1 FIRST DIVISION [ G.R. No. 164015, February 26, 2009 ] RAMON A. ALBERT, PETITIONER, VS.

THE SANDIGANBAYAN, AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS. DECISION

CARPIO, J.: The Case This is a petition for certiorari[1] of the Resolutions dated 10 February 2004[2] and 3 May 2004[3] of the Sandiganbayan. The 10 February 2004 Resolution granted the prosecution's Motion to Admit the Amended Information. The 3 May 2004 Resolution denied the Motion For Reconsideration of petitioner Ramon A. Albert (petitioner). The Facts On 24 March 1999, the Special Prosecution Officer (SPO) II of the Office of the Ombudsman for Mindanao charged petitioner and his co-accused, Favio D. Sayson and Arturo S. Asumbrado, before the Sandiganbayan with violation of Section 3(e) of Republic Act No. 3019 (RA 3019) or the Anti-Graft and Corrupt Practices Act in Criminal Case No. 25231. The Information alleged: The undersigned Special Prosecution Officer II of the Office of the Ombudsman for Mindanao hereby accuses RAMON A. ALBERT, FAVIO D. SAYSON, and ARTURO S. ASUMBRADO for (sic) violation of Section 3(e) R.A. 3019, as amended, committed as follows: That in (sic) or about May 1990 and sometime prior or subsequent thereto, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, accused RAMON A. ALBERT, a public officer, being then the President of the National Home Mortgage and Finance Corporation, occupying the said position with a salary grade above 27, while in the performance of his official function, committing the offense in relation to his office, taking advantage of his official position, conspiring and confederating with accused FAVIO D. SAYSON, then the Project Director of CODE Foundation Inc. and accused ARTURO S. ASUMBRADO, then the President of the Buhangin Residents and Employees Association for Development, Inc., acting with evident bad faith and manifest partiality and or gross neglect of duty, did then and there willfully, unlawfully and criminally cause undue injury to the government and public interest, enter and make it appear in Tax Declaration Nos. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact, as accused well knew, the two pieces of real property covered by Certificate of Titles Nos. T-151920 and T-151921 are agricultural land, and by reason of accused's misrepresentation, the NHMFC released the amount of P4,535,400.00 which is higher than the loanable amount the land could command being agricultural, thus causing undue injury to the government. CONTRARY TO LAW.[4] On 26 March 1999, a Hold Departure Order was issued by the Sandiganbayan against petitioner and his co-accused. On 25 May 1999, petitioner filed a Motion to Dismiss Criminal Case No. 25231 on the following grounds: (1) the accused (petitioner) was denied due process of law; (2) the Office of the Ombudsman did not acquire jurisdiction over the person of the accused; (3) the constitutional rights of the accused to a speedy disposition of cases and to a speedy trial were violated; and (4) the resolution dated 26 February 1999 finding the accused guilty of violation of Section 3(e) of RA 3019 is not supported by evidence.[5] On 18 December 2000, pending the resolution of the Motion to Dismiss, petitioner filed a Motion to Lift Hold Departure Order and to be Allowed to Travel. The prosecution did not object to the latter motion on the condition that petitioner would be "provisionally" arraigned.[6] On 12 March 2001, petitioner filed an Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel. The following day, or on 13 March 2001, the Sandiganbayan arraigned petitioner who entered a plea of "not guilty." In the Resolution dated 16 April 2001, the Sandiganbayan granted petitioner's Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel.

On 26 November 2001, the Sandiganbayan denied petitioner's Motion to Dismiss and ordered the prosecution to conduct a reinvestigation of the case with respect to petitioner. In a Memorandum dated 6 January 2003, the SPO who conducted the reinvestigation recommended to the Ombudsman that the indictment against petitioner be reversed for lack of probable cause. However, the Ombudsman, in an Order dated 10 March 2003, disapproved the Memorandum and directed the Office of the Special Prosecutor to proceed with the prosecution of the criminal case. Petitioner filed a Motion for Reconsideration of the Order of the Ombudsman. In a Resolution promulgated on 16 May 2003, the Sandiganbayan scheduled the arraignment of petitioner on 24 July 2003. However, in view of the pending motion for reconsideration of the order of the Ombudsman, the arraignment was reset to 2 October 2003. In a Manifestation dated 24 September 2003, the SPO informed the Sandiganbayan of the Ombudsman's denial of petitioner's motion for reconsideration. On even date, the prosecution filed an Ex-Parte Motion to Admit Amended Information. During the 2 October 2003 hearing, this ex-parte motion was withdrawn by the prosecution with the intention of filing a Motion for Leave to Admit Amended Information. The scheduled arraignment of petitioner was reset to 1 December 2003.[7] On 7 October 2003, the prosecution filed a Motion for Leave to Admit Amended Information. The Amended Information reads: The undersigned Special Prosecution Officer I of the Office of Special Prosecutor, hereby accuses RAMON A. ALBERT, FAVIO D. SAYSON, and ARTURO S. ASUMBRADO for (sic) violation of Section 3(e) R.A. 3019, as amended, committed as follows: That in (sic) or about May 1990 and sometime prior or subsequent thereto, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, accused RAMON A. ALBERT, a public officer, being then the President of the National Home Mortgage and Finance Corporation, occupying the said position with a salary grade above 27, while in the performance of his official function, committing the offense in relation to his office, taking advantage of his official position, conspiring and confederating with accused FAVIO D. SAYSON, then the Project Director of CODE Foundation Inc. and accused ARTURO S. ASUMBRADO, then the President of the Buhangin Residents and Employees Association for Development, Inc., acting with evident bad faith and manifest partiality and/or gross inexcusable negligence, did then and there willfully, unlawfully and criminally cause undue injury to the government and public interest, enter and make it appear in Tax Declaration Nos. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact, as accused well knew, the two pieces of real property covered by Certificate of Titles Nos. T-151920 and T-151921 are agricultural land, and by reason of accused's misrepresentation, the NHMFC released the amount of P4,535,400.00 which is higher than the loanable amount the land could command being agricultural, thus causing undue injury to the government. CONTRARY TO LAW.[8] Petitioner opposed the motion, alleging that the amendment made on the information is substantial and, therefore, not allowed after arraignment. The Ruling of the Sandiganbayan In its Resolution of 10 February 2004,[9] the Sandiganbayan granted the prosecution's Motion to Admit Amended Information. At the outset, the Sandiganbayan explained that "gross neglect of duty" which falls under Section 3(f) of RA 3019 is different from "gross inexcusable negligence" under Section 3(e), and held thus: In an information alleging gross neglect of duty, it is not a requirement that such neglect or refusal causes undue injury compared to an information alleging gross inexcusable negligence where undue injury is a constitutive element. A change to this effect constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended. It may be considered however, that there are three modes by which the offense for Violation of Section 3(e) may be committed in any of the following: 1. Through evident bad faith;

3 2. Through manifest partiality; 3. Through gross inexcusable negligence. Proof of the existence of any of these modes in connection with the prohibited acts under said section of the law should suffice to warrant conviction.[10] However, the Sandiganbayan also held that even granting that the amendment of the information be formal or substantial, the prosecution could still effect the same in the event that the accused had not yet undergone a permanent arraignment. And since the arraignment of petitioner on 13 March 2001 was merely "provisional," then the prosecution may still amend the information either in form or in substance. Petitioner filed a Motion for Reconsideration, which was denied by the Sandiganbayan in its Resolution of 3 May 2004. Hence this petition. The Issues The issues raised in this petition are: 1. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADMITTING THE AMENDED INFORMATION; AND 2. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FURTHER PROCEEDING WITH THE CASE DESPITE THE VIOLATION OF THE RIGHT OF THE ACCUSED TO A SPEEDY TRIAL. The Ruling of the Court The petition has no merit. On Whether the Sandiganbayan Should Admit the Amended Information Section 14 of Rule 110 of the Revised Rules of Criminal Procedure provides: Sec. 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. xxx Petitioner contends that under the above section, only a formal amendment of the information may be made after a plea. The rule does not distinguish between a plea made during a "provisional" or a "permanent" arraignment. Since petitioner already entered a plea of "not guilty" during the 13 March 2001 arraignment, then the information may be amended only in form. An arraignment is that stage where in the mode and manner required by the rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him.[11] The accused is formally informed of the charges against him, to which he enters a plea of guilty or not guilty. As an indispensable requirement of due process, an arraignment cannot be regarded lightly or brushed aside peremptorily.[12] The practice of the Sandiganbayan of conducting "provisional" or "conditional" arraignments is not sanctioned by the Revised Internal Rules of the Sandiganbayan or by the regular Rules of Court.[13] However, in People v. Espinosa,[14] this Court tangentially recognized such practice, provided that the alleged conditions attached thereto should be "unmistakable, express, informed and enlightened." Moreover, the conditions must be expressly stated in the Order disposing of the arraignment; otherwise, the arraignment should be deemed simple and unconditional.[15] In the present case, the arraignment of petitioner is reflected in the Minutes of the Sandiganbayan Proceedings dated 13 March 2001 which merely states that the "[a]ccused when arraigned entered a plea of not guilty. The Motion to Travel is

4 granted subject to the usual terms and conditions imposed on accused persons travelling (sic) abroad." [16] In the Resolution of 16 April 2001,[17] the Sandiganbayan mentioned the arraignment of petitioner and granted his Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel, setting forth the conditions attendant thereto which, however, were limited only to petitioner's itinerary abroad; the setting up of additional bailbond; the required appearance before the clerk of court; and written advice to the court upon return to the Philippines. Nothing on record is indicative of the provisional or conditional nature of the arraignment. Hence, following the doctrine laid down in Espinosa, the arraignment of petitioner should be deemed simple and unconditional. The rules mandate that after a plea is entered, only a formal amendment of the Information may be made but with leave of court and only if it does not prejudice the rights of the accused. Petitioner contends that replacing "gross neglect of duty" with "gross inexcusable negligence" is a substantial amendment of the Information which is prejudicial to his rights. He asserts that under the amended information, he has to present evidence that he did not act with "gross inexcusable negligence," evidence he was not required to present under the original information. To bolster his argument, petitioner refers to the 10 February 2004 Resolution of the Sandiganbayan which ruled that the change "constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended."[18] We are not convinced. Petitioner is charged with violation of Section 3(e) of RA 3019 which provides as follows: SEC. 3. Corrupt practices of public officers.-- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. This crime has the following essential elements:[19] 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and 3. His action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. The second element provides the different modes by which the crime may be committed, that is, through "manifest partiality," "evident bad faith," or "gross inexcusable negligence."[20] In Uriarte v. People,[21] this Court explained that Section 3(e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. [22] "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will.[23] "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes.[24] "Gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.[25] The original information filed against petitioner alleged that he acted with "evident bad faith and manifest partiality and or (sic) gross neglect of duty." The amended information, on the other hand, alleges that petitioner acted with "evident bad faith and manifest partiality and/or gross inexcusable negligence." Simply, the amendment seeks to replace "gross neglect of duty" with "gross inexcusable negligence." Given that these two phrases fall under different paragraphs of

5 RA 3019&mdashspecifically, "gross neglect of duty" is under Section 3(f) while "gross inexcusable negligence" is under Section 3(e) of the statutethe question remains whether or not the amendment is substantial and prejudicial to the rights of petitioner. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended.[26] On the other hand, an amendment which 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 is an amendment to form that can be made at anytime.[27] In this case, the amendment entails the deletion of the phrase "gross neglect of duty" from the Information. Although this may be considered a substantial amendment, the same is allowable even after arraignment and plea being beneficial to the accused.[28] As a replacement, "gross inexcusable negligence" would be included in the Information as a modality in the commission of the offense. This Court believes that the same constitutes an amendment only in form. In Sistoza v. Desierto,[29] the Information charged the accused with violation of Section 3(e) of RA 3019, but specified only "manifest partiality" and "evident bad faith" as the modalities in the commission of the offense charged. "Gross inexcusable negligence" was not mentioned in the Information. Nonetheless, this Court held that the said section is committed by dolo or culpa, and although the Information may have alleged only one of the modalities of committing the offense, the other mode is deemed included in the accusation to allow proof thereof.[30] In so ruling, this Court applied by analogy the pronouncement in Cabello v. Sandiganbayan[31] where an accused charged with willful malversation was validly convicted of the same felony of malversation through negligence when the evidence merely sustained the latter mode of perpetrating the offense. The Court held that a conviction for a criminal negligent act can be had under an information exclusively charging the commission of a willful offense upon the theory that the greater includes the lesser offense. Thus, we hold that the inclusion of "gross inexcusable negligence" in the Information, which merely alleges "manifest partiality" and "evident bad faith" as modalities in the commission of the crime under Section 3(e) of RA 3019, is an amendment in form. On Whether Petitioner's Right to a Speedy Trial was Violated Petitioner contends that the complaint-affidavit against him was filed on 15 June 1992, but it was resolved by the Office of the Ombudsman-Mindanao only on 26 February 1999, or after a period of almost seven (7) years. Four (4) years thereafter, the SPO, upon reinvestigation of the case, recommended that the case against petitioner be dismissed for lack of probable cause, but this recommendation was denied by the Ombudsman. A Motion for Leave to Admit Amended Information was later filed by the prosecution and granted by the Sandiganbayan in the questioned Resolution of 10 February 2004. Thus, petitioner maintains that it took the Office of the Ombudsman twelve (12) years since the initial filing of the complaint-affidavit in 1992 to charge accused with the offense under the Amended Information, in violation of petitioner's right to a speedy trial. Petitioner's contentions are futile. The right of an accused to a speedy trial is guaranteed under Section 16, Article III of the Philippine Constitution which provides: "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." This right, however, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried.[32] A simple mathematical computation of the period involved is not sufficient. We concede that judicial proceedings do not exist in a vacuum and must contend with the realities of everyday life.[33] After reviewing the records of the case, we believe that the right of petitioner to a speedy trial was not infringed upon. The issue on the inordinate delay in the resolution of the complaint-affidavit filed against petitioner and his co-accused and the filing of the original Information against petitioner was raised in petitioner's Motion to Dismiss, and was duly addressed by the Sandiganbayan in its Resolution denying the said motion. It appears that the said delays were caused by the numerous motions for extension of time to file various pleadings and to reproduce documents filed by petitioner's co-

6 accused, and that no actual preliminary investigation was conducted on petitioner. The Sandiganbayan properly held that a reinvestigation of the case as to petitioner was in order. Although the reinvestigation inadvertently resulted to further delay in the proceedings, this process could not have been dispensed with as it was done for the protection of the rights of petitioner himself. It is well-settled that although the conduct of an investigation may hold back the progress of a case, it is necessary so that the accused's right will not be compromised or sacrificed at the altar of expediency. [34] The succeeding events appear to be parts of a valid and regular course of judicial proceedings not attended by delays which can be considered vexatious, capricious, oppressive, or unjustified. Hence, petitioner's contention of violation of his right to a speedy trial must fail. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions dated 10 February 2004 and 3 May 2004 of the Sandiganbayan in Criminal Case No. 25231. SO ORDERED. Puno, C.J., Corona, Leonardo-De Castro, and Brion,* JJ., concur.

Designated member per Special Order No. 570. Under Rule 65 of the 1997 Rules of Civil Procedure.

[1]

[2]

Penned by Associate Justice Godofredo L. Legaspi with Associate Justices Raoul V. Victorino, and Roland B. Jurado, concurring.
[3]

Approved by Associate Justices Godofredo L. Legaspi, Raoul V. Victorino, and Diosdado M. Peralta (now a member of this Court).
[4]

Rollo, pp. 34-35. Id. at 36. Records, Vol. I, p. 173.

[5]

[6]

[7]

Due to various pending matters, the arraignment of petitioner was postponed several times and was finally conducted on 10 March 2005. (Records, Vol. II, p. 221)
[8]

Rollo, pp. 59-60. Id. at 28-29. Citing Fonacier v. Sandiganbayan, G.R. No. 50691, 5 December 1994, 238 SCRA 655. Borja v. Mendoza, 168 Phil. 83, 87 (1977). People v. Espinosa, 456 Phil. 507, 516 (2003). Id. Id.; Cabo v. Sandiganbayan, G.R. No. 169509, 16 June 2006, 491 SCRA 264, 273. Id. at 274. Records, Vol. I, p. 192.

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

7
[17]

Id. at 198-199. Rollo, pp. 12 and 28.

[18]

[19]

Uriarte v. People, G.R. No. 169251, 20 December 2006, 511 SCRA 471, 486, citing Santos v. People, G.R. No. 161877, 23 March 2006, 485 SCRA 185, 194; Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, 25 October 2004, 441 SCRA 377, 386; and Jacinto v. Sandiganbayan, G.R. No. 84571, 2 October 1989, 178 SCRA 254, 259.
[20]

Gallego v. Sandiganbayan, 201 Phil. 379, 383 (1982). Supra note 19. Id., citing Alvizo v. Sandiganbayan, 454 Phil. 34, 72 (2003). Id., citing Sistoza v. Desierto, 437 Phil. 117, 132 (2002). Id., citing Air France v. Carrascoso, 124 Phil. 722, 737 (1966). Id., citing Sistoza v. Desierto, supra.

[21]

[22]

[23]

[24]

[25]

[26]

People v. Montenegro, G.R. No. L-45772, 25 March 1988, 159 SCRA 236, 241, citing Sec. 2, CJS, Sec. 240, pp.12491250.
[27]

Id., citing United States v. Alabot, 38 Phil. 698 (1918).

[28]

Fronda-Baggao v. People, G.R. No. 151785, 10 December 2007, 539 SCRA 531, 535, citing Matalam v. Sandiganbayan, G.R. No. 165751, 12 April 2005, 455 SCRA 736, 746 and People v. Janairo, 370 Phil. 59 (1999).
[29]

Supra note 23. Id. at 325. 274 Phil. 369 (1991).

[30]

[31]

[32]

Lumanlaw v. Peralta, Jr., G.R. No. 164953, 13 February 2006, 482 SCRA 396, 410, citing Gonzales v. Sandiganbayan, G.R. No. 94750, 16 July 1991, 199 SCRA 298, 307.
[33]

Id. Matalam v. Sandiganbayan, G.R. No. 165751, 12 April 2005, 455 SCRA 736, 752.

