of
VIRGINITA that she was raped by ROSENDO prevails over the negative testimony of Marian.
It is an established rule that an affirmative testimony is far stronger than negative testimony,
especially so when it comes from the mouth of a credible witness.[29] Marian testified that the
sleeping position was that VIRGINITA was in between her and her father, ROSENDO, which
notably runs counter to the testimony of ROSENDO that it was Marian who slept in between
him and VIRGINITA. It is thus possible that Marian could not have witnessed the rape of
VIRGINITA because Marian was sleeping at the time that the crime was being committed. It is
also not farfetched for the rape to have been perpetrated despite the presence of Marian
considering the doctrine that the nearby presence of people in a certain place is no guarantee
that rape will not and cannot be committed.[30] Up to now, there is no rule that rape can be
committed only in seclusion.[31]
ROSENDO calls attention to the testimony of VIRGINITA wherein she declared that force and
intimidation was employed on the previous incidents of rape allegedly committed by him.
VIRGINITA allegedly failed to categorically state that force and intimidation attended the rape
that occurred in the evening of December 11, 1996, the rape for which ROSENDO is charged.
[32] The following testimony of VIRGINITA allegedly proves his point:

"Q:....So while he was raping you he was not talking, is that it?
A:....No, sir.
Q:....He was not saying anything?
A:....No, sir.
Q:....So, there was no threat to (sic) him?
 A:....The first time he used me he threatened me.
Q:....But we are talking of December 11, 1996 at around 10:00 o’clock?
A:....He just told me that the following morning I would come (sic) along with him
in going to Auntie Norma.
Q:....That is all?
A:....Yes, sir.
Q:....The evening before while he was raping you he was not talking (sic)
anything he was not saying anything?
A:....None, sir.
Q:....You are sure?
A:....Yes, sir."[33]
Contrary to the contention of ROSENDO, a rape victim might be compelled to submit herself,
against her will, to the rapist’s demands simply because of fear for life and personal safety.
[34] In her testimony, VIRGINITA mentioned that every time ROSENDO would ravish her, he
would threaten her not to tell anyone or else he would kill her and that her body "would not be
enough to be chopped".[35] The fact that VIRGINITA failed to unequivocally declare that she
was threatened or forced by ROSENDO on December 11, 1996 to have sexual congress with
him does not negate the fact that the repeated and menacing threats of ROSENDO instilled
fear in the mind of VIRGINITA. Furthermore, the moral ascendancy and influence of
ROSENDO over VIRGINITA, his stepdaughter, can substitute for violence or intimidation.
[36] The use of actual force or intimidation for the rape that ROSENDO committed on
December 11, 1996 is therefore not indispensable in sustaining his conviction.
ROSENDO further argues that the inaccuracy of the information in alleging the relationship
between him and VIRGINITA precluded the trial court from imposing the penalty of death. He
invokes the case ofPeople vs. Perez[37] wherein we declared that the minority of the victim
and the relationship of the accused and the victim must be alleged in the information so as
not to violate the right of the accused to be fully informed of the nature of the charge against
him.
The contention has merit. In this case, the information indeed falls short of satisfying the
constitutional mandate to duly inform the accused of the gravity of the nature of the
accusation against him.
Republic Act 7659 introduced seven modes of committing rape,[38] including the twin special
qualifying circumstances of the victim’s age and the relationship between the victim and the
culprit, which would warrant the automatic imposition of the death penalty. The seven modes
of committing rape partake of the nature of a qualifying circumstance under the Revised
Penal Code since their presence increases the penalty of rape to one (1) degree.[39] The long-
standing rule is that qualifying circumstances must be properly pleaded in the indictment, if
the same are not pleaded but proved, they shall be considered only as aggravating
circumstances.[40] For rape to be qualified as heinous, warranting the imposition of the death
penalty, the circumstances of the minority of the victim and her relationship with the offender
must be both alleged in the information for rape.[41]
The importance of duly informing the accused of the accusation against him is a constitutional
right that cannot be taken lightly, more so if the penalty to be imposed is grave, such as the
forfeiture of his life. The essence of the constitutional right of the accused to be informed of
the nature and cause of the accusation against him is that "every element of the offense must
be alleged in the complaint or information"[42] so as to "enable the accused to suitably prepare
his defense. He is presumed to have no independent knowledge of the facts that constitute
the offense."[43]
In setting out the elements of a crime in the information or complaint, the pertinent provisions
of the Rules on Criminal Procedure, specifically, Section 9 of Rule 110, provides the following
guideline:
"Section 9. Cause of accusation. -- The acts or omissions complained of as
constituting the offense must be stated in ordinary and concise language without
repetition, not necessarily in the terms of the statute defining the offense, but in
such form as is sufficient to enable a person of common understanding to know
what offense is intended to be charged and enable the court to pronounce a
judgment."
The cited provision is one of the many provisions in the Rules of Court that serves to
implement the constitutional right of the accused to be informed of the charges against him.
Relevant to this case is the phrase "a person of common understanding," which has its origin
in this jurisdiction in the phrase "a person of ordinary intelligence".[44]
In one case wherein the informations therein alleged:
"[A]nd taking advantage of his superior strength over the person of his own
daughter who is only thirteen years old…"
"[T]aking advantage of his superior strength over the person of his thirteen (13)
year old (sic) daughter…"
this Court spared the life of the accused, despite the mention of the age of the victim and the
word "daughter" in said informations, on the ground that the quoted informations failed to duly
allege the special qualifying circumstances of the victim’s minority and the relationship
between the victim and the accused because as phrased, they unduly lay stress on the
generic aggravating circumstance of "taking advantage of superior strength".[45] We further
explained that:
"Be it in terms of syntax or composition, the wording of the informations is
unable to sufficiently notify the accused, a person of common understanding or
ordinary intelligence, of the gravity or nature of the crime he had been charged
with, especially considering that the generic aggravating circumstance of taking
advantage of superior strength is not even an element of the attendant
circumstances treated under number 1 of the last paragraph of Article 335. The
aforequoted clauses in the informations can thus not be read nor understood as
constituting a specific allegation of the special circumstances of relationship of
father and daughter and that the daughter was less than 18 years of age at the
time the crime of rape was committed."[46]
In People vs. Dimapilis[47], the accused escaped the imposition of the death penalty when the
information failed to properly allege the actual relationship of the minor victim with the
accused. The information stated that the accused was the stepfather of the victim when in
reality, the accused was the common-law spouse of the victim’s mother. We stressed that a
stepdaughter is a daughter of one’s spouse by a previous marriage or the daughter of one of
the spouses by a former marriage.[48] The inaccurate designation in the information of the
relationship between the victim and the accused in said case was considered a technical flaw
committed by the prosecution that cannot be ignored.[49] Furthermore, the incorrect allegation
that the accused is the stepfather of the victim when the accused is the common-law spouse
of the victim’s mother precludes a finding of qualified rape since the relationship alleged in the
information against the accused is different from that actually proven.[50] Similarly, in the more
recent case of People vs. Poñado[51], the information also failed to correctly allege that the
accused was the common-law spouse of the victim, instead, the information erroneously
alleged that the accused was the stepfather of the victim. On this basis, the accused was not
convicted of qualified rape and was merely meted out the penalty of reclusion perpetua, this
Court thus emphasized that:
"Taking into account the growing number of cases where qualified rape under
Section 11 of RA 7659, although proven during trial, could still not be properly
penalized because of defects in the Information, We urge the prosecuting fiscals
who are charged with the responsibility of preparing Informations to state with
particularity the attendant circumstances provided for under Section 11 of RA
7659. More specifically, in qualified rape, both the fact of minority of the victim
and the actual relationship between the parties, as worded in RA 7659,
must be alleged in the Information. Otherwise, we shall continue to fail both the
law and the victims whom the law sought to protect".[52] (Emphasis ours)
Here, to deem that the information against ROSENDO duly alleged the special circumstances
of relationship of stepfather and stepdaughter would be to deprive him of his constitutional
right to be correctly informed of the nature and the cause of the accusation against him. What
the information in this case specifically designated was that the said accused "did then and
there willfully, unlawfully and feloniously had carnal knowledge of his daughter, VIRGINITA
MENDEZ"[53] when in truth, the actual relationship of ROSENDO with the victim is that of
stepfather and stepdaughter. The fact that VIRGINITA is merely the stepdaughter of
ROSENDO was duly proven in the trial and admitted by the parties.
The recent pronouncements of this Court in People vs. Teves[54] and People vs.
Poñado[55] decidedly indicate this Court’s insistence on no less than an accurate description in
the information of the inculpatory relationship that would aggravate the offense to one of
qualified rape, in order to satisfy the constitutional requirement that an accused should be
properly informed of the nature and cause of the accusation against him.[56] We therefore
cannot sanction the imposition of the death penalty on ROSENDO for raping his stepdaughter
when the information fatally failed to designate the actual or correct relationship of ROSENDO
and VIRGINITA. The penalty should thus only be for simple rape, which is punishable
by reclusion perpetua.
With respect to the civil liability, in line with current rulings, if in the crime of rape, the death
penalty is imposed, the indemnity ex delicto for the victim should be in the amount
of P75,000.00; if the death penalty is not decreed by the court, the victim would instead be
entitled to P50,000.00.[57] An additional award of P50,000.00 by way of moral damages is
automatically granted in rape cases, separate and distinct from the indemnity.[58]
WHEREFORE, the appealed decision of the Regional Trial Court (RTC), Branch 81,
Romblon, Romblon, in Criminal Case No. 2061 finding accused-appellant Rosendo Mendez
guilty beyond reasonable doubt of rape, is AFFIRMED, with the MODIFICATION that the
sentence is reduced from DEATH to Reclusion Perpetua and accused-appellant is ordered to
pay P50,000.00 as civil indemnity, andP50,000.00 as moral damages to the offended party,
Virginita Mendez.
SO ORDERED.
PEOPLE V. MUSA - 217 SCRA 597
FACTS:
Accused seeks the reversal of his conviction for violating the Dangerous Drugs Act. He was found guilty
of selling marijuana leaves to a police officer in an entrapment operation.
HELD:
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to
make a search upon the person of the person arrested. Hence, in a buy-bust operation conducted to
entrap a drug-pusher, the law enforcement agents may seized the marked money
found on the person of the pusher immediately after the arrest even without arrest or search warrants.
Furthermore, it may extend beyond to include the premises or surroundings under his immediate control.

Zaldivia CASE
Facts:
Petitioner Zaldivia is charged with quarrying for commercial purposes without a mayor's
permit in the municipality of Rodriguez, Province of Rizal.
She moved to quash the information on the ground that the crime had prescribed but it
was denied. She appealed to the RTC and denial was sustained by the respondent judge.

Petitioner filed for a petition for review on certiorari arguing that the case filed againsther is
govern by the provisions on the Rules of Summary Procedure. She contends that
criminalcases like violations of municipal or city ordinances does not require preliminary
investigationand shall be filed directly to the court and not in the Prosecutors office. She also
invoked ActNo. 3226  A n Act to Establish Periods of Prescription for Violations Penalized by
Special Actsand Municipal Ordinances and to Provide when Prescription Shall Begin to
Run  . Concludingthat the case should have been dismissed since the case against her was
being filed in courtway beyond the 2 month statutory period.
The prosecution contends that when the case was filed on the Prosecutors office it
suspends the prescriptive period.
Issue:
Whether or not the prescription of period ceased to run when the case was filed on the
prosecutors office?
Decision:
Petition granted. Case dismissed on the ground of prescription.
Ruling:

As a general rule, the filing of the case in the prosecutors office is sufficient to interruptthe
running of the prescriptive period except when the case is covered by the Rules onSummary
Procedure. If it is any crime, you file it in the fiscals office; the running of theprescriptive
period is interrupted. But in the case at bar having only a penalty of arresto menorit therefore
falls under the provisions of the Rules on Summary Procedure. If it is covered by theSummary
Rules, the period continues. It must be the filing of the case in court which willinterrupt the
period from running
EN BANC
[G.R. No. 129288. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff - appellee, vs. JOEY AQUINO y
ACEDO, EDUARDO NEJAL y FRONDES and JOSE TRINIDAD y
PROGRESO, accused,
JOEY AQUINO y ACEDO, and JOSE TRINIDAD y PROGRESO, accused-
appellants.
DECISION
DAVIDE, JR., C.J.: Oldmiso
Accused Joey Aquino y Acedo (hereafter AQUINO), Eduardo Nejal y Frondes (hereafter
NEJAL) and Jose Trinidad y Progreso (hereafter TRINIDAD) were charged with the special
complex crime of robbery with homicide in Criminal Case No. 1817-BG of the Regional Trial
Court, Branch 67, Bauang, La Union, under an Information, the accusatory portion of which
reads:
The undersigned Assistant Provincial Prosecutor accuses JOEL AQUINO Y
ACEDO, EDUARDO NEJAL Y FRONDES and JOSE TRINIDAD y PROGRESO,
of the crime of ROBBERY WITH HOMICIDE, committed as follows:
That on or about the 13th day of November, 1994 at Barangay Paringao,
Municipality of Bauang, Province of La Union, Philippines and within the
jurisdiction of this Honorable court, the above-named accused conspiring, and
confederating and aiding one another, with intent of gain, did then and there
willfully, unlawfully and feloniously, with the use of force, violence, intimidation
against one, GREGORY BITMEAD, take, steal and carry away jewelries and
cash amounting to TWENTY THOUSAND (P20,000.00) PESOS, Philippine
Currency, without the consent and against the latter’s will, and did then and
there willfully, unlawfully and feloniously attack, assault and shoot with the use
of a rifle said victim, thereby inflicting upon him multiple gunshot wounds which
caused his death to the damage and prejudice of the heirs of the victim.[1]
The information was subsequently amended by changing the date of the commission of the
offense from 18 November 1994 as originally alleged to 13 November 1994 to conform to the
stipulation during the pre-trial. Upon re-arraignment on 27 April 1995, each of the accused
pleaded not guilty to the offense charged.
Thus, the prosecution presented evidence tending to establish the following narration of facts.
On 13 November 1994 at 9 p.m., Stefen Slaton, Marilou Ortega, Janet Ysip and Asuncion
Ulanimo (hereafter Stefen, Marilou, Janet and Asuncion, respectively) arrived at the
Sportsman Retreat Club and Restaurant in Bauang, La Union. The restaurant, operated by
Gregory Bitmead, an Australian national and fiancée of Stefen, had 7 tables, a bar and 2
billiard tables located at the far end.[2] Ncmmis
At around 9:15 p.m. on 13 November 1994, while Stefen’s group was eating pancit, a car
stopped in front of the restaurant. Accused AQUINO, followed by TRINIDAD and NEJAL,
entered announcing, "dapa kayong lahat, hold-up ito (get down, this is a hold-up.)" Scared,
most of the "customers dropped to the floor." Stefen thought that AQUINO was merely jesting
so she stood her ground. Marilou "just stooped," while Janet froze in shock. Gregory Bitmead,
then drinking near the bar when all the accused arrived, got mad and shouted at them: "you
can’t do this to my fucking restaurant."[3]
AQUINO brought out his armalite and aimed it at Bitmead. NEJAL and TRINIDAD stood
behind AQUINO holding short handguns and surveying the customers inside the restaurant.
[4] Stefen hid her money, then ran towards Bitmead. She embraced Bitmead and begged all
the accused not to kill him, "huwag, maawa po kayo (don’t, have mercy)."[5] AQUINO, who
was standing two meters from Bitmead and still aiming his gun at the latter, said nothing.
Bitmead challenged AQUINO, "c’mon just hit me, just hit me."[6] While Stefen was still
embracing Bitmead, Marilou heard a click from a short firearm, and saw someone go out.
[7] Stefen, perceiving an imminent shoot-out, lowered her hand and released Bitmead. Two to
three minutes later, shots rang out. Bits of flesh flew out of Bitmead’s body and he was thrown
to the side. He fell on the floor, unable to move.[8]
AQUINO then divested Stefen of three rings and one bracelet, and took Bitmead’s belt bag
which contained P20,000. TRINIDAD and NEJAL also went around the restaurant and took
things from the customers.[9]
The incident lasted for ten minutes. All the accused went out of the restaurant with their loot
and fled on board a maroon car with plate number ACL 843. There was another person left
inside the car but nobody saw his face.[10]
Meanwhile, Bitmead who laid motionless on the floor, sustained a wound in the middle of his
chest. One of his arms was almost torn loose from his torso. He was brought to the Provincial
Hospital of La Union where he was pronounced dead on arrival.[11]
Dr. Bernardo Parado, Chief Municipal Health Officer of the Bauang Rural Health Unit,
conducted the autopsy on Bitmead’s body at the Joces Funeral Homes, Quinavite, Bauang,
La Union.
Stefen, Marilou and Janet executed their separate sworn statements[12] wherein they narrated
the tragic events at Bitmead’s Restaurant before the police at Bauang, La Union. Stefen and
Marilou were also made to describe the assailants to the cartographers of the National
Bureau of Investigation.[13] Ncm
On 17 November 1994, Stefen and Marilou identified all the accused at a police line-up
conducted at Camp Diego Silang, Bauang, La Union. Janet also identified AQUINO but was
so nervous that she was unable to identify TRINIDAD. Stefen, Marilou and Janet confirmed
their identification of the accused when called at the witness stand. Janet explained her failure
to identify TRINIDAD at the police line-up because of his shaven moustache. All these girls
only found out the real names of all the accused at Camp Diego Silang.[14]
Dr. Parado was called to testify to confirm his autopsy findings which indicated that Bitmead’s
1.......liver is lacerated, [with] multiple massive hemorrhage noted at the
abdominal area, fragmented slug recovered at the abdominal area (R)
2.......(Rt.) lung, lower lobe is lacerated with massive hemorrhage noted at the
thoracic area (Rt)
3.......10th rib (Rt) is fractured, complete close with one slug recovered at the (Lt)
left abdominal wall, massive hemorrhage noted.[15]
Dr. Parado then concluded that Bitmead died of "Cardio Respiratory Arrest secondary to
Hemorrhagic shock secondary to Multiple Gunshot Wounds."[16] Dr. Parado also opined that
the victim was facing the assailant and was very near the latter when he was shot; the
assailant may have fired his gun thrice; and Bitmead was first hit on the right nipple, then he
turned to the right and was hit on the forearm, then turned his back and was hit again. Two
slugs met at the back and lacerated the liver, with the lacerated liver causing Bitmead’s death.
[17] Scncm