[34]

Source: Supreme Court E-Library | Date created: March 27, 2009 This page was dynamically generated by the E-Library Content Management System

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FIRST DIVISION [ G.R. No. 119601, December 17, 1996 ] DANILO BUHAT, PETITIONER, VS. COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS. DECISION

HERMOSISIMA, JR., J.: Delicate and sensitive is the issue in this case, which is, whether or not the upgrading of the crime charged from homicide to the more serious offense of murder is such a substantial amendment that it is proscribed if made after the accused had pleaded "not guilty" to the crime of homicide, displaying as alleged by the defense, inordinate prejudice to the rights of the defendant. On March 25, 1993, an information for HOMICIDE[1] was filed in the Regional Trial Court (RTC)[2] against petitioner Danny Buhat, "John Doe" and "Richard Doe". The information alleged that on October 16, 1992, petitioner Danilo Buhat, armed with a knife, unlawfully attacked and killed one Ramon George Yu while the said two unknown assailants held his arms, "using superior strength, inflicting x x x mortal wounds which were x x x the direct x x x cause of his death"[3]. Even before petitioner could be arraigned, the prosecution moved for the deferment of the arraignment on the ground that the private complainant in the case, one Betty Yu, moved for the reconsideration of the resolution of the City Prosecutor which ordered the filing of the aforementioned information for homicide. Petitioner however, invoking his right to a speedy trial, opposed the motion. Thus, petitioner was arraigned on June 9, 1993 and, since petitioner pleaded "not guilty", trial ensued. On February 3, 1994, then Secretary of Justice Franklin M. Drilon, finding Betty Yus appeal meritorious, ordered the City Prosecutor of Roxas City "to amend the information by upgrading the offense charged to MURDER and implead therein additional accused Herminia Altavas, Osmea Altavas and Renato Buhat"[4]

On March 10, 1994, the Assistant City Prosecutor filed a motion for leave to amend information. The amendment as proposed was opposed by the petitioner. The amended information read: "The undersigned assistant City Prosecutor accuses DANNY BUHAT, of Capricho II, Barangay V, Roxas City, Philippines, HERMINIA ALTAVAS AND OSMEA ALTAVAS both resident of Punta Tabuc, Roxas City, Philippines, of the crime of Murder, committed as follows: That on or about the 16th day of October, 1992, in the City of Roxas, Philippines, the above-named accused, Danny Buhat armed with a knife, conspiring, confederating and helping one another, did and then and there wilfully, unlawfully and feloniously [sic] without justifiable motive and with intent to kill, attack, stab and injure one RAMON GEORGE YU, while the two other accused held the arms of the latter, thus using superior strength, inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said Ramon George Yu in such amount as maybe [sic] awarded to them by the court under the provisions of the Civil Code of the Philippines. CONTRARY TO LAW."[5] The prosecution had by then already presented at least two witnesses. In an order,[6] dated June 2, 1994, the RTC denied the motion for leave to amend information. The denial was premised on (1) an invocation of the trial courts discretion in disregarding the opinion of the Secretary of Justice as allegedly held in Crespo vs. Mogul[7] and (2) a conclusion reached by the trial court that the resolution of the inquest prosecutor is more persuasive than that of the Secretary of Justice, the former having actually conducted the preliminary investigation "where he was able to observe the demeanor of those he investigated"[8] The Solicitor General promptly elevated the matter to the Court of Appeals. He filed a petition for certiorari[9] assailing the aforecited order denying the motion for leave to amend information. Finding the proposed amendment as nonprejudicial to petitioners rights, respondent court granted the petition for certiorari in a decision, dated March 28, 1995, the decretal portion of which reads: "THE FOREGOING CONSIDERED, herein petition is hereby granted: the Order dated June 2, 1994 is set aside and annulled; amendment of the information from homicide to murder, and including as additional accused Herminia Altavas and Osmea Altavas is allowed; and finally, the writ of preliminary injunction we issued on January 30, 1995 is made permanent by prohibiting the public respondent from hearing aforementioned criminal case under the original information."[10] Hence this petition raising the sole issue of whether or not the questioned amendment to the information is procedurally infirm. The petition lacks merit. The additional allegation of conspiracy is only a formal amendment, petitioners participation as principal not having been affected by such amendment ------------------------------------------------Petitioner asseverates that the inclusion of additional defendants in the information on the ground of conspiracy "is a substantial amendment which is prohibited by Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure, because the allegation of conspiracy x x x is a substantial amendment saddling the [p]etitioner with the need of a new defense in order to met [sic] a different situation at the trial [c]ourt"[11] Petitioner cites the case of People v. Montenegro[12] as jurisprudential support. Indeed, we stated in the Montenegro case that "the allegation of conspiracy among all the private respondents-accused, which was not previously included in the original information, is x x x a substantial amendment saddling the respondents with the need of a new defense in order to meet a different situation in the trial court"[13]. And to explain the new defense theory as a bar to substantial amendment after plea, we cited the case of People v. Zulueta[14] where we elucidated, thus:

10 "Surely the preparations made by herein accused to face the original charges will have to be radically modified to meet the new situation. For undoubtedly the allegation of conspiracy enables the prosecution to attribute and ascribe to the accused Zulueta all the acts, knowledge, admissions and even omissions of his co-conspirator Angel Llanes in furtherance of the conspiracy. The amendment thereby widens the battlefront to allow the use by the prosecution of newly discovered weapons, to the evident discomfiture of the opposite camp. Thus it would seem inequitable to sanction the tactical movement at this stage of the controversy, bearing in mind that the accused is only guaranteed two-days preparation for trial. Needless to emphasize, as in criminal cases the liberty, even the life, of the accused is at stake, it is always wise and proper that he be fully apprised of the charges, to avoid any possible surprise that may lead to injustice. The prosecution has too many facilities to covet the added advantage of meeting unprepared adversaries." This jurisprudential rule, however, is not without an exception. And it is in the same case of Zulueta that we highlighted the case of Regala v. Court of first Instance of Bataan[15] as proffering a situation where an amendment after plea resulting in the inclusion of an allegation of conspiracy and in the indictment of some other persons in addition to the original accused, constitutes a mere formal amendment permissible even after arraignment. In Zulueta, we distinguished the Regala case in this wise: "Some passages from Regala contra El Juez del Juzgado de Primera Instancia de Bataan are quoted by petitioners. Therein the accused pleaded not guilty to an information for murder, and later the fiscal amended the indictment by including two other persons charged with the same offense and alleging conspiracy between the three. Five justices held that the amendment was not substantial. But that situation differs from the one at bar. The amendment there did not modify theory of the prosecution that the accused had killed the deceased by a voluntary act and deed. Here there is an innovation, or the introduction of another alternative imputation, which, to make matters worse, is inconsistent with the original allegations."[16] Applying our aforegoing disquisition in the 1946 case of Regala, we likewise ruled in the 1983 case of People v. Court of Appeals[17] that a post-arraignment amendment to further allege conspiracy, is only a formal amendment not prejudicial to the rights of the accused and proper even after the accused has pleaded "not guilty" to the charge under the original information. We held in said case of People v. Court of Appeals: "x x x The trial Judge should have allowed the amendment x x x considering that the amendments sought were only formal. As aptly stated by the Solicitor General in his memorandum, there was no change in the prosecutions theory that respondent Ruiz willfully, unlawfully and feloniously attacked, assaulted and shot with a gun Ernesto and Rogelio Bello x x x. The amendments would not have been prejudicial to him because his participation as principal in the crime charged with respondent Ruiz in the original informations, could not be prejudiced by the proposed amendments. In a case (Regala vs. CFI, 77 Phil. 684), the defendant was charged with murder. After plea, the fiscal presented an amended information wherein two other persons were included as co-accused. There was further allegation that the accused and his co-defendants had conspired and confederated together and mutually aided one another to commit the offense charged. The amended information was admitted x x x xxx xxx xxx

Otherwise stated, the amendments x x x would not have prejudiced Ruiz whose participation as principal in the crimes charged did not change. When the incident was investigated by the fiscals office, the respondents were Ruiz, Padilla and Ongchenco. The fiscal did not include Padilla and Ongchenco in the two informations because of insufficiency of evidence. It was only later when Francisco Pagcalinawan testified at the reinvestigation that the participation of Padilla and Ongchenco surfaced and, as a consequence, there was the need for the information of the informations x x x." The aforegoing principle, by way of exception to the general rule, also appositely applies in the present controversy. Petitioner undoubtedly is charged as a principal in the killing of Ramon George Yu whom petitioner is alleged to have stabbed while two unknown persons held the victim's arms. The addition of the phrase, "conspiring, confederating and helping one another" does not change the nature of petitioner's participation as principal in the killing. Whether under the original or the amended information, petitioner would have to defend himself as the People makes a case against him and secures for public protection the punishment of petitioner for stabbing to death, using superior strength, a fellow citizen in whose help and safety society as a whole is interested. Petitioner, thus, has no tenable basis to decry the amendment in question. Furthermore, neither may the amendment in question be struck down on the ground that Herminia Altavas, Osmea

11 Altavas and Renato Buhat would be placed in double jeopardy by virtue of said amendment. In the first place, no first jeopardy can be spoken of insofar as the Altavases are concerned since the first information did not precisely include them as accused therein. In the second place, the amendment to replace the name, "John Doe" with the name of Renato Buhat who was found by the Secretary of Justice to be one of the two persons who held the arms of the victim while petitioner was stabbing him,[18] is only a formal amendment and one that does not prejudice any of the accused's rights. Such amendment to insert in the information real name of the accused involves merely a matter of form as it does not, in any way, deprive any of the accused of a fair opportunity to present a defense; neither is the nature of the offense charged affected or altered since the revelation of accused's real name does not change the theory of the prosecution nor does it introduce any new and material fact.[19] In fact, it is to be expected that the information has to be amended as the unknown participants in the crime became known to the public prosecutor.[20] "Abuse of superior strength" having already been alleged in the original information charging homicide, the amendment of the name of the crime to murder, constitutes a mere formal amendment permissible even after arraignment ------------------------------------------In the case of Dimalibot v. Salcedo,[21] we ruled that the amendment of the information so as to change the crime charged from homicide to murder, may be made "even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the accused." In that case, several accused were originally charged with homicide, but before they were arraigned, an amended information for murder was filed. Understandably raised before us was the issue of the propriety and legality of the afore-described amendment, and we ruled, thus: "x x x it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder. x x x the amendment could therefore be made even as to substance in order that the proper charge may be made. x x x The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant." [22] Thus, at the outset, the main consideration should be whether or not the accused had already made his plea under the original information, for this is the index of prejudice to, and the violation of, the rights of the accused. The question as to whether the changing of the crime charged from homicide to the more serious offense of murder is a substantial amendment proscribed after the accused had pleaded "not guilty" to the crime of homicide was, it should be noted, categorically answered in the affirmative by us in the case of Dionaldo v. Dacuycuy,[23] for then we ruled: "x x x the provision which is relevant to the problem is Rule 110, Sec. 13 [now Sec. 14 under the 1985 Rules on Criminal Procedure] of the Rules of Court which stipulates: x x x The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendants 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 defendant. xxx xxx xxx xxx xxx xxx

To amend the information so as to change the crime charged for homicide to the more serious offense of murder after the petitioner had pleaded not guilty to the former is indubitably proscribed by the first paragraph of the above-quoted provision. For certainly a change from homicide to murder is not a matter of form; it is one of substance with very serious consequences."[24] Indeed, petitioner forcefully and strongly submits that, in the light of this ruling, we are allegedly obliged to grant his prayer for the reversal of the assailed decision of respondent Court of Appeals and the affirmance of the trial courts ruling that the post-arraignment amendment sought by the People is prohibited under Section 14, Rule 110, of the 1985 Rules on Criminal Procedure, the same being a substantial amendment prejudicial to the rights of the accused. The cited ruling, however, differs from the case at bench because the facts herein sustain a contrary holding. As pointed out by the Court of Appeals: "x x x the original Information, while only mentioning homicide, alleged: Danny Buhat, John Doe and Richard Doe as the accused; [sic] of Danny Buhat stabbing the deceased Ramon while his

12 two other companions were holding the arms of Ramon, thus, the information already alleged superior strength; and inflicting mortal wounds which led to the death of Ramon. Superior strength qualifies the offense to murder (Article 248). xxx xxx xxx

Before us, the Information already alleged superior strength, and the additional allegation that the deceased was stabbed by Buhat while the arms of the former were being held by the two other accused, referring to John Doe and Richard Doe. xxx xxx xxx xxx

If the killing is characterized as having been committed by superior strength, then to repeat, there is murder x x x Also the case of Dacuycuy was mentioned, as a justification for not allowing change of designation from homicide to murder, but then the body of the Information in the Dacuycuy ruling did not allege averments which qualifies [sic] the offense of murder. The case before us instead is different in that the Information already alleges that Buhat attacked the deceased while his two other companions held him by the arms, using superior strength. x x x We would even express the possibility that if supported by evidence, Buhat and the Altavases could still be penalized for murder even without changing the designation from homicide to murder, precisely because of aforementioned allegations. The proposed change of the word form homicide to murder, to us, is not a substantial change that should be prohibited." [25] In the matter of amending a criminal information, what is primarily guarded against is the impairment of the accuseds right to intelligently know the nature of the charge against him. This right has been guaranteed the accused under all Philippine Constitutions[26] and incorporated in Section 1 (b), Rule 115, of the 1985 Rules on Criminal Procedure[27] In a criminal case, due process requires that, among others, the accusation be in due form, and that notice thereof and an opportunity to answer the charged be given the accused;[28] hence, the constitutional and reglementary guarantees as to accuseds right "to be informed of the nature and cause of the accusation against him." An accused should be given the necessary data as to why he is being proceeded against and not be left in the unenviable state of speculating why he is made the object of a prosecution,[29] it being the fact that, in criminal cases, the liberty, even the life, of the accused is at stake. It is always wise and proper that the accused be fully apprised of the charged against him in order to avoid any possible surprise that may lead to injustice.[30] In order to sufficiently inform the accused of the charged against him, a written accusation, in the form of a criminal information indicting the accused and subscribed by the fiscal, must first be filed in court.[31] Such information must state, among others, the name of the accused, the designation of the offense by the statute, and the acts or omissions complained of as constituting the offense.[32] Evidently, the important end to be accomplished is to describe the act with sufficient certainty in order that the accused may be apprised of the nature of the charged against him.[33] In the event, however, that the appellation of the crime charged as determined by the public prosecutor, does not exactly correspond to the actual crime constituted by the criminal acts described in the information to have been committed by the accused, what controls is the description of the said criminal acts and not the technical name of the crime supplied by the public prosecutor. As this court, through Justice Morelands authoritative disquisition, has held: "x x x Notwithstanding apparent contradiction between caption and body, x x x the characterization of the crime by the fiscal in the caption of the information is immaterial and purposeless x x x the facts stated in the body of the pleading must determine the crime of which the defendant stands charged and for which he must be tried. The establishment of this doctrine x x x is thoroughly in accord with common sense and with the requirements of plain justice. x x x Procedure in criminal actions should always be so framed as to insure to each criminal that retributive punishment which ought swiftly and surely to visit him who willfully and maliciously violates the penal laws of society. We believe that a doctrine which does not produce such a result is illogical and unsound and works irreparable injury to the community in which it prevails. From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. x x x That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real

13 question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the matter therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of that pleading is a conclusion of law made by the fiscal. x x x For his full and complete defense he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, Did you perform the acts alleged in the manner alleged? not, Did you commit a crime named murder? If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefore. It is the province of the court alone to say what the crime is or what it is named. If the accused performed the acts alleged in the manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute. The plea of not guilty ought always to raise a question of fact and not of law. The characterization of the crime is a conclusion of law on the part of the fiscal. The denial by the accused that he committed that specific crime so characterized raises no real question. No issue can be raised by the assertion of a conclusion of law by one party and a denial of such conclusion by the other. The issues raised by the pleadings in criminal actions x x x are primarily and really issues of fact and not of law. x x x x x x Issues are not made by asserting and denying names. They are framed by the allegation and denial of facts. x x x To quibble about names is to lose sight of realities. To permit an accused to stand by and watch the fiscal while he guesses as to the name which ought to be applied to the crime of which he charges the accused, and then take advantage [sic] of the guess if it happens to be wrong, while the acts or omissions upon which that guess was made and which are the real and only foundation of the charge against him are clearly and fully stated in the information, is to change the battle ground in criminal cases from issues to guesses and from fact to fancy. It changes lawyers into dialecticians and law into metaphysics -- that fertile field of delusion propagated by language."[34] [Underscoring ours] In other words, the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of the law alleged to have been violated, they being conclusions of law which in no way affect the legal aspects of the information, but from the actual recital of facts as alleged in the body of the information.[35] Petitioner in the case at bench maintains that, having already pleaded "not guilty" to the crime of homicide, the amendment of the crime charged in the information from homicide to murder is a substantial amendment prejudicial to his right to be informed of the nature of the accusation against him. He utterly fails to dispute, however, that the original information did allege that petitioner stabbed his victim "using superior strength". And this particular allegation qualifies a killing to murder, regardless of how such a killing is technically designated in the information filed by the public prosecutor. Our ruling in the case of People v. Resayaga[36] is clearly apropos: "The appellant maintains that the information filed in this case is only for Homicide. x x x The contention is without merit. Reliance is placed mainly upon the designation of the offense given to it by the fiscal. x x x In the instant case, the information specifically alleges that the said accused conspiring, confederating together and mutually helping one another, with intent to kill and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and stab with ice picks one Paulo Balane x x x Since the killing is characterized as having been committed by taking advantage of superior strength, a circumstance which qualifies a killing to murder, the information sufficiently charged the commission of murder." [37] On another aspect, we find merit in the manifestation of the Solicitor General to the effect that the respondent Court of Appeals erroneously supposed that petitioner and Renato Buhat are one and the same person, hence the non-inclusion of Renato Buhat as additional accused in its order allowing the amendment of the information.[38] We also agree with the observation of the Solicitor General that the amended information filed in this case still fails to embody the correct identity of all of the persons found to be indictable in the Resolution of the Secretary of Justice. Explained the Solicitor General: "In its Decision under review, the Court of Appeals erroneously supposed that Danny Buhat and Renato Buhat are one and the same person (CA Decision, 1st par.). This, however, is not correct because Danny Buhat and Renato Buhat are, in fact, brothers. Moreover, it was not Osmea Altavas and his wife Herminia Altavas who held the arms of the victim

14 while Danny Buhat stabbed him. According to the Resolution of the Secretary of Justice, which is requoted hereunder: The evidence on hand clearly shows that while Osmea Altavas was continuously hitting Ramon Yu with his fists, his wife Herminia aided him by hitting the victim with a chair. It was also during this time that Danny Buhat and two (2) unidentified persons appeared and joined spouses Osmea and Herminia. One of the unidentified persons was later identified as Renato Buhat. Renato Buhat and the other unidentified held the arms of Ramon Yu while Danny Buhat stabbed Ramon Yu twice on the chest which resulted in his death. The restraint on the person of Ramon Yu before he was stabbed was described by eyewitness Susan Labrador during the continuation of the preliminary investigation of the instant case on December 2, 1992. The Amendment Information to be filed in this case must, therefore, reflect the above facts set forth in the aforesaid Resolution of the Secretary of Justice - which was the result of the preliminary investigation (as reviewed by the Secretary of Justice) conducted in this case. Strangely enough, however, the Amended Information (Annex C) that was subsequently filed before the Roxas City RTC in this case by Assistant City Prosecutor Alvin D. Calvez of Roxas City does not reflect the above facts set forth in the aforesaid Resolution of the Secretary of Justice. Said Amended Information in effect alleges that Osmea and Herminia Altavas were the ones who held the arms of the victim while Danny Buhat stabbed him, whereas, according to the Resolution of the Secretary of Justice abovecited, it was Renato Buhat and another unidentified person who held the arms of the victim while Danny Buhat stabbed him. According to the said Resolution of the Secretary of Justice, the participation of Osmea Altavas in the crime was that of hitting the victim with his fists, while x x x the participation of Herminia Altavas in the crime was that of hitting the victim with a chair. Verily, the statement of facts in the Information or Amended Information must conform with the findings of fact in the preliminary investigation (in this case, as reviewed by the Secretary of Justice) so as to make it jibe with the evidence x x x to be presented at the trial. x x x The decision of the Court of Appeals in this case (which merely resolved affirmatively the legal issues of whether or not the offense charged in the Information could be upgraded to Murder and additional accused could be included in said Information) should not be made the basis of the Amended Information herein as the said Decision does not constitute the preliminary investigation conducted in this case. Such Amended Information should be based on the findings of fact set forth in the Resolution of the Secretary of Justice, as above quoted and requoted."[39] [Underscoring theirs] The Solicitor General prays for at least the remanding of this case to respondent Court of appeals for the correction of the error abovecited and for the ordering of the filing of the correct Amended Information by the City Prosecutor of Roxas City. Considering, however, that further delay of the trial of this case is repugnant to our inveterate desire for speedy justice and that the full and complete disposition of this case virtually serves this end, we see it to be within our jurisdiction and authority to order the correct amended information to be filed in this case without the need to remand the same to respondent appellate court. WHEREFORE, the petition is DISMISSED for lack of merit. The City Prosecutor of Roxas City is HEREBY ORDERED to file the correct Amended Information fully in accordance with the findings of fact set forth in the Resolution of the Secretary of Justice, dated February 3, 1994, and in disregard of the finding of the Court of Appeals in its Decision, dated March 28, 1995, in CA-G.R. SP No. 35554 to the effect that "Danny Buhat and Renato Buhat are one and the same person." SO ORDERED. Vitug, and Kapunan, JJ., concur. Padilla, J. (Chairman), in the result. Bellosillo, J., no part.

[1]

Docketed as Criminal Case No. C-3991. Branch 17, Roxas City. Decision of the Court of Appeals in CA-G.R. SP No. 35554 dated March 28, 1995, pp. 2-3, Rollo, pp. 21-22.

[2]

[3]

15

[4]

Resolution dated February 3, 1994, p. 6, Rollo, p. 50. Amended Information dated April 6, 1995, Rollo, p. 51. Issued by the Honorable Jose O. Alovera, Presiding Judge, RTC Branch 17, Roxas City. 153 SCRA 470. Petition, p. 6, Rollo, p. 7. Docketed as CA-G.R. SP No. 35554.

[5]

[6]

[7]

[8]

[9]

[10]

Decision penned by Associate Justice Bernardo Ll. Salas and concurred in by Pacita Canizares-Nye and Conchita Carpio-Morales (all of the Former Special Eleventh Division), p. 8, Rollo, p. 27.
[11]

Petition, p. 13, Rollo, p. 14. 159 SCRA 236 [1988]. Id., pp. 241-242. 89 Phil. 752 [1951]. 77 Phil. 684 [1946]. 89 Phil. 752, 756 [1951]. 121 SCRA 733 [1983]. Resolution dated February 3, 1994, pp. 5-6; Rollo, pp. 49-50.

[12]

[13]

[14]

[15]

[16]

[17]

[18]

[19]

People v. Padica, 221 SCRA 364, 380 [1993]. See also U.S. v. De la Cruz, et. al., 3 Phil. 331 [1904]; Arevalo, et. al. v. Nepomuceno, etc., et. al., 63 Phil. 627 [1936]; People v. Labatete, 107 Phil. 697 [1960].
[20]

People v. Ornopia, 122 SCRA 468, 474 [1983]. 107 Phil. 843 [1960]. Id., p. 846. 108 SCRA 736 [1981]. Id., p. 738. Decision in CA-G.R. SP No. 35554, pp. 3-7, Rollo, pp. 22-26. Sec. 1 (17), Art. III, 1935 Constitution; Sec. 19, Art. IV, 1973 Constitution; Sec. 14 (2), Art. III, 1987 Constitution. "SECTION 1. Rights of Accused at the trial.--In all criminal prosecutions, the accused shall be entitled: xxx xxx

[21]

[22]

[23]

[24]

[25]

[26]

[27]

xxx

(b) To be informed of the nature and cause of the accusation against him.

16 xxx
[28]

xxx

xxx"

U.S. v. Ocampo, 18 Phil. 1 [1910]; U.S. v. Grant and Kennedy 18 Phil. 122 [1910]. People v. Mencias, 46 SCRA 88 [1972]. People v. Zulueta, 89 Phil. 752 [1951]. Sec. 4, Rule 110, 1985 Rules on Criminal Procedure. Sec. 6, id. U.S. v. Alabot, 38 Phil. 698, 704 [1918]. U.S. v. Lim San, 17 Phil. 273, 278-281 [1910].

[29]

[30]

[31]

[32]

[33]

[34]

[35]

U.S. v. Cabe, 36 Phil. 728, 731 [1917]; U.S. v. Ondaro, 39 Phil. 70, 75 [1918]; U.S. v. Burns, 41 Phil. 418, 436 [1921]; People v. Perez, 45 Phil. 600, 607 [1923]; People v. Oliveria, 67 Phil. 427 [1939]; People v. Arnault, 92 Phil. 252 [1952]; People v. Cosare, 95 Phil. 656, 660 [1954]; Matilde, Jr. v. Jabson, 68 SCRA 456, 462 [1975]; Reyes v. Camilon, 192 SCRA 445, 453 [1990]; People v. Mayoral, 203 SCRA 528, 538-539 [1991]; People v. Escosio, 220 SCRA 475, 488 [1993].
[36]

159 SCRA 426 [1988]. Id., pp. 430-431. The dispositive portion of the assailed decision reads as follows:

[37]

[38]

"THE FOREGOING CONSIDERED, herein petition is hereby granted x x x the amendment of the Information from homicide to murder, and including as additional accused Herminia Altavas and Osmea Altavas is allowed x x x."
[39]

Comment and Motion of the Solicitor General, pp. 7-11, Rollo, pp. 37-41.

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17 FIRST DIVISION [ G.R. Nos. 112801-11, April 12, 1996 ] THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. WONG CHUEN MING, AU WING CHEUNG, TAN SOI TEE, LIM CHAN FATT, CHIN KOK WEE, CHIN KIN YONG, YAP BOON AH, CHIN KONG SONG, CHIN KIN FAH, CHAI MIN HUWA, AND LIM NYUK SUN, ACCUSED. WONG CHUEN MING AND AU WING CHEUNG, ACCUSED-APPELLANTS. DECISION

PADILLA, J.: Wong Chuen Ming and Au Wing Cheung appeal from a decision[*] of the Regional Trial Court, Branch 109 of Pasay City, finding them, as well as their co-accused, guilty beyond reasonable doubt of violating Section 15, Article III of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. Appellants Wong Chuen Ming and Au Wing Cheung, both British (Hongkong) nationals, together with Tan Soi Tee, Chin Kok Wee, Lim Chan Fatt, Chin Kin Yang, Yap Boon Ah, Chin Kong Song, Chin Kin Fah, Chai Min Huwa and Lim Nyuk Sun, all Malaysian nationals, were charged with unlawfully transporting into the country Methamphetamine Hydrochloride or "shabu." Eleven (11) separate criminal informations were filed against all of the accused individually, setting forth similar allegations: "That on or about the 7th day of September, 1991, about 1:00 oclock in the afternoon in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously transport without lawful authority [3.40 kilograms in Criminal Case No. 91-1524 filed against Wong Chuen Ming; 3.45 kilograms in Criminal Case No.91-1525 to 91-1534 filed against all other accused individually], more or less of Methamphetamine Hydrochloride, as (sic) regulated drug commonly known as "SHABU." CONTRARY TO LAW."[1] At their respective arraignments, all accused with the assistance of their counsels, pleaded not guilty to the charge. The counsel of accused-appellant Au Wing Cheung earlier filed a petition for reinvestigation and deferment of his arraignment but the same was denied by the trial court for lack of merit. Accused-appellant Au Wing Cheung was arraigned on 20 September 1991 and with the assistance of counsel, he likewise entered a plea of not guilty. The trial court conducted a joint and/or consolidated trial of all the cases upon motion by the prosecution considering that the State had common testimonial and documentary evidence against all accused. The prosecution presented four (4) witnesses, namely, (1) Danilo Gomez, a customs examiner assigned at the Ninoy Aquino International Airport (NAIA) Customs Office; (2) Zenaida Reyes Bonifacio, Chief of the Collection Division and Acting Duty Collector of the Customs Office at the NAIA; (3) Elizabeth Ayonon, a forensic chemist at the Philippine National Police Crime Laboratory, and (4) Capt. Rustico Francisco, Officer in Charge (OIC) of the Philippine National Police Narcotics Command Detachment at the NAIA. The case for the prosecution, as culled from the testimonies of its witnesses, may be summarized as follows: On 7 September 1991, at about 1:000 clock in the afternoon, Philippine Air Lines (PAL) Flight PR No. 301 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA) in Pasay City, Metro Manila. Among the many passengers who arrived on board said flight were the eleven (11) accused, namely, Wong Chuen Ming, Au Wing Cheung ,Tan Soi Tee, Chin Kok Wee, Lim Chan Fatt, Chin Kin Yong, Yap Boon Ah, Chin Kong Song, Chin Kin Fah, Chai Min Huwa and Lim Nyuk Sun. Their respective passports showed that Wong Chuen Ming and Au Wing Cheung are the only British (Hongkong) nationals in the group while the rest are all Malaysian nationals. Their passports also revealed that all the accused Malaysians (except Lim Chan Fatt) originally came from Malaysia, traveled to Singapore and Hongkong before proceeding to Manila. Upon the other hand, Wong Chuen Ming and Au Wing Cheung, as well as Lim Chan Fatt, directly came from Hongkong to Manila. All accused arrived in Manila as a tour group arranged by Select Tours International Co., Ltd. Accused-appellant Au Wing Cheung, an employee of Select Tours International Co., Ltd. acted as

18 their tour guide. After passing through and obtaining clearance from immigration officers at the NAIA, the tour group went to the baggage claim area to retrieve their respective checked-in baggages. They placed the same in one pushcart and proceeded to Express Lane 5 which at that time was manned by customs examiner Danilo Gomez. Au Wing Cheung handed to Gomez the tour groups passengers manifest, their baggage declarations and their passports. Gomez testified that he instructed the tour group to place their baggages on the examiners table for inspection. They were directed to hold on to their respective baggages while they wait for their turn to be examined. Chin Kong Songs baggage was first to be examined by Gomez. Gomez put his hand inside the baggage and in the course of the inspection, he found three (3) brown colored boxes similar in size to powdered milk boxes underneath the clothes. The boxes were marked Alpen Cereals and as he found nothing wrong with them, Gomez returned them inside the baggage and allowed Chin Kong Song to go. Following the same procedure, Gomez next examined the baggage of Wong Chuen Ming. Gomez again found and pulled out two (2) boxes of Alpen Cereals from said baggage and like in the previous inspection, he found nothing wrong with them and allowed Wong Chuen Ming to go. The third baggage to be examined belonged to Lim Nyuk Sun. When Gomez pulled out another three (3) boxes of Alpen Cereals from said baggage, he became suspicious and decided to open one of the boxes with his cutter. Inside the box was a plastic bag containing white crystalline substance. Alarmed, Gomez immediately called the attention of Appraiser Oreganan Palala and Duty Collector Zenaida Reyes Bonifacio to his discovery.[2] Bonifacio testified that upon learning about the boxes containing the white crystalline substance, she immediately ordered the tour group to get their baggages and proceed to the district collectors office. Chin Kong Song and Wong Chuen Ming, who were previously cleared by Gomez, were also brought inside together with the rest of the group. Inside the collectors office, Gomez continued to examine the baggages of the other members of the tour group. He allegedly found that each baggage contained one (1), two (2) or three (3) boxes similar to those previously found in the baggages of Chin Kong Song, Wong Chuen Ming and Lim Nyuk Sun. A total of thirty (30) boxes of Alpen Cereals containing white crystalline substance were allegedly recovered from the baggages of the eleven (11) accused. As Gomez pulled out these boxes from their respective baggages, he bundled said boxes by putting masking tape around them and handed them over to Bonifacio. Upon receipt of these bundled boxes, Bonifacio called out the names of accused as listed in the passengers manifest and ordered them to sign on the masking tape placed on the boxes allegedly recovered from their respective baggages. Also present at this time were Capt. Rustico Francisco and his men, agents of the Bureau of Customs and several news reporters. A few minutes later, District Collector Antonio Marquez arrived with General Job Mayo and then NBI Deputy Director Mariano Mison.[3] Capt. Francisco testified that shortly after all boxes of Alpen Cereals were recovered, he conducted a field test on a sample of the white crystalline substance. His test showed that the substance was indeed "shabu." Capt. Francisco immediately informed the eleven (11) accused that they were under arrest. Thereafter, all accused, as well as the Alpen Cereals boxes which were placed inside a big box, were brought to Camp Crame. [4] At Camp Crame, accused were asked to identify their signatures on the boxes and after having identified them, they were again made to sign on the plastic bags containing white crystalline substance inside the boxes bearing their signatures. The examination by Elizabeth Ayonon, a forensic chemist at the Philippine National Police Crime Laboratory at Camp Crame, confirmed that the white crystalline substance recovered from accused was "shabu."[5] The total weight of "shabu" recovered was placed at 34.45 kilograms.[6] For their part, the defense interposed by all accused was basically anchored on the testimony of their co-accused Lim Chan Fatt, a technician and self-confessed "call boy," who admitted being responsible for bringing the boxes of Alpen Cereals into the country although he denied any knowledge that they contained "shabu." Lim Chan Fatt testified that except for Chin Kong Song and Lim Nyuk Sun, all other accused were unknown or complete strangers to him until their trip to the Philippines on 7 September 1991. With respect to Chin Kong Song and Lim Nyuk Sun, Lim Chan Fatt allegedly met them at his boarding house in Hongkong where the two (2) temporarily lived a few days before said trip. According to Lim Chan Fatt, prior to their departure date, a certain Ah Hong, a co-boarder and a Hongkong businessman, approached him and asked him if he could kindly bring with him boxes of cereals to the Philippines. Ah Hong promised Lim Chan Fatt that a certain Ah Sing will get these boxes from him at the Philippine airport and for this trouble, Ah Sing will see to it that Lim Chan Fatt will have a good time in the Philippines. Ah Hong allegedly even opened one (1) box to

19 show that it really contained cereals. Lim Chan Fatt acceded to Ah Hongs request as he allegedly found nothing wrong with it. Consequently, Ah Hong delivered to Lim Chan Fatt thirty (30) boxes of Alpen Cereals. Since his baggage could not accommodate all thirty (30) boxes, Lim Chan Fatt requested Chin Kong Song and Lim Nyuk Sun to accommodate some of the boxes in their baggages. Lim Chan Fatt claimed that he entrusted five (5) boxes to Chin Kong Song and another five (5) to Lim Nyuk Sun. He allegedly placed four (4) boxes inside a hand carried plastic bag while the rest were put inside his baggage.[7] On the basis of this testimony, the defense endeavored to show that only Lim Chan Fatt, Chin Kong Song and Lim Nyuk Sun were responsible for bringing boxes of Alpen Cereals into the country and even then they cannot be held liable for violation of Section 15, Article II of R.A. No. 6425, as amended, as they allegedly had no knowledge that these boxes contained "shabu." The defense also presented as witnesses accused Chin Kong Song and Lim Nyuk Sun and accused-appellants Au Wing Cheung and Wong Chuen Ming. Accused-appellants denied that boxes of Alpen Cereals were recovered from their baggages. They claimed that they affixed their signatures on the boxes only because they were threatened by police authorities who were present during the examination inside the collectors office. Accused -appellant Au Wing Cheung maintained that he was a bona fide employee of Select Tours International Co., Ltd. and that he had no prior knowledge that the tour group he was supposed to accompany to the Philippines brought boxes containing "shabu." [8] For his part, accused-appellant Wong Chuen Ming tried to dissociate himself from the other accused by testifying that he was not a part of their group. He claimed that he was originally booked with another travel agency, Wing Ann Travel Co., for a fiveday Cebu tour. This Cebu tour was allegedly cancelled due to insufficient number of clients and accused-appellant was subsequently transferred to and accommodated by Select Tours.[9] The other accused who did not take the witness stand opted to adopt as their own all testimonial and documentary evidence presented in court for the defense. On 29 November 1991, the trial court rendered judgment, the dispositive part of which reads as follows: "xxx xxx xxx

In view of all the foregoing evidences, the Court finds that the prosecution has proven the guilt of all the accused in all the criminal cases filed against them for Violation of Section 15, Art. III, R.A. 6425 as amended and hereby sentences them as follows: In Criminal Case No. 91-1524 entitled People of the Philippines vs. WONG CHUEN MING, the Court sentences Wong Chuen Ming to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III of R.A. 6425 as amended. In Criminal Case No. 91-1525 entitled People of the Philippines vs. CHIN KIN YONG, the Court hereby sentences Chin Kin Yong to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation 15 (sic), Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1526 entitled People of the Philippines vs. AU WING CHEUNG, the Court hereby sentences Au Wing Cheung to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1527 entitled People of the Philippines vs. YAP BOON AH, the Court hereby sentences Yap Boon Ah to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1528 entitled People of the Philippines vs. TAN SOT TEE, the Court hereby sentences Tan Soi Tee to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1529 entitled People of the Philippines vs. CHIN KONG SONG, the Court hereby sentences Chin Kong Song to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended.

20

In Criminal Case No. 91-1530 entitled People of the Philippines vs. CHIN KOK WEE, the Court hereby sentences Chin Kok Wee to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1531 entitled People of the Philippines vs. CHIN KIN FAH, the Court sentences Chin Kin Fah to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1532 entitled People of the Philippines vs. LIM CHAN FATT, the Court hereby sentences Lim Chan Fatt to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1533 entitled People of the Philippines vs. CHAI MIN HUWA, the Court hereby sentences Chai Min Huwa to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1534 entitled People of the Philippines vs. LIM NYUK SUN, the Court hereby sentences Lim Nyuk Sun to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, R.A. 6425 as amended. Likewise, the thirty (30) Alpen cereal boxes found to contain a total of 34.450 kilograms of Methamphetamine Hydrochloride or shabu is hereby forfeited and the same is hereby ordered burned and/or destroyed in the presence of this Court, representative of the Department of Justice, National Bureau of Investigation, Dangerous Drugs Board, Bureau of Customs and the Narcotics Command (Narcom) at the San Lazaro crematorium before the same falls in the hands of future victims and further compound the already epidemic proportions of the drug menace in the country. SO ORDERED."[10] Thereafter, all accused through counsel filed with the trial court their joint notice of appeal.[11] However, on 7 April 1992, accused Chin Kong Song, Lim Nyuk Sun, Chin Kok Wee and Chai Min Huwa withdrew their notice of appeal. [12] This Court then directed those accused who did not withdraw their appeal to file their respective appellants brief. Only accused-appellants Wong Chuen Ming and Au Wing Cheung filed their joint appeal brief, hence, the Court was constrained to dismiss the appeal pertaining to accused Lim Chan Fatt, Ching Kin Yong, Tan Soi Tee, Yap Boon Ah and Chin Kin Fah.[13] Consequently, the Court is now only concerned with the appeal of accused-appellants Wong Chuen Ming and Au Wing Cheung as the decision of the trial court has already become final and executory with respect to accused Chin Kong Song, Lim Nyuk Sun, Chin Kok Wee, Chai Min Huwa, Lim Chan Fatt, Chi Kin Yong, Tan Soi Tee, Yap Boon Ah and Chin Kin Fah. In their appeal brief, accused-appellants Wong Chuen Ming and Au Wing Cheung make the following assignment of errors: I.

THE LOWER COURT ERRED WHEN IT FAILED TO REALIZE THAT THE JOINT REPRESENTATION BY PREVIOUS COUNSEL OF APPELLANTS WITH THE GROUP OF NINE MALAYSIANS ACCUSED NOT ONLY PREJUDICED THE FORMER BUT ALSO AMOUNTED TO THE DEPRIVATION OF THEIR CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL AND DUE PROCESS. II.

THE LOWER COURT ERRED IN FAILING TO HOLD THAT THE APPREHENDING CUSTOMS OFFICERS VIOLATED APPELLANTS MIRANDA RIGHTS.

21 III.

THE LOWER COURT ERRED IN NOT EXCLUDING THE INADMISSIBLE EVIDENCE OBTAINED IN VIOLATION OF APPELLANTS MIRANDA RIGHTS. IV.

THE LOWER COURT ERRED WHEN IT RELIED ON THE PRESUMPTION OF REGULARITY IN THE DISCHARGE OF OFFICIAL DUTIES, DESPITE THE PAUCITY AND LACK OF CREDIBILITY OF THE PROSECUTIONS EVIDENCE. V.

THE LOWER COURT ERRED WHEN IT DISREGARDED THE CLEAR ABSENCE OF ANIMUS POSSIDENDI ON THE PART OF THE APPELLANTS.[14] Accused-appellants contention that they were deprived of their right to counsel and due process when their previous counsels also represented the other accused despite "conflicting interests" is not well-taken. After going over the lengthy transcripts taken during the trial, the Court is satisfied that said counsels tried to present all the defenses available to each of the accused and that they did not, in any way, put in jeopardy accused-appellants constitutional right to counsel. It does not appear from the records that the effectiveness of accused-appellants previous counsels was diminished by the fact that they also jointly represented the other accused. The Court, however, finds merit in the other contentions raised by accused-appellants in their appeal brief. These contentions shall be discussed jointly considering that the issues they raise are interrelated and deal with the question of whether or not the guilt of accused-appellants was proven beyond reasonable doubt. At the outset, the Court holds that the signatures of accused on the boxes, as well as on the plastic bags containing "shabu," are inadmissible in evidence. A careful study of the records reveal that accused were never informed of their fundamental rights during the entire time that they were under investigation. Specifically, accused were not informed of their Miranda rights i.e. that they had the right to remain silent and to counsel and any statement they might make could be used against them, when they were made to affix their signatures on the boxes of Alpen Cereals while they were at the NAIA and again, on the plastic bags when they were already taken in custody at Camp Crame. Prosecution witness Danilo Gomez admitted this fatal lapse during cross-examination: "Atty. Tomas: What did you tell these passengers before you made them sign this bunch of cartons? A: Q: A: Q: A: Q: A: Q: A: It was Collector Bonifacio who call (sic) their names and as soon as their luggages are examined and pulled, the three boxes, I wrap it in a masking tape and requested them to sign their names. You just told them to sign this matter? Yes. No preliminaries? No. At that time that each one of the passengers were made to sign, was there any lawyer representing them? None. You did not even inform them of their constitutional rights? No."[15] (Italics supplied)

Capt. Rustico Francisco also admitted that he did not inform the accused of their rights when he placed them under arrest:

22

"Atty. Zoleta: So, after the result of that sample examined which yielded positive result, you immediately placed the accused under arrest, is that correct? A: I informed that that they are under arrest for bringing transporting to the country suspected methamphetamine hydrochloride or "shabu." xxx Q: A: Q: A: How did you announce your authority to the accused? I told Mr. Paul Au to tell his companions that we are placing them under arrest for transporting methamphetamine hydrochloride into the country. And it is at this very moment that you informed them of their right, is that correct? I did not inform them of their right."[16](Italics supplied)

It is also not shown from the testimony of Elizabeth Ayonon that accused were informed of their rights when they were again made to affix their signatures on the plastic bags: "Atty. Tomas: You said all the signatures were already there when brought to your laboratory for examination. With that answer, do you mean to tell even the signature inside the cereal box and transparent plastic bag were already there when you examined said specimen? A: Q: A: Q: A: Only the brown box labelled Alpen. Who made the signature inside the cereal box and on the transparent plastic bag? Me, sir, because I asked them to identify. The interpreter asked them to identify their signature. So, in return I have to tell them please affix your signature for proper identification since they are reflected on the box. What did you tell the accused when you required them to make their signatures? The interpreter told them to affix their signature for proper identification on the transparent plastic bag since their signature appeared on the carton box."[17]

By affixing their signatures on the boxes of Alpen Cereals and on the plastic bags, accused in effect made a tacit admission of the crime charged for mere possession of "shabu" is punished by law. These signatures of accused are tantamount to an uncounselled extra-judicial confession which is not sanctioned by the Bill of Rights (Section 12[1][3], Article III, 1987 Constitution). They are, therefore, inadmissible as evidence for any admission wrung from the accused in violation of their constitutional rights is inadmissible against them.[18] The fact that all accused are foreign nationals does not preclude application of the "exclusionary rule" because the constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens.[19] Without the signatures of accused on the boxes of Alpen Cereals and on the transparent plastic bags, the prosecution is left with the testimonies of its witnesses to establish that all the eleven (11) accused transported "shabu" into the country. Among the prosecution witnesses, only customs examiner Danilo Gomez testified that all the seized baggages, including those owned by accused-appellants Wong Chuen Ming and Au Wing Cheung, contained a box or boxes of "shabu." His testimony was given credence by the trial court since he was presumed to have performed his duties in a regular manner. However, Gomez testimony inculpating accused-appellants was not corroborated by other prosecution witnesses. Customs collector Zenaida Bonifacio stated during cross-examination that she cannot recall if each and everyone of accused were found in possession of any box or boxes of Alpen Cereals.[20] More significantly, the testimony of NARCOM officer Capt. Rustico Francisco casts doubt on the claim of Gomez that he recovered boxes of "shabu" from the baggages of accused-appellants: "Court: Clarificatory questions from the Court, you said that you were at the arrival area immediately after the arrival

23 of all these accused when your attention was called by the customs examiner, is that correct? A: Court: So that you can truly say that you could note or witness the actual examinations of the baggages of all the accused persons here? A: Court: You realize, of course, the seriousness of the charges against these persons? A: Court: As a matter of fact, they could stay in jail for life? A: Court: Now in all candor and sincerity, did you actually see with your own two eyes any box being recovered from the bag of Au Wing Cheung? If you are not sure, dont answer. A: Court: How about from the bag of Wong Chuen Ming, the other tourist from Hongkong. In all candor and sincerity did you actually see with your own two eyes a box being recovered from his bag? A: Court: There are nine other accused in these cases. In all fairness and sincerity, other than the two, did you actually see with your own two eyes boxes of cereals being recovered from the bags of the other Malaysians accused in these cases? A: Court: Without any exception? A: .Yes, Your Honor, for the nine."[21](Italics supplied) While Capt. Francisco was categorical in stating that boxes of "shabu" were recovered from the baggages belonging to the other nine (9) accused Malaysians, he admitted that he was not sure whether Gomez actually recovered boxes of "shabu" from accused-appellants baggages. Hence, the presumption of regularity in the performance of duties accorded to Gomez cannot, by itself, prevail over the constitutional right of accused-appellants to be presumed innocent especially in the light of the foregoing testimonies of other prosecution witnesses.[22] There are other circumstances that militate against the conviction of accused-appellants. First, accused-appellants are British (Hongkong) nationals while all the other accused are Malaysians. It is difficult to imagine how accused-appellants could have conspired with the other accused, who are total strangers, when they do not even speak the same language. Second, overwhelming evidence consisting of testimonies of accused-appellant Au Wing Cheungs superiors was .For the nine others, I am very sure, I am very sure that cereal boxes containing shabu, I am very sure. I am not sure. .I am not sure. Yes, Your Honor. Yes, Your Honor. Yes, Your Honor. Yes. Your Honor.