Bitmead’s father, Reginald Bitmead testified that he spent P30,000 for Gregory’s burial on 25
November 1995 at the Lingsat Cemetery, but he presented no receipt for the expenditure. As
to the compensation for his son’s death, Reginald declared "I don’t want any money, sir.
Dumb shit them."[18] Bitmead who was 41 years old at the time of his death, was a retired
army man in Australia, and was receiving a monthly pension of P19,000.[19]
The prosecution rested its case on 17 October 1995 and was granted ten days to make a
Formal Offer of Exhibits, which it did on 21 November 1995.[20] The defense then filed its
opposition to or comments on the exhibits offered. In its Order of 17 January 1996, the trial
court admitted the exhibits.
In its order of 6 March 1996, the trial court granted the motion of AQUINO and TRINIDAD for
the reconsideration[21] of the admission of Exhibits "B" (photograph), "D" (cartographic sketch)
and "G" (photograph) on the ground that they are hearsay evidence.
For his part, NEJAL filed a Demurrer to Evidence with Motion (to Exclude Exhibits "B," "C,"
and "E").[22] AQUINO and TRINIDAD filed a motion for Acquittal on Demurrer to Evidence,
[23] alleging that the out-of-court declarations and the testimonies of Stefen, Marilou and Janet
were "rehearsed," and were contradicted by the autopsy findings of Dr. Parado; conspiracy
was not proved; and the warrantless arrest was illegal. The motions were denied on 15 July
1996.[24]
In its Order of 15 July 1996, the trial court denied the Demurrer pleas. Sdaamiso
The defense thereafter presented its lone witness SPO1 Marcelino Gamboa who testified that
Captain Tommy Cabigas, his immediate superior at the Criminal Investigation Service [CIS],
Dagupan City, relayed to the Provincial Command the information that an Australian national
was killed on 13 November 1994. By the early morning of the next day, the police were
briefed and the identities of the alleged suspects, including their appearances, were supplied.
SPO1 Gamboa learned from assets that AQUINO and TRINIDAD were the ones who staged
the robbery/hold-up in Bauang, La Union. He claimed to know all the accused as there was
an alarm raised against them for their involvement in a carnapping and hold-up robbery at
Alice Restaurant, Sto. Tomas, Pangasinan.[25]
SPO1 Gamboa further claimed that at 9:30 p.m. on 15 November 1994, AQUINO and
TRINIDAD were arrested while walking along Arellano St., Dagupan City. NEJAL was
arrested at dawn two days later at his house in Sta. Barbara, Pangasinan. In both instances,
Gamboa admitted that arrests warrants were not served, all the accused were not committing
any crime, and they were not informed of their constitutional rights. Further, the arresting
officers have no personal knowledge of the killing of Bitmead. All the accused were brought to
the CIS office in Dagupan City where they were investigated.[26]
On 18 March 1997, the trial court promulgated its decision,[27] the decretal portion of which
reads:
(a)......finding the accused, Joey Aquino y Acedo and Jose Trinidad y Progreso,
GUILTY of the crime of ROBBERY WITH HOMICIDE beyond reasonable doubt
and hereby sentencing them to the supreme penalty of DEATH;
 (b)......acquitting Eduardo Nejal y Frondes of the crime charged for failure of the
prosecution to prove his guilt beyond reasonable doubt, and shall forthwith be
released from confinement unless he is being held for any other lawful cause;
and
(c)......Ordering Joey Aquino y Acedo and Jose Trinidad y Progreso to indemnify
the heirs of Gregory Bitmead in the sum of P200,000.00 without subsidiary
imprisonment in case of insolvency.[28]
The trial court considered the testimonies of Stefen, Marilou and Janet "cogent,
straightforward and convincing." It ascertained that their narrations of events on the complicity
of AQUINO and TRINIDAD as attacker and robbers were candid and constituted the true
version of the events.[29] However, it noted "with much concern" the failure of law officers to
respect the rights of all the accused against unlawful arrests and during custodial
investigation. Thus, the trial court ruled that the arrests were illegal. The trial court
nonetheless concluded that it was unnecessary to apply the doctrine on the inadmissibility of
evidence taken as a consequence of illegal arrests, since the positive identification of the
accused by the prosecution witnesses was the basis for their conviction. Sdaad
The decision was elevated to us for automatic review pursuant to Section 47 of the Revised
Penal Code as amended by R.A. No. 7659.
In compliance with our resolution, the Director of the Bureau of Corrections confirmed the
detention of AQUINO at the National Penitentiary.[30] The Director of Prisons confirmed that
AQUINO was received at the New Bilibid Prisons on 15 April 1997, while TRINIDAD had no
record of confinement since he escaped therefrom on 9 April 1997 after the promulgation of
the trial court’s decision.
Although TRINIDAD had escaped from detention and is now a fugitive, the automatic review
in death penalty cases compels us to review the case as against him pursuant to our ruling in
People v. Esparas.[31]
In this Court, AQUINO sought the substitution of his counsel de parte with the Free Legal
Assistance Group [FLAG]. As required, the FLAG filed the Appellant’s Brief wherein AQUINO
attributes to the trial court the commission of the following errors:
I
FINDING THAT APPELLANT WAS IDENTIFIED BEYOND REASONABLE
DOUBT BY THE PROSECUTION WITNESSES AS THE ASSAILANT OF THE
VICTIM, GREGORY BITMEAD, AND ONE OF THE PERPETRATORS OF THE
ROBBERY.
II
FINDING THAT THE CRIME COMMITTED WAS ROBBERY WITH HOMICIDE,
INSTEAD OF HOMICIDE ONLY.
III
IMPOSING UPON APPELLANT THE SUPREME PENALTY OF DEATH,
INSTEAD OF THE LESSER PENALTY OF RECLUSION PERPETUA.
IV
AWARDING DAMAGES DESPITE LACK OF EVIDENCE TO SUPPORT IT AND
THE REJECTION BY THE FATHER OF THE VICTIM. Scsdaad
Anent the first assignment of error, AQUINO points out that the initial description by Stefen of
Bitmead’s assailant as 5’3" tall, with fair complexion, medium build and sporting long and
slightly wavy hair conflicted with AQUINO’s actual physical features. Marilou, who gave a
detailed description of one of AQUINO’s companions, vaguely remembered AQUINO’s
appearance. As for Janet, she could only identify AQUINO in court. Also, it was highly
impossible for her to remember the face of AQUINO when she had seen him for only a few
seconds due to the confusion and tension inside the restaurant and her obvious nervousness
when the robbery took place.
AQUINO claims that the manner of identification was less than objective and fair. First, there
were two police line-ups and Marilou was made to identify all the accused twice. Second, the
three persons included in the second police line-up were so dissimilar in appearance to all the
accused, contrary to what was enunciated in People v. Acosta,[32] in that a police line-up
should be confined to persons of the same height and built as the accused. Third, the
witnesses for the prosecution were informed by the police that all the accused were in Camp
Diego Silang prior to the identification, thereby psychologically conditioning the witnesses to
find said accused in the police line-up.
AQUINO also maintains that the prosecution failed to establish the robbery as the evidence
thereon was limited to the statements of Stefen and Marilou on the taking of Bitmead’s
beltbag. No proof was presented that Stefen had personal knowledge of the P20,000
allegedly contained in Bitmead’s beltbag; and Janet testified that the assailants immediately
fled after Bitmead was shot without mentioning the robbery.
AQUINO further argues that the absence of modifying circumstances negates the imposition
of the death penalty pursuant to Article 63(1) of the Revised Penal Code; and there is, as well,
no factual basis for the award of damages.
Finally, AQUINO prays for the remand of the case to the lower court because he was denied
of his right to the assistance of counsel due to the gross incompetence of his previous
counsel who was less than zealous in defending his interest. His counsel confined his
defense to the illegal arrest subsequent to arraignment and disregarded his plea to present
other witnesses.
In the Appellee’s Brief, the Office of the Solicitor General (OSG) recommends that the penalty
be lowered to reclusion perpetua due to the absence of aggravating and mitigating
circumstances, and that the indemnity be fixed at P50,000 in accordance with established
jurisprudence instead of P200,000. There was also no evidence in support of said
amount. Suprema
As to the first assignment of error, the OSG countered that the witnesses for the prosecution
had the opportunity to scrutinize the faces of AQUINO and his companions because the
interior of the restaurant was brightly lit when the crime was committed. Further, the witnesses
remained seated at their table and they did not get down to the floor despite being ordered to
do so. Stefen, in particular, had a close look of AQUINO who stood two to three meters from
her when she embraced Bitmead; she had also seen him prior to the incident. Marilou noticed
the face of AQUINO from the time he and his companions entered the restaurant, announced
the hold-up and approached Bitmead. Janet clearly observed the faces of all the accused.
The OSG further rationalizes that Stefen could not be expected to give an accurate
measurement of AQUINO’s height. She is a tall caucasian whose perception may be different
from the other witnesses. It is also possible that AQUINO had a haircut prior to the police line-
up.
The OSG also asserts that contrary to the claim of AQUINO that the police line-up was unfair
and had to be repeated for Marilou’s benefit, there was only one police line-up conducted
inside Col. Lomibao’s office. When Marilou saw AQUINO and his companions outside the
office of Col. Lomibao, there was as yet no line-up being conducted; besides, a police line-up
is not necessary for the identification of offenders.
The OSG likewise claims that the robbery was sufficiently proven. A determination of the
exact amount asported is immaterial since it is not one of the elements of the crime of
robbery. Janet’s failure to see the robbery could be attributed to her nervousness.
The OSG opposes AQUINO’s prayer for the remand of his case to the trial court. It maintains
that AQUINO was not denied of his constitutional right to counsel, which, in any event, he
should have invoked during trial. This notwithstanding, the conviction of AQUINO could not be
attributed to the ineffectiveness of his counsel or weakness in his defense but on the strength
of the evidence for the prosecution.
After poring through the records and the transcripts of the stenographic notes of the
witnesses presented by both parties, we are convinced that the prosecution was able to
establish beyond reasonable doubt the guilt of AQUINO and TRINIDAD. Juris
Anent the first assignment of error, when an accused challenges his identification by
witnesses, he, in effect, attacks their credibility.[33] It is settled that when the issue of credibility
of witnesses is involved, appellate courts will generally not disturb the findings of the trial
court considering that the latter is in a better position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of testifying during trial,
unless certain facts of value have been plainly overlooked, which if considered, might affect
the result of the case.[34]
We cannot find any reason to overturn the trial court’s favorable assessment of the credibility
of the witnesses for the prosecution. The eyewitnesses were straightforward, consistent and
objective in the narration of the events they witnessed. The restaurant was "fairly bright" and
when conditions of visibility are favorable and the witnesses do not appear to be biased, their
assertions as to the identity of the malefactor should be accepted as truthworthy.[35]
Stefen testified that she clearly saw AQUINO, thus:
Q......How long were you looking at the face of Joey Aquino?
A......Long enough to recognize his face.[36]
Any conflict between Stefen’s initial description of AQUINO in her sworn statement and
AQUINO’s actual physical characteristics is inconsequential as Stefen cannot be expected to
accurately estimate AQUINO’s height. Witnesses frequently concentrate on the facial features
and movements of the accused. Victims of violence tend to strive to see the appearance of
the perpetrators of crime and observe the manner in which the crime is being
committed[37] and not unduly concentrate on extraneous factors and physical attributes unless
they are striking. Furthermore, we have long since recognized that a sworn statement or
affidavit when taken ex-parte is generally considered inferior to in-court testimony. An affidavit
is almost always incomplete and often inaccurate, sometimes from partial suggestion or for
want of suggestions and inquiries. Its infirmity as a species of evidence is a matter of judicial
experience.[38] Affidavits are oftentimes executed when an affiant’s mental faculties are not in
such a state as to afford him a fair opportunity of narrating in full the incident that has
transpired.[39] What is important is that Stefen positively identified AQUINO in open court. This
recognition is bolstered by Stefen’s testimony that she had also previously seen AQUINO and
TRINIDAD eating at the same restaurant prior to the incident[40] but she only found out their
names during the police line-up. Scjuris
Marilou’s identification of AQUINO and TRINIDAD is unassailable. She did not heed the order
to take the floor. She merely stooped, thus witnessing the tragic events. She saw Stefen
pleading for Bitmead’s safety and TRINIDAD pointing his gun at Bitmead. Then she heard a
click followed by two shots. When the smoke cleared, she saw AQUINO’s gun stilled leveled
at Bitmead.[41] She also saw AQUINO at close range, thus:
Q......After Joey Aquino has taken the belt bag of Gregory Bitmead and Jose
Trinidad was getting something from the customers, what transpired after that?
A......Joey came near our table, sir.
Q......What did he do then?
A......He saw me stooping, he saw me looking at him and then he shouted at me
saying "dapa."
Q......And after that what happened?
A......I got down from my chair and I hid under the table.[42]
As to NEJAL, Marilou admitted not to have immediately noticed him during the incident but
she recognized him afterwards during the police line-up. She clarified:
Q......And why is it that you were only able to identify two (2) when you say that
you saw three (3) persons?
A......I could only recognize two (2) because when I heard the shots, I tried to look
at him that’s why I remember the two (2) active.
Court:
Q......You mean to say the other one is not active?
A......He was just standing there sir, because I was stooping when I heard a shot,
my attention was focused to Trinidad and then I got down, the other one who
was pointing the gun to the victim.[43]
There is no standard rule by which witnesses to a crime may react. Often, the face and body
movements of the assailant create an impression which cannot be easily erased from the
memory of witnesses,[44] which was obviously the case with Marilou, upon whose mind the
physical features of AQUINO and TRINIDAD were imprinted. Jurissc
Janet remembered AQUINO under similar circumstances. On that fateful night, Janet saw
AQUINO brandishing a long gun. AQUINO’s allegation that Janet’s identification of him in
open court was highly suspect as she admitted to being nervous and panicky during the
incident. But her momentary glance at AQUINO left an indelible mark on her mind. True, the
workings of a human mind placed under emotional stress are unpredictable and people react
differently; some may shout, some may faint, and some may be shocked into insensibility.
[45] But despite her fears Janet saw the unusual acts of bestiality committed before her. As an
eyewitness and a victim she remembered with a high degree of reliability the identity of
criminals.[46] During the police line-up, she remembered AQUINO’s face and accordingly
pointed him out as the gunman, thus:
Q......When you identified Joey Aquino, you were not confused and you were not
nervous?
 A......Because it was really he whom I cannot forget his face because he was the
one holding the gun.[47]
It is also clear to us that Stefen, Marlon and Janet have no motive to falsely impute the
wrongdoing upon AQUINO and TRINIDAD; on the contrary, being victims of the robbery, (with
Stefen as Bitmead’s fiancée) they were expected to seek justice. It would be contradictory to
human experience if they attributed authorship of the dastardly acts to persons who did not
commit them. It is settled that if the accused had nothing to do with the crime, it would be
against the natural order of events to falsely impute charges of wrongdoing upon him.
[48] There is no indication in this case that either Stefen, Marilou or Janet was actuated by
improper motive in implicating AQUINO and TRINIDAD. Their testimonies then, being
credible, are entitled to full faith and credit.
On the claim that the conduct of the police line-up was not objective and fair, suffice it is to
state that there is no rule requiring that before a subject can be identified as the culprit he
should be first placed in a police line-up and pinpointed by witnesses.[49] A police line-up is not
indispensable for the proper and fair identification of offenders.[50] The important consideration
is for the victim to positively declare that the persons charged were the malefactors. Such
goes into the credibility of the witnesses as tested during the trial.[51] Misjuris
It is not true that two police line-ups were formed. What AQUINO alleged to be the "first" line-
up formed outside the office of Col. Lomibao was not a line-up. The accused and other
persons were only milling about the building waiting for the real police line-up inside Col.
Lomibao’s office during which time Marilou was able to identify AQUINO and TRINIDAD.
It is also untrue that the prosecution witnesses were psychologically conditioned to find all the
accused in the police line-up. Previously, Stefen and Marilou had already described the
physical features of AQUINO to the NBI cartographer; and when all the accused were
presented to them during the police line-up, they just confirmed their earlier impressions of
the malefactors. AQUINO cannot invoke People v. Acosta.[52] In that case, Acosta was alone
in the detention cell when he was identified; Acosta’s picture was not mixed with others when
the witnesses were asked to identify him; and the shirt he wore during the police line-up was
the same one he had on in the picture. The situations which we have therein considered
suggestive were: where the accused was the only Oriental in a line-up composed entirely of
blacks, the sole black-haired person among light-haired individuals, the only tall person
among short individuals, the lone youth among suspects over 40 years old, and the only
person who wore distinctive clothing. None of these suggestive conditions was present during
the positive identification of AQUINO and TRINIDAD at the police line-up.
As for conviction for the special complex crime of robbery with homicide under Article 294 of
the Revised penal Code, the robbery itself must be proved as conclusively as any other
element of the crime.[53]Taking with intent to gain of personal property belonging to another by
means of violence against or intimidation of any person or force upon things constitutes
robbery.[54]
On this score, the prosecution was able to discharge its burden of proof. Both Stefen and
Marilou saw AQUINO divest Bitmead of his belt bag containing P20,000. Stefen was certain
of the amount as she did the bookkeeping on that day for Bitmead. Stefen herself was robbed
of three rings and one bracelet. She categorically declared:
q:......And after he fell down what did joey [sic] Aquino do?
a-......He took my jewelries and went to the counter.
 q-......What jewelry? Jjlex
a-......Three (3) rings and one bracelet.
xxx
q-......After Joey Aquino divested your three (3) rings and went to the counter,
what did Eduardo Nejal do? After taking the belly bag of Gregory Bitmead?
a-......He was also collecting.
q-......What was he collecting?
a-......I don’t know if they are jewelries or money.
q-......From where does Eduardo Nejal collecting?
a-......In the middle of the table and at the bar outside.[55]
Marilou also saw AQUINO take not only Bitmead’s bag but the personal property of the other
customers:
Q-......And what happened after hearing those two (2) shots?
A-......I was stooping, I saw Joey got the bag of Gregory Bitmead and Jose
Trinidad went to the counter.
Q-......What was that bag of Gregory that was taken by Joey?
A-......Belt bag.
Q-......You want to tell us that Joey Aquino took that belt bag of Gregory Bitmead
which he was wearing at the time?
A-......Yes, sir.
xxx
Q-......You also said that Jose Trinidad went to the counter?
A-......Yes, sir.
Q-......Do you know what he do to the counter?
A-......I saw him taking things from the customers, sir. He was trying to take
something, they were handling him over.[56] Newmiso
AQUINO thus missed the point in claiming that Stefen’s testimony on the amount contained in
the belt bag was uncorroborated. There is no need to prove the exact amount taken. What is
material is that there be proof of the unlawful taking as in this case. Regardless of the actual
amount inside the beltbag, the crime committed is still robbery with homicide. The elements of
the crime were proved beyond reasonable doubt. In any event, in robbery with homicide, the
important consideration is that there be a nexus between the robbery and the killing whether
prior, subsequent to or committed at the same time.[57]
Nonetheless, we find meritorious the third assignment of error. No mitigating or aggravating
circumstance was proved during trial. Article 63 of the Revised Penal Code provides that,
when the law prescribes a penalty composed of two indivisible penalties, such as reclusion
perpetua to death for the complex crime of robbery with homicide, and neither mitigating nor
aggravating circumstance attended the commission of the deed, the lesser penalty shall be
applied. The imposable penalty then in this case is reclusion perpetua.
As to AQUINO’s invocation of his constitutional right to assistance of counsel, we find it
undeserving of credit. AQUINO was assisted by a counsel and if he had difficulties with this
counsel, he should have informed the trial court of this fact. He had the opportunity to do so,
yet he chose to keep quiet. He could have insisted on presenting his own version of the
events but he did nothing, thereby clearly indicating his full agreement with his counsel’s
chosen strategy. Besides, his conviction was not based on the weakness of the evidence for
the defense but on the strength of the prosecution’s case.
We agree with AQUINO however, that there was no basis for the award of P200,000.
Jurisprudence has fixed the indemnity for death at P50,000 without need of proof.
As a general proposition, whenever a homicide is committed by reason or on the occasion of
a robbery, all those who took part therein are liable as principals of the crime of robbery with
homicide, although some did not actually take part in the homicide.[58] Even though
throughout the trial it was only AQUINO who was seen to have pulled the trigger against
Bitmead, conspiracy was adequately established by the testimony of the prosecution
witnesses. Hence, all the conspirators are liable as principals regardless of the extent of their
respective individual participation, for in contemplation of law, the act of one is the act of all.[59]
WHEREFORE, the decision of the trial court finding accused JOEY AQUINO y ACEDO and
his co-accused JOSE TRINIDAD y PROGRESO guilty beyond reasonable doubt as principals
of the special complex crime of robbery with homicide defined and penalized in Article 294 of
the Revised Penal Code, as amended by R.A. No. 7659, is AFFIRMED, subject to the
modification that the penalty of death imposed by the trial court should be, as it hereby,
reduced to reclusion perpetua, and that indemnity of P50,000 for the death of Gregory
Bitmead be paid to his lawful heirs.
Costs de oficio.
SO ORDERED.
SECOND DIVISION
[G.R. No. 129670. February 1, 2000]
MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS;
HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC, Quezon
City; and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
MENDOZA, J.:
Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (an act
providing for stronger deterrence and special protection against child abuse, exploitation and
discrimination, providing penalties for its violation, and other purposes). His arrest was made without a
warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the
parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old,
had been contacted by petitioner for an assignation that night at petitioner’s room at the Metropolitan
Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of
petitioner’s activities. An entrapment operation was therefore set in motion. At around 8:20 in the
evening of April 3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where
petitioner was staying. When petitioner opened the door, the police saw him with Lorelie, who was
wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the sworn statement
of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an
information for violation of Art. III, §5(b) of R.A. No. 7610 was filed on April 7, 1997 against
petitioner in the Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-
70550. Edp
On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable
Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless
Arrest; and (3) In the Event of Adverse Resolution of the A
bove Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on Which He is
Charged."[1]
On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same
complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer
Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to Q-
97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations,
petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . .
given money [by petitioner] as payment for the said [acts of] sexual intercourse."
No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine cases.
On May 16, 1997, the trial court issued an order resolving petitioner’s Omnibus Motion, as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:
1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under
detention, his arrest having been made in accordance with the Rules. He must therefore
remain under detention until further order of this Court;
2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the
right to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for
all the cases under the following conditions:
 a) The accused shall not be entitled to a waiver of appearance during the trial of these
cases. He shall and must always be present at the hearings of these cases;
b) In the event that he shall not be able to do so, his bail bonds shall be automatically
cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases
shall proceed to trial in absentia;
c) The hold-departure Order of this Court dated April 10, 1997 stands; and
d) Approval of the bail bonds shall be made only after the arraignment to enable this
Court to immediately acquire jurisdiction over the accused;
3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o’clock in the
morning.[2]
On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in
Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial
court to suspend the arraignment scheduled on May 23, 1997.[3] Then on May 22, 1997, he filed a
motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and
that the same be done prior to his arraignment.[4]Misedp
On May 23, 1997, the trial court, in separate orders, denied petitioner’s motions to reduce bail bonds, to
quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during
which he pleaded not guilty to the charges against him and then ordered him released upon posting bail
bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the
"hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997.
On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of
Appeals, assailing the trial court’s order, dated May 16, 1997, and its two orders, dated May 23, 1997,
denying his motion to quash and maintaining the conditions set forth in its order of May 16, 1997,
respectively.
While the case was pending in the Court of Appeals, two more informations were filed against
petitioner, bringing the total number of cases against him to 12, which were all consolidated.
On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads:
WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b),[5] of
the May 23 (should be May 16), 1997 Order, are separable, and would not affect the
cash bond which petitioner posted for his provisional liberty, with the sole modification
that those aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16,
May 23 and May 23, 1997 Orders are MAINTAINED in all other respects.[6]Misoedp
The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant
of bail to petitioner but ruled that the issue concerning the validity of the condition making arraignment
a prerequisite for the approval of petitioner’s bail bonds to be moot and academic. It noted "that
petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he pleaded not guilty
to each offense; and that he has already been released from detention." The Court of Appeals thought
that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III, §14(2) of the
Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is unjustifiable."
With respect to the denial of petitioner’s motion to quash the informations against him, the appellate
court held that petitioner could not question the same in a petition for certiorari before it, but what he
must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the
decision be adverse to him.
Hence this petition. Petitioner contends that the Court of Appeals erred[7] __
1.......In ruling that the condition imposed by respondent Judge that the approval of
petitioner’s bail bonds "shall be made only after his arraignment" is of no moment and
has been rendered moot and academic by the fact that he had already posted the bail
bonds and had pleaded not guilty to all the offenses;
2.......In not resolving the submission that the arraignment was void not only because it
was made under compelling circumstance which left petitioner no option to question the
respondent Judge’s arbitrary action but also because it emanated from a void Order;
3.......In ruling that the denial of petitioner’s motion to quash may not be impugned in a
petition for certiorari; and
4.......In not resolving the legal issue of whether or not petitioner may be validly charged
for violation of Section 5(b) of RA No. 7610 under several informations corresponding
to the number of alleged acts of child abuse allegedly committed against each private
complainant by the petitioner.
We will deal with each of these contentions although not in the order in which they are stated by
petitioner.
First. As already stated, the trial court’s order, dated May 16, 1997, imposed four conditions for the
grant of bail to petitioner:
a) The accused shall not be entitled to a waiver of appearance during the trial of these
cases. He shall and must always be present at the hearings of these cases;
b) In the event that he shall not be able to do so, his bail bonds shall be automatically
cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases
shall proceed to trial in absentia;
c) The hold-departure Order of this Court dated April 10, 1997 stands; and Edpmis
d) Approval of the bail bonds shall be made only after the arraignment to enable this
Court to immediately acquire jurisdiction over the accused;
The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of
condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with
the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the trial
court which makes petitioner’s arraignment a prerequisite to the approval of his bail bonds. His
contention is that this condition is void and that his arraignment was also invalid because it was held
pursuant to such invalid condition.
We agree with petitioner that the appellate court should have determined the validity of the conditions
imposed in the trial court’s order of May 16, 1997 for the grant of bail because petitioner’s contention
is that his arraignment was held in pursuance of these conditions for bail.
In requiring that petitioner be first arraigned before he could be granted bail, the trial court
apprehended that if petitioner were released on bail he could, by being absent, prevent his early
arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases.
Hence, to ensure his presence at the arraignment, approval of petitioner’s bail bonds should be deferred
until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he
is notified of the date of hearing and his failure to appear is unjustified, since under Art. III, §14(2) of
the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court in its May
16, 1997 order conditioning the grant of bail to petitioner on his arraignment.
This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is
authorized, bail should be granted before arraignment, otherwise the accused may be precluded from
filing a motion to quash. For if the information is quashed and the case is dismissed, there would then
be no need for the arraignment of the accused. In the second place, the trial court could ensure the
presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any
stage of the proceedings, such as arraignment. Under Rule 114, §2(b) of the Rules on Criminal
Procedure, one of the conditions of bail is that "the accused shall appear before the proper court
whenever so required by the court or these Rules," while under Rule 116, §1(b) the presence of the
accused at the arraignment is required.
On the other hand, to condition the grant of bail to an accused on his arraignment would be to place
him in a position where he has to choose between (1) filing a motion to quash and thus delay his release
on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2)
foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released
on bail. These scenarios certainly undermine the accused’s constitutional right not to be put on trial
except upon valid complaint or information sufficient to charge him with a crime and his right to bail.[8]
It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be
made only after arraignment," which the Court of Appeals should instead have declared void. The
condition imposed in the trial court’s order of May 16, 1997 that the accused cannot waive his
appearance at the trial but that he must be present at the hearings of the case is valid and is in
accordance with Rule 114. For another condition of bail under Rule 114, §2(c) is that "The failure of
the accused to appear at the trial without justification despite due notice to him or his bondsman shall
be deemed an express waiver of his right to be present on the date specified in the notice. In such case,
trial shall proceed in absentia." Jjsc
Art. III, §14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the
trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of
innocence or of guilt,[9] (b) during trial whenever necessary for identification purposes,[10] and (c) at the
promulgation of sentence, unless it is for a light offense, in which case the accused may appear by
counsel or representative.[11] At such stages of the proceedings, his presence is required and cannot be
waived. As pointed out in Borja v. Mendoza,[12] in an opinion by Justice, later Chief Justice, Enrique
Fernando, there can be no trial in absentia unless the accused has been arraigned.
Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself
from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought
that to ensure petitioner’s presence at the arraignment, petitioner should be denied bail in the meantime.
The fly in the ointment, however, is that such court strategy violates petitioner’s constitutional rights.
Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May
23, 1997 was also invalid. Contrary to petitioner’s contention, the arraignment did not emanate from
the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even
without such a condition, the arraignment of petitioner could not be omitted. In sum, although the
condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings
against him are valid.
Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is
denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to
reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an
adverse judgment is rendered against him. However, he argues that this case should be treated as an
exception. He contends that the Court of Appeals should not have evaded the issue of whether he
should be charged under several informations corresponding to the number of acts of child abuse
allegedly committed by him against each of the complainants.
In Tano v. Salvador,[13] the Court, while holding that certiorari will not lie from a denial of a motion to
quash, nevertheless recognized that there may be cases where there are special circumstances clearly
demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate court
to raise the issue decided against him. This is such a case. Whether petitioner is liable for just one crime
regardless of the number of sexual acts allegedly committed by him and the number of children with
whom he had sexual intercourse, or whether each act of intercourse constitutes one crime is a question
that bears on the presentation of evidence by either party. It is important to petitioner as well as to the
prosecution how many crimes there are. For instance, if there is only one offense of sexual abuse
regardless of the number of children involved, it will not matter much to the prosecution whether it is
able to present only one of the complainants. On the other hand, if each act of sexual intercourse with a
child constitutes a separate offense, it will matter whether the other children are presented during the
trial. Scjj
The issue then should have been decided by the Court of Appeals. However, instead of remanding this
case to the appellate court for a determination of this issue, we will decide the issue now so that the
trial in the court below can proceed without further delay.
Petitioner’s contention is that the 12 informations filed against him allege only one offense of child
abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse
committed with them (twelve). He argues that the act of sexual intercourse is only a means of
committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to
him should not be subject of separate informations. He cites the affidavits of the alleged victims which
show that their involvement with him constitutes an "unbroken chain of events," i.e., the first victim
was the one who introduced the second to petitioner and so on. Petitioner says that child abuse is
similar to the crime of large-scale illegal recruitment where there is only a single offense regardless of
the number of workers illegally recruited on different occasions. In the alternative, he contends that, at
the most, only four informations, corresponding to the number of alleged child victims, can be filed
against him.
Art. III, §5 of R.A. No. 7160 under which petitioner is being prosecuted, provides:
Sec. 5 Child Prostitution and Other Sexual Abuse. __— Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
....
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse.
The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or
lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to
other sexual abuse; and (3) the child,[14] whether male or female, is or is deemed under 18 years of age.
Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse
or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or
influence of any adult, syndicate, or group.
Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned
in Art. III, §5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or
act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct
should be the subject of a separate information. This conclusion is confirmed by Art. III, §5(b) of R.A.
No. 7160, which provides:
[t]hat when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium period;
WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED
declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107,
Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of
May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby
declared void.
SO ORDERED. Sjcj
EN BANC