24 presented to show that he was a bona fide employee of Select Tours International Co., Ltd. Third, evidence showed that accused-appellant Wong Chuen Ming was not originally part of the tour group arranged by Select Tours but he was only accommodated by the latter at the last minute when his package tour to Cebu was cancelled by Wing Ann Travel Co. Finally, as testified to by Capt. Francisco, both accused-appellants adamantly refused to sign on the transparent plastic bags containing "shabu": "Court: You made mention about two persons two of the accused who refused to sign the plastic bags containing the suspected shabu. Did you say that? A: Court: Did you not go out of your way to inquire the reasons of the two for not wanting to sign knowing of course that your duty as a law officer is not only to see to it that the guilty are prosecuted but to spare the innocent? Did you inquire why they refused to sign? A: Court: What was the reason of the two? A: Court: Now again, think very carefully and try to recall vividly the time when these two refused to sign and go over the faces of the eleven accused and tell the court if you can remember or recall the looks of the two accused who refused to sign. Before you do that look very carefully at their faces. A: Q: A: Wong Chuen Ming, the one with the tattoo. Now, you mentioned two persons look at the faces of the 10 others. Aside from the one with a tattoo and look for the other one. The other one is the tour leader."[23] They told me their baggages did not contain any prohibited drugs. I inquired. Yes, Your Honor.

All the foregoing circumstances taken together with the findings of the Court persuade us to hold that accused-appellants participation in the illegal transportation of "shabu" into the country has not been proven beyond reasonable doubt. To paraphrase an admonition expressed by the Court in a recent case," [m]uch as We share the abhorrence of the disenchanted public in regard to the proliferation of drug pushers (or drug smugglers, as in this case), the Court cannot permit the incarceration of individuals based on insufficient factual nexus of their participation in the commission of an offense."[24] WHEREFORE, the decision appealed from is hereby REVERSED and another one entered ACQUITTING Wong Chuen Ming and Au Wing Cheung of the crime charged, based on reasonable doubt. Their immediate release is hereby ORDERED unless they are detained for some other lawful cause. Costs de oficio. SO ORDERED. Bellosillo, Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

[*]

Penned by Judge Lilia C. Lopez.

[1]

Informations in Criminal Cases Nos. 91-1524 to 91-1534 filed by Senior State Prosecutor George C. Dee; Rollo, pp. 30-51. Brackets supplied.

25
[2]

TSN, testimony of Danilo Gomez, 25 September 1991, pp. 4-13. TSN, testimony of Zenaida Reyes Bonifacio, 27 September 1991, pp. 4-11. TSN, testimony of Capt. Rustico Francisco, 2 October 1991 pp. 11-32. Exhibit NN- 1. Exhibit NN-7. TSN, testimony of Lim Chan Fatt, 14 October 1991, pp. 4-22. TSN, testimony of Au Wing Cheung. TSN, testimony of Wong Chuen Ming, 15 October 1991, pp. 13-20. RTC Decision, pp. 28-30; Rollo, pp. 88-90. Rollo, p. 92. Motion to Withdraw Notice of Appeal, Original Records, Volume III, pp. 35-36. Resolution dated 27 February 1995; Rollo, p. 280. Appeal Brief, p. 4; Rollo, p. 150. TSN, testimony of Danilo Gomez, 26 September 1991, p. 84. TSN, testimony of Capt. Rustico Francisco, 2 October 1991, pp. 32-33 TSN, testimony of Elizabeth Ayonon, 26 September 1991, p. 44. People vs. Bandin, 226 SCRA 299 (1993); People vs. Bagano, 181 SCRA 747 (1990). Villegas vs. Hui Chiong Tasia Pao Ito, 86 SCRA 270 (1978). TSN, testimony of Zenaida Bonifacio, 27 September 1991, p. 62. TSN, testimony of Capt. Rustico Francisco, 30 October 1991, p. 14. People vs. Melosantos, 245 SCRA 560(1995);People vs. Salcedo, 145 SCRA 345 (1993). TSN, testimony of Capt. Rustico Francisco, 2 October 1991, p. 44. People vs. Melosantos, supra, at 587.

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

[17]

[18]

[19]

[20]

[21]

[22]

[23]

[24]

FIRST DIVISION

26 [ G.R. No. 177752, February 24, 2009 ] PEOPLE OF THE PHILIPPINES, APPELLANT, VS. ROBERTO ABAY Y TRINIDAD, APPELLEE. DECISION

CORONA, J.: On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section 5(b), Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 4[1] under the following Information: That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force and intimidation, did then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious conduct against [AAA], a minor, 13 years of age, by then and there kissing her breast and whole body, lying on top of her and inserting his penis into her vagina, thus succeeded in having carnal knowledge of her, against her will and consent thereafter threatening to kill her should she report the incident, thereby gravely endangering her survival and normal growth and development, to the damage and prejudice of [AAA]. CONTRARY TO LAW. Appellant pleaded not guilty during arraignment. During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-Manalo of the Child Protection Unit of the Philippine General Hospital as its witnesses. AAA testified that appellant, her mother's live-in partner, had been sexually abusing her since she was seven years old. Whenever her mother was working or was asleep in the evening, appellant would threaten her with a bladed instrument[2] and force her to undress and engage in sexual intercourse with him. BBB corroborated AAA's testimony. She testified that she knew about appellant's dastardly acts. However, because he would beat her up and accuse AAA of lying whenever she confronted him, she kept her silence. Thus, when she caught appellant in the act of molesting her daughter on December 25, 1999, she immediately proceeded to the police station and reported the incident. According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing her for six years. This was confirmed by AAA's physical examination indicating prior and recent penetration injuries. The defense, on the other hand, asserted the incredibility of the charge against appellant. Appellant's sister, Nenita Abay, and appellant's daughter, Rizza, testified that if appellant had really been sexually abusing AAA, the family would have noticed. The rooms of their house were divided only by -inch thick plywood "walls" that did not even reach the ceiling. Thus, they should have heard AAA's cries. Moreover, Nenita and Rizza claimed that they "often caught" AAA and her boyfriend in intimate situations. According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here, appellant kept his silence which was contrary to human nature. On the other hand, AAA straightforwardly narrated her horrifying experience at the hands of appellant. The RTC concluded that appellant had indeed sexually abused AAA. A young girl would not have exposed herself to humiliation and public scandal unless she was impelled by a strong desire to seek justice.[3] In a decision dated November 25, 2003,[4] the RTC found appellant guilty beyond reasonable doubt of the crime of rape: WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5, Article III of RA 7610 against [AAA], the Court imposes upon him the death penalty,[5] and to pay private complainant moral damages in the amount of Fifty Thousand (P50,000) Pesos. SO ORDERED.

27 The Court of Appeals (CA), on intermediate appellate review,[6] affirmed the findings of the RTC but modified the penalty and award of damages. In view of the enactment of RA 8353[7] and RA 9346,[8] the CA found appellant guilty only of simple rape and reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to the civil indemnity ex delicto (which is mandatory once the fact of rape is proved)[9] granted by the RTC, it awarded P50,000 as moral damages and P25,000 as exemplary damages. Moral damages are automatically granted in rape cases without need of proof other than the commission of the crime[10] while exemplary damages are awarded by way of example and in order to protect young girls from sexual abuse and exploitation.[11] We affirm the decision of the CA with modifications. Under Section 5(b), Article III of RA 7610[12] in relation to RA 8353,[13] if the victim of sexual abuse[14] is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code[15] and penalized with reclusion perpetua.[16] On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse[17] under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes [18] for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act.[19] Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes),[20] a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.[21] In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of AAA through force and intimidation[22] by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established.[23] Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in sexual intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape under Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion perpetua. Furthermore, to conform with existing jurisprudence, he is ordered to pay AAA P75,000 as civil indemnity ex-delicto[24] and P75,000 as moral damages.[25] WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01365 is hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is hereby found GUIILTY of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA P75,000 as civil indemnity exdelicto, P75,000 as moral damages and P25,000 as exemplary damages. Costs against appellant. SO ORDERED. Puno, C.J., (Chairperson), Carpio, Leonardo-De Castro, and Brion,* JJ., concur.

* Per Special Order No. 570 dated February 12, 2009.

[1]

Docketed as Criminal Case No. 00182097. The nature of the bladed weapon was not specified in the records. Citing People v. Arves, 397 Phil. 137, 148 (2000).

[2]

[3]

28
[4]

Penned by Judge Socorro B. Inting. CA rollo, pp. 15-21. The imposition of the death penalty was prohibited by RA 9346 which took effect on June 30, 2006. Docketed as CA-G.R. CR-H.C. No. 01365. ANTI-RAPE LAW OF 1997. AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES. People v. Talavera, 461 Phil. 883, 891 (2003). People v. Alvarez, 461 Phil. 188, 209 (2003).

[5]

[6]

[7]

[8]

[9]

[10]

[11]

Decision penned by Associate Justice Estela M. Perlas-Bernabe and concurred in by Associate Justices Rodrigo V. Cosico (retired) and Lucas P. Bersamin. Dated January 18, 2007. Rollo, pp. 3-11.
[12]

RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), Art. III, Sec. 5(b) provides: Section 5. Child Prostitution and Other Sexual Abuse. x x x The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That 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 old shall be reclusion temporal in its medium period; (emphasis supplied) xxx
[13]

xxx

xxx

RA 8353 (which took effect on October 22, 1997) reclassified rape as a crime against person and repealed Article 335 of the Revised Penal Code. The new provisions on rape are found in Articles 266-A to 266-D of the said code. Article 335, paragraph 3 is now Article 266-A(1)(d) of the Revised Penal Code.
[14]

Sexual abuse includes coercing a child to engage in sexual intercourse or lascivious conduct. See Rules and Regulation on the Reporting and Investigation of Child Abuse Cases, Sec. 2(g) cited in People v. Malto, G.R. No. 164733, 21 September 2007, 533 SCRA 643, 659.
[15]

REVISED PENAL CODE, Art. 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. b. c. d. Through force, threat, or intimidation; When the offended party is deprived of reason or otherwise unconscious; By means of fraudulent machination or grave abuse of authority; and When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

29 2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. (emphasis supplied) REVISED PENAL CODE, Art. 266-B. Penalties.Rape under paragraph 1 of [Art. 266-A] shall be punished by reclusion perpetua.
[16]

xxx
[17]

xxx

xxx

Sexual intercourse with a child subjected to abuse. See People v. Optana, 404 Phil. 316 (2001). See CONSTITUTION, Art. III, Sec. 21 which provides:

[18]

[19]

Section 21. No person shall be put twice in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
[20]

Under Article 48 of the Revised Penal Code, there are two kinds of complex crimes: one, a single act that constitutes two or more grave or less grave felonies and two, an offense is a necessary means for committing another.
[21]

See People v. Araneta, 48 Phil. 650 (1926). In contrast, Section 5(b) of RA 7610 requires coercion or influence.

[22]

[23]

While BBB testified that AAA was more than 12 years old at the time the offense was committed, her exact age was not proven.
[24]

People v. Pioquinto, G.R. No. 168326, 11 April 2007, 520 SCRA 712, 724. People v. Balonzo, G.R. No. 176153, 21 September 2007, 533 SCRA 760, 775. FIRST DIVISION [ G.R. No. 164015, February 26, 2009 ] RAMON A. ALBERT, PETITIONER, VS. THE SANDIGANBAYAN, AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS. DECISION

[25]

CARPIO, J.: The Case This is a petition for certiorari[1] of the Resolutions dated 10 February 2004[2] and 3 May 2004[3] of the Sandiganbayan. The 10 February 2004 Resolution granted the prosecution's Motion to Admit the Amended Information. The 3 May 2004 Resolution denied the Motion For Reconsideration of petitioner Ramon A. Albert (petitioner). The Facts On 24 March 1999, the Special Prosecution Officer (SPO) II of the Office of the Ombudsman for Mindanao charged petitioner and his co-accused, Favio D. Sayson and Arturo S. Asumbrado, before the Sandiganbayan with violation of Section 3(e) of Republic Act No. 3019 (RA 3019) or the Anti-Graft and Corrupt Practices Act in Criminal Case No. 25231. The Information alleged:

30 The undersigned Special Prosecution Officer II of the Office of the Ombudsman for Mindanao hereby accuses RAMON A. ALBERT, FAVIO D. SAYSON, and ARTURO S. ASUMBRADO for (sic) violation of Section 3(e) R.A. 3019, as amended, committed as follows: That in (sic) or about May 1990 and sometime prior or subsequent thereto, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, accused RAMON A. ALBERT, a public officer, being then the President of the National Home Mortgage and Finance Corporation, occupying the said position with a salary grade above 27, while in the performance of his official function, committing the offense in relation to his office, taking advantage of his official position, conspiring and confederating with accused FAVIO D. SAYSON, then the Project Director of CODE Foundation Inc. and accused ARTURO S. ASUMBRADO, then the President of the Buhangin Residents and Employees Association for Development, Inc., acting with evident bad faith and manifest partiality and or gross neglect of duty, did then and there willfully, unlawfully and criminally cause undue injury to the government and public interest, enter and make it appear in Tax Declaration Nos. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact, as accused well knew, the two pieces of real property covered by Certificate of Titles Nos. T-151920 and T-151921 are agricultural land, and by reason of accused's misrepresentation, the NHMFC released the amount of P4,535,400.00 which is higher than the loanable amount the land could command being agricultural, thus causing undue injury to the government. CONTRARY TO LAW.[4] On 26 March 1999, a Hold Departure Order was issued by the Sandiganbayan against petitioner and his co-accused. On 25 May 1999, petitioner filed a Motion to Dismiss Criminal Case No. 25231 on the following grounds: (1) the accused (petitioner) was denied due process of law; (2) the Office of the Ombudsman did not acquire jurisdiction over the person of the accused; (3) the constitutional rights of the accused to a speedy disposition of cases and to a speedy trial were violated; and (4) the resolution dated 26 February 1999 finding the accused guilty of violation of Section 3(e) of RA 3019 is not supported by evidence.[5] On 18 December 2000, pending the resolution of the Motion to Dismiss, petitioner filed a Motion to Lift Hold Departure Order and to be Allowed to Travel. The prosecution did not object to the latter motion on the condition that petitioner would be "provisionally" arraigned.[6] On 12 March 2001, petitioner filed an Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel. The following day, or on 13 March 2001, the Sandiganbayan arraigned petitioner who entered a plea of "not guilty." In the Resolution dated 16 April 2001, the Sandiganbayan granted petitioner's Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel. On 26 November 2001, the Sandiganbayan denied petitioner's Motion to Dismiss and ordered the prosecution to conduct a reinvestigation of the case with respect to petitioner. In a Memorandum dated 6 January 2003, the SPO who conducted the reinvestigation recommended to the Ombudsman that the indictment against petitioner be reversed for lack of probable cause. However, the Ombudsman, in an Order dated 10 March 2003, disapproved the Memorandum and directed the Office of the Special Prosecutor to proceed with the prosecution of the criminal case. Petitioner filed a Motion for Reconsideration of the Order of the Ombudsman. In a Resolution promulgated on 16 May 2003, the Sandiganbayan scheduled the arraignment of petitioner on 24 July 2003. However, in view of the pending motion for reconsideration of the order of the Ombudsman, the arraignment was reset to 2 October 2003. In a Manifestation dated 24 September 2003, the SPO informed the Sandiganbayan of the Ombudsman's denial of petitioner's motion for reconsideration. On even date, the prosecution filed an Ex-Parte Motion to Admit Amended Information. During the 2 October 2003 hearing, this ex-parte motion was withdrawn by the prosecution with the intention of filing a Motion for Leave to Admit Amended Information. The scheduled arraignment of petitioner was reset to 1 December 2003.[7] On 7 October 2003, the prosecution filed a Motion for Leave to Admit Amended Information. The Amended Information reads: The undersigned Special Prosecution Officer I of the Office of Special Prosecutor, hereby accuses RAMON A. ALBERT, FAVIO D. SAYSON, and ARTURO S. ASUMBRADO for (sic) violation of Section 3(e) R.A. 3019, as amended, committed as follows:

31 That in (sic) or about May 1990 and sometime prior or subsequent thereto, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, accused RAMON A. ALBERT, a public officer, being then the President of the National Home Mortgage and Finance Corporation, occupying the said position with a salary grade above 27, while in the performance of his official function, committing the offense in relation to his office, taking advantage of his official position, conspiring and confederating with accused FAVIO D. SAYSON, then the Project Director of CODE Foundation Inc. and accused ARTURO S. ASUMBRADO, then the President of the Buhangin Residents and Employees Association for Development, Inc., acting with evident bad faith and manifest partiality and/or gross inexcusable negligence, did then and there willfully, unlawfully and criminally cause undue injury to the government and public interest, enter and make it appear in Tax Declaration Nos. D-3-1-7691 and D-3-1-7692 that two parcels of real property particularly described in the Certificate of Titles Nos. T-151920 and T-151921 are residential lands which Tax Declarations accused submitted to the NHMFC when in truth and in fact, as accused well knew, the two pieces of real property covered by Certificate of Titles Nos. T-151920 and T-151921 are agricultural land, and by reason of accused's misrepresentation, the NHMFC released the amount of P4,535,400.00 which is higher than the loanable amount the land could command being agricultural, thus causing undue injury to the government. CONTRARY TO LAW.[8] Petitioner opposed the motion, alleging that the amendment made on the information is substantial and, therefore, not allowed after arraignment. The Ruling of the Sandiganbayan In its Resolution of 10 February 2004,[9] the Sandiganbayan granted the prosecution's Motion to Admit Amended Information. At the outset, the Sandiganbayan explained that "gross neglect of duty" which falls under Section 3(f) of RA 3019 is different from "gross inexcusable negligence" under Section 3(e), and held thus: In an information alleging gross neglect of duty, it is not a requirement that such neglect or refusal causes undue injury compared to an information alleging gross inexcusable negligence where undue injury is a constitutive element. A change to this effect constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended. It may be considered however, that there are three modes by which the offense for Violation of Section 3(e) may be committed in any of the following: 1. Through evident bad faith; 2. Through manifest partiality; 3. Through gross inexcusable negligence. Proof of the existence of any of these modes in connection with the prohibited acts under said section of the law should suffice to warrant conviction.[10] However, the Sandiganbayan also held that even granting that the amendment of the information be formal or substantial, the prosecution could still effect the same in the event that the accused had not yet undergone a permanent arraignment. And since the arraignment of petitioner on 13 March 2001 was merely "provisional," then the prosecution may still amend the information either in form or in substance. Petitioner filed a Motion for Reconsideration, which was denied by the Sandiganbayan in its Resolution of 3 May 2004. Hence this petition. The Issues The issues raised in this petition are: 1. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADMITTING THE AMENDED INFORMATION; AND 2. WHETHER THE SANDIGANBAYAN GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FURTHER PROCEEDING WITH THE CASE DESPITE THE VIOLATION OF THE RIGHT OF THE ACCUSED TO A SPEEDY TRIAL.

32 The Ruling of the Court The petition has no merit. On Whether the Sandiganbayan Should Admit the Amended Information Section 14 of Rule 110 of the Revised Rules of Criminal Procedure provides: Sec. 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. xxx Petitioner contends that under the above section, only a formal amendment of the information may be made after a plea. The rule does not distinguish between a plea made during a "provisional" or a "permanent" arraignment. Since petitioner already entered a plea of "not guilty" during the 13 March 2001 arraignment, then the information may be amended only in form. An arraignment is that stage where in the mode and manner required by the rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him.[11] The accused is formally informed of the charges against him, to which he enters a plea of guilty or not guilty. As an indispensable requirement of due process, an arraignment cannot be regarded lightly or brushed aside peremptorily.[12] The practice of the Sandiganbayan of conducting "provisional" or "conditional" arraignments is not sanctioned by the Revised Internal Rules of the Sandiganbayan or by the regular Rules of Court.[13] However, in People v. Espinosa,[14] this Court tangentially recognized such practice, provided that the alleged conditions attached thereto should be "unmistakable, express, informed and enlightened." Moreover, the conditions must be expressly stated in the Order disposing of the arraignment; otherwise, the arraignment should be deemed simple and unconditional.[15] In the present case, the arraignment of petitioner is reflected in the Minutes of the Sandiganbayan Proceedings dated 13 March 2001 which merely states that the "[a]ccused when arraigned entered a plea of not guilty. The Motion to Travel is granted subject to the usual terms and conditions imposed on accused persons travelling (sic) abroad." [16] In the Resolution of 16 April 2001,[17] the Sandiganbayan mentioned the arraignment of petitioner and granted his Urgent Motion to Amend Motion to Lift Hold Departure Order and to be Allowed to Travel, setting forth the conditions attendant thereto which, however, were limited only to petitioner's itinerary abroad; the setting up of additional bailbond; the required appearance before the clerk of court; and written advice to the court upon return to the Philippines. Nothing on record is indicative of the provisional or conditional nature of the arraignment. Hence, following the doctrine laid down in Espinosa, the arraignment of petitioner should be deemed simple and unconditional. The rules mandate that after a plea is entered, only a formal amendment of the Information may be made but with leave of court and only if it does not prejudice the rights of the accused. Petitioner contends that replacing "gross neglect of duty" with "gross inexcusable negligence" is a substantial amendment of the Information which is prejudicial to his rights. He asserts that under the amended information, he has to present evidence that he did not act with "gross inexcusable negligence," evidence he was not required to present under the original information. To bolster his argument, petitioner refers to the 10 February 2004 Resolution of the Sandiganbayan which ruled that the change "constitutes substantial amendment considering that the possible defense of the accused may divert from the one originally intended."[18] We are not convinced. Petitioner is charged with violation of Section 3(e) of RA 3019 which provides as follows: SEC. 3. Corrupt practices of public officers.-- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

33 xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. This crime has the following essential elements:[19] 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and 3. His action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. The second element provides the different modes by which the crime may be committed, that is, through "manifest partiality," "evident bad faith," or "gross inexcusable negligence."[20] In Uriarte v. People,[21] this Court explained that Section 3(e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. [22] "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will.[23] "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes.[24] "Gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.[25] The original information filed against petitioner alleged that he acted with "evident bad faith and manifest partiality and or (sic) gross neglect of duty." The amended information, on the other hand, alleges that petitioner acted with "evident bad faith and manifest partiality and/or gross inexcusable negligence." Simply, the amendment seeks to replace "gross neglect of duty" with "gross inexcusable negligence." Given that these two phrases fall under different paragraphs of RA 3019&mdashspecifically, "gross neglect of duty" is under Section 3(f) while "gross inexcusable negligence" is under Section 3(e) of the statutethe question remains whether or not the amendment is substantial and prejudicial to the rights of petitioner. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended.[26] On the other hand, an amendment which 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 is an amendment to form that can be made at anytime.[27] In this case, the amendment entails the deletion of the phrase "gross neglect of duty" from the Information. Although this may be considered a substantial amendment, the same is allowable even after arraignment and plea being beneficial to the accused.[28] As a replacement, "gross inexcusable negligence" would be included in the Information as a modality in the commission of the offense. This Court believes that the same constitutes an amendment only in form. In Sistoza v. Desierto,[29] the Information charged the accused with violation of Section 3(e) of RA 3019, but specified only "manifest partiality" and "evident bad faith" as the modalities in the commission of the offense charged. "Gross inexcusable negligence" was not mentioned in the Information. Nonetheless, this Court held that the said section is committed by dolo or culpa, and although the Information may have alleged only one of the modalities of committing the offense, the other mode is deemed included in the accusation to allow proof thereof.[30] In so ruling, this Court applied by analogy the pronouncement in Cabello v. Sandiganbayan[31] where an accused charged with willful malversation was validly convicted of the same felony of malversation through negligence when the evidence merely sustained the latter mode of perpetrating the offense. The Court held that a conviction for a criminal negligent act can be had under an information exclusively charging the commission of a willful offense upon the theory that the greater includes the lesser offense. Thus,

34 we hold that the inclusion of "gross inexcusable negligence" in the Information, which merely alleges "manifest partiality" and "evident bad faith" as modalities in the commission of the crime under Section 3(e) of RA 3019, is an amendment in form. On Whether Petitioner's Right to a Speedy Trial was Violated Petitioner contends that the complaint-affidavit against him was filed on 15 June 1992, but it was resolved by the Office of the Ombudsman-Mindanao only on 26 February 1999, or after a period of almost seven (7) years. Four (4) years thereafter, the SPO, upon reinvestigation of the case, recommended that the case against petitioner be dismissed for lack of probable cause, but this recommendation was denied by the Ombudsman. A Motion for Leave to Admit Amended Information was later filed by the prosecution and granted by the Sandiganbayan in the questioned Resolution of 10 February 2004. Thus, petitioner maintains that it took the Office of the Ombudsman twelve (12) years since the initial filing of the complaint-affidavit in 1992 to charge accused with the offense under the Amended Information, in violation of petitioner's right to a speedy trial. Petitioner's contentions are futile. The right of an accused to a speedy trial is guaranteed under Section 16, Article III of the Philippine Constitution which provides: "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." This right, however, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried.[32] A simple mathematical computation of the period involved is not sufficient. We concede that judicial proceedings do not exist in a vacuum and must contend with the realities of everyday life.[33] After reviewing the records of the case, we believe that the right of petitioner to a speedy trial was not infringed upon. The issue on the inordinate delay in the resolution of the complaint-affidavit filed against petitioner and his co-accused and the filing of the original Information against petitioner was raised in petitioner's Motion to Dismiss, and was duly addressed by the Sandiganbayan in its Resolution denying the said motion. It appears that the said delays were caused by the numerous motions for extension of time to file various pleadings and to reproduce documents filed by petitioner's coaccused, and that no actual preliminary investigation was conducted on petitioner. The Sandiganbayan properly held that a reinvestigation of the case as to petitioner was in order. Although the reinvestigation inadvertently resulted to further delay in the proceedings, this process could not have been dispensed with as it was done for the protection of the rights of petitioner himself. It is well-settled that although the conduct of an investigation may hold back the progress of a case, it is necessary so that the accused's right will not be compromised or sacrificed at the altar of expediency. [34] The succeeding events appear to be parts of a valid and regular course of judicial proceedings not attended by delays which can be considered vexatious, capricious, oppressive, or unjustified. Hence, petitioner's contention of violation of his right to a speedy trial must fail. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions dated 10 February 2004 and 3 May 2004 of the Sandiganbayan in Criminal Case No. 25231. SO ORDERED. Puno, C.J., Corona, Leonardo-De Castro, and Brion,* JJ., concur.

Designated member per Special Order No. 570. Under Rule 65 of the 1997 Rules of Civil Procedure.

[1]

[2]

Penned by Associate Justice Godofredo L. Legaspi with Associate Justices Raoul V. Victorino, and Roland B. Jurado, concurring.

35

[3]

Approved by Associate Justices Godofredo L. Legaspi, Raoul V. Victorino, and Diosdado M. Peralta (now a member of this Court).
[4]

Rollo, pp. 34-35. Id. at 36. Records, Vol. I, p. 173.

[5]

[6]

[7]

Due to various pending matters, the arraignment of petitioner was postponed several times and was finally conducted on 10 March 2005. (Records, Vol. II, p. 221)
[8]

Rollo, pp. 59-60. Id. at 28-29. Citing Fonacier v. Sandiganbayan, G.R. No. 50691, 5 December 1994, 238 SCRA 655. Borja v. Mendoza, 168 Phil. 83, 87 (1977). People v. Espinosa, 456 Phil. 507, 516 (2003). Id. Id.; Cabo v. Sandiganbayan, G.R. No. 169509, 16 June 2006, 491 SCRA 264, 273. Id. at 274. Records, Vol. I, p. 192. Id. at 198-199. Rollo, pp. 12 and 28.

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

[17]

[18]

[19]

Uriarte v. People, G.R. No. 169251, 20 December 2006, 511 SCRA 471, 486, citing Santos v. People, G.R. No. 161877, 23 March 2006, 485 SCRA 185, 194; Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, 25 October 2004, 441 SCRA 377, 386; and Jacinto v. Sandiganbayan, G.R. No. 84571, 2 October 1989, 178 SCRA 254, 259.
[20]

Gallego v. Sandiganbayan, 201 Phil. 379, 383 (1982). Supra note 19. Id., citing Alvizo v. Sandiganbayan, 454 Phil. 34, 72 (2003). Id., citing Sistoza v. Desierto, 437 Phil. 117, 132 (2002). Id., citing Air France v. Carrascoso, 124 Phil. 722, 737 (1966). Id., citing Sistoza v. Desierto, supra.

[21]

[22]

[23]

[24]

[25]

[26]

People v. Montenegro, G.R. No. L-45772, 25 March 1988, 159 SCRA 236, 241, citing Sec. 2, CJS, Sec. 240, pp.12491250.
[27]

Id., citing United States v. Alabot, 38 Phil. 698 (1918).

36

[28]

Fronda-Baggao v. People, G.R. No. 151785, 10 December 2007, 539 SCRA 531, 535, citing Matalam v. Sandiganbayan, G.R. No. 165751, 12 April 2005, 455 SCRA 736, 746 and People v. Janairo, 370 Phil. 59 (1999).
[29]

Supra note 23. Id. at 325. 274 Phil. 369 (1991).

[30]

[31]

[32]

Lumanlaw v. Peralta, Jr., G.R. No. 164953, 13 February 2006, 482 SCRA 396, 410, citing Gonzales v. Sandiganbayan, G.R. No. 94750, 16 July 1991, 199 SCRA 298, 307.
[33]

Id. Matalam v. Sandiganbayan, G.R. No. 165751, 12 April 2005, 455 SCRA 736, 752.

[34]

Source: Supreme Court E-Library | Date created: March 27, 2009 This page was dynamically generated by the E-Library Content Management System

Supreme Court E-Library FIRST DIVISION [ G.R. NO. 170191, August 16, 2006 ] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. RODOLFO SUYU @ RUDY, WILLY SUYU, FRANCIS CAINGLET AND ROMMEL MACARUBBO @ ROMMEL BARIUAN, APPELLANTS. DECISION

CALLEJO, SR., J.: On appeal is the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 01238 affirming, with modification, the Decision of the Regional Trial Court (RTC) of Tuguegarao City in Criminal Case No. 7177 convicting petitioners Rodolfo Suyu, Willy Suyu, Francis Cainglet and Rommel Macarubbo of robbery with rape. The Antecedents An Information was filed with the RTC of Tuguegarao City charging appellants with robbery with rape. The accusatory portion of the Information reads: That on or about January 13, 1996, in the Municipality of Tuguegarao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Rodolfo Suyu alias Rudy, Rommel Macarubbo y Licawan alias Rommel Bariuan, Francis Cainglet y Gargolla and Willy Suyu, armed with guns and sharp-pointed bladed instrument with intent to gain by the use of threat, violence and intimidation of persons, conspiring together and helping one another, did then and there, willfully, unlawfully and feloniously, take, steal and carry away against the will of the owner, the following items: I - TAKEN FROM CLARISSA B. ANGELES

37 a) A pair of gold earrings valued at b) A gold ring valued at c) Cash money in the amount of TOTAL II - TAKEN FROM WILLIAM C. FERRER a) A wallet containing cash money in the amount of P 150.00 all belonging to Clarissa B. Angeles and William C. Ferrer with a total value of P2,510.00 and P1 50.00, respectively, to the damage and prejudice of the aforesaid owner, Clarissa B. Angeles and William C. Ferrer in the aforesaid amount of TWO THOUSAND FIVE HUNDRED TEN (P2,510.00) PESOS and ONE HUNDRED FIFTY (P150.00) PESOS, Philippine Currency, respectively; that on the same occasion of the robbery, the above-named accused, likewise, armed with their aforesaid arms, with lewd design and by the use of force, violence, threat and intimidation, did then and there, willfully, unlawfully and feloniously conspiring together and helping one another, have sexual intercourse with the aforesaid party, Clarissa B. Angeles, against her will. Contrary to law.[2] Appellants, assisted by counsel, pleaded not guilty to the crime charged when arraigned. The Case for the Prosecution At around 7:15 in the evening on January 13, 1996, Clarissa Angeles, a third-year student of St. Paul University, was with her boyfriend, William Ferrer. They were eating snacks inside a pick-up truck parked in a vacant lot near the Office of the Commission on Audit (COA) and the Department of Education, Culture and Sports (DECS) [now DepEd] in Tuguegarao, Cagayan, about fifteen meters from the highway. Momentarily, a tricycle passed by the truck on its way to the COA Building.[3] Clarissa was seated on the passenger's side, while William was behind the wheel. The two were alarmed when they saw shadows of persons near the truck. Clarissa suggested to William that they leave. The latter opened the window on his side halfway to check if there were persons outside. Suddenly, a man, who turned out to be Rommel Macarubbo, appeared in front of the truck, pointed a gun at them and said: "This is a holdup. If you will start the engine of the car, I will shoot you." Thereafter, another man, who turned out to be Willy Suyu, lifted the lock on William's side and entered the pick-up. Clarissa told William to give everything so that they would not be harmed. Willy Suyu then took Ferrer's wallet which contained around P150.00. A third man, who turned out to be Francis Cainglet, took Clarissa's jewelry valued at around P2,500.00 and cash amounting to PI0.00. Thereafter, Willy Suyu clubbed William and dragged him out of the truck. Fortunately, William was able to escape and immediately went to the police station to report the incident. Meanwhile, Willy Suyu lifted the lock of the pick-up truck at Clarissa's side. Macarubbo then opened the door. The two and Cainglet dragged the girl to a hilly place, not far away. Macarubbo and Willy Suyu held her by the arms, while Cainglet poked a fan knife at her. She pleaded for mercy as she was brought to a house near a muddy place. At that point, a man, who turned out to be Rodolfo Suyu, the half-brother of Willy Suyu, came out of the house. Willy Suyu, Cainglet and Macarubbo pushed Clarissa towards Rodolfo Suyu. The latter pushed Clarissa and said: "You stay there because I will be the first one." Rodolfo Suyu then started embracing and kissing Clarissa and fondling her breast. When Rodolfo Suyu removed her pants, the ring she kept hidden inside her pants fell to the ground. She felt a knife, flashlight and pliers at the perpetrator's back. Pretending that she was submitting to him, she suddenly reached for the knife. They briefly struggled and Clarissa kicked his groin. Cursing, Rodolfo Suyu loosened his grip on her. And she tried to run, but she stumbled and she was grabbed by the hair. He then punched her stomach twice. She pleaded to the three others for help, but the three did nothing. Rodolfo Suyu passed Clarissa to Cainglet. Clarissa again pleaded, "Please do not hurt me, do not kill me and do not rape me. I am willing to join your group." She further begged, "Just give me the knife and I will be the one to kill myself." Cainglet kissed her but she pushed him away. He continued to kiss her and then pushed his tongue inside her mouth. She bit hard at his tongue, causing it to bleed down her shirt. She was cursed anew. Then the three others came shouting, "They are coming." A beam of light illumined them. Cainglet and Rodolfo Suyu then brought her to the top of the hill near the Capitol. She attempted to shout but she feared for her life as a knife was P1,500.00 1,000.00 ____10.00 P2,510.00

38 thrust against her. She was forced to lie down on her back. Willy Suyu and Macarubbo served as lookouts, as Cainglet punched her on the thighs. Cainglet pinned her hands on the ground as Rodolfo Suyu removed her pants and undergarments. Rodolfo Suyu then spread her legs apart, removed his pants and undergarments, and went on top of her. Rodolfo Suyu then tried to insert his fully erected penis inside her vagina but the girl kicked him. He rolled down but was able to recover immediately. He resumed molesting her. Clarissa uttered, "It is better that you will just kill me and not rape me." Rodolfo Suyu insisted "Ipitem (sic) met lang e. Anyway, this is just for a few minutes." When he pushed his tongue inside her mouth, Clarissa bit it so hard that her teeth went through it. As the blood dripped on her shirt, he uttered, "I will let the blood drip on your shirt, mahirap na." Rodolfo Suyu inserted two fingers inside her. He then commented to Cainglet, who was still pinning her down, "Pare, this is still a virgin." Thereafter, with the aid of his two fingers, he inserted his penis inside her vagina. Afterwards, Rodolfo Suyu told Cainglet, "You will be next." Cainglet then climbed on top of Clarissa while Rodolfo Suyu held her by the hands. She again pleaded for help from Willy Suyu and Macarubbo. But all her pleas fell on deaf ears. She kicked Cainglet, who then let go one of her hands. When one of her hands was briefly freed, she placed the crucifix pendant of her necklace on her mouth and uttered, "Lord, I offer you my soul." Rodolfo Suyu remarked, "We do not have God (sic), we do not believe in God." Cainglet continued to move on top of her. The two lookouts, Willy Suyu and Macarubbo, on the other hand, shouted, "They are coming." Rodolfo Suyu then helped her to sit down. Cainglet then spoke to her saying, "Put your pants. We will not give you your panty because we will have your panty be 'makulam' and tomorrow, we will display your panty on the gate of St. Paul with a dedication 'to Marie Sanchez'," the name she gave them. Cainglet was able to insert half an inch of his penis into her vagina.[4] Cainglet suggested that she be released for ransom. The two lookouts again yelled, "They are coming." Then a beam of light illumined them and engines from vehicles became audible. Thereafter, two vehicles arrived from about 10 to 15 meters away from the pick-up truck. After pleading for mercy and promising not to report them to the police authorities, she was allowed by the culprits to leave. Clarissa fled to a house illumined with a fluorescent light and climbed over its gate. She went around the house and knocked on the door. An old man answered the door. Blood-stained and covered in mud, she then pleaded to be let in. At first, the old man got a piece of wood to club her, but because one of his children recognized her, she was allowed inside. Thereafter, the barangay tanod was summoned. After 15 minutes, two police jeeps arrived and took her to the Cagayan Valley Regional Hospital (CVRH). The nurses there, however, merely examined her bruises. At the Don Domingo Police Station, Clarissa saw William. The authorities asked her if she had been sexually abused, she declared that there was merely an attempt to rape her. At that time, she was ashamed to admit in front of her boyfriend that she had been abused.[5] On January 17, 1996, Clarissa submitted herself to a physical and gynecological examination at the CVRH. The examining physician, Dr. Elsie A. Pintucan, found hematoma and contusions, which she diagnosed to have been sustained five days before. Furthermore, she made the following findings: xxxx Genitalia: external examination = abundant pubic hair, nulliparous outlet, no bleeding note. = hymen (+) complete, old healed laceration at 4 and 7 o'clock. speculum = vaginal wall no erosions/laceration. cervix = pinkish, (+) whitish discharge. Internal examination = admits 1 finger with ease, cervix = closed, small midline, firm, non-tender on wriggling, uterus = small, adnexae = negative for tenderness.[6] On January 19, 1996, Clarissa signed and filed a criminal complaint for robbery and rape against Rodolfo Suyu, Willy Suyu, Francis Cainglet and Rommel Bariuan (also known as Rommel Macarubbo) with the Municipal Trial Court (MTC) of Tuguegarao City. Appended to her complaint was her sworn statement executed on the same date. She later gave supplemental statements on January 25, 1996.[7]