[G.R. No. 148991. January 21, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. LEONARDO NUGUID y

MAYAO, appellant.

DECISION
CARPIO, J.:

The Case

Before this Court for automatic review is the Decision[1] dated 16 May 2001 of the
Regional Trial Court of Manila, Branch 18, in Criminal Case No. 00-179698. The trial court
found Leonardo Nuguid y Mayao (“appellant”) guilty of the crime of serious illegal detention
with rape and imposed on him the death penalty.

The Charge

The Information charging appellant with the crime of serious illegal detention with rape
reads:
That on or about January 1, 2000, in the City of Manila, Philippines, the said accused, being then a
private individual and without authority of law, willfully, unlawfully, feloniously and illegally detain
(sic) ROWENA RIANZARES Y MIRANDA by then and there taking and locking her inside his room
located at 1932 Firmeza Street, Sampaloc, this City, and preventing her from going out of said room for
a period of three (3) hours, more or less, thereby depriving her of her liberty and during the said period
of time, said accused by means of force, violence and intimidation, to wit: by poking a knife,
threatening to kill her should she resist and choking her, did then and there willfully, unlawfully and
feloniously succeed in having carnal knowledge of her, against her will and consent.
Contrary to law.[2]

Arraignment and Plea

 When arraigned on 14 February 2000, appellant, with the assistance of counsel de
oficio, entered a plea of not guilty.[3]

The Trial

Version of the Prosecution

The prosecution presented four witnesses: (1) complainant Rowena Rianzares

(“Rowena”); (2) Dr. Mirasol Pangan of the U.P. Philippine General Hospital Obstetrics and
Gynecology Department, who examined the complainant; (3) Eldee Eusebio; and (4) Dante
Magat.

The Solicitor General summarized the prosecution’s version of the incident in the
People’s Brief as follows:
On December 31, 1999, about 7 o’clock in the evening, appellant and his companions (names not on
record) were having a drinking spree outside the house of Jun Rianzares xxx. (p. 5, TSN, May 22,
2000).
About 2 o’clock in the morning of the following day or right after the New Year’s eve celebration, Jun
Rianzares left their house to see a friend. His wife, Rowena Rianzares, was left behind sleeping inside
the room of their house with their daughter [six (6) years old] and son [three (3) years old] (pp. 3-
4, ibid.).
After a while, Rowena Rianzares heard a knock at the door of their room. Consequently, she rose from
the bed and partially opened the door to look [at] who was knocking. It was appellant. Appellant tried
to push open the door, telling Rowena Rianzares that her husband was asking for money to buy liquor.
Rowena Rianzares got suspicious because her husband had money at that time and he would not ask
money from her. Rowena Rianzares thus closed the door (pp. 3-5, ibid.)
Thereafter, Rowena Rianzares went back to sleep. A few minutes later, she heard appellant upstairs
repeatedly shouting that her husband was very mad because he did not have money to buy liquor. When
she heard appellant say that her husband was allegedly mad, she opened the door of their room and
went out. She went inside appellant’s room which was located in front of their room to confront him.
She told appellant: “Bakit hihingi ng pera si Kuya Jun mo may pera naman siya?” Immediately
thereafter, appellant rushed to her back and placed his left arm around her neck with his right hand
holding a kitchen knife, about twelve (12) inches long (pp. 5-6 and 12, ibid.).
Rowena Rianzares got surprised and, consequently, pushed appellant’s left arm. In the process, Rowena
Rianzares got off balance and fell down xxx the stairway screaming. She asked for help shouting her
husband’s name (p. 11,ibid.)
Appellant immediately went after Rowena Rianzares and upon catching up with her, appellant held her
hair and left arm. He then dragged her upstairs towards his (appellant’s) room (pp. 5-6, ibid.)
Inside the room, appellant asked Rowena Rianzares to undress while pointing the knife he was holding
at her right rear side of the body. He threatened to kill Rowena Rianzares if she did not undress herself.
Out of fear, she was forced to undress herself.
Then, appellant kissed the different parts of her body. Rowena Rianzares struggled and resisted. She
grappled for possession of the knife and succeeded in holding its bladed portion causing her injury on
the right palm. She persisted in grappling for possession of the knife but failed. In the process, she
sustained a further injury on her left arm. Instead of relenting, appellant pulled her and slapped the back
of her head. Thereafter, appellant dragged and forced her to lie down on the lower portion of the double
[deck] bed located inside appellant’s room (pp. 6-13, ibid.).
While Rowena Rianzares was xxx lying down xxx with her legs spread apart, appellant placed himself
on top of her. He placed his left foot under Rowena Rianzares’ left leg and his right foot on Rowena
Rianzares’ right leg. While in that position, appellant forced his private organ into Rowena Rianzares’
private part. Rowena Rianzares continued to shout for help but appellant poked the knife at the left side
of her body. While appellant was raping her, he pointed the knife at Rowena Rianzares’ private part and
told her that he wanted to get [a] thrill out of it because he could not get a full erection since he was
under the influence of “shabu.” Rowena Rianzares pleaded [with] appellant to stop and assured him
that she would help him get out xxx but appellant remained unmoved (pp. 13-17, ibid.).
About ten (10) minutes after Rowena Rianzares was dragged by appellant to his room, somebody
knocked at appellant’s door and shouted: “Bernie ano ba ang ginagawa mo dyan?” Appellant
answered back: “Umalis kayo kundi papatayin ko ito. “ (pp. 18-19, ibid.).
Eldee Eusebio, a neighbor of spouses Jun and Rowena Rianzares at Firmeza Street, Sampaloc, Manila
(p. 7, TSN, May 30, 2000), testified that on January 1, 2000, about 2:15 in the morning, he went to the
house of his Kuya Jose “Jun” Rianzares because he was summoned by the latter (p. 4, TSN, May 30,
2000). When he was about to enter the house, Eldee Eusebio heard Rowena Rianzares shout.
Immediately, Eldee Eusebio kicked the entrance gate of the house to open it. He then hurriedly went
upstairs and saw Rowena Rianzares using her feet in trying to prevent the door of appellant’s room
from closing. After the door was closed, he immediately knocked at the door. Appellant, however,
shouted, telling him to leave and nobody should go up; otherwise, he would kill Rowena Rianzares (pp.
4-5, ibid.).
Consequently, Eldee Eusebio went outside the house to look for Jun Rianzares because he did not see
him inside the house. When he found Jun Rianzares, he told him that there was a problem in his house
(p. 5, ibid.).
About thirty (30) minutes later, Rowena Rianzares’ husband arrived. Jun Rianzares knocked at
appellant’s door and asked appellant what was he doing to his wife. Appellant pounded the floor, using
the handle of the knife and shouted. He asked Jun Rianzares to leave him alone; otherwise, he would
kill his wife (pp. 18-19, May 22, 2000).
Thirty (30) minutes thereafter, Barangay Councilor Nida Magat, together with her husband, Dante
Magat, arrived. She and her relatives negotiated for Rowena Rianzares’ release. However, appellant
told them to leave; otherwise, he would kill Rowena Rianzares. While they were negotiating for
Rowena Rianzares’ release, appellant was still on top of her (Rowena Rianzares) (pp. 19-20, ibid.).
After more than an hour of failed negotiations by Barangay Councilor Nida Magat, the policemen took
over (pp. 2-4, TSN, July 11, 2000).
The policemen (names not on record) forcibly opened the door and immediately, thereafter, they got
hold of appellant. Before they could get hold of appellant, however, he (appellant tried to stab Rowena
Rianzares but the latter was able to evade the thrust. Instead, she was hit on her left arm. Then a certain
Colonel Castro pulled Rowena Rianzares and immediately covered her with a blanket (p. 20, TSN,
May 22, 2000).
xxx
Dr. Mirasol Pangan testified that she was the one who physically examined Rowena Rianzares. She
testified that she examined Rowena Rianzares’ body from head to foot. She found the following
injuries on her body:

1. one (1) hematoma on the right neck;

2. two (2) abrasions at the left lower hip approximately 0.5cm.;
3. one (1) abrasion at the left forearm;
4. one (1) abrasion hematoma-circular at the left lower arm;
5. multiple abrasion hematoma at the volar aspect of the second, fourth digits of right
hand and under the nose;
6. one (1) hematoma at the back and the anterior tract the largest of which measures 6
x1 cm.;
7. one (1) stab wound at the left forearm; and
8. one (1) hematoma measuring two cm. at the right labia minora of the genitalia.[4]

Version of the Defense

Appellant Leonardo Nuguid was the sole witness for the defense. The Public Attorney
summarized the defense’s version of what transpired, as follows:
Leonardo Nuguid testified that he knew the victim because he worked in the latter’s Manila K-9
college as their dog trainer. He had been working with the Rianzares [spouses] for five (5) years. (TSN,
September 11, 2000, pp. 1-4)
On December 31, 1999 at about 10:30 p.m., Rowena Rianzares entered his room. He asked her what
she wanted but Rowena did not answer and instead she kissed him on the lips. He had sex with Rowena
and the latter’s husband arrived. Jun called up for Rowena but the latter told her husband that she was
in the accused-appellant’s room talking with the latter. Jun left at around 11:00 pm and Rowena stayed
in his room until the police called by her husband arrived. He told Rowena to go out of the room but
the latter refused to do so. The police kept on convincing them to go out of the room but Rowena told
them that they were just talking and they would go out soon. The police kicked the door open and he
was arrested. He was brought to the police station wherein he was mauled and was forced to confess
that he raped Rowena. The first time he had sexual intercourse with Rowena was the middle of 1998
when they went to Bulacan. Rowena told her then that she saw in him what was lacking in her husband.
Rowena’s husband was an alcoholic and a drug user. He does not know why she filed [t]his serious
illegal detention with rape [charge] against him. (TSN, September 11, 2000, pp. 1-15)
He testified that he had worked with Rianzares from 1995-2000. There was a time he had an argument
with Jun so he was asked to leave the Rianzares’ house. (TSN, September 11,2000, pp. 15-16)
The first time he had sexual intercourse with Rowena was when they went to Bulacan to get rice from
Rowena’s parents. Prior to January 1, 2000, he had several sexual intercourse (sic) with Rowena.
Rowena gave him several lovenotes but he lost them all. (TSN, September 11, 2000, pp. 15-16)
On January 1, 2000, he did not notice that Rowena was bleeding when she emerged from the room. He
was holding a knife when the police arrested him because he was forced to fight back at the police who
were mauling him inside his room. He had a kitchen knife inside his room because Rowena’s husband
told him to bring the kitchen knife inside him (sic) room so that he could easily open the box of
firecrackers in case anybody came to buy. (TSN, September 11, 2000, pp. 24-30)[5]

The Trial Court’s Ruling

The trial court considered the testimonies of Rowena and the other prosecution witnesses
to be straightforward and credible. The physical injuries Rowena suffered, confirmed by the
examining physician and observed by the trial court, corroborated her version of the events.

On the other hand, the trial court found dubious appellant’s story that he and Rowena
were sweethearts. The trial court held that:
The accused’s sweetheart defense is of doubtful nature and undeserving of credence. Firstly, the
accused’s version of the incident is unnatural and contrary to common human experience. If it was true
that the complainant was in the accused’s room on the second floor at 11:00 p.m., when her husband
called her from the ground floor, she would surely had quickly gotten out of the room, instead of coolly
telling her husband that she was with the accused in the latter’s room. Secondly, the accused’s
declaration is contradicted not only by the straightforward, convincing and believable testimonies of
the complainant and prosecution witnesses Eusebio and Magat, but also by the physical evidence of the
injuries sustained by the complainant on the occasion of the commission of the crime, Exhibits “F” and
“F-1 “.[6]

The trial court ruled that the acts of the appellant in locking up Rowena against her will in
his room for three hours, threatening to kill her and then sexually assaulting her, constituted
the crime of serious illegal detention with rape. The dispositive portion of the trial court’s
Decision of 16 May 2001 reads:
WHEREFORE, the accused Leonardo Nuguid y Mayao, is hereby convicted of the crime of serious
illegal detention with rape under Article 267 of the Penal Code and sentenced to suffer the severe
penalty of death by lethal injection and accessory penalties provided by law and to pay the costs.
On the civil liability of the accused, he is also sentenced to pay the complainant, Rowena Rianzares y
Miranda, moral and nominal damages in the respective sums of P100,000.00 and P50,000.00, with
interest thereon at the legal rate of 6% per annum from this date until fully paid.
SO ORDERED.[7]

Hence, this automatic review.

The Issues

Appellant seeks the reversal of his conviction by contending that:

THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF SERIOUS ILLEGAL
DETENTION WITH RAPE WHEN THE LATTER’S GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.[8]

Appellant, arguing through the Public Attorney, alleged that the trial court erred in
rejecting his sweetheart defense, which was not unlikely since he spent most of his time with
Rowena. In the alternative, appellant claims he is liable only for simple rape because the
prosecution failed to show that his primary purpose was to detain Rowena, thus:
xxx It is undeniable that the accused-appellant’s primary purpose was to have carnal knowledge of
Rowena Rianzares. The accused-appellant immediately ordered Rowena Rianzares to undress and
raped her. As a matter of fact, even at the time the police forcibly opened the door, Rowena and the
accused-appellant were still both naked and the accused-appellant was still positioned on top of
Rowena.[9]

The Solicitor General agreed that appellant is only liable for simple rape under Article
335[10] of the Revised Penal Code because: (1) it necessarily follows from the Court’s ruling
in People v. Lactao[11]that there is no complex crime of illegal detention with rape;[12] and (2)
appellant did not release Rowena after the rape only because her husband and the police
were outside appellant’s room.

In the Reply Brief, the Public Attorney raised as an additional ground for reversal the
presiding judge’s alleged lack of impartiality in deciding the case.

The Ruling of the Court

The Court shall first discuss the Solicitor General’s contention that there is no complex
crime of serious illegal detention with rape. In People v. Lactao, the Court ruled as follows:
It may be worth to mention at the outset that there is no complex crime of rape with serious illegal
detention. If the purpose is to deprive the offended party of liberty, the crime committed is illegal
detention. And, if during the course of the illegal detention, the offended party is raped, a separate
crime of rape is committed; in this instance, two independent crimes are committed. However, if the
objective of the offender is to rape the victim only, and in the process, the latter had to be illegally
detained, only the crime of rape is committed since illegal detention is deemed absorbed in rape.
Hence, in People v. Ching Suy Sionga, Sionga was found guilty of two independent crimes, i.e., serious
illegal detention and acts of lasciviousness, because the two acts did not come within the purview of
Art. 48 of the Revised Penal Code which applies to complex crimes, for certainly, one cannot be
considered as a means to commit the other. xxx[13] (underscoring supplied)

The decision in Lactao, promulgated on 29 October 1993, explained the rules on the
treatment of serious illegal detention and rape at that time. Prior to the effectivity of Republic
Act No. 7659 (“RA 7659”) on 31 December 1993,[14] when the person kidnapped or illegally
detained was raped, two independent crimes of kidnapping and rape were committed.

RA 7659, however, amended the last paragraph of Article 267 of the Revised Penal Code
on serious illegal detention and kidnapping to read:
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture
or dehumanizing acts, the maximum penalty shall be imposed.

Under this provision, when the person kidnapped or illegally detained is raped, the
offense committed is the special complex crime of serious illegal detention or kidnapping
with rape, punishable with the maximum penalty of death.[15] The last paragraph of Article 267
applies only to instances where the person illegally detained or kidnapped is raped. It does
not provide for a complex crime of rape with serious illegal detention. As the Court ruled
in Lactao, there is no complex crime of illegal detention with rape under Article 48 of the
Revised Penal Code. There is also no complex crime of kidnapping with attempted rape
under Article 48 because there is no single act which results in two or more grave or less
grave felonies. Neither is illegal detention a necessary means for committing rape.[16]

Nonetheless, the Court concurs with the Public Attorney and the Solicitor General that the
crime committed in this case is not serious illegal detention with rape. Rather, appellant is
guilty of rape qualified by the use of a deadly weapon.