39

Accused Macarubbo, who was born on August 24, 1978, then, still a minor, moved to be released on recognizance. Upon the recommendation of the Department of Social Welfare and Services, he was released on recognizance. [8] Meanwhile, Macarubbo, accompanied by an old woman, arrived at Clarissa's boarding house. The woman offered that her son, Macarubbo, would testify for her case. Clarissa was amenable to the idea because the authorities had earlier advised her to agree to Macarubbo being a state witness. The old woman pleaded that Clarissa pity Macarubbo, who then worked as a part-time newspaper vendor to help his parents.[9] Moreover, Macarubbo did not rape her. On April 2, 1996, Macarubbo, assisted by his counsel Atty. Gabriel O. Valle and his mother, Angelina, signed a sworn statement, in the form of questions and answers before Municipal Judge Elpidio Atal. He confessed to his participation and implicated Rodolfo and Willy Suyu, and Cainglet, in the robbery and the rape of Clarissa.[10] The Case for the Accused Rodolfo Suyu denied the charge against him. He also interposed the defense of alibi. He declared that, on January 13, 1996, he was in their house at Alimannao, Tuguegarao City, taking care of his three young children, the youngest of whom was five months old.[11] His wife was in Manila with her sister-in-law who had just given birth. He never left their house in the evening.[12] At 3:00 p.m. on January 16, 1996, he left his house and gathered cogon at the Bassig Resort, which was about a kilometer away. He was shot on the left thigh, but he did not know who shot him; neither did he bother to ascertain the identity of the perpetrator.[13] He managed to escape and arrived home at 7:00 p.m.[14] His wound was treated by his neighbor and eldest child.[15] While away, his 9-year-old eldest child took care of his five-month-old baby. He did not report the shooting incident to the police. On January 18, 1996, policemen led by SPO4 Teodulfo Cudal arrested him and brought him to the hospital where his wound was treated. He was later brought to the Sto. Domingo Police Substation where he was detained. He was told to join a police line-up. SPO4 Cudal told Clarissa to point to him as one of the culprits.[16] Cainglet declared that he was employed as a security guard inspector by the Night Hawk Security Investigation Agency with principal office in Quezon City. At about 7:15 p.m. on January 13, 1996, he was in the company of Nestor, an employee of the security agency, conducting a roving inspection at the Corinthian*Gardens. At 8:00 p.m. on January 21, 1996, he boarded a Victory Liner passenger bus and arrived in Tuguegarao City at 7:30 a.m. the next day, January 22, 1996. He intended to seek financial help from his mother since his wife needed money for her placement fee. A neighbor told him that his mother had left for Mindanao. He opened the door of the house with a duplicate key. After lunch, 12 armed men, led by SPO4 Cudal, barged inside and searched the house without any warrant. The armed men took his wedding ring and that of his wife, his wallet with cash of P2,150.10, and his Seiko watch. The personal properties taken from him were worth P10,000.00.[17] He was tortured, hogtied with a nylon cord, and boarded in an owner-type jeep with only his underwear on. He was brought to the police headquarters for investigation for robbery with rape.[18] When the policemen failed to secure a confession from him, SPO4 Cudal took out a knife from his table. He was ordered to bring out his tongue and when he did, another policeman held out his tongue while SPO4 Cudal pointed the knife to his tongue. When he turned his face to the left, his tongue was injured.[19] He was brought to the CVRH where he saw Rodolfo Suyu. When SPO4 Cudal told Rodolfo Suyu that Cainglet was one of his companions, Rodolfo Suyu told SPO4 Cudal that he did not know him.[20] At 7:30 a.m. the next day, he was ordered to join a line-up, including two persons he knew only while in detention, namely, Rodolfo Suyu and Rommel Macarubbo.[21] Clarissa arrived and was ordered by SPO4 Cudal to point to him as one of those who raped her. She failed to point at him at first, but when ordered anew by SPO4 Cudal, she finally pointed to him.[22] She also pointed to Rodolfo Suyu and Rommel Macarubbo. From the time Cainglet was arrested and while detained, he had no counsel. Macarubbo testified that he was born on August 24, 1978.[23] He denied knowing any of his co-accused before his arrest on January 17, 1996. He declared that he was a native of Cagayan, Tuguegarao City, and went to San Pablo, Isabela on

40 January 12, 1996 to visit his aunt Emma Pagulayan. He arrived in San Pablo at 7:00 a.m.[24] On January 17, 1996, he visited his friend Joel Iringan in San Pablo for a drinking spree. One of the guests created trouble and shot him on his right leg.[25] He was brought to Tumauini District Hospital but was transferred to the CVRH in Tuguegarao City. The next day, the policemen, led by Capt. Salvador,[26] maltreated him. He was forced to confess to the crime in Carig.[27] After his wounds were treated at the hospital, he was brought to the police station where he was detained. He never left San Pablo from January 12, 1996 until his arrest on January 17, 1996.[28] Willy Suyu testified that on the day of the alleged robbery and rape, he was in their house at Dodan, Penablanca, Cagayan, about 45 minutes by tricycle from Centro, Tuguegarao, Cagayan.[29] At 6:00 a.m., he and his wife went on foot to a place called Hot Spring to gather firewood. They arrived at the place at around 11:00 a.m., had their lunch at the house of his wife's niece, Lanie Tuliao, gathered firewood, then proceeded back home to Dodan. By 6:00 p.m., they were already at their house. They had their dinner at 8:00 p.m. Before going to bed, their neighbor, James Taccad, invited him for a bottle of beer. He went back home at around 8:20 p.m., and went to bed with his wife at 9:00 p.m. He worked as a tricycle driver, but he did not go out the following day, as the piston ring of the tricycle he was driving was broken. [30] James Taccad, Willy's neighbor, and Eduardo Dalin, Willy's brother-in-law, were presented to corroborate Willy's testimony.[31] Willy Suyu further testified that on February 12, 1996, he was arrested and detained.[32] At the police station in Tuguegarao City where he was brought, he was maltreated by policemen. After 3 or 4 days in detention, Clarissa, whom he met for the first time, went to the station and asked for the person named Willy Suyu. The other detainees pointed to him and Clarissa said, "So you are the person named Willy Suyu." She asked him to show his tongue. He did so and Clarissa said, within the hearing distance of the other detainees, that he was not the one.[33] Willy, moreover, admitted that Rodolfo Suyu was his half-brother. He, however, denied having known Macarubbo and Cainglet prior to his detention as he met them only in jail. He also saw Clarissa, for the first time, at the police station when she asked for him.[34] Rodolfo Suyu used to stay at their father's house in Capitol Hills (near the place where the robbery and rape happened), but stayed at Barangay Gosi, Tuguegarao, most of the time where he helped in the farming.[35] Accused Rodolfo Suyu and Macarubbo presented SPO4 Cudal as their witness. The police officer testified that, as gleaned from the police blotter, at 9:30 p.m. on January 13, 1996, Clarissa failed to identify the culprits and to declare that she was raped. However, she insisted that in the event that she saw the culprits again, she can identify them. [36] Cainglet was a mere caretaker of the house where he was arrested.[37] It was the owner of the house who informed the police officers that he was hiding in the house.[38] He noticed a bite mark on the tongue of Cainglet when he viewed it.[39] On cross-examination, SPO4 Cudal declared that Macarubbo, assisted by his counsel, executed an extrajudicial statement on April 2, 1996, in the presence of his mother.[40] SPO1 Alexander Tamang, the investigator assigned at the Domingo Police Substation on the evening of January 13, 1996, was presented by Willy's counsel and testified, among others, that the blotter, as written, did not state the name of the malefactors, their features or characteristics, or the unlawful taking of personal property; and that the blotter did not state a sexual abuse but only that Clarissa bit the tongue of one of the suspects and kicked the sex organ of the other accused.[41] He, however, added that he did not write the word rape because what he understood from Clarissa's statement was the biting of the tongue and the kicking of the sex organ.[42] The prosecution presented SPO4 Cudal as rebuttal witness and testified that accused Macarubbo gave an extrajudicial confession on April 2, 1998 while detained at the jail, and that he signed his extrajudicial confession before Judge Atal.[43] The prosecution wanted to present Atty. Gabriel Valle as rebuttal witness because the judge was already dead; but, after an off-the-record conference between the court, the counsel of the accused and the prosecution, the plan of the prosecution did not materialize.[44] The court admitted the extrajudicial confession of Macarubbo[45] only as part of the testimony of SPO4 Cudal because, according to the court, the prosecution failed to present Judge Atal.[46] On February 10, 2003, the RTC rendered judgment finding all the accused guilty beyond reasonable doubt of robbery with rape. The RTC gave credence and probative weight to Clarissa's testimony and rejected the defenses of denial and

41 alibi of the accused. The court ruled that the latter's testimonies were full of inconsistencies and were not in accord with human experience. The RTC further ruled that the four accused conspired in the robbery with rape. The dispositive portion of the said decision reads: WHEREFORE, premises considered, judgment is hereby rendered: (1) Finding RODOLFO SUYU, WILLY SUYU, FRANCIS CAINGLET and ROMMEL MACARRUBO, GUILTY beyond reasonable doubt of the crime of Robbery with Rape and hereby sentence each of them to suffer the penalty of reclusion perpetua; (2) Ordering the accused to pay, jointly and severally, the amount of PI,510.00 representing the value of the jewelry (earring) and cash belonging to Clarissa Angeles; and (3) Ordering the accused to indemnify, jointly and severally, Clarissa Angeles the amount of P50,000.00 as civil indemnity. SO ORDERED.[47] The accused appealed the decision to the Court. After the parties submitted their respective briefs, the Court ordered the transfer of the case to the CA pursuant to its ruling in People v. Mateo. [48] The CA rendered judgment affirming, with modification, the decision of the trial court. The fallo of the decision of the CA reads: WHEREFORE, in consideration of the foregoing, the decision dated 10 February 2003 of the court a quo is perforce AFFIRMED but with the modification that insofar as the accused-appellant ROMMEL MACARUBBO is concerned, he is hereby sentenced to suffer an indeterminate penalty of from Eight (8) years and One (1) day of prision mayor, in its medium period, as minimum, to Fifteen (15) years of reclusion temporal, in its medium period, as maximum. SO ORDERED.[49] Hence, the present petition, where the appellants raise the following arguments: I THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF PRIVATE COMPLAINANT CLARISSA ANGELES. II THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. III THE TRIAL COURT ERRED IN NOT DECLARING AS INADMISSIBLE THE ALLEGED EXTRAJUDICIAL CONFESSION OF ACCUSED-APPELLANT ROMMEL MACARUBBO.[50] Appellants assert that Clarissa was not able to identify any of them at the city jail and succeeded in identifying them only after she was coached by SPO4 Cudal. They contend that Clarissa was declared by Dr. Pintucan to be ambulatory and coherent with no signs of cardio-respiratory distress, proof that she was not forcibly and sexually assaulted. It was also discovered that there was no evidence of forcible assault despite the insertion of one finger on her cervix. Appellants argue that the trial court erred in admitting in evidence the extrajudicial confession of appellant Macarubbo. Appellants, moreover, aver that the testimony of Clarissa is postmarked with inconsistencies. She executed no less than five sworn statements before the MTC. These statements were substantially inconsistent. In her January 13, 1996 statement made immediately after the alleged commission of the crime, she declared to the police investigator that appellants attempted to rape her, but she actually succeeded in thwarting all attempts.[51] In her second sworn statement dated January 18, 1996, she maintained the said story. The police blotter did not even carry an allegation of rape. However, in her January 19, 1996 statement:, Clarissa declared that she had been raped.[52] Appellants, thus, argue that the alleged victim has the propensity to lie and withhold valuable information in her affidavits.[53]

42

We are not persuaded. To begin with, the rule is that, in the absence of any clear showing that the trial court overlooked, misunderstood, or misapplied facts or circumstances of weight and substance, which would have affected the result of the case, the findings of the trial court on the credibility of witnesses are entitled to the highest respect and will not be disturbed on appeal.[54] The stringency with which appellate tribunals have observed this rule is predicated on the undisputed vantage of the trial court in the evaluation and appreciation of testimonial evidence.[55] The trial court found Clarissa's testimony to be consistent,[56] believable,[57] and credible,[58] hence, is worthy of full faith and credit.[59] The CA reviewed Clarissa's testimony and found the same to be clear, sincere and could have only come from the mouth of a victim. During the grueling cross-examination conducted by three separate counsels of appellants, she remained steadfast in her testimony that she was raped. The credibility of complainant's testimony is a primordial consideration in rape cases for the accused may be convicted solely on the testimony of the victim, provided it is credible, natural, convincing and consistent with human nature and the normal course of things.[60] When the testimony of a rape victim is simple and straightforward, unshaken by rigorous cross-examination and unflawed by any serious inconsistency or contradiction, the same must be given full faith and credit.[61] While it is true that the victim initially did not reveal to the authorities the fact that she was raped after the robbery, this does not cast doubt on her testimony for it is not uncommon for a rape victim right after her ordeal to remain mum about what really transpired. Jurisprudence has established that delay in revealing the commission of rape is not an indication of a fabricated charge, and the same is rendered doubtful only if the delay was unreasonable and unexplained.[62] Besides, Clarissa sufficiently explained her initial reluctance on cross-examination, thus: Atty. Morales: Q: And what did you tell these policemen at the Don Domingo police station? A: Naturally (sic) I told them what transpired to me, Sir. Q: A: Will you please tell now before this court what exactly were those things that you reported to the police station? At that time, Sir, I was then trembling because of fear so that I told them that there was only an attempted rape to me (sic) because I was then ashamed to the policemen and infront (sic) of my boyfriend. As a matter of fact when you arrived at the CVRH you also informed the nurses that what was committed was only an attempted rape, is that correct? I did not talk to the nurse but it was only the policemen who told the nurse. You heard these policemen informed the nurses that what was committed is an attempted rape, is that correct? Yes, Sir. Your boyfriend was present when you went to the Don Domingo police station? Yes, Sir. And your boyfriend also accompanied you when you went to the CVRH? No, Sir. When you heard these policemen mentioned to the nurses that what was committed was attempted rape (sic) you did not try to call the attention of the policemen (sic) and correct them that what actually happened (sic) you were allegedly raped? Because I was ashamed, Sir.[63] xxx Atty. Salud:

Q: A: Q: A: Q: A: Q: A: Q:

A:

43 Q: A: You stated that at first you did not divulge that you were sexually molested, did you? At first, Sir, what I have stated is that they held my breast, the different parts of my body and they also fingered me, Sir. But I did not state that their penis were inserted to my vagina. So all that you have divulged at first was that your breast was held and so with the different parts of your body? Yes, Sir. To whom did you divulge that? To Sir Cabildo, Sir. That was the first time you divulged it to any person? At first, Sir, I divulges (sic) that to the PNP Substation at Don Domingo, Tuguegarao, Cagayan, then to my parents, to my classmates and lastly to Sir Cabildo, Sir. Whom (sic) for the first time did you disclose that you were raped? To Sir Cabildo, Sir. When? January 19 in the afternoon, Sir. Are you very certain that you first divulges (sic) it (sic) that you were raped to Cabildo on January 19, 1996 in the afternoon? Yes, Sir. You are certain in the sense that there can be no probability that you have committed mistake (sic) in remembering that you divulged for the first time to Mr. Cabildo that you were rape (sic) in the afternoon of January 19, 1996? No, Sir. Is it not a fact that you executed a second sworn statement before a police officer named SP02 Marcelo R. Cabildo on January 18, 1996? Yes, Sir. And still you are sure that on January 18, 1996 on the occasion of the taking of your sworn statement by SP02 Marcelo R. Cabildo inside the investigation room of the Tuguegarao Police Station, you did not disclose to him that you were raped? I was investigated on the 18th day of January and I have not yet divulge (sic) to SP02 Cabildo that I was fingered and I was raped because I was then ashamed at that time. Because this policeman Cabildo is from Baggao, he might have (sic) divulged what had happened to me in our town of Baggao, Sir.[64]

Q: A: Q: A: Q: A:

Q: A: Q: A: Q: A: Q:

A: Q: A: Q:

A:

Understandably, Clarissa was reluctant to reveal, while at the police station, the fact that she was raped, considering that her boyfriend was present when she. made her first statement before the police investigator. Further, one of the investigating officers was her townmate. Indeed, the fear of social humiliation prevented Clarissa from revealing, at the time, the details of her defilement. She was in a state of trauma, impelled by her natural instinct to put out of her mind such a painful and disturbing experience. Oftentimes, victims would rather bear the ignominy and the pain in private than reveal their shame to the world.[65] In her desire for justice, she, nonetheless, later revealed the true events that happened on that fateful night of January 13, 1996, thus: Pros. Sagucio: Q: Now, you said that when you were first investigated by the police or at the CVRH that

44 you are (sic) not raped which is half true (sic) and now when you were again investigated you said you were raped, what made you changed (sic) your mind? I finally thought of filing a case of rape because of the fact that I am helping other people whom (sic) might be the next victim and (sic) aside from the fact that I did not owe anything to them, I did not owe any obligation to anybody else and finally I want justice that (sic) will prevail of (sic) what they have done to me.[66]

A:

Certainly, no young and decent Filipina would publicly admit that she was ravished and her honor tainted unless such were true, for it would be instinctive for her to protect her honor and obtain justice for the wicked acts committed upon her.[67] Appellants, likewise, contend that Clarissa was coached by SPO4 Cudal during the police line-up, while Rommel had to be pointed by the other detainees. She even asked them to show their tongues so that she could ascertain whether they were the ones who molested her.[68] The arguments of appellants do not persuade. The victim recounted that there were lights emanating from the nearby DECS (now DepEd) and COA buildings, and several residences.[69] The place was bright enough for her to see the faces of her assailants, only that she did not know their names.[70] Familiarity with the physical features of a person is an acceptable way for proper identification.[71] Indeed, We agree with the following ruling of the trial court, thus: Defense' contention that they were not sufficiently identified cannot be taken seriously. Accused did not resort to any disguise. There could be no doubt as to their identities. Besides, it appears that the accused stayed with Clarissa for a couple of hours so that there was ample time and opportunity for her to see and observe their features.[72] Appellants, in their brief, further fault the trial court in not declaring as inadmissible the alleged extrajudicial confession of Macarubbo, as it was not affirmed in open court and the latter even denied having executed the statement.[73] The contention of appellants has no merit. The trial court never admitted Macarubbo's sworn statement for the purpose offered by the prosecution,[74] but only as part of the testimony of SPO4 Cudal. Appellants were not convicted based on the said sworn statement, but rather on the credible testimony of the victim,[75] and her positive identification of the culprits.[76] The claim of appellants that their arrest was irregular, which consequently rendered their detention illegal, cannot be considered in this appeal as the matter was not raised at the opportune time. Records reveal that warrants for the appellants' arrest were indeed issued on January 19, 1996 and February 1, 1996.[77] Appellants, likewise, entered their pleas[78] without moving for the quashal of the information. As we held in People v. Bongalon,[79] in such case, the defect of the arrest and detention are cured thereby: Moreover, the rule is that an accused is estopped from assailing the legality of his arrest if he failed to move to quash the information against him before his arraignment. Any objection involving the arrest or the procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived. Even in the instances not allowed by law, a warrantless arrest is not a jurisdictional defect, and objection thereto is waived where the person arrested submits to arraignment without objection. The subsequent filing of the charges and the issuance of the corresponding warrant of arrest against a person illegally detained will cure the defect of that detention.[80] Appellants also assert that the medical report issued by Dr. Pintucan does not conclusively suggest that Clarissa was raped, for during the examination, her deportment was not of that of a rape victim and the examination of her cervix did not even suggest forcible assault.[81] The said argument is, however, without merit. Hymenal lacerations which are usually inflicted when there is complete penetration are not essential in establishing the crime of rape as it is enough that a slight penetration or entry of the penis into the lips of the vagina takes place.[82] Partial penile penetration is as serious as full penetration; the rape is deemed consummated in either case.[83] Dr. Pintucan further found contusion and hematoma on the victim, which bolsters Clarissa's recount that she was dragged, forced to lie down, and raped. The common defense of alibi used by the appellants cannot, moreover, prevail over Clarissa's clear and convincing narration of the events that transpired and her positive identification of her assailants. It is a time-honored rule that alibi is a weak defense when unsubstantiated by credible and plausible testimonies.[84] To merit approbation, clear and convincing