The elements of kidnapping and serious illegal detention under Article 267 of the Revised
Penal Code[17] are: (1) the offender is a private individual; (2) he kidnaps or detains another or
in any other manner deprives the latter of his liberty; (3) the act of detention or kidnapping
must be illegal; and (4) in the commission of the offense, any of the following circumstances is
present: (a) the kidnapping or detention lasts for more than 3 days; or (b) it is committed by
simulating public authority; or (c) any serious physical injuries are inflicted upon the person
kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained
is a minor, female, or a public officer.[18]

The essence of illegal detention is the deprivation of the victim’s liberty. The prosecution
must prove actual confinement or restriction of the victim, and that such deprivation was the
intention of the appellant.[19] The accused must have acted purposely or knowingly to restrain
the victim because what constitutes the offense is taking coupled with intent to restrain.[20]

We agree with the Public Attorney that the facts in the present case indicate that
appellant’s principal objective was not to deprive Rowena of her liberty. We quote from the
findings of the trial court:
xxx Caught by surprise, the complainant struggled to free herself from the hold of the accused and ran
down the stairway, but in her haste she stumbled and fell down. The accused followed her down; held
her hair and left hand and dragged her upstairs to his room, while she shouted for help. Once inside the
room, the accused forced the complainant to undressed (sic) and then he kissed all the parts of her
body. The complainant tried to resist and in the process, she sustained a wound in her left arm and a
knife wound in her right palm, Exhibit “F”. The accused forced the complainant to lie on a bed and
placed himself on top of her and at the same time position his knees between her legs and forced them
to separate. After which he proceeded to rape her, and while doing so, he remarked to
her, “Weng (complainant’s nickname), pasensiya ka na. Nakabato kasi ako.” (Please forgive me
because I am high on drug[s]). He further told her that he would insert the knife he was holding in her
vagina to enhance his excitement. xxx Finally, at around 5:00 a.m., the police officer forced open the
door and barged inside the room, and subdued the dumbfounded accused who was then on top of
the complainant.[21] (Emphasis supplied)
 From this narration, it is clear that appellant’s real aim was to have carnal knowledge of
Rowena. Appellant took Rowena no further than to his room - which was only across the hall
from Rowena’s room - where he immediately forced her to undress. In fact, appellant was so
intent on raping her that he was still naked and on top of her when the police broke into the
room.[22] Taken together, these circumstances engender doubt that the intention of appellant
was to detain Rowena. The detention was merely incidental to the real objective of appellant.

It is true that appellant kept Rowena inside his room for more than an hour while the
police tried to negotiate with him. However, this does not constitute illegal detention in light of
the fact that appellant was on top of Rowena raping her even while he was shouting at the
police and other people outside. This is borne out by Rowena’s testimony:

Q: Could you tell us what was the position of the accused when the policemen forcibly
opened the door?

A: He was on top of me.

Q: For how long [did] the accused stayed (sic) on top of you?

A: Almost two hours from the very start.[23] (Emphasis supplied)

Appellant maintained this position until the police barged into the room and subdued him.
[24] Given these facts, appellant is not liable for the crime of serious illegal detention with rape.

However, appellant is still liable for the crime of rape. When the information charges a
complex crime and the evidence fails to support one of the component offenses, the
defendant is still liable for the other offense supported by the evidence.[25] Thus, in People v.
Oliva,[26] the Court found Carlito Oliva guilty of statutory rape even if the information charged
him of kidnapping with rape.

Articles 266-A and 266-B of the Revised Penal Code, as amended by RA 8353, provide:
Article 266-A. Rape; When And How Committed. - Rape is Committed -
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat, or intimidation;
xxx.
Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
xxx. (Emphasis supplied)

The trial court held that appellant, with the use of a knife, succeeded in raping Rowena in
the early hours of 1 January 2000. The trial court found the testimonies of Rowena and the
other prosecution witnesses “straightforward, convincing and believable” and supported by
the evidence of the injuries sustained by Rowena.[27]
 The weighing of the testimonies of witnesses is best left to the trial court since it is in the
best position to discharge that function.[28] The trial judge has the advantage of personally
observing the conduct and demeanor of witnesses, an opportunity not available to an
appellate court.[29] Absent compelling reasons, we will not disturb on appeal the trial court’s
findings on the credibility of a witness.

The Public Attorney argues that Judge Laguio was biased against appellant, and that it
was clear from the judge’s remarks that he had already concluded that appellant was lying
before appellant had finished presenting his evidence, to wit:

PROS GURAY:

Q: You mean to tell the court that the husband on December 31, 1999 in the evening he left
the house?

A: After we have a drinking spree he left the house.

xxx

THE COURT:

Q: What time was that?

A: I cannot remember.

Q: Was it past 11:00?

A: I cannot remember the time.

Q: You do not know what time the husband left the house?

A: I cannot remember.

xxx

Q: But you said that it was around 10:30 when Rowena entered your room?

A: Yes, sir.

Q: So how did you know the time? [Y]ou h[a]ve a wristwatch?

A: In my room there was a wall clock.

Q: So you know that the husband of Rowena went out or left the house before 10:30?

A: Yes, sir. Before he left we were drinking together.

Q: Yes. And you said that it was after the two of you drank together that he left?

A: Yes, sir.
 Q: And then you, went up in the room?

A: Yes, sir.

Q: And how many minutes after you entered your room did Rowena entered (sic) your
room?

A: 10:30 ho.

Q: Ilang minuto ang nakaraan pagpasok mo sa kuwarto mo na pinasok ka ni

Rowena. Huwag ka ng magmamaangmaangan eh. Nagtatanga-tangahan ka pa
eh. O Ilang minuto ang lumipas? Hindi ka naman mukhang tanga eh. Mukha ka ngang
intelihensiya eh.

A: Hindi ko na ho alam eh.

Q: Kaya nga huwag ka ng magtangatangahan. Pagkapasok mo sa kuwarto ilang minuto

ang lumipas bago pumasok sa kuwarto mo si Rowena

A: 10 minutes, sir.

Q: That means that you knew that the husband of Rowena left the house before 10:30 p.m.?

A: (Witness cannot answer)

THE COURT:
Make it on record that the witness cannot answer. Alam mo yung mga taong
nagsisinungaling ganyan hindi makasagot pag nakokorner. People who tell a lie they
cannot usually answer when they are cornered. I don’t think there is a need to further
cross-examine this witness.[30] (Emphasis supplied)

Aside from these admittedly deplorable comments, the Court finds no other indications of
partiality or bias in the records of the case. The subject remarks were made after appellant
was subjected to extensive direct and cross-examination.[31] The examination of appellant
was no more rigorous than that of Rowena’s, in which Judge Laguio also frequently
intervened by posing clarificatory questions. The trial court did not prohibit appellant from
presenting additional evidence or witnesses, although appellant chose not to do so. At the
request of appellant’s counsel, Judge Laguio ordered a continuance for the defense to
continue its presentation of evidence after appellant’s testimony.[32]

Further, contradictions and inconsistencies marred appellant’s testimony. Appellant

initially stated that at 1:00 o’clock in the morning on 1 January 2000 he was “helping in the
house doing household chores like cleaning the plates and cleaning the house.” [33] This
conflicts with his narration that Rowena entered his room at 10:30 o’clock in the evening on
31 December 1999 and stayed with him until the police arrived and kicked his door open.
[34] Appellant also stated that he had never gone out with Rowena in the 5 years that he had
worked for her husband.[35] However, appellant later testified that he accompanied Rowena to
her parents’ house in Bulacan in 1998, where they had sexual intercourse for the first time.
[36] Likewise, appellant originally claimed that he and Rowena had two sexual encounters in
1998 - once in Bulacan and 3 weeks afterwards in the house of Rowena and her husband.
 He changed this later to many times, more than 20 times, and then to about 50 times in
[37]
1998.[38] Finally, appellant failed in four instances to answer the questions propounded to him
during cross-examination.[39]

We stress that this does not excuse the assailed remarks of Judge Laguio. More
circumspect conduct is expected from a judge of our courts. It is the duty of all judges not only
to be impartial but also to appear impartial.[40] In the future, Judge Laguio should adhere more
closely to the rule that “a judge should so behave at all times as to promote public confidence
in the integrity and impartiality of the judiciary.”[41]

Nevertheless, after a thorough review of the records, the Court finds no cogent reason to
reverse the assailed Decision insofar as it found appellant to have raped Rowena. The
testimony of Rowena, corroborated by the results of the medical examination and the
testimonies of other witnesses, establish beyond reasonable doubt that: (1) appellant forcibly
succeeded in having carnal knowledge of Rowena on 1 January 2000; and (2) that appellant
committed the crime with the use of a deadly weapon, a knife.

In contrast to appellant’s erratic testimony, Rowena was candid and steadfast in her claim
that appellant raped her, thus:

Q: And what did you [do] after the accused uttered Ate Weng galit na sa iyo si Kuya Jun?

A: I opened the door and went out of our room and I asked Bernie Bakit hihingi ng pera si
Kuya Jun mo may pera naman siya.

THE COURT:

Q: At that time where was the accused?

A: When I talked to him he was inside his room and all of the (sic) sudden he was at my
back.

THE COURT:

Continue.

PROS. GURAY:

Q: And what did [he] do after that?

A: He placed his left arm around my neck and his right hand which was holding a knife
(stop) and I saw his right hand holding a knife.

Q: And how did you react when the accused placed his left hand [on] your neck and you
saw him holding a knife?

A: I was surprised. (“Nagulat po ako.”)

Q: And what did you do?

A: And at the same time I pushed the left area of the accused and in the process I fell to the
stairway all the way down.

Q: And what did the accused do after you fell down?

A: He immediately went down as he held my hair and my left arm and he dragged me
upstairs.

Q: And to what place upstairs did the accused drag you?

A: To his room.

Q: By the way, how far is his room [from] your room?

A: The room of the accused is in front of my room.

xxx

Q: When he succeeded in dragging you inside his room what happened next?

A: He asked me to undress.

Q: And did you oblige?

A: He poked the knife he was holding at me and he threatened me. He threatened to kill
me.

THE COURT:

Q: So what did you do?

A: I undressed.

Q: While he was poking his knife at you and threatening to kill you. What exactly [were] the
words uttered by him?

A: Sige, maghubad ka. Kung hindi papatayin kita.

Q: And what was he doing with his knife while he was uttering those words?

A: He was poking his knife at the right rear side of my body.

Q: And how did you feel at that time?

A: I was very frightened. And I was trembling.

Q: Now, you said that he was poking a knife at your back. Did you sustain injuries?

A: Yes, sir.
Q: Do you still have scars up to the present?

A: Yes, sir.

PROS. GURAY:

May I be allowed, Your Honor to (interrupted)

THE COURT:

We will have a lady staff to look [at] the scars. xxx (At this instance the court interpreter,
Ma. Elena Arcenal, accompanied the complainant inside the chambers of the presiding
judge to take a look at the scars sustained by the complainant xxx)

xxx

THE COURT:

Later the court interpreter informed the court that the complainant [had] 2 scars, one is on
the middle right side of her body and the other one is on the upper left side of her back.

PROS. GURAY:

Upper right side.

THE COURT:

Yes, upper right side.

PROS. GURAY:

Q: Now, by the way when you fell on the stairs and you were grabbed by the accused did
you shout?

A: Yes, sir.

Q: What did you shout?

A: I shouted Jun, tulungan mo ako.

xxx

Q: xxx Now after you removed your dress what did the accused [do]?

A: He kissed all the parts of my body.

Q: And what did you do after that?

A: I struggled and resisted.

Q: What did the accused do?

A: I grappled with him for the possession of the knife he was holding.

Q: Were you able to grab possession of the knife?

A: I was able to hold it but in the course of our grappling my left arm sustained (stop) the
handle of the knife forcefully hit the left portion of my arm. (Witness showing to the court
slight visible scar)

THE COURT:

Will the defense and the prosecution confirm the observation of the court?

ATTY. GARCIA:

Yes, Your Honor.

PROS. GURAY:

It is very apparent.

xxx

Q: You also mentioned that you also sustained injury on your right hand. What cause[d] the
injury on your right hand?

A: Because I was able to get hold of the bladed portion of the knife and it sliced my right
palm.

Q: By the way, will you please describe to the court the knife that was used by the accused
in threatening or intimidating you?

A: The bladed portion of the knife is about 12 inches more or less and the handle is about 6
inches more or less.

xxx

Q: So when you were not successful in grappling the knife from the accused what did the
accused do next?

A: He pulled my hair and slapped the back of my head.

Q: And what else did he do?

A: He dragged me and forced me to lie down on the double bed.

xxx

Q: And after he dragged you to the lower bed what else did you do?
A: Yung pong paa ko eh ginanoon niya po sa paa nya. Kinross niya po.

THE COURT:

Q: You mean doon sa pagitan ng ano mo!

A: Yuong d[a]lawa ko pong paa ginanyan nya po yung paa ko.

Q: Sige i-demonstrate mo.

A: Inangkla po.

Q: Kaya nga pinagitan nya yong sa paa niya sa side mo?

A: Hindi po. Ganito po. Yung paa niya ginanyan po niya.

Q: Kaya nga. Di nakabuka yung paa mo.

PROS. GURAY:

Q: Di ba nakabukhang ganyan?

THE COURT:

Oo.

PROS. GURAY:

Tapos yung paa niya nakaganoon.

A: Opo.

PROS. GURAY:

Pareho.

A: Opo.

PROS. GURAY:

I do that myself so I know. (Atty. Garcia laughs)

ATTY. GARCIA:

Very incriminating. (laughs)

THE COURT:
 Witness demonstrating by opening her legs and then pointing out that the accused placed
his left foot under the left leg of the complainant and then locked it by raising his left leg
of the accused and the same thing was done on her right leg.

THE COURT:

Q: So you were unable to move both your legs when the accused did that?

A: Yes, sir.

Q: And at that juncture at that time you did not have anymore underwear?

A: I did not have anymore underwear.

xxx

PROS. GURAY:

xxx

Q: Now what did the accused do next after placing his two legs in between your legs?

A: He raped me.

Q: When you said he raped you, you mean his private parts were forced into your private
part?

A: Yes, sir.

Q: And what did you do when the accused inserted his penis into your private part?

A: I continued struggling and resisting but he poked the knife he was holding at the left side
of my body. And I was so frightened.

Q: And after that what happened?

A: He did everything to me. He kissed me, he inserted his fingers in my sex organ.
Everything.

THE COURT:

Q: After he satisfied his lust on you what did the accused do?

A: He did not allowed (sic) me to leave the room.

PROS. GURAY:

Q: What else did he do with that knife to you?

 A: While he was in the act of raping me the accused at one time pointed the knife he was
holding at my private part and he said that he would insert it in my private part to get [a]
thrill out of it because he was high on shabu. Because he could not have a complete or
full erection because he was under the influence of shabu (“Bato”).

THE COURT:

Q: But despite the fact that he was not able to have a complete or full erection he
succeeded in penetrating you with his sex organ?

A: Yes, sir.[42]

Rowena’s account of her resistance and struggle with appellant was consistent with the
results of the physical examination. Dr. Mirasol Pangan, the examining physician, testified on
the gynecologic emergency sheet[43] of Rowena dated 1 January 2000 and discussed the
findings, as follows:

Q: Could you tell us your findings on the victim?

A: There’s the hematoma at the right neck, two abrasions at the left lower lip approximately
0.5cm. There’s abrasion at the left for[e]arm, an abrasion hematoma circular at the left
lower arm, multiple abrasions at the volar aspect of the second ... fourth digits of right
hand, under the nose, hematoma at the back and the anterior tract the largest of which
measured 6x1 cm. There’s a stab wound at the left forearm. In the examination of the
genitalia, there’s the two cms. hematoma at the right la[b]ia minora.

Q: How about the organ of the victim, did you ... (interrupted)

A: Yes, the last part I read was the genitalia, that referred to the organ of the victim, the
right la[b]ia minora have two cms. abrasions hematoma. In reference to the vagina, the
cervix, the uterus and the ovary which have no significant findings.

xxx

Q: You have a note here at the lower portion of the report “Sexual and Physical abuse on
the victim”, was this your conclusion based on the physical examination?

A: Based on the areas involved, the findings that we have, the arm and the trunk aside from
the findings on the genital organ.

xxx

Q: Could normal intercourse cause such injuries to the organ of the victim without use of
violence?

A: No, sir.

xxx

PROS. GURAY:
 Q: xxx you stated, Doctor that the kind of injuries in the genitalia of the victim could not have
been caused by a normal sexual intercourse. [M]y question is, could it be the result of
forceful and unwelcome penetration by a firm penis?

A: Yes, sir, it could be caused.

Q: It could be caused by a forceful thrust of a human finger?

A: Yes, sir, it could also be caused.[44]

Appellant’s claim that he and Rowena had consensual sex was contradicted not only by
Rowena but also by neighbor Eldee Eusebio, who testified that: (1) he heard Rowena scream
for help; (2) he saw her trying to sandwich her feet against the door to keep the door to
appellant’s room from closing; and (3) appellant shouted “papatayin niya lahat ng tao sa
loob” when he knocked on the door.[45] Together with the physical injuries sustained by
Rowena - which appellant said he did not even notice[46] - these statements belie appellant’s
assertion of consensual sex.

The sweetheart defense employed by appellant also deserves scant consideration. Aside
from being inherently weak, it was uncorroborated by any evidence other than the self-serving
testimony of appellant. Appellant admitted that he had no notes, letters, gifts or any other item
to show for an affair that had allegedly been ongoing since 1998.[47]

The Information specifically alleged the use of a deadly weapon, a knife, in the
commission of the rape and the prosecution proved that appellant used such a weapon.
Under Article 266-B, the use of a deadly weapon qualifies the rape and the penalty
is reclusion perpetua to death.

Since reclusion perpetua to death are two indivisible penalties, Article 63 of the Revised
Penal Code applies. Article 63 provides:
1. When in the commission of the deed there is present only one aggravating circumstance, the
greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed,
the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the commission of the act, the
courts shall reasonably allow them to offset one another in consideration of their number and
importance, for the purpose of applying the penalty in accordance with the preceding rules, according
to the result of such compensation.

In rape with the use of a deadly weapon, the presence of an aggravating circumstance
increases the penalty to death.[48] In the present case, appellant raped Rowena in her
dwelling, which is an aggravating circumstance under Article 14 (3) of the Revised Penal
Code.[49] However, the Information did not specifically allege dwelling as an aggravating
circumstance. In People v. Gallego,[50] the Court ruled that where the information did not
allege the aggravating circumstance of dwelling, dwelling could not raise the penalty to death.
The Court held:
xxx The accused must thence be afforded every opportunity to present his defense on an aggravating
circumstance that would spell the difference between life and death in order for the Court to properly
“exercise extreme caution in reviewing the parties’ evidence.” This, the accused can do only if he is
appraised of the aggravating circumstance raising the penalty imposable upon him to death. Such
aggravating circumstance must be alleged in the information, otherwise the Court cannot appreciate it.
The death sentence being irrevocable, we cannot allow the decision to take away life to hinge on the
inadvertence or keenness of the accused in predicting what aggravating circumstance will be
appreciated against him.[51]

The 2000 Revised Rules of Criminal Procedure now require the complaint or information
to state the qualifying and aggravating circumstances attending an offense.[52] When the law
or rules specify certain circumstances that can aggravate an offense, or circumstances that
would attach to the offense a greater penalty than that ordinarily prescribed, such
circumstances must be both alleged and proved to justify the imposition of the increased
penalty.[53]

Further, the circumstance of dwelling could not be considered in the present case even if
it were properly alleged in the Information. Where the offender resided in the same house as
the victim when the offense was committed, dwelling could not be considered as an
aggravating circumstance.[54] It is undisputed in this case that appellant was a “live-in” dog
trainer and that he stayed in the Rianzares’ house in a room across Rowena’s room.
Therefore, the penalty imposable on appellant is reclusion perpetua.

A word on the examination of Rowena. A rape victim is physically, socially, psychologically

and emotionally scarred, resulting in trauma which may last a lifetime.[55] It was thus highly
inconsiderate for the prosecutor and the defense counsel to trade quips at the precise time
Rowena was reliving her harrowing experience.[56] Courts are looked up to by people with
high respect and are regarded as places where litigants are heard, rights and conflicts settled
and justice solemnly dispensed.[57] Levity has no place in the courtroom during the
examination of a victim of rape, and particularly not at her expense.

The trial court awarded moral and nominal damages but failed to award indemnity ex
delicto. An award of indemnity ex delicto is mandatory upon a finding of guilt in rape cases.
[58] We thus award P50,000 to Rowena as civil indemnity. In accordance with prevailing
jurisprudence, the award of moral damages is reduced to P50,000. The award of nominal
damages is deleted for lack of legal basis.

WHEREFORE, the Decision dated 16 May 2001 of the Regional Trial Court of Manila,
Branch 18, in Criminal Case No. 00-179698, is MODIFIED. Appellant LEONARDO NUGUID y
MAYAO is adjudged guilty of RAPE, and sentenced to suffer the penalty of reclusion
perpetua and to pay Rowena Rianzares P50,000 as civil indemnity and P50,000 as moral
damages.

SO ORDERED.
FIRST DIVISION

[G.R. No. 117033. February 15, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL AVECILLA y

MOBIDO, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

Accused-appellant was charged with the crime of Qualified Illegal Possession of Firearm,
committed as follows:
That on or about December 24, 1991, in the City of Manila, Philippines, the said accused, not being
allowed or authorized by law to keep, possess and carry a firearm, did then and there wilfully,
unlawfully, and knowingly have in his possession, control and custody a firearm, to wit:
One (1) .38 Caliber Revolver Colt (Paltik) marked made in USA
without first obtaining the necessary license and/or permit to carry and possess the same and in
connection and by reason of such possession, did then and there wilfully, unlawfully and feloniously,
with intent to kill, fire and shoot one Macario Afable, Jr. y Canqui, thus inflicting upon the latter mortal
gunshots and injuries which caused the death of the latter as a consequence.[1]

It appears from the records that at about 11:00 o’clock in the evening of December 24, 1991,
accused-appellant arrived at the basketball court located on Dapo Street, Pandacan, Manila, and, for no
apparent reason, suddenly fired a gun in the air. He then went to a nearby alley and, minutes later,
proceeded to the closed store about four (4) meters away from the basketball court. There, he initiated
an argument with the group of Boy Manalaysay, Jimmy Tolentino and Macario Afable, Jr. Afable tried
to pacify accused-appellant, whereupon, the latter placed his left arm around Afable’s neck and shot
him pointblank on the abdomen. Afable ran toward the alley and accused-appellant ran after
him. Another shot rang out, so one of the bystanders, Carlos Taganas, went to the alley and there, he
saw accused-appellant and Afable grappling for possession of the gun. The Chief Barangay Tanod
arrived and was able to wrest the gun away from accused-appellant, who immediately fled from the
scene of the incident. Afable was rushed to the Philippine General Hospital, where he eventually
expired.

On June 21, 1994, the Regional Trial Court of Manila, Branch 38, rendered judgment convicting
accused-appellant of the crime of Qualified Illegal Possession of Firearm, sentencing him to suffer the
penalty of reclusion perpetua, and ordering him to indemnify and pay damages to the victim’s heirs.
[2] Hence, this appeal filed by accused-appellant.
 The records and the evidence show that the elements of the offense of qualified illegal possession
of firearms, defined in the second paragraph of Section 1, Presidential Decree No. 1866, are present in
this case. Specifically, there are:

1. there must be a firearm;

2. the gun was possessed by the accused;

3. the accused had no license from the government; and

4. homicide or murder was committed by the accused with the use of said firearm.[3]

The prosecution sufficiently established by evidence that accused-appellant had in his custody and
possession the following firearms and ammunitions:

1. One (1) .38 cal. Rev., Colt “paltik” without serial number, nickel plated with brown handle, two and
one half inches barrel and marked “BC”;

2. Three (3) .38 Caliber cartridge cases marked BC-1, BC-2, BC-3;

3. Two (2) .38 cal. Ammo. (used for test);

4. One (1) .38 cal. slug (deformed) marked “F” from Medico legal.[4]

Likewise, per Certification of the Firearms and Explosives Office dated September 1, 1992,[5] it
was proved that accused-appellant was not a licensed or registered firearm holder of any kind and
caliber.

Finally, there was an eyewitness account positively asserting that accused-appellant had the subject
firearm in his possession and used it in shooting the victim.[6] The medical examination on the victim
disclosed that the gunshot wounds he sustained were caused by the same unlicensed firearm in
accused-appellant’s possession, and that the same were the direct cause of the death of the victim. The
ballistics report established that the deformed .38 caliber slugs found in the victim’s body were fired
from the subject firearm.[7] The victim’s cause of death was determined as “cardio-respiratory arrest
due to shock and hemorrhage secondary to gunshot wound, left antero-lateral thorax.”[8]

However, the law on illegal possession of firearms has been amended by Republic Act No. 8294,
which took effect on July 6, 1994. The pertinent provision of the said law provides:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. – The penalty ofprision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .
380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided,that
no other crime was committed.

xxx xxx xxx

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.
If the violation of this Section is in furtherance of or incident to, or in connection with the crime
of rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed as an
element of the crime of rebellion, or insurrection, sedition, or attempted coup d’etat. (Underscoring
provided)

It is clear from the foregoing that where murder or homicide results from the use of an unlicensed
firearm, the crime is no longer qualified illegal possession, but murder or homicide, as the case may
be. In such a case, the use of the unlicensed firearm is not considered as a separate crime but shall be
appreciated as a mere aggravating circumstance. In view of the amendments introduced by Republic
Act No. 8294 to Presidential Decree No. 1866, separate prosecutions for homicide and illegal
possession are no longer in order. Instead, illegal possession of firearms is merely to be taken as an
aggravating circumstance in the homicide case.[9]

Thus, in People v. Nepomuceno, Jr.,[10] we stated:

But, pursuant to the amendment, the use of an unlicensed firearm in the commission of murder or
homicide is treated as an aggravating circumstance. There, the illegal possession or use of the
unlicensed firearm is no longer separately punished. This Court emphatically said so in People v.
Bergante (286 SCRA 629 [1998]), thus:
The violation of P.D. No. 1866 should have been punished separately conformably with our ruling
in People v. Quijada. Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was recently
amended by Republic Act. No. 8294, otherwise known as “An Act Amending the Provisions of
Presidential Decree No. 1866, as Amended.” The third paragraph of Section 1 of said Act provides that
“if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.” In short, only one offense should be
punished, viz., either homicide or murder, and the use of the unlicensed firearm should only be
considered as an aggravating circumstance. Being favorable to Rex Bergante, this provision may be
given retroactive effect pursuant to Article 22 of the Revised Penal Code, he not being a habitual
criminal.

The crime of illegal possession of firearm, in its simple form, is committed only where the
unlicensed firearm is not used to commit any of the crimes of murder, homicide, rebellion, insurrection,
sedition or attempted coup d’etat. Otherwise, the use of unlicensed firearm would be treated either: (1)
as an essential ingredient in the crimes of rebellion, insurrection, sedition or attempted coup d’etat; or
(2) as an aggravating circumstance in murder or homicide.
With respect to the conviction of accused-appellant for illegal possession of firearms under P. D. No.
1866, it was held in the case of People vs. Molina (292 SCRA 742) and reiterated in the recent case
of People vs. Ronaldo Valdez (G.R. No. 127663, March 11, 1999, 304 SCRA 611), that in cases where
murder or homicide is committed with the use of an unlicensed firearm, there can be no separate
conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the
amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in
murder or homicide is simply considered as an aggravating circumstance in the murder or homicide
and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be
imposed provided that no other crime is committed (Section 1 of R.A. No. 8294). In other words,
where murder or homicide was committed, the penalty for illegal possession of firearms is no longer
imposable since it becomes merely a special aggravating circumstance (People v. Molina, supra, at p.
782).
It bears stressing, however, that the dismissal of the present case for illegal possession of firearm
should not be misinterpreted to mean that there can no longer be any prosecution for the offense of
illegal possession of firearms. In general, all pending cases involving illegal possession of firearms
should continue to be prosecuted and tried if no other crimes expressly provided in R. A. No. 8294 are
involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition or attempted coup
d’ etat, under Section 3) (People v. Valdez, supra).[11]

Inasmuch as the amendatory law is favorable to accused-appellant in this case, the same may be
retroactively applied. This new law applies even to violations that occurred prior to its effectivity as it
may be given retroactive effect under Article 22 of the Revised Penal Code.[12]
R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on May
5, 1991. As a general rule, penal laws will generally have prospective application except where the
new law will be advantageous to the accused. In this case R.A. 8294 will spare accused-appellant from
a separate conviction for the crime of illegal possession of firearm. Accordingly, said law should be
given retroactive application.[13]

Neither can accused-appellant be charged with simple illegal possession. As stated above, the
same may only done where no other crime is committed.[14]

With more reason, accused-appellant cannot be convicted of homicide or murder with “the use of
the unlicensed firearm as aggravating,” inasmuch as said felonies are not charged in the information but
merely mentioned as the result of the use of the unlicensed firearm. Accused-appellant was not
arraigned for homicide or murder. Hence, he cannot be convicted of any of these crimes without
violating his right to be informed of the nature and cause of the accusation against him, not to mention
his right to due process.

WHEREFORE, in view of the foregoing, the appealed decision is REVERSED. Criminal Case
No. 92-105691, for Qualified Illegal Possession of Firearm, is DISMISSED.

SO ORDERED.
SECOND DIVISION
SPO4 MARINO SOBERANO, G.R. No. 154629
SPO3 MAURO TORRES and
SPO3 JOSE ESCALANTE, Present:
Petitioners,
PUNO,
Chairman,
AUSTRIA-MARTINEZ,
- versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
THE PEOPLE OF THE Promulgated:
PHILIPPINES,
Respondent. October 5, 2005
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

In November 2000, the prominent public relations practitioner, Salvador “Bubby”

Dacer, together with his driver, Emmanuel Corbito, was abducted along Zobel Roxas St.

in the City of Manila. Their charred remains, consisting of burnt bones, metal dental

plates and a ring, were later found in Barangay Buna Lejos, Indang, Cavite. They were

positively identified by their dentists and by forensic pathologists from the University of

the Philippines.[1] Both victims were killed by strangulation.[2]

A preliminary investigation was conducted by the Department of Justice (DOJ)

through a panel of prosecutors made up of State Prosecutor II Ruben B. Carretas, State

Prosecutor Geronimo L. Sy and Prosecution Attorney Juan Pedro C. Navera.

 On 11 May 2001, an Information[3] was filed by the panel of prosecutors with the

Regional Trial Court (RTC), City of Manila.[4] The following were charged with double

murder:

Jimmy L. Lopez
Alex B. Diloy
William L. Lopez
(all detained)

SPO4 Marino Soberano

SPO3 Mauro Torres
SPO3 Jose Escalante
Crisostomo M. Purificacion
Digo De Pedro
Renato Malabanan
Jovencio Malabanan
Margarito Cueno
Rommel Rollan
(all under the custody of PNP-CIDG Camp Crame, Quezon City)

P/Supt. Glen Dumlao

P/C. Insp. Vicente Arnado
P/Insp. Roberto Langcauon
SPO4 Benjamin Taladua
SPO1 Rolando Lacasandile
P/Insp. Danilo Villanueva
SPO1 Mario Sarmiento
SPO1 William Reed
PO2 Thomas J. Sarmiento
SPO1 Ruperto A. Nemeno
John Does and James Does
(all at large)

The Information reads:

 That on or about November 24, 2000 in Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, some of whom
are public officers, being then members of the Philippine National Police (PNP)
Force assigned at Presidential Anti-Organized Crime Task Force, Camp Crame,
Quezon City, (SPO4 Soberano, SPO3 Torres, SPO3 Escalante, P/Supt. Dumlao,
P/C. Insp. Arnado, P/Insp. Langcauon, SPO4 Taladua, SPO3 Villanueva, SPO1
Sarmiento, SPO1 Reed, PO3 Lacasandile, PO1 Sarmiento and SPO1 Nemeno),
with evident premeditation, treachery, abuse of superior strength, nighttime and
remoteness of the place and with deliberate intent to kill, conspiring,
confabulating and confederating with one another, the accused police officers
using their offices in committing the offense, did then and there, willfully,
unlawfully and feloniously kill SALVADOR (Bubby) DACER and EMMANUEL
CORBITO by strangulation, which was the immediate cause of their death, and
thereafter dispose of their body (sic) by incineration, to the damage and prejudice
of the latter’s respective heirs.

The case was raffled to RTC, Branch 41, Manila, presided by Judge Rodolfo A.

Ponferrada.

On 23 May 2001, the prosecution filed a Motion to Admit Amended

Information[5] which was granted and the Amended Information was admitted by the

trial court.

The Amended Information[6] reads:

That on or about November 24, 2000 in Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, some of whom
are public officers, being then members of the Philippine National Police (PNP)
Force assigned at Presidential Anti-Organized Crime Task Force, Camp Crame,
Quezon City, (SPO4 Soberano, SPO3 Torres, SPO3 Escalante, P/Supt. Dumlao,
P/ C. Insp. Arnado, P/Insp. Langcauon, SPO4 Taladua, SPO3 Villanueva, SPO1
Sarmiento, SPO1 Reed, PO3 Lacasandile, PO1 Sarmiento and SPO1
Nemeno), abduct SALVADOR (Bubby) DACER and EMMANUEL
CORBITO at the corner of Osmeña Highway (formerly South Super
Highway) and Zobel Roxas Street in Manila, and later brought them to
 Indang, Cavite, and with evident premeditation, treachery, abuse of superior
strength, nighttime and remoteness of the place and with deliberate intent to kill,
conspiring, confabulating and confederating with one another, the accused police
officers using their offices in committing the offense, did then and there,
willfully, unlawfully and feloniously kill said SALVADOR (Bubby) DACER and
EMMANUEL CORBITO by strangulation, which was the immediate cause of
their death, and thereafter dispose of their body by incineration, to the damage
and prejudice of the latter’s respective heirs.

On 24 May 2001, Soberano, Escalante, Torres, Purificacion, Renato Malabanan,

Jovencio Malabanan and Rollan moved to quash the Information.

Accused P/Supt. Glen Dumlao was subsequently arrested. He later executed a

sworn statement implicating other police officers to the Dacer-Corbito double murder,

specifically P/Supt. Michael Ray B. Aquino, P/Supt. Cesar Mancao, PO3 Larry Ambre

and a certain Rigor,[7] all former members of the defunct Presidential Anti-Organized

Crime Task Force (PAOCTF).

On 18 June 2001, one of the accused, P/Insp. Danilo Villanueva, filed a Motion for

Reinvestigation asserting that he was mistakenly identified as a participant in the double

murder. He stressed that it was not him but a certain “SPO3 Allan Cadenilla Villanueva”

who was previously identified by several witnesses as one of the culprits.[8] This was

granted by the trial court.

On 26 June 2001, in view of the sworn statement executed by Dumlao, the

prosecution filed a Motion for Reinvestigation[9] which was granted by the trial court in

its Order[10] dated 04 July 2001. The prosecution was ordered to terminate the
reinvestigation and submit its findings within twenty (20) days. The arraignment was

set on 30 July 2001.

On 28 June 2001, the trial court denied the joint Motion to Quash the Information

earlier filed by Soberano, Escalante, Torres, Purificacion, Renato Malabanan, Jovencio

Malabanan and Rollan.

On 02 August 2001, the National Bureau of Investigation filed a new complaint

with the DOJ against a new suspect in the same case, by the name of P/Sr. Supt. Teofilo

Viña, who was also a member of the PAOCTF.

After the reinvestigation, the prosecution filed a Motion to Discharge dated 13

August 2001, praying that P/Insp. Danilo Villanueva[11] be discharged from the

Information, and that he be immediately released from detention. In its Order[12] dated

16 August 2001, the trial court granted the motion.

A Manifestation and Motion to Admit Amended Information[13] dated 17

September 2001 was filed by the prosecution. The Amended Information ---

(1) discharged accused Jimmy L. Lopez, Alex B. Diloy, William L. Lopez

and Glen Dumlao as they are now witnesses for the State;

(2) substituted SPO3 Allan Villanueva for P/Insp. Danilo Villanueva; and

(3) charged as additional accused P/Supt. Michael Ray Aquino, P/Supt.

Cezar Mancao II and P/Sr. Supt. Teofilo Viña.

 Accused Soberano, Torres, Escalante, Purificacion, Renato and Jovencio

Malabanan opposed the Manifestation and Motion to Admit Amended Information in an

Opposition[14]dated 28 September 2001. They prayed that the Motion to Admit

Amended Information and the discharge of accused Dumlao, Diloy and the brothers

Lopez be denied.

In its Order dated 01 October 2001, the trial court denied the Motion to Admit

Amended Information. The prosecution filed a Motion for Reconsideration which was

denied in an Order[15] dated 24 October 2001.

On 16 November 2001, the prosecution moved in open court to inhibit Judge

Ponferrada from hearing the case. Acting on this motion, Judge Ponferrada, on 22

November 2001, ordered that the case be re-raffled. The case was re-raffled to Branch

18, RTC, Manila, presided by Judge Perfecto A.S. Laguio.

On 04 January 2002, the prosecution filed a special civil action for certiorari with

prayer for issuance of a temporary restraining order before the Supreme Court praying

that the Orders of then Judge Ponferrada dated 01 and 24 October 2001 be annulled and

set aside and that Judge Perfecto A.S. Laguio of Branch 18 be restrained, in the

meantime, from proceeding with the case in accordance with said orders. In a

Resolution[16] dated 21 January 2002, this Court referred the case to the Court of

Appeals for appropriate action.

 On 04 April 2002, the Court of Appeals rendered the assailed Decision,[17] the

dispositive portion of which reads:

WHEREFORE, all the foregoing premises considered, the present petition

is hereby GIVEN DUE COURSE and the writ prayed for, accordingly
GRANTED. The assailed Orders dated October 01, 2001 and October 24, 2001
which were issued by JUDGE RODOLFO A. PONFERRADA in Criminal Case
No. 01-191969, entitled “People of the Philippines v. Jimmy Lopez, et al.” are
hereby ANNULLED and SET ASIDE. Respondent JUDGE PERFECTO A.S.
LAGUIO, JR. or any person or persons acting in his stead, is/are hereby
ORDERED to ADMIT the Amended Information dated September 17, 2001
substituting SPO3 ALLAN CADENILLA VILLANUEVA for P/Insp. DANILO
VILLANUEVA as accused, and charging P/Senior Supt. MICHAEL RAY
AQUINO, P/Senior Supt. CEZAR MANCAO II and P/Senior Supt. TEOFILO
VIÑA as additional accused, and discharging or excluding only the accused
JIMMY L. LOPEZ, WILLIAM L. LOPEZ and ALEX B. DILOY and to
CONTINUE with the proceedings therefrom with utmost deliberate dispatch.
Needless to state, the original information filed on May 11, 2001 stands insofar as
P/Senior Supt. GLEN(N) G. DUMLAO is concerned.[18]

Accused Soberano, Escalante and Torres moved for the reconsideration of the

Court of Appeals Decision. In a Resolution[19] dated 12 August 2002, the motion was

denied for lack of merit.

Hence, the instant petition for review with Prayer for Temporary Restraining
Order[20] dated 28 August 2002 filed by Soberano, Torres and Escalante where they

assign as errors the following:

I
 THE COURT A QUO ERRED IN HOLDING THAT RESPONDENT JUDGE
PONFERRADA GRAVELY ABUSED HIS DISCRETION IN DENYING THE
ADMISSION OF THE AMENDED INFORMATION.

II

THE COURT A QUO ERRED IN APPLYING SECTION 14 OF RULE 110 OF

THE REVISED RULES ON CRIMINAL PROCEDURE (RRCP) IN
ALLOWING THE DISCHARGE OF ACCUSED DILOY AND THE LOPEZ
BROTHERS.

III

THE COURT A QUO ERRED IN HOLDING THAT A MOTION FOR

REINVESTIGATION WAS TANTAMOUNT TO A PRIOR LEAVE OF COURT
AS CONTEMPLATED UNDER SECTION 14 OF RULE 110 OF THE RRCP.

IV

THE COURT A QUO ERRED IN NOT APPLYING SECTION 17 OF RULE 119

OF THE RRCP IN THE DISCHARGE OF THE ACCUSED.

THE COURT A QUO ERRED IN RESTRICTING THE APPLICATION OF

SECTION 17 OF RULE 119 OF THE RRCP TO A SITUATION WHERE THE
ACCUSED HAS ALREADY BEEN ARAIGNED AND UNDERGOING
TRIAL.

Gathered from the above assignment of errors, the fundamental issue that must be

resolved concerns the duty of a trial court judge when confronted with a motion to admit

amended information excluding some of the accused named in the original information

for utilization as witnesses for the State. The key lies in the correct interpretation of two

pertinent provisions of the Revised Rules of Criminal Procedure, i.e., Section 14 of Rule

110 on amendment of information and Section 17 of Rule 119 on the discharge of an

accused as state witness.

 Section 14, Rule 110 states:

Section 14. Amendment or substitution. – A complaint or information may

be amended, in form or in substance, without leave of court, at any time before
the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the
offended party.

On the other hand, Section 17, Rule 119 provides:

Section 17. Discharge of accused to be state witness. – When two or more

persons are jointly charged with the commission of any offense, upon motion of
the prosecution before resting its case, the court may direct one or more of the
accused to be discharged with their consent so that they may be witnesses for the
state when, after requiring the prosecution to present evidence and the sworn
statement of each proposed state witness at a hearing in support of the discharge,
the court is satisfied that:

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

whose discharge is requested;

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

prosecution of the offense committed, except the testimony of said
accused;

(c) The testimony of said accused can be substantially

corroborated in its material points;

(d) Said accused does not appear to be the most guilty; and
 (e) Said accused has not at any time been convicted of any offense
involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part

of the trial. If the court denies the motion for discharge of the accused as state
witness, his sworn statement shall be inadmissible in evidence.

The trial court, in denying the prosecution’s motion to admit amended information

discharging some accused, ratiocinated that to admit said amended information would be

violative of Section 17, Rule 119, thus:

After study, it appearing that the Amended Information not only includes
new accused, namely, SPO3 Allen Villanueva, P/Supt. Michael Ray Aquino,
P/Supt. Cezar Mancao and P/Supt. Teofilo Viña but excludes or discharges
certain accused, namely, Jimmy L. Lopez, Alex B. Diloy, William L. Diloy and
Glenn Dumlao from the original Information to be used as state witnesses, the
Court is not inclined to grant the motion as it believes and so holds that in the
discharge of the accused to be state witnesses the provisions of Section 17, Rule
119 of the Revised Rules of Criminal Procedure should be observed and/or
complied with. Stated otherwise, to grant the motion and admit the Amended
Information outright would violate said section which is quoted as follows. . . .
[21]

The Court of Appeals held the contrary view. It reasoned that Section 14, Rule

110 is applicable in the instant case and not Section 17, Rule 119 of the Revised Rules of

Criminal Procedure, thus:

To begin with, it is undeniable, and it is necessary to point out, that

Criminal Case No. 01-191969 has already been filed with the Regional Trial
Court of Manila on May 11, 2001. The Motion to Admit was filed later or on
September 18, 2001.

While it is true that once the information is filed in court, the court
acquires complete jurisdiction over it, We are not unmindful of the well-settled
ruling of the Supreme Court that the determination of who should be criminally
charged in court is essentially an executive function, not a judicial one.

Section 14, Rule 110 (Prosecution of Offenses) of the Revised Rules of

Criminal Procedure, as amended, reads –

“Section 14. Amendment or substitution. – A complaint or

information may be amended, in form or in substance, without
leave of court, at any time before the accused enters his plea. After
the plea and during the trial, a formal amendment may only be
made with leave of court and when it can be done without causing
prejudice to the rights of the accused.

“However, any amendment before plea, which downgrades

the nature of the offense charged in or excludes any accused from
the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of
court. The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the
offended party.

“If it appears at any time before judgment that a mistake has

been made in charging the proper offense, the court shall dismiss
the original complaint or information upon the filing of a new one
charging the proper offense in accordance with Section 19, Rule
119, provided the accused shall not be placed in double jeopardy.
The court may require the witnesses to give bail for their
appearance at the trial.”

Applying the import of the afore-quoted Section 14, Rule 110, it appears
that the Amended Information sought to be admitted by the petitioner finds
sufficient support therein, considering, firstly, that there has been no arraignment
yet. Secondly, when respondent JUDGE RODOLFO A. PONFERRADA granted
the motion for reinvestigation in the Order dated July 04, 2001, there was in
effect a prior leave of court given to the State Prosecutors of the Department of
Justice to conduct the same, substantially complying with such requirement under
the second paragraph of Section 14, Rule 110. After all, a leave of court is
defined a “permission obtained from a court to take some action which, without
such permission, would not be allowable: as, to sue a receiver, to file an amended
pleading, to plead several pleas.”