45 evidence must be adduced that the accused was in a place other than the situs of the crime at the time the crime was committed, such that it was physically impossible for him to have committed the crime. Willy Suyu, a tricycle driver, relied solely on his testimony to prove his alibi that he and his wife were in Hot Spring, had lunch with the spouses Tuliao, and arrived home at 6:00 p.m. He and his wife had dinner at 8:00 p.m., he drank beer in the house of his neighbor James Taccad, and finally went to bed at 9:00 p.m. However, appellant failed to present his wife, and the spouses Tuliao to corroborate his testimony, and he gave no justification for his failure to present any of them as witnesses. The records show that the distance from Willy Suyu's house to Capitol Hills can be negotiated in 15 minutes by tricycle; hence, it was not impossible for him to have been at the scene of the crime. Macarubbo testified that he left Tuguegarao City on January 13, 1996; and arrived in the house of his aunt, Emma Pagulayan and worked in her farm; he was shot at the thigh on January 17, 1996. However, appellant Macarubbo failed to present his aunt and his friend, Joel Iringan, to corroborate his alibi. Moreover, it is incredible that Macarubbo did not even know who shot him despite his claim that the perpetrator was known to his friend, Iringan. Rodolfo Suyu's claim that he was in his house in Alimannao, Tuguegarao City on the night in question is equally weak, for he failed to prove that it was physically impossible for him to be near the DECS (now DepEd) and COA buildings in the city. For his part, appellant Cainglet failed to present any record from the Night Hawk Security Agency to prove that on January 13, 1996, at 7:15 p.m., he was conducting a roving inspection at the Corinthian Gardens in Quezon City, as he claimed; neither did he present the driver of his employer who was purportedly with him at the time. After going over the voluminous records, We find no error in the aforesaid observations of the trial court as affirmed by the CA. Courts generally view the defenses of denial and alibi with disfavor on account of the facility with which an accused can concoct them to suit his defense.[85] Again, these weak defenses cannot stand against the positive identification and categorical testimony of a rape victim.[86] Clarissa, in this case, as aforesaid, passed the test of credibility in her account of her ordeal; positively identified her assailants; and had no ill-motive to falsely implicate them to the commission of a crime, other than her desire to seek justice for a wrong. Where an alleged rape victim says she was sexually abused, she says almost all that is necessary to show that rape had been inflicted on her person, provided her testimony meets the test of credibility.[87] Conspiracy to commit the crime was also correctly appreciated by the trial court. Indeed, "at the time of the commission of the crime, accused acted in concert, each doing his part to fulfill their common design to rob the victim and although only two of them, through force and intimidation, raped Clarissa, the failure of Macarubbo and Willy Suyu to prevent its commission although they were capable would make their act to be the act of all."[88] We have previously ruled that once conspiracy is established between several accused in the commission of the crime of robbery, they would all be equally culpable for the rape committed by any of them on the occasion of the robbery, unless any of them proves that he endeavored to prevent the other from committing rape.[89] The conviction thus of appellants for robbery with rape defined and penalized under Article 294, paragraph 1 of the Revised Penal Code is correct. The law provides: Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. To be convicted of robbery with rape, the following elements must concur: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is characterized by intent to gain or animus lucrandi; (4) the robbery is accompanied by rape.[90] The intent to rob must precede the rape. In robbery with rape, the intention of the felony is to rob and the felony is accompanied by rape. The rape must be contemporaneous with the commission of the robbery. We note that aside from raping the victim, appellant Rodolfo Suyu inserted his finger in her sexual organ. Appellant Suyu, thus, committed sexual assault as defined and penalized in Article 266-A, paragraph 2 of Republic Act No. 8353.[91] Also, aside from Rodolfo

46 Suyu, Cainglet raped the victim. Nevertheless, there is only one single and indivisible felony of robbery with rape and any crimes committed on the occasion or by reason of the robbery are merged and integrated into a single and indivisible felony of robbery with rape.[92] As to the damages, the RTC only awarded actual damages of P| 1,510.00 and civil indemnity of P50,000.00 to Clarissa. In line with settled jurisprudence, however, this Court rectifies the same and orders all ppellants to, jointly and severally, pay Clarissa Angeles P50,000.00 as moral damages and P50,000.00 as civil indemnity for the rape by Rodolfo Suyu; P50,000.00 as moral damages and P50,000.00 as civil indemnity for the rape by Francis Cainglet; and P30,000.00 as moral damages and P30,000.00 as civil indemnity for the sexual assault by Rodolfo Suyu.[93] WHEREFORE, premises considered, the appeal is hereby DENIED for lack of merit. The Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that all the appellants are also ordered to, jointly and severally, pay Clarissa Angeles P50,000.00 as moral damages and P50,000.00 as civil indemnity for the rape by Rodolfo Suyu; P50,000.00 s moral damages and P50,000.00 as civil indemnity for the rape by Francis kinglet; and P30,000.00 as moral damages and P30,000.00 as civil indemnity for the sexual assault by Rodolfo Suyu. No costs. SO ORDERED. Panganiban, C.J., (Chairperson), Ynares-Santiago, Austria-Martinez, and Chico-Nazario, JJ., concur.

[1]

Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Godardo A. Jacinto and Rosalinda Asuncion-Vicente, concurring; rollo, pp. 259-291.
[2]

Records, pp. 181-182. TSN, May 7, 1997, p. 19. TSN, March 12, 1997, p. 36. TSN, May 7, 1997, p. 23. Exhibit "A," records, p. 2. Id. at 34. Id. at 201. TSN, May 7, 1997, p. 15. Exhibit "D," records, pp. 514-516. TSN, October 26, 2000, p. 23. Id. at 8. Id. at 15. Id. at 21. Id. at 22. Id. at 16.

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

47
[17]

TSN, May 4,2000, p. 15. Id. at 17. Id. at 19. Id. at 21. Id. at 24. Id. at 25. Records, p. 61. TSN, November 19, 1998, p. 4. Id. at 5. Id. at 6-7. Id. at 7-8. Id. at 10. TSN, April 1, 1998, p. 5-7. Id. at 8-15. TSN, July 1, 1998, pp. 3-32 and TSN, July 16, 1998, pp. 3-10. TSN, July 1, 1998, pp. 16-17. Id. at 21-22. Id. at 24-25. Id. at 31. TSN, January 26, 2000, p. 19. Id. at 26. TSN, January 27, 2000, p. 4. TSN, January 26, 2000, p. 29. Supra note 9. TSN, July 17, 1997, pp. 38-39. Id. at 69. TSN, December 4, 2000, pp. 1-13. TSN, December 11, 2000, p. 12.

[18]

[19]

[20]

[21]

[22]

[23]

[24]

[25]

[26]

[27]

[28]

[29]

[30]

[31]

[32]

[33]

[34]

[35]

[36]

[37]

[38]

[39]

[40]

[41]

[42]

[43]

[44]

48

[45]

Supra note 9. Records, p. 518. Id. at 584. G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640. Rollo, p. 290. Id. at 135. Id. at 150. Id. at 151. Id. People v. Sta. Ana, G.R. Nos. 115657-59, June 26, 1998,291 SCRA 188, 202 People v. Quinanola, G.R. No. 126148, May 5, 1999, 306 SCRA 710, 725. Records, p. 549. Id. at 556. Id. at 582. Id. at 556-557. Peoplev. Pascua, G.R. No. 151858, November 27, 2003, 416 SCRA 548, 552. People v. Sernadilla, 403 Phil. 125, 140 (2001). People v. Baway, 402 Phil. 872, 892 (2001). TSN, May 7, 1997, pp. 23-24 TSN, May 9, 1997, pp. 40-42. People v. Capareda, G.R. No. 128363, May 27, 2004, 429 SCRA 301, 314. TSN, May 20, 1997, p. 25. People v. Alberio, G.R. No. 152584, July 6, 2004, 433 SCRA 469, 478. Rollo, p. 151-152. TSN, May 7, 1997, p. 20. Id. at 42. People v. Barrientos, 349 Phil. 141, 158 (1998).

[46]

[47]

[48]

[49]

[50]

[51]

[52]

[53]

[54]

[55]

[56]

[57]

[58]

[59]

[60]

[61]

[62]

[63]

[64]

[65]

[66]

[67]

[68]

[69]

[70]

[71]

49
[72]

Records, p. 583. Rollo, pp. 154-155. TSN, December 11, 2000, p. 11. Records, p. 582. Id. at 583. Id. at 36-37. Id. at 214. 425 Phil. 96 (2002). Id. at 119-120. Rollo, p. 153. People v. Bali-Balita, 394 Phil. 790, 809 (2000). People v. Salinas, G.R. No. 107204, May 6, 1994, 232 SCRA 274, 279. People v. Escober, G.R. Nos. 122980-81, November 6, 1997, 281 SCRA 498, 505. People v. Alvarez, G.R. Nos. 140388-91, November 11, 2003, 415 SCRA 523, 530. People v. Orande. G.R. Nos. 141724-27, November 12, 2003, 415 SCRA 699, 708. People v. Sampior, 383 Phil. 775, 783 (2000). Records, pp. 558-559. People v. Mendoza, G.R. No. 123186, July 9, 1998, 292 SCRA 168, 183 People v. Mamalayan, 420 Phil. 880, 891 (2001). People v. Nequia, 459 Phil. 283, 300 (2003).

[73]

[74]

[75]

[76]

[77]

[78]

[79]

[80]

[81]

[82]

[83]

[84]

[85]

[86]

[87]

[88]

[89]

[90]

[91]

[92]

People v. Escote, Jr., 448 Phil. 749, 784 (2003); see also People v. Sultan, 387 Phil. 229 (2000); People Regala, 386 Phil. 148 (2000).
[93]

People v. Carpio, G.R. No. 150083, May 27, 2004, 429 SCRA 676, 683-684; People v. Olaybar, 459 Phil. 114, 129 (2003); People v. Balacanao, 446 Phil. 525, 548-549 (2003).

Source: Supreme Court E-Library | Date created: July 02, 2008 This page was dynamically generated by the E-Library Content Management System

50 Supreme Court E-Library

THIRD DIVISION [ G.R. NO. 157472, September 28, 2007 ] SSGT. JOSE M. PACOY, PETITIONER, VS. HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES AND OLYMPIO L. ESCUETA, RESPONDENTS. DECISION

AUSTRIA-MARTINEZ, J.: Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M. Pacoy[1] (petitioner) seeking to annul and set aside the Orders dated October 25, 2002[2] and December 18, 2002[3] issued by Presiding Judge Afable E. Cajigal (respondent judge) of the Regional Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42. On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as follows: That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the said accused with intent to kill, did then and there wilfully, unlawfully and feloniously shot his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on his body which caused his instantaneous death. With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank.[4] On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de parte, pleaded not guilty to the charge of Homicide. Respondent Judge set the pre-trial conference and trial on October 8, 2002.[5] However, on the same day and after the arraignment, the respondent judge issued another Order,[6] likewise dated September 12, 2002, directing the trial prosecutor to correct and amend the Information to Murder in view of the aggravating circumstance of disregard of rank alleged in the Information which public respondent registered as having qualified the crime to Murder. Acting upon such Order, the prosecutor entered his amendment by crossing out the word Homicide and instead wrote the word Murder in the caption and in the opening paragraph of the Information. The accusatory portion remained exactly the same as that of the original Information for Homicide, with the correction of the spelling of the victims name from Escuita to Escueta.[7] On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was to be re-arraigned for the crime of Murder. Counsel for petitioner objected on the ground that the latter would be placed in double jeopardy, considering that his Homicide case had been terminated without his express consent, resulting in the dismissal of the case. As petitioner refused to enter his plea on the amended Information for Murder, the public respondent entered for him a plea of not guilty.[8] On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings Pending the Resolution of the Instant Motion[9] on the ground of double jeopardy. Petitioner alleged that in the Information for Homicide, he was validly indicted and arraigned before a competent court, and the case was terminated without his express consent; that when the case for Homicide was terminated without his express consent, the subsequent filing of the Information for

51 Murder in lieu of Homicide placed him in double jeopardy. In an Order[10] dated October 25, 2002,[11] the respondent judge denied the Motion to Quash. He ruled that a claim of former acquittal or conviction does not constitute double jeopardy and cannot be sustained unless judgment was rendered acquitting or convicting the defendant in the former prosecution; that petitioner was never acquitted or convicted of Homicide, since the Information for Homicide was merely corrected/or amended before trial commenced and did not terminate the same; that the Information for Homicide was patently insufficient in substance, so no valid proceedings could be taken thereon; and that with the allegation of aggravating circumstance of disregard of rank, the crime of Homicide is qualified to Murder. Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction in an arbitrary, capricious and partial manner in mandating the amendment of the charge from Homicide to Murder in disregard of the provisions of the law and existing jurisprudence. In his Motion for Reconsideration, petitioner reiterated that the case against him was dismissed or otherwise terminated without his express consent, which constitutes a ground to quash the information for murder; and that to try him again for the same offense constitutes double jeopardy. Petitioner stated that contrary to respondent judge's conclusion that disregard of rank qualifies the killing to Murder, it is a generic aggravating circumstance which only serves to affect the imposition of the period of the penalty. Petitioner also argued that the amendment and/or correction ordered by the respondent judge was substantial; and under Section 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be done, since petitioner had already been arraigned and he would be placed in double jeopardy. In his Order dated December 18, 2002,[12] the respondent judge denied the Motion to Inhibit and granted the Motion for Reconsideration, thus: WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED while the Motion for Reconsideration is hereby GRANTED. Unless ordered otherwise by the Highest Court, the presiding judge shall continue hearing this case. Further, the Order dated October 25, 2002 is reconsidered and the original information charging the crime of homicide stands. [13] In granting the Motion for Reconsideration, respondent judge found that a close scrutiny of Article 248 of the Revised Penal Code shows that disregard of rank is merely a generic mitigating[14] circumstance which should not elevate the classification of the crime of homicide to murder. On April 30, 2003, petitioner filed herein petition for certiorari on the following grounds: THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION IN ORDERING THE AMENDMENT OF THE INFORMATION FROM HOMICIDE TO MURDER. THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND VIOLATED THE LAW IN DENYING THE MOTION TO QUASH THE INFORMATION FOR MURDER. THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW IN ORDERING THE REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH WAS ALREADY TERMINATED.[15] Petitioner alleges that despite having entered his plea of not guilty to the charge of Homicide, the public respondent ordered the amendment of the Information from Homicide to Murder because of the presence of the aggravating circumstance of disregard of rank, which is in violation of Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the public respondents ruling that disregard of rank is a qualifying aggravating circumstance which qualified the killing of 2Lt. Escueta to murder is erroneous since, under paragraph 3, Article 14 of the Revised Penal Code, disregard of rank is only a generic aggravating circumstance which serves to affect the penalty to be imposed upon the accused and does not qualify the offense into a more serious crime; that even assuming that disregard of rank is a qualifying aggravating circumstance, such is a substantial amendment which is not allowed after petitioner has entered his plea. Petitioner next contends that the respondent judge gravely abused his discretion when he denied the Motion to Quash the Information for Murder, considering that the original Information for Homicide filed against him was terminated without

52 his express consent; thus, prosecuting him for the same offense would place him in double jeopardy. Petitioner further argues that although the respondent judge granted his Motion for Reconsideration, he did not in fact grant the motion, since petitioner's prayer was for the respondent judge to grant the Motion to Quash the Information for Murder on the ground of double jeopardy; that his Motion for Reconsideration did not seek the reinstatement of the Information for Homicide upon the dismissal of the Information for Murder, as he would again be placed in double jeopardy; thus, the respondent judge committed grave abuse of discretion in reinstating the Homicide case. In his Comment, the Solicitor General argues that the respondent judge's Order reinstating the Information to Homicide after initially motu proprio ordering its amendment to Murder renders herein petition moot and academic; that petitioner failed to establish the fourth element of double jeopardy, i.e., the defendant was acquitted or convicted, or the case against him was dismissed or otherwise terminated without his consent; that petitioner confuses amendment with substitution of Information; that the respondent judge's Order dated September 12, 2002 mandated an amendment of the Information as provided under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and that amendments do not entail dismissal or termination of the previous case. Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment alleging that no grave abuse of discretion was committed by the respondent judge when he denied petitioner's Motion to Quash the Amended Information, as petitioner was not placed in double jeopardy; that the proceedings under the first Information for homicide has not yet commenced, and the case was not dismissed or terminated when the Information was amended. In his Reply, petitioner reiterates his contention that the amendment of the charge of Homicide to Murder after his arraignment would place him in double jeopardy, considering that said amendment was without his express consent; and that such amendment was tantamount to a termination of the charge of Homicide. The parties filed their respective Memoranda. Generally, a direct resort to us in a petition for certiorari is highly improper, for it violates the established policy of strict observance of the judicial hierarchy of courts. However, the judicial hierarchy of courts is not an iron-clad rule.[16] A strict application of the rule of hierarchy of courts is not necessary when the cases brought before the appellate courts do not involve factual but legal questions.[17] In the present case, petitioner submits pure questions of law involving the proper legal interpretation of the provisions on amendment and substitution of information under the Rules of Court. It also involves the issue of double jeopardy, one of the fundamental rights of the citizens under the Constitution which protects the accused not against the peril of second punishment but against being tried for the same offense. These important legal questions and in order to prevent further delay in the trial of the case warrant our relaxation of the policy of strict observance of the judicial hierarchy of courts. The Courts Ruling The petition is not meritorious. We find no merit in petitioner's contention that the respondent judge committed grave abuse of discretion in amending the Information after petitioner had already pleaded not guilty to the charge in the Information for Homicide. The argument of petitioner -Considering the fact that the case for Homicide against him was already terminated without his express consent, he cannot anymore be charged and arraigned for Murder which involve the same offense. The petitioner argued that the termination of the information for Homicide without his express consent is equivalent to his acquittal. Thus, to charge him again, this time for Murder, is tantamount to placing the petitioner in Double Jeopardy.[18] is not plausible. Petitioner confuses the procedure and effects of amendment or substitution under Section 14, Rule 110 of the Rules of Court, to wit -SEC. 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.

53 xxx 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. with Section 19, Rule 119 of which provides: SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. First, a distinction shall be made between amendment and substitution under Section 14, Rule 110. For this purpose, Teehankee v. Madayag[19] is instructive, viz: 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 pleads, 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, an 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, viceversa, 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.[20] In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial amendment or a substitution as defined in Teehankee. While the amended Information was for Murder, a reading of the Information shows that the only change made was in the caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the word Murder. There was no change in the recital of facts constituting the

54 offense charged or in the determination of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the same as those already alleged in the original Information for Homicide, as there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made in the caption and preamble from Homicide to Murder as purely formal. [21] Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information.[22] Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner. While the respondent judge erroneously thought that disrespect on account of rank qualified the crime to murder, as the same was only a generic aggravating circumstance,[23] we do not find that he committed any grave abuse of discretion in ordering the amendment of the Information after petitioner had already pleaded not guilty to the charge of Homicide, since the amendment made was only formal and did not adversely affect any substantial right of petitioner. Next, we determine whether petitioner was placed in double jeopardy by the change of the charge from Homicide to Murder; and subsequently, from Murder back to Homicide. Petitioner's claim that the respondent judge committed grave abuse of discretion in denying his Motion to Quash the Amended Information for Murder on the ground of double jeopardy is not meritorious. Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which provides: SEC. 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds: xxxx (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy may prosper, to wit: SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first.[24] As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent.[25] It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars further prosecution for the same offense or any attempt to commit the same or the frustration thereof; or prosecution for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. [26] Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide without his express consent, which is tantamount to an acquittal, is misplaced. Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional dismissal which terminates the case.[27] And for the dismissal to be a bar under the jeopardy clause, it must have the effect of acquittal.

55 The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and amend the Information but not to dismiss the same upon the filing of a new Information charging the proper offense as contemplated under the last paragraph of Section 14, Rule 110 of the Rules of Court -- which, for convenience, we quote again -If it appears at anytime 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. and Section 19, Rule 119, which provides: SEC. 19.-When mistake has been made in charging the proper offense - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which he was not charged in the information even if it be proven, in which case, there must be a dismissal of the charge and a substitution of a new information charging the proper offense. Section 14 does not apply to a second information, which involves the same offense or an offense which necessarily includes or is necessarily included in the first information. In this connection, the offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form a part of those constituting the latter.[28] Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the amendment of the Information and not the dismissal of the original Information. To repeat, it was the same original information that was amended by merely crossing out the word Homicide and writing the word Murder, instead, which showed that there was no dismissal of the homicide case. Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in ordering that the original Information for Homicide stands after realizing that disregard of rank does not qualify the killing to Murder. That ruling was again a violation of his right against double jeopardy, as he will be prosecuted anew for a charge of Homicide, which has already been terminated earlier. We are not convinced. Respondent judge did not commit any grave abuse of discretion. A reading of the Order dated December 18, 2002 showed that the respondent judge granted petitioner's motion for reconsideration, not on the ground that double jeopardy exists, but on his realization that disregard of rank is a generic aggravating circumstance which does not qualify the killing of the victim to murder. Thus, he rightly corrected himself by reinstating the original Information for Homicide. The requisite of double jeopardy that the first jeopardy must have attached prior to the second is not present, considering that petitioner was neither convicted nor acquitted; nor was the case against him dismissed or otherwise terminated without his express consent.[29] WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed by respondent Judge. SO ORDERED. Ynares-Santiago, (Chairperson), Chico-Nazario, Nachura, and Reyes, JJ., concur.

[1]

Spelled as Pakoy in Certification/Verification attached to the Petition, rollo, p. 24 and as it appears corrected in the Information, records, p. 1.
[2]

Id. at 96-99. Id. at 162-163.

[3]

56

[4]

Id. at 1. Id. at 82. Id. at 83. Id. at 1. Records, p. 85. Id. at 88-92. Id. at 96-99. We note that the Motion to Quash was filed on October 28, 2002 but the Order was dated October 25, 2002. Records, pp. 162-163. Id. p. 163. Should have been aggravating. Rollo, p.13. Mangaliag v. Catubig-Pastoral, 474 SCRA 153, 161 (2005). Id. at 162. Memorandum (For the Petitioner), rollo, p. 136. G.R. No. 103102, March 6, 1992, 207 SCRA 134. Teehankee v. Madayag, supra note 17, at 139-141. People v. Navarro, 159 Phil. 863, 869-870 (1975).