In the case of People v. Montesa, Jr., the Supreme Court’s pertinent

ruling, which We now reiterate, finds application in the case at bench, i.e., where
a judge grants a motion for reinvestigation [as in this case], he is deemed to have
deferred to the authority of the prosecution arm of the Government to consider
the so-called new relevant and material evidence and to determine whether the
information it has filed should stand, and that the final disposition on the
reinvestigation should be the sole and only valid basis for the judge’s final action
with respect to the reinvestigation.

Thus, in accord with the aforesaid Montesa, Jr. ruling, respondent JUDGE
RODOLFO A. PONFERRADA’s “sole and only basis” for the inclusion (or
exclusion, for that matter) of the additional accused should be the final
disposition on the reinvestigation conducted by the State Prosecutors of the
Department of Justices.

Consistent with the foregoing disquisition, We hold the opinion that

Section 17, Rule 119 (Trial), . . . is not applicable under the circumstances
obtaining in the case at bench, although in the case of Guingona, Jr. v. Court of
Appeals, We are mindful of the Supreme Court’s clarification that only when an
information, charging two (2) or more persons with a certain offense, has already
been filed in court will Section 9, Rule 119 (Trial) of the Rules of Court [now
100% restated under Section 17, Rule 119 (Trial) of the Revised Rules of
Criminal Procedure] “come into play.”

Section 17, Rule 119 (Trial), contemplates a situation wherein the

Information is already filed, the accused is already arraigned, undergoing trial
and the prosecution has not rested its case.

Here, although the original Information has already been filed, the four (4)
accused sought to be discharged or excluded from the Amended Information have
not been arraigned and no trial has been commenced. Thus, the discharge or
exclusion being sought by the petitioner may come under the purview
of Republic Act No. 6981, a special law which the Department of Justice is called
upon to enforce and implement. Considering that the State Prosecutor’s
disposition on the investigation in Criminal Case No. 01-191969 should be the
sole and only valid basis of respondent JUDGE RODOLFO A. PONFERRADA
in considering whether the Amended Information sought to be admitted should
stand or not, it follows that the discharge/exclusion of the four (4) accused
under Republic Act No. 6981 must be directed by the Department of Justice, not
by the court a quo. Needless to say, Section 9, Rule 119 [of the Rules of Court]
does not support the proposition that the power to choose who shall be state
witness is an inherent judicial prerogative. It is not constitutionally impermissible
for Congress to enact Republic Act No. 6981vesting in the Department of Justice
the power to determine who can qualify as a witness in the program and who
shall be granted immunity from prosecution.[22] (Emphasis in original)
 The petitioners submit that the Court of Appeals erred in applying Section 14 of

Rule 110 of the Revised Rules of Criminal Procedure on amendment of complaints.

Instead, what should have been applied was Section 17 of Rule 119 on the discharge of

an accused as witness for the state. The petitioners further aver that even if it is only a

simple discharge under Section 14 of Rule 110, it is still necessary to seek prior leave of

court. The prosecution simply filed an Amended Information excluding Jimmy and

William Lopez, Alex Diloy and Glen Dumlao, without prior leave of court, and moved

for its admission.[23]

The petitioners also argue that while the determination of who should be criminally

charged is essentially an executive function, the discharge of an accused when an

Information had already been filed lies with the court.[24] Further, the petitioners assert

that the Motion For Reinvestigation which was approved by the trial court is not

tantamount to a Motion For Leave to File an Amended Information as required under

Section 14 of Rule 110 of the Revised Rules of Criminal Procedure.[25]

In answer to all these, the prosecution contends that the admission of the Amended

Information was not violative of Section 17, Rule 119 of the Revised Rules of Criminal

Procedure, contrary to the opinion of the trial court.[26]

The prosecution insists that Judge Ponferrada should have just required it to

present evidence in support of the discharge for had this procedure been followed, the
fact of admission of the accused sought to be discharged into the Witness Protection

Program (WPP) would have come to light.[27]

The prosecution likewise professes that Section 14, Rule 110 should be applied,

and not Section 17, Rule 119 for the following reasons: first, while the case was already

filed in court, the accused therein have not yet been arraigned; second, the trial court

ordered the reinvestigation of the case; and third, new evidence dictate the necessity to

amend the Information to include new accused and to exclude other accused who will be

utilized as state witnesses.[28]

There can be no quarrel as to the fact that what is involved here is primary an

amendment of an information to exclude some accused and that the same is made before

plea. Thus, at the very least, Section 14, Rule 110 is applicable which means that the

amendment should be made only upon motion by the prosecutor, with notice to the

offended party and with leave of court. What seems to complicate the situation is that

the exclusion of the accused is specifically sought for the purpose of discharging them as

witnesses for the State. The consequential question is, should the requirements for

discharge of an accused as state witness as set forth in Section 17, Rule 119 be made as

additional requirements (i.e., Section 14, Rule 110 and Section 17, Rule 119) or should

only one provision apply as ruled by the trial court and the Court of Appeals (i.e.,

Section 14, Rule 110 or Section 17, Rule 119)?

 An amendment of the information made before plea which excludes some or one of

the accused must be made only upon motion by the prosecutor, with notice to the

offended party and with leave of court in compliance with Section 14, Rule 110.

Section 14, Rule 110 does not qualify the grounds for the exclusion of the accused.

Thus, said provision applies in equal force when the exclusion is sought on the usual

ground of lack of probable cause, or when it is for utilization of the accused as state

witness, as in this case, or on some other ground.

At this level, the procedural requirements of Section 17, Rule 119 on the need for

the prosecution to present evidence and the sworn statement of each state witness at a

hearing in support of the discharge do not yet come into play. This is because, as

correctly pointed out by the Court of Appeals, the determination of who should be

criminally charged in court is essentially an executive function, not a judicial one.

[29] The prosecution of crimes appertains to the executive department of government

whose principal power and responsibility is to see that our laws are faithfully

executed. A necessary component of this power to execute our laws is the right to

prosecute their violators. The right to prosecute vests the prosecutor with a wide range

of discretion – the discretion of whether, what and whom to charge, the exercise of

which depends on a smorgasbord of factors which are best appreciated by prosecutors.

[30] By virtue of the trial court having granted the prosecution’s motion for

reinvestigation, the former is deemed to have deferred to the authority of the

prosecutorial arm of the Government.[31] Having brought the case back to the drawing
board, the prosecution is thus equipped with discretion -- wide and far reaching –

regarding the disposition thereof.

The foregoing discussion is qualified by our decision in the seminal case

of Crespo v. Mogul,[32] wherein we declared that:

. . . Should the fiscal find it proper to conduct a reinvestigation of the case,

at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be
submitted to the Court for appropriate action. While it is true that the fiscal has
the quasi judicial discretion to determine whether or not a criminal case should
be filed in court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter should be
addressed for the consideration of the Court. The only qualification is that the
action of the Court must not impair the substantial rights of the accused or the
right of the People to due process of law.

Thus, as in almost all things, the prosecution’s discretion is not boundless or

infinite. The prosecution must satisfy for itself that an accused excluded from the

information for purposes of utilizing him as state witness is qualified therefor.

The situation is different in cases when an accused is retained in the information

but his discharge as state witness is sought thereafter by the prosecution before it rests

its case, in which event, the procedural (in addition to the substantive) requirements of

Section 17, Rule 119 apply. Otherwise stated, when no amendment to the information is

involved as a by-product of reinvestigation and trial proceeds thereafter, the discharge of

the accused falls squarely and solely within the ambit of Section 17, Rule 119. It is

fitting then to re-state the rule inGuingona, Jr. v. Court of Appeals[33] that –
 . . . [T]he decision on whether to prosecute and whom to indict is
executive in character. Only when an information, charging two or more persons
with a certain offense, has already been filed in court will Rule 119, Section
9[34] of the Rules of Court, come into play. . . .

Prescinding from the foregoing, it is in a situation where the accused to be

discharged is included in the information that the prosecution must present evidence

and the sworn statement of each proposed state witness at a hearing in support of the

discharge in order to convince the judge, upon whom discretion rests, as to the propriety

of discharging the accused as state witness.

Having thus ruled, it now behooves upon this Court to determine whether the Court

of Appeals was correct in admitting the amended information insofar as the discharge of

JIMMY L. LOPEZ, WILLIAM LOPEZ and ALEX B. DILOY is concerned.

It is undisputed that the motion to admit amended information seeking the

exclusion of the above-named accused (together with P/Sr. Supt. GLEN G. DUMLAO)

was with notice to the offended party and was set for hearing. The Court of Appeals

held that the trial court’s grant of the prosecution’s motion for reinvestigation operates as

leave of court to amend the information, if the situation so warrants.

Under the circumstances obtaining herein, we agree with the Court of Appeals

considering that we do not perceive here any impairment of the substantial rights of all

the accused or the right of the people to due process.

 As we have discussed earlier in this decision, the trial court is with discretion to

grant or deny the amendment of the information. In general, its discretion is hemmed in

by the proscription against impairment of the substantial rights of the accused or the

right of the People to due process of law. In this case, in denying the motion to admit

amended information, the trial court simply said that the same was violative of Section

17, Rule 119 without stating the reasons therefor. And for this lapse, the trial court has

indeed erred.

One final point. In the Decision of the Court of Appeals, it held that the discharge

or exclusion of P/Sr. Supt. Glen Dumlao from the Amended Information finds no legal

basis under Republic Act No. 6981[35] for he is a law enforcement officer. The original

information, according to the Court of Appeals, should stand insofar as Dumlao is

concerned.

Section 3, Rep. Act No. 6981 provides:

SEC. 3. Admission into the Program. – Any person who has witnessed or
has knowledge or information on the commission of a crime and has testified or
is testifying or about to testify before any judicial or quasi-judicial body, or
before any investigating authority, may be admitted into the Program:

Provided, That:

a) the offense in which his testimony will be used is a grave felony as defined
under the Revised Penal Code, or its equivalent under special laws;

b) his testimony can be substantially corroborated in its material points;

 c) he or any member of his family within the second civil degree of
consanguinity or affinity is subjected to threats to his life or bodily injury or there
is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to
prevent him from testifying, or to testify falsely, or evasively, because or on
account of his testimony; and

d) he is not a law enforcement officer, even if he would be testifying against other

law enforcement officers. In such a case, only the immediate members of his
family may avail themselves of the protection provided for under this Act.

If the Department, after examination of said applicant and other relevant

facts, is convinced that the requirements of this Act and its implementing rules
and regulations have been complied with, it shall admit said applicant to the
Program, require said witness to execute a sworn statement detailing his
knowledge or information on the commission of the crime, and thereafter issue
the proper certification. For purposes of this Act, any such person admitted to the
Program shall be known as the Witness.

It must be stressed that Section 3 of Rep. Act No. 6981 enumerates the

requirements before a person may be admitted to the WPP. It does not state that if an

accused cannot be admitted to the WPP, he cannot be discharged as a witness for the

state. Admission to the WPP and being discharged as an accused are two different

things. Dumlao’s being a law enforcement officer and, thus, disqualified to be under the

WPP, do not in any way prohibit him to be discharged from the information.

WHEREFORE, in view of all the foregoing, the Decision and Resolution of the

Court of Appeals dated 04 April 2002 and 12 August 2002, respectively, are hereby

AFFIRMED with the MODIFICATION to include P/Sr. Supt. GLEN G. DUMLAO as

one of the accused excluded from the Amended Information dated 17 September 2001.

No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 103102 March 6, 1992

CLAUDIO J. TEEHANKEE, JR., petitioner,
vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:
In this special civil action for certiorari, prohibition and mandamus, petitioner principally seeks: (1) to nullify
the order 1 of respondent judge admitting the amended information for murder filed in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent judge when
petitioner refused to be arraigned on the amended information for lack of preliminary investigation therefor;
(3) to nullify the appointment of a counsel de oficio/PAO lawyer to represent petitioner; (4) to prohibit
respondent judge from "over-speedy and preferential scheduling of the trial of the aforementioned criminal
case;" and (5) to compel respondent judge to order preliminary investigation of the crime charged in the
amended information.
Petitioner was originally charged on July 19, 1991 in an information 2 for the crime of frustrated murder
allegedly committed as follows:
That on or about the 13th day of July 1991, in the Municipality of Makati, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
while armed with a handgun, with intent to kill, treachery and evident premeditation, did then
and there willfully, unlawfully, and feloniously attack, assault and shoot one Maureen
Navarro Hultman on the head, thereby inflicting gunshot wounds, which ordinarily would
have caused the death of said Maureen Navarro Hultman, thereby performing all the acts of
execution which would have produced the crime of Murder as a consequence, but
nevertheless did not produce it by reason of cause or causes independent of her will, that
is, due to the timely and able medical assistance rendered to said Maureen Navarro
Hultman which prevented her death.
After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a demurrer
to evidence. However, before the said motion could be filed, Maureen Navarro Hultman died.
Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion 3 for leave of court to file an
amended information and to admit said amended information. The amended information, 4 filed on October
31, 1991, reads:
That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee,
Jr. y. Javier, armed with a handgun, with intent to kill and evident premeditation and by
means of treachery, did then and there willfully, unlawfully and feloniously attack, assault
and shoot with the said handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of said Maureen Hultman.
Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the prosecution. On
November 13, 1991, the trial court issued the questioned order admitting the amended information.
At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the amended
information for lack of a preliminary investigation thereon. By reason of such refusal, respondent judge
ordered that a plea of "not guilty" be entered for petitioner.
Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's counsel
manifested that he would not take part in the proceedings because of the legal issue raised, the trial court
appointed a counsel de oficio to represent herein petitioner.
Petitioner now raises the following issues before us:
(a) Whether or not an amended information involving a substantial amendment, without
preliminary investigation, after the prosecution has rested on the original information, may
legally and validly be admitted;
(b) Whether or not a counsel de oficio may legally and validly be appointed to represent an
accused who is represented by counsel of choice who refuses to participate in the
proceedings because of a perceived denial of due process and after a plea for appellate
remedies within a short period is denied by the trial court; and
(c) Whether or not a particular criminal case may legally and validly be rushed and preferentially
scheduled for trial over and at the expense and sacrifice of other, specially older, criminal
cases. 8
In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the basic
petition. It appearing from a further review of the record that the operative facts and determinant issues
involved in this case are sufficiently presented in the petition and the annexes thereto, both in regard to the
respective positions of petitioner and respondents, the Court has decided to dispense with the aforesaid
comment to obviate needless delay in fairness to petitioner.
I. Petitioner avers that the additional allegation in the amended information, as herein underscored, that the
accused ". . . did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said
handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting mortal wounds which
directly caused the death of said Maureen Hultman . . ." constitutes a substantial amendment since it
involves a change in the nature of the offense charged, that is, from frustrated to consummated murder.
Petitioner further submits that "(t)here is a need then to establish that the same mortal wounds, which were
initially frustrated (sic) by timely and able medical assistance, ultimately caused the death of the victim,
because it could have been caused by a supervening act or fact which is not imputable to the
offender." 9 From this, he argues that there being a substantial amendment, the same may no longer be
allowed after arraignment and during the trial.
Corollary thereto, petitioner then postulates that since the amended information for murder charges an
entirely different offense, involving as it does a new fact, that is, the fact of death whose cause has to be
established, it is essential that another preliminary investigation on the new charge be conducted before
the new information can be admitted.
We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the orders of the
trial court.
Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:
Sec. 14. Amendment. — The information or complaint may be amended, in substance or
form, without leave of court, at any time before the accused pleads; and thereafter and
during the trial as to all matters of form, by leave and at the discretion of the court, when the
same can be done without prejudice to the rights of the accused.
If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the filing of
a new one charging the proper offense in accordance with Rule 119, Section
11, provided the accused would not be placed thereby in double jeopardy and may also
require the witnesses to give bail for their appearance at the trial.
The first paragraph provides the rules for amendment of the information or complaint, while the second
paragraph refers to the substitution of the information or complaint.
It may accordingly be posited that both amendment and substitution of the information may be made before
or after the defendant pleaded, but they differ in the following respects:
1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a
substantial change from the original charge;
2. Amendment before plea has been entered can be effected without leave of court, but substitution of
information must be with leave of court as the original information has to be dismissed;
3. Where the amendment is only as to form, there is no need for another preliminary investigation and the
retaking of the plea of the accused; in substitution of information, another preliminary investigation is
entailed and the accused has to plead anew to the new information; and
4. An amended information refers to the same offense charged in the original information or to an offense
which necessarily includes or is necessarily included in the original charge, hence substantial amendments
to the information after the plea has been taken cannot be made over the objection of the accused, for if
the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand,
substitution requires or presupposes that the new information involves a different offense which does not
include or is not necessarily included in the original charge, hence the accused cannot claim double
jeopardy.
In determining, therefore, whether there should be an amendment under the first paragraph of Section 14,
Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the
second information involves the same offense, or an offense which necessarily includes or is necessarily
included in the first information, and amendment of the information is sufficient; otherwise, where the new
information charges an offense which is distinct and different from that initially charged, a substitution is in
order.
There is identity between the two offenses when the evidence to support a conviction for one offense would
be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the
first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes
or is necessarily included in, the offense charged in the first information. In this connection, an offense may
be said to necessarily include another when some of the essential elements or ingredients of the former, as
this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be
necessarily included in another when the essential ingredients of the former constitute or form a part of
those constituting the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the crime
of murder, hence the former is necessarily included in the latter. It is indispensable that the essential
element of intent to kill, as well as qualifying circumstances such as treachery or evident premeditation, be
alleged in both an information for frustrated murder and for murder, thereby meaning and proving that the
same material allegations are essential to the sufficiency of the informations filed for both. This is because,
except for the death of the victim, the essential elements of consummated murder likewise constitute the
essential ingredients to convict herein petitioner for the offense of frustrated murder.
In the present case, therefore, there is an identity of offenses charged in both the original and the amended
information. What is involved here is not a variance in the nature of different offenses charged, but only a
change in the stage of execution of the same offense from frustrated to consummated murder. This is being
the case, we hold that an amendment of the original information will suffice and, consequent thereto, the
filing of the amended information for murder is proper.
Petitioner would insist, however, that the additional allegation on the fact of death of the victim Maureen
Navarro Hultman constitutes a substantial amendment which may no longer be allowed after a plea has
been entered. The proposition is erroneous and untenable.
As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or substance, may
be made at any time before the accused enters a plea to the charge and, thereafter, as to all matters of
form with leave of court.
A substantial amendment consists of the recital of facts constituting the offense charged and determinative
of the jurisdiction of the court. All other matters are merely of form. 11 Thus, the following have been held to
be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the
court might impose in the event of conviction; 12 (2) an amendment which does not charge another offense
different or distinct from that charged in the original one; 13 (3) additional allegations which do not alter the
prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he
has or will assume; and (4) an amendment which does not adversely affect any substantial right of the
accused, such as his right to invoke prescription. 14
We repeat that after arraignment and during the trial, amendments are allowed, but only as to matters of
form andprovided that no prejudice is caused to the rights of the accused. 15 The test of whether an
amendment is only of form and an accused is not prejudiced by such amendment has been said to be
whether or not a defense under the information as it originally stood would be equally available after the
amendment is made, and whether or not any evidence the accused might have would be equally
applicable to the information in the one form as in the other; if the answer is in the affirmative, the
amendment is one of form and not of substance. 16
Now, an objective appraisal of the amended information for murder filed against herein petitioner will readily
show that the nature of the offense originally charged was not actually changed. Instead, an additional
allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in
determining the proper penalty for the crime. That the accused committed a felonious act with intent to kill
the victim continues to be the prosecution's theory. There is no question that whatever defense herein
petitioner may adduce under the original information for frustrated murder equally applies to the amended
information for murder. Under the circumstances thus obtaining, it is irremissible that the amended
information for murder is, at most, an amendment as to form which is allowed even during the trial of the
case.
It consequently follows that since only a formal amendment was involved and introduced in the second
information, a preliminary investigation is unnecessary and cannot be demanded by the accused. The filing
of the amended information without the requisite preliminary investigation does not violate petitioner's right
to be secured against hasty, malicious and oppressive prosecutions, and to be protected from an open and
public accusation of a crime, as well as from the trouble, expenses and anxiety of a public trial. The
amended information could not conceivably have come as a surprise to petitioner for the simple and
obvious reason that it charges essentially the same offense as that charged under the original information.
Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge
such that an inquiry into one would elicit substantially the same facts that an inquiry into the other would
reveal, a new preliminary investigation is not necessary. 17
We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein petitioner
whose counsel of record refused to participate in the proceedings because of an alleged legal issue. Such
issue having been demonstrated herein as baseless, we apprehend his refusal to participate in the trial as
causative of or contributive to the delay in the disposition of the case. And, finally, for as long as the
substantial rights of herein petitioner and other persons charged in court are not prejudiced, the scheduling
of cases should be left to the sound discretion of the trial court.
WHEREFORE, it being clearly apparent that respondent judge did not commit the errors speciously
attributed to him, the extraordinary writs prayed for are hereby DENIED and the instant petition is
DISMISSED for lack of merit.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 169509 June 16, 2006

JOCELYN E. CABO, Petitioner,

vs.
THE SANDIGANBAYAN, FOURTH DIVISION, THE SPECIAL PROSECUTOR OF THE
OMBUDSMAN and THE COMMISSION ON AUDIT, REGION XIII, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a special civil action for certiorari filed by petitioner Jocelyn E. Cabo seeking to nullify the
resolutions of the Sandiganbayan, Fourth Division, dated May 4 and July 20, 2005 in Criminal
Case No. 27959.

The following are the antecedent facts:

On June 26, 2004, an information for violation of Section 3(b) of R.A. 3019 or the Anti-Graft and
Corrupt Practices Act was filed against petitioner and her co-accused Bonifacio C. Balahay. The
information alleged:

That on or about 08 August 2000 in the Municipality of Barobo, Surigao del Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, BONIFACIO C.
BALAHAY, then Mayor of the Municipality of Barobo, Surigao del Sur, a high ranking public
official, with the use of his influence as such public official, committing the offense in relation to
his office, together with JOCELYN CABO, did then and there, willfully, unlawfully and feloniously
receive and accept the amount of ONE HUNDRED FOUR THOUSAND ONE HUNDRED SIXTY
TWO PESOS AND 31/100 (P104,162.31) from said JOCELYN CABO, Business Manager of
Orient Integrated Development Consultancy, Inc. (OIDCI), a consultancy group charged with
conducting a feasibility study for the Community-Based Resource Management Project of the
Municipality of Barobo, with accused Cabo giving and granting the said amount to accused
Balahay in consideration of the said accused having officially intervened in the undertaking by
the OIDCI of such contract for consultancy services with the Municipality of Barobo.

CONTRARY TO LAW.1

Claiming that she was deprived of her right to a preliminary investigation as she never received
any notice to submit a counter-affidavit or countervailing evidence to prove her innocence,
petitioner filed a motion for reinvestigation2 before the Fourth Division of the Sandiganbayan,
where the case was raffled and docketed as Criminal Case No. 27959. The Sandiganbayan
subsequently granted petitioner’s motion on March 29, 2004 and directed the Office of the
Special Prosecutor to conduct a reinvestigation insofar as petitioner is concerned.3

Meanwhile, petitioner filed a motion seeking the court’s permission to travel abroad for a family
vacation.4 The Sandiganbayan granted the same in an order dated May 14, 2004 that reads:
Acting on the Motion With Leave Of Court To Travel Abroad dated May 11, 2004 filed by
accused Jocelyn E. Cabo through counsel, Atty. Tomas N. Prado, and considering the well-
taken reason therein stated, the same is hereby GRANTED.

However, considering that this case is still pending reinvestigation/review before the Office of
the Special Prosecutor; considering further that the accused has not yet been arraigned by
reason thereof; and considering finally that there is a need for the Court to preserve its authority
to conduct trial in absentia should the accused fail to return to the Philippines, accused Jocelyn
E. Cabo, with her express conformity, is hereby ordered arraigned conditionally. If upon such
reinvestigation/review, it shall be found that there is no probable cause to proceed against said
accused, the conditional arraignment this morning shall be with no force and effect. However, if
it should be found that there is a need to amend the present indictment or to pave the way for
the filing of some other indictment/s, then the accused shall waive her right to object under
Section 14, Rule 110 of the 2000 Rules of Criminal Procedure and her constitutional right to be
protected against double jeopardy.

When arraigned, the Information having been read in a language known and familiar to her,
accused Jocelyn E. Cabo, duly assisted by her counsel, Atty. Tomas N. Prado, pleaded not
guilty to the offense charged in the Information.

Accused Jocelyn E. Cabo, duly assisted by her counsel, shall affix her signature in the minutes
of the proceedings to signify her conformity to her acceptance of the conditional arraignment
and the legal consequences thereof as herein explained.

SO ORDERED.5

Petitioner returned from abroad on May 24, 2004. Thereafter, the Special Prosecutor concluded
its reinvestigation and found probable cause to charge her with violation of Section 3(b) of R.A.
No. 3019.6 Petitioner filed a motion for reconsideration but the same was denied. 7 Thus, the
Sandiganbayan set anew the arraignment of petitioner and her co-accused on October 12,
2004.8

On the day before the scheduled arraignment, petitioner filed an Urgent Manifestation With
Motion9 praying that "she be allowed to [re]iterate on her previous plea of ‘not guilty’ x x x
entered during her conditional arraignment held last May 14, 2004, so that she may be excused
from attending the scheduled arraignment for October 12, 2004." It does not appear, however,
that the Sandiganbayan acted upon the said motion.

The following day, petitioner’s co-accused Balahay failed to appear for arraignment. This
prompted the Sandiganbayan to order the arrest of Balahay as well the confiscation of his bail
bond.10 Upon motion for reconsideration of Balahay, however, the Sandiganbayan recalled the
warrant for his arrest and reinstated the bail bond.11 His arraignment was subsequently reset
for November 30, 2004.12

On November 24, 2004, Balahay, through counsel, filed a motion to quash the information on
the ground that the same does not charge any offense. 13 While Section 3(b) of R.A. No. 3019
penalizes the act of "(d)irectly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for another, from any person, in connection with any
transaction between the Government and any other party, wherein the public officer in his
official capacity has to intervene under the law," the information alleged only in general terms
that Balahay "intervened in the undertaking by the OIDCI of such contract for consultancy
services with the Municipality of Barobo." In other words, the information failed to allege that
Balahay had to intervene in the said contract under the law, in his official capacity as municipal
mayor.

On January 18, 2005, the Sandiganbayan issued a resolution14 sustaining Balahay’s contention
that the facts charged in the information do not constitute the offense of violation of Section 3(b)
of R.A. No. 3019. Apart from the failure to allege that Balahay had to officially intervene in the
transaction pursuant to law, it also failed to allege that Balahay accepted and received the
money "for himself or for another." The information was thus defective in that it failed to allege
every single fact necessary to constitute all the elements of the offense charged.

The Sandiganbayan, however, did not order the immediate quashal of the information. It held
that under Section 4, Rule 117 of the Rules of Court, "if the motion to quash is based on the
ground that the facts charged in the information do not constitute an offense x x x the (c)ourt
should not quash the information outright, but should instead direct the prosecution to correct
the defect therein by proper amendment. It is only when the prosecution fails or refuses to
undertake such amendment, or when despite such amendment the information still suffers from
the same vice or defect,"15 that the court would be finally justified in granting the motion to
quash. The Sandiganbayan thus gave the prosecution a period of 15 days from notice within
which to file an amended information that is sufficient as to both form and substance.

On February 7, 2005, the prosecution filed an amended information which incorporated all the
essential elements of the crime charged, to wit:

That on or about 08 August 2000, in the Municipality of Barobo, Surigao Del Sur, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused BONIFACIO C.
BALAHAY, then Mayor of the Municipality of Barobo, Surigao Del Sur, a high ranking public
official, in the performance of his official functions, taking advantage of his official position, with
grave abuse of authority, and committing the offense in relation to his office, conspiring and
confederating with JOCELYN CABO, did then and there, willfully, unlawfully and feloniously
receive and accept the amount of ONE HUNDRED FOUR THOUSAND ONE HUNDRED SIXTY
TWO PESOS AND 31/100 (P104,162.31) for his own benefit or use from said JOCELYN CABO,
Business Manager of Orient Integrated Development Consultancy, Inc. (OIDC), a consultancy
group charged with conducting a feasibility study for the Community-Based Resource
Management Project of the Municipality of Barobo, with accused Cabo giving and granting said
amount to accused Balahay in consideration of the contract for said feasibility study, which
contract accused Balahay in his official capacity has to intervene under the law.

CONTRARY TO LAW.16

Consequently, Balahay was sent a notice for his arraignment on the amended information.
Petitioner was likewise notified of her re-arraignment which was set on April 14,
2005.17 However, on April 11, 2005, petitioner filed a Motion to Cancel Second
Arraignment18 on the ground that the amended information pertained to Balahay alone.
Petitioner claimed that she could no longer be re-arraigned on the amended information since
substantial amendment of an information is not allowed after a plea had already been made
thereon.

On May 4, 2005, the Sandiganbayan issued the first assailed resolution denying petitioner’s
motion for lack of merit, to wit:

[T]he arraignment of accused Cabo on the original information was only conditional in nature
and that the same was resorted to as a mere accommodation in her favor to enable her to travel
abroad without this Court losing its ability to conduct trial in absentia in the event she decides to
abscond. However, as clearly stated in the Court’s Order of May 14, 2004, accused Cabo
agreed with the condition that should there be a need to amend the information, she would
thereby waive, not only her right to object to the amended information, but also her
constitutional protection against double jeopardy. Now that the original information has been
superseded by an amended information, which was specifically filed by the prosecution, and
thereafter admitted by this Court, on the basis of Section 4, Rule 117 of the 2000 Rules of
Criminal Procedure, accused Cabo is already estopped from raising any objection thereto.19

Petitioner filed a motion for reconsideration20 from the foregoing resolution on the additional
ground that double jeopardy had already set in. She asserted that her conditional arraignment
under the original information had been validated or confirmed by her formal manifestation
dated October 7, 2004, wherein she reiterated her plea of "not guilty." Thus, her arraignment on
the original information was no longer conditional in nature such that double jeopardy would
attach.

The Sandiganbayan denied petitioner’s motion for reconsideration in the second assailed
resolution dated July 20, 2005.21 Consequently, petitioner filed the instant special civil action for
certiorari under Rule 65 of the Rules of Court alleging that the Sandiganbayan gravely abused
its discretion in holding that her arraignment on the original information was conditional in
nature and that a re-arraignment on the amended information would not put her in double
jeopardy.

The issue here boils down to whether double jeopardy would attach on the basis of the "not
guilty" plea entered by petitioner on the original information. She argues that it would,
considering that her arraignment, which was initially conditional in nature, was ratified when she
confirmed her "not guilty" plea by means of a written manifestation. In other words, the trial
court could no longer assert that she waived her right to the filing of an amended information
under the terms of her conditional arraignment because she has, in effect, unconditionally
affirmed the same.

Petitioner’s assertions must fail.

Initially, it must be pointed out that the Sandiganbayan’s practice of "conditionally" arraigning the
accused pending reinvestigation of the case by the Ombudsman is not specifically provided in
the regular rules of procedure.22 In People v. Espinosa,23 however, the Court tangentially
recognized the practice of "conditionally" arraigning the accused, provided that the alleged
conditions attached thereto should be "unmistakable, express, informed and enlightened." The
Court ventured further by requiring that said conditions be expressly stated in the order
disposing of the arraignment. Otherwise, it was held that the arraignment should be deemed
simple and unconditional.24

In the case at bar, the Sandiganbayan Order dated May 14, 2004 unequivocally set forth the
conditions for petitioner’s arraignment pending reinvestigation of the case as well as her travel
abroad. Among the conditions specified in said order is "if it should be found that there is a need
to amend the present indictment x x x, then the accused shall waive her right to object under
Section 14, Rule 110 of the 2000 Rules of Criminal Procedure and her constitutional right to be
protected against double jeopardy." Petitioner was duly assisted by counsel during the
conditional arraignment and was presumably apprised of the legal consequences of such
conditions. In fact, she signed the minutes of the proceedings which could only signify her
informed acceptance of and conformity with the terms of the conditional arraignment.

Thus, petitioner cannot now be allowed to turn her back on such conditions on the pretext that
she affirmed her conditional arraignment by means of a written manifestation. To begin with,
there is no showing that the Sandiganbayan ruled on her written manifestation and motion that
she be allowed to merely confirm her previous plea on the original information. It is likewise
doubtful that petitioner may legally confirm her conditional arraignment by means of a mere
written motion or manifestation. Section 1(b), Rule 116 of the Rules of Court explicitly requires
that "(t)he accused must be present at the arraignment and must personally enter his plea."

At any rate, with or without a valid plea, still petitioner cannot rely upon the principle of double
jeopardy to avoid arraignment on the amended information. It is elementary that for double
jeopardy to attach, the case against the accused must have been dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon a valid
information sufficient in form and substance and the accused pleaded to the charge.25 In the
instant case, the original information to which petitioner entered a plea of "not guilty" was
neither valid nor sufficient to sustain a conviction, and the criminal case was also neither
dismissed nor terminated. Double jeopardy could not, therefore, attach even if petitioner is
assumed to have been unconditionally arraigned on the original charge.

It should be noted that the previous information in Criminal Case No. 27959 failed to allege all
the essential elements of violation of Section 3(b), R.A. No. 3019. It, in fact, did not charge any
offense and was, to all intents and purposes, void and defective. A valid conviction cannot be
sustained on the basis of such information. Petitioner was resultantly not placed in danger of
being convicted when she entered her plea of "not guilty" to the insufficient indictment.

Moreover, there was no dismissal or termination of the case against petitioner. What the
Sandiganbayan ordered was for the amendment of the information pursuant to the express
provision of Section 4, Rule 117, which states:

SEC. 4. Amendment of complaint or information.- If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order
that an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution
shall be given by the court an opportunity to correct the defect by amendment. The motion shall
be granted if the prosecution fails to make the amendment, or the complaint or information still
suffers from the same defect despite the amendment. (Emphasis supplied)

The Sandiganbayan correctly applied the foregoing provision when petitioner’s co-accused filed
a motion to quash the original information on the ground that the same does not charge an
offense. Contrary to petitioner’s submission, the original information can be cured by
amendment even after she had pleaded thereto, since the amendments ordered by the court
below were only as to matters of form and not of substance. The amendment ordered by the
Sandiganbayan did not violate the first paragraph of Section 14, Rule 110, which provides:

SEC. 14. Amendment or substitution. – A complaint or information may be amended, in form or

in substance, without leave court, at any time before the accused enters his plea. After the plea
and during the trial, a formal amendment may only be made with leave of court and when it can
be done without causing prejudice to the rights of the accused.

xxxx

In Poblete v. Sandoval,26 the Court explained that an amendment is only in form when it merely
adds specifications to eliminate vagueness in the information and does not introduce new and
material facts. Amendment of an information after the accused has pleaded thereto is allowed, if
the amended information merely states with additional precision something which is already
contained in the original information and which, therefore, adds nothing essential for conviction
for the crime charged.

In the case at bar, while certain elements of the crime charged were missing in the indictment,
the amended information did not change the nature of the offense which is for violation of
Section 3(b), R.A. No. 3019. The amended information merely clarified the factual averments in
the accusatory portion of the previous information, in order to reflect with definiteness the
essential elements of the crime charged.

An examination of the two informations in this case would justify the preceding observation.
While the first information alleged that Balahay committed the offense "with the use of his
influence as such public official" "together with" petitioner, the amended information stated that
he did so "in the performance of his official functions, taking advantage of his official position,
with grave abuse of authority" while "conspiring and confederating" with petitioner. Then too,
while it was averred previously that Balahay received and accepted the money from petitioner,
with the latter "giving and granting the said amount to accused Balahay in consideration of the
said accused having officially intervened in the undertaking by the OIDCI of such contract for
consultancy services", the amended information simply specified that Balahay received the
money "for his own benefit or use" and that the contract mentioned in the first information was
one that Balahay, "in his official capacity has to intervene under the law."

Consequently, even if we treat petitioner’s arraignment on the original information as

"unconditional," the same would not bar the amendment of the original information under
Section 14, Rule 110. Re-arraignment on the amended information will not prejudice petitioner’s
rights since the alterations introduced therein did not change the nature of the crime. As held in
People v. Casey:27

The test as to whether a defendant is prejudiced by the amendment of an information has been
said to be whether a defense under the information as it originally stood would be available after
the amendment is made, and whether any evidence defendant might have would be equally
applicable to the information in the one form as in the other. A look into Our jurisprudence on the
matter shows that an amendment to an information introduced after the accused has pleaded
not guilty thereto, which does not change the nature of the crime alleged therein, does not
expose the accused to a charge which could call for a higher penalty, does not affect the
essence of the offense or cause surprise or deprive the accused of an opportunity to meet the
new averment had each been held to be one of form and not of substance – not prejudicial to
the accused and, therefore, not prohibited by Section 13 (now Section 14), Rule 110 of the
Revised Rules of Court.

Likewise, it is not necessary, as petitioner suggests, to dismiss the original complaint under the
last paragraph of Section 14, Rule 110, which states:

xxxx

If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 11, Rule 119, provided the accused
would not be placed in double jeopardy. The court may require the witnesses to give bail for
their appearance at the trial.

The afore-cited rule is inapplicable to the case at bar for the simple reason that there was no
mistake in charging the proper offense in the original information. As correctly observed by the
Sandiganbayan:

[I]t is hardly necessary for this Court to order the dismissal of the original information and then
direct the filing of a new one "charging the proper offense". The reason for this is obvious. The
prosecution did not commit a mistake in charging the proper offense; rather, it merely failed to
file an information sufficient to charge the offense it intended to charge, namely, violation of
Section 3(b) of R.A. No. 3019. Section 14, Rule 110 of the 2000 Rules of Criminal Procedure
apparently relied upon by accused Cabo contemplates a situation where the accused will be
charged with an offense different from or is otherwise not necessarily included in the offense
charged in the information to be dismissed by the Court. In the case at bar, however, accused
Cabo will not be charged with a different offense or with an offense that is not necessarily
included in the offense charged in the original information, but with the very same offense that
the prosecution intended to charge her in the first place, that is, violation of Section 3(b) of R.A.
No. 3019.28

All told, the Sandiganbayan did not commit grave abuse of discretion when it ordered the re-
arraignment of petitioner on the amended information. Double jeopardy did not attach by virtue
of petitioner’s "conditional arraignment" on the first information. It is well-settled that for a claim
of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or
information or other formal charge sufficient in form and substance to sustain a conviction; (2)
the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea
to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed
or terminated without his express consent.29 The first and fourth requisites are not present in
the case at bar.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice
SECOND DIVISION

[G.R. Nos. 140576-99. December 13, 2004]

JOSE S. RAMISCAL, JR., petitioner, vs. HONORABLE SANDIGANBAYAN

(Fourth Division), ALBANO & ASSOCIATES and the ASSOCIATION
OF GENERALS & FLAG OFFICERS, INC., respondents.

DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, of
the Resolution of the Sandiganbayan, dated June 9, 1999 in Criminal Cases Nos. 25122 to
25145, and its Resolution dated October 22, 1999, denying the motion for reconsideration
thereof.

The Antecedents

The Armed Forces of the Philippines Retirement and Separation Benefits System (AFP-
RSBS) was established in December 1973 and started its actual operations in 1976. Created
under Presidential Decree (P.D.) No. 361, as amended, the AFP-RSBS was designed to
establish a separate fund to guarantee continuous financial support to the AFP military
retirement system as provided for in Republic Act No. 340.[1] Under the decree, the AFP-
RSBS was to be funded from three principal sources: (a) congressional appropriations and
compulsory contributions from members of the AFP; (2) donations, gifts, legacies, bequests
and others to the system; and (3) all earnings of the system which shall not be subject to any
tax whatsoever.[2] AFP-RSBS is a government-owned or controlled corporation (GOCC) under
Rep. Act No. 9182, otherwise known as “The Special Purpose Vehicle Act of 2002.” It is
administered by the Chief of Staff of the AFP through a Board of Trustees and Management
Group.[3] Its funds are in the nature of public funds.[4]

On December 18, 1997, Luwalhati R. Antonino, then a member of the House of

Representatives representing the First District of the Province of South Cotabato, filed a
“Complaint-Affidavit”[5] with the Office of the Ombudsman for Mindanao. She alleged that
anomalous real estate transactions involving the Magsaysay Park at General Santos City and
questionable payments of transfer taxes prejudicial to the government had been entertained
into between certain parties. She then requested the Ombudsman to investigate the
petitioner, Retired Brig. Gen. Jose S. Ramiscal, Jr., then President of the AFP-RSBS,
[6] together with twenty-seven (27) other persons[7] for conspiracy in misappropriating AFP-
RSBS funds and in defrauding the government millions of pesos in capital gains and
documentary stamp taxes.[8]

On January 28, 1999, after the requisite preliminary investigation, Special Prosecutor Joy
C. Rubillar-Arao filed twenty-four (24) separate Informations with the Sandiganbayan against
the petitioner and several other accused. The filing of the Informations was duly approved by
then Ombudsman Aniano A. Desierto. The first twelve (12) Informations were for violation of
Section 3(e) of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, docketed as Criminal Cases Nos. 25122 to 25133.[9] All were similarly worded, except for
the names of the other accused, the dates of the commission of the offense, and the property
involved. Representative of the said Informations is that filed in Criminal Case No. 25122, the
inculpatory portion of which reads:
That sometime on September 24, 1997, and prior, or subsequent thereto, in General Santos City,
Philippines, and within the jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR., a
high ranking public official being then the President, and WILFREDO PABALAN, a low ranking
public officer being the Project Director, both of the AFP-RSBS, while in the performance of their
official duties, taking advantage of their official positions and committing the offense in relation to
their offices, conspiring together and confederating with NILO FLAVIANO and ALEX GUAYBAR,
both private individuals, did, there and then, willfully, unlawfully and criminally execute and/or cause
the execution of a falsified Deed of Sale covering Lot-X-4, a real property located at General Santos
City, by making it appear therein that the purchase price of the said lot is only TWO MILLION NINE
HUNDRED NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS at P3,000.00 per square meter,
when in truth and in fact, as all the accused very well knew and, in fact, agreed, that the same was sold
for P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTY-NINE
THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, and use the said falsified Deed of Sale as
basis for payment of capital gains and documentary stamp taxes relative to the sale of the subject lot in
the amount of only P299,700.00 and P89,910.00, respectively, when the capital gains, and documentary
stamp and other taxes should have been P524,475.00 and P157,342.50, respectively, thereby short-
changing and causing undue injury to the government through evident bad faith and manifest partiality
in the total amount of TWO HUNDRED NINETY-TWO THOUSAND TWO HUNDRED SEVEN and
50/100 PESOS (P292,207.50), more or less.
CONTRARY TO LAW.[10]

On the other hand, twelve (12) other separate Informations indicted the accused for
Falsification of Public Documents, defined and penalized under paragraph 4, Article 171 of
the Revised Penal Code, docketed therein as Criminal Cases Nos. 25134 to 25145.[11] Save
with respect to the names of the other accused, the dates of the commission of the felonies,
and the property involved in each case, the Informations were, likewise, similarly worded,
representative of which is that in Criminal Case No. 25134. The accusatory portion reads:
That on or about September 24, 1997, and sometime prior, or subsequent thereto, in General Santos
City, Philippines, and within the jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR.,
a high-ranking public official being then the President, and WILFREDO PABALAN, a low-ranking
public officer being the Project Director, both of the AFP-RSBS, while in the performance of their
duties, taking advantage of their official positions and committing the offense in relation to their
offices, conspiring and confederating with each other and with accused NILO FLAVIANO and JACK
GUIWAN, both private individuals, acting with unfaithfulness and with malicious intent, did, there and
then, willfully, unlawfully and criminally falsify a public document by executing and/or causing to be
executed a Deed of Sale for a 999-sq. m. property particularly identified as Lot-X-5 located at General
Santos City and stating therein a purchase price of only P3,000.00 per square meter or a total of TWO
MILLION NINE HUNDRED NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS when in truth
and in fact, as all the accused very well knew and, in fact, agreed, the purchase price of said lot
is P10,500.00 per square meter or a total of TEN MILLION FOUR HUNDRED EIGHTY-NINE
THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, thereby perverting the truth.
CONTRARY TO LAW.[12]

On February 2, 1999, the petitioner filed an Urgent Motion to Dismiss the Informations
and to Defer the Issuance of Warrant of Arrest, alleging want of jurisdiction. [13] He, likewise,
filed an Urgent Manifestation and Motion to Suspend Proceedings [14] on February 16, 1999,
because of the pendency of his motion for reinvestigation with the Office of the Ombudsman.
The Office of the Special Prosecutor opposed the said motions.[15]

Meanwhile, pending resolution of the aforementioned motions, the law firm of Albano &
Associates filed a “Notice of Appearance”[16] as private prosecutors in all the aforementioned
cases for the Association of Generals and Flag Officers, Inc. (AGFOI) [17] on March 9, 1999.
The notice of appearance was apparently made conformably to the letter-request of Retired
Commodore Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members thereof.