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

[17]

[18]

[19]

[20]

[21]

[22]

Poblete v. Sandoval, G.R. No. 150610, March 25, 2004, 426 SCRA 346, 356 citing People v. Montenegro, No. L45772, March 25, 1988, 159 SCRA 236, 241.
[23]

Article 14 of the Revised Penal Code provides:

ARTICLE 14. Aggravating circumstances- The following are aggravating circumstances: xxx 3. That the act be committed with insult or in disregard due to the offended party on account of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter has not given provocation (emphasis supplied).
[24]

People v. Cawaling, 355 Phil. 1, 24 (1998) citing Guerrero v. Court of Appeals, 327 Phil. 496, 506 (1996) and People v. Leviste, 325 Phil. 525, 537.
[25]

People v. Cawaling, supra note 22, at 24. Bulaong v. People, 124 Phil. 141, 144 (1966).

[26]

57

[27]

People v. Molero, 228 Phil. 375, 384 (1986). RULES OF COURT, Rule 120, Sec. 5. Tan, Jr. v. Sandiganbayan, 354 Phil. 463, 472 (1998).

[28]

[29]

Source: Supreme Court E-Library | Date created: February 06, 2009 This page was dynamically generated by the E-Library Content Management System

Supreme Court E-Library

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 reinvestigation[2] 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

58 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 coaccused on October 12, 2004.[8] On the day before the scheduled arraignment, petitioner filed an Urgent Manifestation With Motion[9] 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 resolution[14] 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.

59

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 Arraignment[18] 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 reconsideration[20] 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

60 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.

61

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]

62 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. Panganiban, C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.

[1]

Rollo, p. 34. Records, Vol. I, pp. 71-74. Id. at 139. Id. at 169-170. Id. at 191. Penned by Associate Justices Gregory S. Ong, Jose R. Hernandez and Efren N. De la Cruz. Id. at 215-223. Id. at 278-281. Rollo, p. 36. Records, Vol. I, pp. 293-294. Id. at 296. Id. at 312. Id. at 314. Rollo, pp. 41-45.

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

Id. at 46-56. Penned by Associate Justice Gregory S. Ong and concurred in by Associate Justices Jose R. Hernandez and Rodolfo A. Ponferrada.
[15]

Id. at 55. Id. at 57-58. Records, Vol. I, pp. 402-404. Rollo, pp. 60-63. Id. at 18-19

[16]

[17]

[18]

[19]

63

[20]

Records, Vol. I, pp. 439-444. Rollo, pp. 20-31. See People v. Espinosa, 456 Phil. 507, 515 (2003). Id. Id. at 519. RULES OF COURT, Rule 117, Sec. 7. G.R. No. 150610, March 25, 2004, 426 SCRA 346, 356. No. L-30146, February 24, 1981, 103 SCRA 21, 31-32. Rollo, pp. 29-30. Alonto v. People, G.R. No. 140078, December 9, 2004, 445 SCRA 624, 641.

[21]

[22]

[23]

[24]

[25]

[26]

[27]

[28]

[29]

Source: Supreme Court E-Library | Date created: July 01, 2008 This page was dynamically generated by the E-Library Content Management System

Supreme Court E-Library

SECOND DIVISION [ G.R. No. 129670, February 01, 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 petitioners room at the Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of petitioners 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

64 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. 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 Above 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 petitioners 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; 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; The hold-departure Order of this Court dated April 10, 1997 stands; and 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 oclock 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] On May 23, 1997, the trial court, in separate orders, denied petitioners 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 courts 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.

b)

c) d)

65 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] 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 petitioners 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 petitioners 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 petitioners 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 Judges arbitrary action but also because it emanated from a void Order; 3. In ruling that the denial of petitioners 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 courts 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; 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; The hold-departure Order of this Court dated April 10, 1997 stands; and

b)

c) 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 petitioners 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.

66 We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in the trial courts order of May 16, 1997 for the grant of bail because petitioners 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 petitioners 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 accuseds 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 courts 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." 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 petitioners presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment, however, is that such court strategy violates petitioners 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 petitioners 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

67 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. 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. Petitioners 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

68 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. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1]

Petition, Appendix F; Rollo, pp. 78-85. Id., Appendix B, pp. 18-19; id., pp. 65-66. Id., Appendix J; id., pp. 115-122. Id., Appendix I; id., pp. 111-114. The conditions declared void were the following: 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;

[2]

[3]

[4]

[5]

a)

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; [6] Petition, Appendix A, p. 8; Rollo, p. 47.
[7]

Id., p. 14; id., p. 16.

[8]

Under Art. III, 5 of R.A. No. 7610, the offenses with which petitioner is charged are punishable by reclusion temporal in its medium period to reclusion perpetua.
[9]

Rule 116, 1(b)

[10]

People v. Avancea, G.R. No. 37005, Oct. 13, 1933, 32 O.G. 713 (1934); Aquino v. Military Commission No. 2, 63 SCRA 546 (1975); People v. Salas, 143 SCRA 163 (1986)
[11]

Rule 120, 6. 77 SCRA 422 (1977) 278 SCRA 154 (1997)

[12]

[13]

[14]

Under R.A. No. 7160, Art. I, 3(a): "Children" refers to persons below eighteen (18) years of age or those but [sic] are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition;. . . .

69 Source: Supreme Court E-Library | Date created: January 05, 2010 This page was dynamically generated by the E-Library Content Management System

Supreme Court E-Library FIRST DIVISION [ A.C. NO. 5424, October 11, 2005 ] ANTONIO B. BALTAZAR, COMPLAINANT, VS. ATTY. NORBIN P. DIMALANTA, RESPONDENT. DECISION

CARPIO, J.: The Case This is a disbarment complaint against respondent Atty. Norbin P. Dimalanta for violation of Rules 1.01, 1.03, and 10.01 of the Code of Professional Responsibility. The Facts Complainant Antonio B. Baltazar ("complainant") is the private complainant in Criminal Case No. G-4499 and Criminal Case No. G-5132 which were raffled on 1 December 1998 and 10 May 2000, respectively, to Branch 49 of the Regional Trial Court, Guagua, Pampanga ("trial court"). In those cases, the Office of the Deputy Ombudsman for Luzon ("Ombudsman") charged one Bartolome Cabrera ("Cabrera")[1] with violation of Section 3(e) of Republic Act No. 3019. Respondent Atty. Norbin P. Dimalanta ("respondent") was Cabrera's counsel. Before the Information for Criminal Case No. G-5132 was raffled to the trial court, respondent had filed with the Ombudsman a motion for the reinvestigation of Criminal Case No. G-4499. The trial court scheduled Cabrera's arraignment in Criminal Case No. G-5132 on 6 June 2000. On that day, respondent filed a motion dated 2 June 2000 to postpone the arraignment and to be "granted leave to seek [reinvestigation] xxx, and to allow the Office of the Ombudsman to reinvestigate xxx [the] case."[2] Acting on respondent's prayer to defer the arraignment, the trial court, in its Order[3] of 6 June 2000, moved the arraignment to 11 July 2000. On 20 June 2000, the trial court issued a follow-up Order ("20 June Order 2000") resolving respondent's motion for reinvestigation, thus: Acting on the motion to defer arraignment and to allow reinvestigation of this case filed by Atty. Norbin P. Dimalanta, counsel for the accused, a copy of which was received by the public prosecutor on June 6, 2000 who manifested that he is leaving the matter to the sound discretion of the Honorable Court. The Court having found the motion to be meritorious hereby grants the same and allows the accused to seek reinvestigation and the Office of the Ombudsman to conduct a reinvestigation and to submit its report on the outcome of the reinvestigation within thirty (30) days from receipt hereof. In the meantime, considering the proximity of the scheduled arraignment set on July 11, 2000 and upon motion of counsel for the accused, the arraignment set on that date is cancelled and reset to August 29, 2000 at 9:00 o'clock in the morning. [4] (Emphasis supplied) For lack of a prosecutor, the trial court cancelled and re-set the hearings on 29 August 2000 and on 12 October 2000 to 27 November 2000. In the hearing of 27 November 2000, the prosecutor again failed to appear, thus the trial court issued an Order[5] re-scheduling the arraignment to 25 January 2001 after further noting that the "reinvestigation of [the] case is still pending with the Ombudsman."

70

In the hearing of 25 January 2001, the trial court issued the following Order ("25 January 2001 Order"): At today's scheduled arraignment, Asst. Provincial Prosecutor Vivian T. Dabu, Atty. Norbin P. Dimalanta[,] private complainant and accused appeared. Atty. Dimalanta manifested that he has a pending motion for reconsideration of the order dated April 29, 1999 of the Ombudsman denying this (sic) earlier motion for re-investigation. According to Atty. Dimalanta he has not yet received the resolution of his motion for reconsideration, hense (sic), he moved for the resetting of the arraignment. Prosecutor Dabu while interposing no objection requested that the next arraignment be intransferrable in character as the case [has] been pending since January 1, 1998. The motion to postpone arraignment is granted and the same is reset to March 26, 2001 at 2:00 o'clock in the afternoon. Accused is directed to take the necessary steps to secure a resolution of his motion for reconsideration before the next scheduled hearing as the arraignment will proceed, with or without any resolution from the Ombudsman.[6] (Emphasis supplied) In his Complaint[7] dated 26 March 2001, complainant contended that respondent made false representations to the trial court to delay his client's arraignment in Criminal Case No. G-5132 because respondent never sought a reinvestigation of that case with the Ombudsman. Thus, complainant sought to hold respondent liable for violation of Rules 1.01, 1.03, and 10.01 of the Code of Professional Responsibility ("Code") which provide: Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Rule 1.03 - A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause. Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice. In his Answer,[8] respondent alleged that this administrative complaint is only one of many frivolous criminal and administrative suits complainant filed to harass him for rendering legal services to a client who is the political opponent of a relative of complainant. Respondent pointed out that complainant has no interest in Criminal Case No. G-5132 since he is not a party to that case. The Court referred this matter to the Integrated Bar of the Philippines ("IBP") for investigation, report, and recommendation.[9] The IBP Report In his Report dated 5 July 2004 ("Report"), Commissioner Elpidio G. Soriano III ("Commissioner Soriano") of the IBP Commission on Bar Discipline found respondent liable for "falsehood committed before [the trial court] xxx, in violation of his duties under the Code of Professional Responsibility and the lawyer"s oath." Commissioner Soriano recommended respondent's suspension from the practice of law for six months. The Report reads: As can be gleaned from the records of the instant case, respondent did lie to the trial court with respect to the pending motion for reinvestigation before the Ombudsman in Criminal Case No. G-5132. There never was a pending motion. Initially, in filing the Motion to Defer Arraignment and To Allow Reinvestigation of the Case, he led the Court into believing that he intends to file the motion for reinvestigation, therefore the arraignment was reset. Five months after the first resetting [or on 27 November 2000], he represented to the trial court that he had already filed the subject motion and that it was still pending, thus the arraignment was again moved on (sic) another date. On 25 January 2001, respondent betrayed himself in open court. He stated that his motion for reinvestigation was denied by the Ombudsman in an Order dated 29 April 1999 and that he has a pending motion for reconsideration of the same Order. Respondent has raised his fooling of the trial court to a higher notch by so doing. It must be noted that the initial setting of the arraignment was on 6 June 2000. In his Motion to Defer Arraignment and To Allow Reinvestigation of the Case on the same date, he stated that he was surprised by the filing of the Information and the issuance of the Warrant of Arrest against the Accused and that he was not provided ample opportunity to file the motion for reinvestigation. His representation thereafter that there is [a] pending motion for reconsideration of a denied motion for reinvestigation dated

71 29 April 1999 is patently inconsistent with his earlier stance. How could the subject motion not yet filed on 6 June 2000 be denied on 29 April 1999? The trial court should have quickly spotted such discrepancy. But this is digressing on the issue at hand. It turns out that there is indeed a motion for reinvestigation which was denied by the Ombudsman on 29 April 1999. However, this denial was with regard to an entirely different case. The Resolution which led into filing the (sic) Information in Criminal Case [No.] G-5132, the case in issue, was denominated OMB-1-99-2381. The motion for reinvestigation was filed in OMB-1-98-1109, later filed as Criminal Case No. G-44[9]9. OMB-1-99-2381 was a complaint filed by complainant in the instant administrative case against Bartolome Cabrera, a Barangay Captain, for violation of Sec. 3(e) of Republic [Act No.] 3019 for allegedly failing to issue a Certification to File Action in Court in a Katarungang Pambarangay conciliation proceeding pending before Cabrera's office despite the fact that all efforts for settlement have failed and there was nothing to be done but to issue the aforestated certification. On the other hand, [OMB-1-98-1109] involved the same parties but with additional respondentsspouses Manuelito Bagasina and Catalina Bagasina-charging respondents of (sic) violation of Sec. 3(e) and Sec. 4 of Republic Act [No.] 3019 for allegedly demolishing a house without authority to do the same. Clearly, even if the two cases have the same complainant and a common respondent, they cover different transactions which, by no stretch of the imagination, could be mistaken as belonging to the same case since they are based on different set of facts. [10] The IBP Board of Governors adopted and approved the Report in its Resolution No. XVI-2004-395 dated 30 July 2004. In his Comment to the Report filed with this Court, respondent, among others, contended for the first time that his manifestation during the hearing of 25 January 2001 that he "has a pending motion for reconsideration of the order dated 29 April 1999 xxx," as noted in the 25 January 2001 Order in Criminal Case No. G-5132, was made in and intended for Criminal Case No. G-4499. To prove his claim, respondent submitted a copy of an Order dated 25 January 2001 that the trial court issued in Criminal Case No. G-4499, certified by its Officer-In-Charge Edna P. Carlos, with the same content as the Order of the same date issued in Criminal Case No. G-5132. Respondent implied that the duplication of these Orders might have taken place because the trial court consolidated and jointly heard Criminal Case No. G-4499 and Criminal Case No. G-5132.[11] In his Opposition to respondent's Comment, complainant countered that it was not unusual for the trial court to have issued identical Orders for Criminal Case No. G-4499 and Criminal Case No. G-5132 on 25 January 2001 as those cases, which the trial court jointly tried, had the same accused and counsel for the defense. Both cases were awaiting the Ombudsman's resolution of the defense's supposed motions for reinvestigation. Complainant added that the trial court's issuance of identical Orders are "not new" to respondent because in the hearing of 27 November 2000, the trial court also issued identical Orders for Criminal Case Nos. G-4499 and G-5132, copies of which complainant attached to his Opposition. Complainant maintained that the trial court's issuance of the identical 25 January 2001 Orders does not negate respondent's liability for dishonesty and misrepresentation because respondent "opted not to challenge" such.[12] The Ruling of the Court We find the complaint against respondent without merit and accordingly dismiss it. Respondent Need Not File Another Motion for Reinvestigation with the Ombudsman The IBP finds respondent liable for dishonesty and misrepresentation for leading the trial court to believe that he had filed with the Ombudsman a motion for reinvestigation of Criminal Case No. G-5132 when "there was never a pending motion." The IBP also points to respondent's manifestation in the hearing of 25 January 2001 that the Ombudsman denied his motion for reinvestigation on 29 April 1999 as further proof of respondent's misrepresentation because respondent prayed for reinvestigation only on 6 June 2000. We cannot sustain the IBP's findings. The Ombudsman Administrative Order No. 13-96[13] ("AO 13-96"), dated 7 February 1996, provides the procedure for reinvestigation by the Ombudsman of cases pending with the courts, thus:

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A. REINVESTIGATION 1. All Petitions/Motions for Reinvestigation of cases already filed in court shall not be entertained and the same shall, instead, be addressed to the court trying the case.[14] 2. Where the trial court orders/directs the conduct of reinvestigation proceedings, the same shall be undertaken by the prosecutor assigned to prosecute the case in court and shall as far as practicable, be limited to the reception and evaluation of such evidence as the accused may deem fit to present for the purpose of overturning the finding of probable cause arrived at during the inquest or preliminary investigation proceedings; without prejudice, however, to the right of the complainant/offended party to be notified of such proceedings and to submit, in appropriate cases, proof in contravention of the evidence adduced by the accused. (Emphasis supplied) Hence, all motions for reinvestigation must be addressed to the trial court where the case is pending. If the trial court grants reinvestigation, the Ombudsman shall proceed to receive such evidence as the parties may wish to submit to either support or controvert the prosecutor's finding of probable cause. To require the filing of another motion for reinvestigation with the Ombudsman, as the IBP seems to suggest, not only runs counter to AO 13-96 but also derogates on the trial court's exclusive prerogative to order reinvestigation. In the present case, the trial court, in its 20 June 2000 Order in Criminal Case No. G-5132, ordered the Ombudsman to "conduct a reinvestigation and to submit its report on the outcome of the reinvestigation within thirty (30) days' from notice. What the parties were supposed to do next was to submit, upon notice, additional evidence before the Ombudsman. As respondent well explained: [I]n the Order granting the motion for reinvestigation, [the trial court] stated the following: "The Court having found the motion to be meritorious hereby grants the same and allows the accused to seek reinvestigation and the Office of the Ombudsman to conduct a reinvestigation and to submit its report on the outcome of the reinvestigation within thirty (30) days from receipt hereof." xxx The Respondent did not anymore file a motion or whatever pleading to the Office of the Ombudsman relative to the said Reinvestigation because the aforequoted Order already directed "the office of the Ombudsman to conduct a reinvestigation and to submit its report on the outcome of the reinvestigation within thirty (30) days from receipt hereof."[15] Significantly, complainant does not deny respondent's claim that the Ombudsman did not notify him to submit additional evidence. On the 25 January 2001 Order Nor can respondent be held liable for misrepresentation under the 25 January 2001 Order. Complainant does not dispute respondent's new claim that the trial court, after consolidating Criminal Case No. G-4499 and Criminal Case No. G-5132, jointly heard those cases on 25 January 2001. Indeed, complainant also volunteered, for the first time, that the trial court followed the same procedure in the hearing of 27 November 2000. This new information, coupled with the existence of two identical 25 January 2001 Orders, renders likely respondent's claim that his manifestation in the hearing of 25 January 2001 that "he has a pending motion for reconsideration of the Order dated April 29, 1999 of the Ombudsman denying [his] earlier motion for reinvestigation" was meant for Criminal Case No. G-4499 and not for Criminal Case No. G-5132 but was inadvertently duplicated in the latter. Significantly, the Ombudsman, as the IBP noted, did deny respondent's motion for reinvestigation of Criminal Case No. G-4499 on 29 April 1999. Further, the trial court's statement in the 25 January 2001 Order that "the case [has] been pending since January 1, 1998" could not have referred to Criminal Case No. G-5132 because the trial court received that case only on 10 May 2000. On the other hand, the trial court received Criminal Case No. G-4499 on 1 December 1998. Thus, the trial court must have been referring to Criminal Case No. G4499, albeit inaccurately. Ordinarily, the Court views with disfavor the submission of new evidence on appeal.[16] This, however, is a disbarment proceeding where procedural rules governing ordinary civil actions are generally not applied, its sole purpose being to determine whether a member of the bar deserves to remain in practice.[17] Hence, the Court can rightly consider the new undisputed evidence the parties presented to determine the merit of this complaint. WHEREFORE, we DISMISS the Complaint, dated 26 March 2001, against respondent Atty. Norbin P. Dimalanta for lack of merit.

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SO ORDERED. Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

[1]

While only Cabrera was impleaded as defendant in the Information for Criminal Case No. G-4499, two other individuals, Manuelito Bagasina and Catalina Bagasina, were impleaded as Cabrera's co-defendants in the complaint filed with the Ombudsman.
[2]

Rollo, p. 9. Ibid., p. 10. Ibid., p. 11. Ibid., p. 12. Ibid., p. 14. Ibid., pp. 1-4. Ibid., pp. 16-21. Ibid., p. 24. Report, pp. 5-7.

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

Comment to IBP Report and Recommendation With Motion to Set Aside [IBP Report and Recommendation], pp. 4-9 and Annexes "8" and "9."
[12]

Motion With Leave to Admit Instant Opposition to Comment With Motion to Set Aside IBP Report and Recommendation, pp. 1-3 and Annexes "C" and "D."
[13]

GUIDELINES IN THE HANDLING AND PROSECUTION OF OMBUDSMAN CASES FILED WITH OR PENDING BEFORE REGULAR COURTS PURSUANT TO THE PROVISIONS OF REPUBLIC ACT NO. 7975.
[14]

This is a reiteration of the rule laid down in Crespo v. Mogul (No. L-53373, 30 June 1987, 151 SCRA 462). IBP Rollo, p. 81. See Republic v. Court of Appeals, 202 Phil. 83 (1982), reported as Rep. of the Phils., et al. v. Court of Appeals, et al. See Pimentel, Jr. v. Atty. Llorente, 393 Phil. 544 (2000).

[15]

[16]

[17]

Source: Supreme Court E-Library | Date created: May 13, 2011 This page was dynamically generated by the E-Library Content Management System

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