In a Resolution[18] dated April 5, 1999, the Sandiganbayan denied the earlier motions filed
by the petitioner for lack of merit. Consequently, a warrant of arrest against him was issued.
[19] He posted a cash bail bond for his provisional liberty.[20]

On April 6, 1999, the petitioner opposed the appearance of the law firm of Albano &
Associates as private prosecutors, contending that the charges brought against him were
purely public crimes which did not involve damage or injury to any private party; thus, no civil
liability had arisen.[21] He argued that under Section 16 of the Rules of Criminal Procedure,
“an offended party may be allowed to intervene through a special prosecutor only in those
cases where there is civil liability arising from the criminal offense charged.”[22] He maintained
that if the prosecution were to be allowed to prove damages, the prosecution would thereby
be proving another crime, in violation of his constitutional right to be informed of the nature of
the charge against him.

In its comment, the law firm contended that its clients, Commodore Aparri and Brig. Gen.
Navarro, were members of the AGFOI and contributors of AFP-RSBS. It alleged that as such
members-contributors, they “have been disadvantaged or deprived of their lawful investments
and residual interest at the AFP-RSBS” through the criminal acts of the petitioner and his
cohorts. It posited that its clients, not having waived the civil aspect of the cases involved,
have all the right to intervene pursuant to Section 16, Rule 110 of the Rules of Court.
Moreover, the law firm averred that its appearance was in collaboration with the Office of the
Ombudsman, and that their intervention in any event, was subject to the direction and control
of the Office of the Special Prosecutor.[23]

Replying to the comment, the petitioner refuted the allegation of AGFOI that he had civil
interest in the criminal cases involved. He posited that AGFOI was neither a member nor a
beneficiary of the AFP-RSBS. Moreover, considering that it was funded partly by the national
government and individual soldiers by way of salary deductions, the AGFOI never contributed
a single centavo to the funds of the AFP-RSBS. He further averred that AGFOI, as an
organization, has a distinct personality of its own, apart from the individual members who
compose it.[24] Hence, it is of no moment if some members of AGFOI are or have been
members and beneficiaries of the AFP-RSBS.

Meanwhile, on June 6, 1999, the petitioner filed a “Motion for Reinvestigation”[25] with the
Sandiganbayan, mentioning therein his unresolved motion for reconsideration with the Office
of the Ombudsman. He prayed that the proceeding be suspended and his arraignment
deferred pending the resolution of the reinvestigation.

The Sandiganbayan granted the motion in its Order dated June 11, 1999. The fallo of the
said resolution reads:
WHEREFORE, the prosecution is given 60 days from today within which to elevate its evidence and to
do whatever is appropriate on the Motion for Reconsideration dated February 12, 1999 and
supplemental motion thereof dated May 28, 1999 of accused Jose Ramiscal, Jr. and to inform this Court
within the said period as to its findings and recommendations together with the action thereon of the
Ombudsman.
As prayed for in open court by Pros. Monteroso, this authority from the Court for the prosecution to
evaluate its evidence and take such appropriate action as regards accused Ramiscal’s subject motion
shall also include the case regarding all the accused.
SO ORDERED.[26]

In the meantime, in a Resolution[27] dated June 9, 1999, the Sandiganbayan made short
shrift of the petitioner’s opposition and denied his plea for the denial of the appearance of the
law firm.[28] In justifying its resolution, the Sandiganbayan declared as follows:
Considering that the offended parties are members of the AFP-RSBS, as represented by the two (2) flag
officers, and their right may be affected by the action of the Court resolving the criminal and civil
aspects of the cases, there appears a strong legal presumption that their appearance should not be
disturbed. After all, their appearance is subject to the direct supervision and control of the public
prosecutor.[29]

The petitioner moved for a reconsideration[30] of the Sandiganbayan’s Resolution of June

9, 1999, which was opposed[31] by the prosecution. The Sandiganbayan issued a
Resolution[32] denying the same on October 22, 1999.

The petitioner filed the instant petition under Rule 45 of the Rules of Civil Procedure, for
the nullification of the June 9, 1999 and October 22, 1999 Resolutions of the graft court, and
raised the following issues:

I
WHETHER OR NOT, BY NATURE, THE SUBJECT CRIMINAL INDICTMENTS FOR
VIOLATIONS OF SECTION 3(E), REPUBLIC ACT NO. 3019 AND ARTICLE 172, IN RELATION
TO ARTICLE 171, OF THE REVISED PENAL CODE GIVE RISE TO CIVIL LIABILITY IN
FAVOR OF ANY PRIVATE PARTY.

II
WHETHER OR NOT AGFOI AS REPRESENTED BY ALBANO & ASSOCIATES ARE PRIVATE
INJURED PARTIES ENTITLED TO INTERVENE AS THE PRIVATE PROSECUTOR IN THE
SUBJECT CASES.[33]

In support of his petition, the petitioner reiterated the same arguments he put forth before
the Sandiganbayan.

The Special Prosecutor, for his part, avers that the remedy resorted to by the petitioner
under Rule 45 of the Rules of Civil Procedure was improper since the assailed Resolutions of
the Sandiganbayan are interlocutory in nature and not final; hence, the remedy of the
petitioner was to file a petition for certiorari and prohibition under Rule 65 of the Rules of
Court. He also argues that the petition is premature because the reinvestigation of the cases
had not yet been completed. On the merits of the petition, he posits that the AGFOI is a
member of the AFP-RSBS, and that its rights may be affected by the outcome of the cases.
He further alleged that the appearance of the private prosecutor was subject to the direct
supervision and control of the public prosecutor.

The petitioner, however, asserts, by way of reply, that the assailed orders of the
Sandiganbayan are final orders; hence, his recourse under Rule 45 of the Rules of Civil
Procedure was proper.

The Ruling of the Court

The Assailed Resolutions

of the Sandiganbayan are
Interlocutory in Nature

The word interlocutory refers to something intervening between the commencement and
the end of a suit which decides some point or matter but is not a final decision of the whole
controversy. The Court distinguished a final order or resolution from an interlocutory one
in Investments, Inc. v. Court of Appeals[34] as follows:
… A “final” judgment or order is one that finally disposes of a case, leaving nothing more to be done
by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence
presented at the trial, declares categorically what the rights and obligations of the parties are and which
party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res
adjudicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the
controversy or determining the rights and liabilities of the litigants is concerned. Nothing more
remains to be done by the Court except to await the parties’ next move (which, among others, may
consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and
ultimately, of course, to cause the execution of the judgment once it becomes “final” or, to use the
established and more distinctive term, “final and executory.”[35]
…
Conversely, an order that does not finally disposes of the case, and does not end the Court’s task of
adjudicating the parties’ contentions and determining their rights and liabilities as regards each other,
but obviously indicates that other things remain to be done by the Court, is “interlocutory,” e.g., an
order denying a motion to dismiss under Rule 16 of the Rules, or granting a motion for extension of
time to file a pleading, or authorizing amendment thereof, or granting or denying applications for
postponement, or production or inspection of documents or things, etc. Unlike a “final” judgment or
order, which is appealable, as above pointed out, an “interlocutory” order may not be questioned on
appeal except only as part of an appeal that may eventually be taken from the final judgment rendered
in this case.[36]

The rule is founded on considerations of orderly procedure, to forestall useless appeals

and avoid undue inconvenience to the appealing party by having to assail orders as they are
promulgated by the court, when all such orders may be contested in a single appeal.[37]

Under Section 1, Rule 45 of the Rules of Court, only final judgments, orders or resolutions
of the Court of Appeals or Sandiganbayan may be assailed therein. The remedy is a mode of
appeal on questions of law only.[38]

In the present case, the Sandiganbayan merely resolved to allow the appearance of the
law firm of Albano & Associates as private prosecutors, on its finding that the AGFOI,
represented by Commodore Aparri and Brig. Gen. Navarro who were, likewise,
investors/members of the AFP-RSBS, is the offended party whose rights may be affected by
the prosecution of the criminal and civil aspects of the cases and the outcome thereof.
Furthermore, the private prosecutor is subject to the direct supervision and control of the
public prosecutor. The Sandiganbayan did not dispose of the cases on their merits, more
specifically, the guilt or innocence of the petitioner or the civil liabilities attendant to the
commission of the crimes charged. Assuming that the Ombudsman would maintain the finding
of probable cause against the petitioner after the reinvestigation of the cases, and, thereafter,
the Sandiganbayan would sustain the finding of probable cause against the petitioner and
issue warrants for his arrest, the graft court would then have to proceed to trial, receive the
evidence of the parties and render judgment on the basis thereof. The petitioner would then
have the following options: (a) to proceed to trial, and, if convicted, file a petition for review
under Rule 45 of the Rules of Court to this Court; or (b) to file a petition for certiorari, under
Rule 65 of the Rules of Court, to nullify the resolutions of the Sandiganbayan on the ground of
grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the said
resolutions and decision.

Nevertheless, in the interest of substantial justice, we shall treat the petition as one filed
under Rule 65 of the Rules of Court. Dismissal of appeal purely on technical grounds is
frowned upon where the policy of the courts is to encourage hearings of appeal on their
merits. The rules of procedure ought not to be applied in a very rigid technical sense, as they
are used only to help secure, not override substantial justice. If a technical and rigid
enforcement of the rules is made, their aim would be defeated. Consequently, in the interest
of justice, the instant petition for review may be treated as a special civil action on certiorari.
[39] As we held in Salinas v. NLRC,[40] a petition which should have been brought under Rule
65 and not under Rule 45 of the Rules of Court, is not an inflexible rule. The strict application
of procedural technicalities should not hinder the speedy disposition of the case on the merits.
[41]

Although there is no allegation in the petition at bar that the Sandiganbayan committed
grave abuse of its discretion amounting to excess or lack of jurisdiction, nonetheless, the
petitioner made the following averments: that the graft court arbitrarily declared the AGFOI to
be the offended party despite the plain language of the Informations and the nature of the
crimes charged; and that the graft court blatantly violated basic procedural rules, thereby
eschewing the speedy and orderly trial in the above cases. He, likewise, averred that the
Sandiganbayan had no authority to allow the entry of a party, through a private prosecutor,
which has no right to the civil liabilities of the accused arising from the crimes charged, or
where the accused has no civil liabilities at all based on the nature of said crimes. The
petitioner also faulted the Sandiganbayan for rejecting his opposition thereto, in gross
violation of the Revised Rules of Criminal Procedure and the Revised Penal Code. Indeed,
such allegations are sufficient to qualify the petition as one under Rule 65 of the Rules of
Court. As we held in People v. Court of Appeals:[42]
The public respondent acts without jurisdiction if it does not have the legal power to determine the
case; there is excess of jurisdiction where the respondent, being clothed with the power to determine
the case, oversteps its authority as determined by law. There is grave abuse of discretion where the
public respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its
judgment as to be said to be equivalent to lack of jurisdiction.[43]

Besides, unless we resolve the present petition on its merits, other parties, like the private
respondents herein, may, likewise, enter their appearance as offended parties and participate
in criminal proceedings before the Sandiganbayan.

The Appearance of
the Law Firm Albano
& Associates

The respondent law firm entered its appearance as private prosecutor for AGFOI,
purportedly upon the request of Commodore Aparri and Brig. Gen. Navarro, quoted infra:
Atty. Antonio Albano
Practicing Lawyer
Albano-Irao Law Offices
Dear Atty. Albano:
We represent a number of Retired Generals and other Star Rank Officers who rightfully claim to have
been disadvantaged or deprived of our lawful investments and residual interest at the Retirement
Separation Benefit System, AFP because of alleged plunder of the System’s Funds, Large Scale Estafa
and Falsification of Public Documents.
We are requesting that you appear in our behalf as private prosecutor of our case.
Thank you very much.
(Sgd.) COMMO. ISMAEL D. APARRI (RET)
(Sgd.) BGEN. PEDRO I. NAVARRO (RET)[44]

As gleaned from the letter-request, the legal services of the respondent law firm were not
engaged by the AGFOI itself; it was Commodore Aparri and Brig. Gen. Navarro who did so,
for and in behalf of the other retired generals and star rank officers claiming to have residual
interests in or to be investors of the AFP-RSBS, the vendee of the lots subject of the
Informations against the petitioner. Moreover, there is no showing in the records that the
Board of Directors of the AGFOI, authorized them to engage the services of the respondent
law firm to represent it as private prosecutor in the above cases. Neither is there any
resolution on record issued by the Board of Directors of the AGFOI authorizing Commodore
Aparri and Brig. Gen. Navarro to secure the services of the respondent law firm to represent it
as the private prosecutor in said cases. If at all, the respondent law firm is the counsel of
Aparri and Navarro only.

The AGFOI and/or Commodore

Aparri and/or Brig. Gen.
Navarro Are Not the Offended
Parties in the Informations filed
Before the Sandiganbayan

The petitioner avers that the crimes charged are public offenses and, by their very nature,
do not give rise to criminal liabilities in favor of any private party. He asserts that, as gleaned
from the Informations in Criminal Cases Nos. 25122 to 25133 for violation of Section 3(e) of
Rep. Act No. 3019, the offended party is the government because based on the deeds of sale
executed in favor of the AFP-RSBS, as vendee, it was deprived of capital gains and the
documentary stamp taxes. He contends that the Informations in Criminal Cases Nos. 25134
to 25145, for falsification of public document under paragraph 4, Article 171 of the Revised
Penal Code, do not contain any allegation that the AGFOI or any private party sustained any
damage caused by the said falsifications. The petitioner further argues that absent any civil
liability arising from the crimes charged in favor of AGFOI, the latter cannot be considered the
offended party entitled to participate in the proceedings before the Sandiganbayan. According
to the petitioner, this view conforms to Section 16, Rule 110 of the Revised Rules of Criminal
Procedure, which reads:
SEC. 16. Intervention of the offended party in criminal action.— Where the civil action for recovery of
civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene
by counsel in the prosecution of the offense.

The petitioner posits that the AGFOI is not a member, beneficiary or contributor of the
AFP-RSBS, and that even if it were so, it would not sustain a direct and material damage by
an adverse outcome of the cases. Allowing the AGFOI to intervene would open the
floodgates to any person similarly situated to intervene in the proceedings and, thus, frustrate
the speedy, efficient and inexpensive disposition of the cases.

In his Comment, the Special Prosecutor avers that the AGFOI is entitled to intervene in
the proceedings in the Sandiganbayan because it is a member of the AFP-RSBS, whose
rights may be affected by the outcome of the cases.

The AGFOI and the respondent law firm contend that the latter has a right to intervene,
considering that such intervention would enable the members of AGFOI to assert their rights
to information and access to the official records, documents, and papers, a right granted by
no less than paragraph 7, Article IV of the 1987 Constitution. Furthermore, the funds of the
AFP-RSBS are impressed with public character because the government provided for its
initial funds, augmented from time to time by the salary contributions of the incumbent AFP
soldiers and officers.
 We agree with the contention of the petitioner that the AGFOI, and even Commodore
Aparri and Brig. Gen. Navarro, are not the offended parties envisaged in Section 16, Rule
110, in relation to Section 1, Rule 111 of the Revised Rules of Criminal Procedure.

Under Section 5, Rule 110[45] of the Rules, all criminal actions covered by a complaint or
information shall be prosecuted under the direct supervision and control of the public
prosecutor. Thus, even if the felonies or delictual acts of the accused result in damage or
injury to another, the civil action for the recovery of civil liability based on the said criminal acts
is impliedly instituted[46] and the offended party has not waived the civil action, reserved the
right to institute it separately or instituted the civil action prior to the criminal action, the
prosecution of the action inclusive of the civil action remains under the control and
supervision of the public prosecutor.[47] The prosecution of offenses is a public function.
[48] Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may
intervene in the criminal action personally or by counsel, who will act as private prosecutor for
the protection of his interests and in the interest of the speedy and inexpensive administration
of justice. A separate action for the purpose would only prove to be costly, burdensome and
time-consuming for both parties and further delay the final disposition of the case. The
multiplicity of suits must be avoided.[49] With the implied institution of the civil action in the
criminal action, the two actions are merged into one composite proceeding, with the criminal
action predominating the civil. The prime purpose of the criminal action is to punish the
offender in order to deter him and others from committing the same or similar offense, to
isolate him from society, reform and rehabilitate him or, in general, to maintain social order.

On the other hand, the sole purpose of the civil action is for the resolution, reparation or
indemnification of the private offended party for the damage or injury he sustained by reason
of the delictual or felonious act of the accused.[50] Under Article 104 of the Revised Penal
Code, the following are the civil liabilities of the accused:
ART. 104. What is included in civil liability. – The civil liability established in Articles 100, 101, 102
and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.

Thus, when the offended party, through counsel, has asserted his right to intervene in the
proceedings, it is error to consider his appearance merely as a matter of tolerance.[51]

The offended party may be the State or any of its instrumentalities, including local
governments or government-owned or controlled corporations, such as the AFP-RSBS,
which, under substantive laws, are entitled to restitution of their properties or funds,
reparation, or indemnification. For instance, in malversation of public funds or property under
Article 217[52] of the Revised Penal Code, frauds under Article 213[53] of the Revised Penal
Code, and violations of the Forestry Code of the Philippines, P.D. No. 705, as amended, to
mention a few, the government is the offended party entitled to the civil liabilities of the
accused. For violations of Section 3(e) of Rep. Act No. 3019,[54] any party, including the
government, may be the offended party if such party sustains undue injury caused by the
delictual acts of the accused. In such cases, the government is to be represented by the
public prosecutor for the recovery of the civil liability of the accused.
 Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the offended
party may also be a private individual whose person, right, house, liberty or property
was actually or directly injured by the same punishable act or omission of the accused, [55] or
that corporate entity which is damaged or injured by the delictual acts complained of. Such
party must be one who has a legal right; a substantial interest in the subject matter of the
action as will entitle him to recourse under the substantive law, to recourse if the evidence is
sufficient or that he has the legal right to the demand and the accused will be protected by the
satisfaction of his civil liabilities. Such interest must not be a mere expectancy, subordinate or
inconsequential. The interest of the party must be personal; and not one based on a desire to
vindicate the constitutional right of some third and unrelated party.[56]

Hence, even if the members of AGFOI may also be members or beneficiaries of the AFP-
RSBS, the respondent AGFOI does not have a legal right to intervene in the criminal cases
merely and solely to enforce and/or protect the constitutional right of such members to have
access to the records of AFP-RSBS. Neither are such members entitled to intervene therein
simply because the funds of the AFP-RSBS are public or government funds. It must be
stressed that any interest of the members of the AFP-RSBS over its funds or property is
merely inchoate and incidental. Such funds belong to the AFP-RSBS which has a juridical
personality separate and independent of its members/beneficiaries.

As gleaned from the Informations in Criminal Cases Nos. 25122 to 25133 for violation of
Section 3(e) of Rep. Act No. 3019, the offended party is the government, which was allegedly
deprived by the petitioner and the other accused of the capital gains and documentary stamp
taxes, based on the actual and correct purchase price of the property stated therein in favor of
the AFP-RSBS. The AGFOI was not involved whatsoever in the sales subject of the crimes
charged; neither was it prejudiced by the said transactions, nor is it entitled to the civil liability
of the petitioner for said cases. Thus, it is not the offended party in the said cases.

We agree with the petitioner that the AGFOI is not even the offended party in Criminal
Cases Nos. 25134 to 25145 for falsification of public documents under paragraph 4, Sec. 1,
Article 171, of the Revised Penal Code. It bears stressing that in the felony of falsification of
public document, the existence of any prejudice caused to third person or the intent to cause
damage, at the very least, becomes immaterial. The controlling consideration is the public
character of a document and the violation of the public faith and the destruction of truth
therein solemnly proclaimed. The offender does not, in any way, have civil liability to a third
person.[57]

However, if, in a deed of sale, the real property covered thereby is underpriced by a
public officer and his co-conspirators to conceal the correct amount of capital gains and
documentary stamp taxes due on the sale causing undue injury to the government, the
offenders thereby commit two crimes – (a) falsification of public document defined in
paragraph 4, Article 171 of the Revised Penal Code; and (b) violation of Section 3(e) of Rep.
Act No. 3019, a special penal law. The offender incurs civil liability to the government as the
offended party for violation of Section 3(e) of Rep. Act No. 3019, but not for falsification of
public document under paragraph 4, Article 171 of the Revised Penal Code.

On the other hand, if, under the deed of sale, the AFP-RSBS was made liable for the
payment of the capital gains and documentary stamp taxes and, thereafter, gave the correct
amount thereof to the petitioner to be paid to the government, and the petitioner and his co-
accused pocketed the difference between the correct amount of taxes and the amount
entrusted for payment, then the AFP-RSBS may be considered the offended party entitled to
intervene in the above criminal cases, through the Government Corporate Counsel.[58]

In fine, the AGFOI is not the offended party entitled to intervene in said cases.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed

Resolutions of the Sandiganbayan are REVERSED and SET ASIDE. No costs.

SO ORDERED.