G.R. No.

160451 February 9, 2007

EDUARDO G. RICARZE, Petitioner,
vs.
COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, CALTEX PHILIPPINES,
INC., PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK
(PCIBANK), Respondents.
D E C I S I O N
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of the Decision
1
of the
Court of Appeals in CA-G.R. SP No. 68492, and its Resolution
2
which
denied the Motion for Reconsideration and the Supplemental Motion for
Reconsideration thereof.
The Antecedents
Petitioner Eduardo G. Ricarze was employed as a collector-messenger by
City Service Corporation, a domestic corporation engaged in messengerial
services. He was assigned to the main office of Caltex Philippines, Inc.
(Caltex) in Makati City. His primary task was to collect checks payable to
Caltex and deliver them to the cashier. He also delivered invoices to Caltexs
customers.
3

On November 6, 1997, Caltex, through its Banking and Insurance
Department Manager Ramon Romano, filed a criminal complaint against
petitioner before the Office of the City Prosecutor of Makati City for estafa
through falsification of commercial documents. Romano alleged that, on
October 16, 1997, while his department was conducting a daily electronic
report from Philippine Commercial & Industrial Bank (PCIB) Dela Rosa,
Makati Branch, one of its depositary banks, it was discovered that unknown
to the department, a company check, Check No. 74001 dated October 13,
1997 in the amount of P5,790,570.25 payable to Dante R. Gutierrez, had
been cleared through PCIB on October 15, 1997. An investigation also
revealed that two other checks (Check Nos. 73999 and 74000) were also
missing and that in Check No. 74001, his signature and that of another
signatory, Victor S. Goquinco, were forgeries. Another check, Check No.
72922 dated September 15, 1997 in the amount ofP1,790,757.25 likewise
payable to Dante R. Gutierrez, was also cleared through the same bank on
September 24, 1997; this check was likewise not issued by Caltex, and the
signatures appearing thereon had also been forged. Upon verification, it was
uncovered that Check Nos. 74001 and 72922 were deposited at the Banco
de Oros SM Makati Branch under Savings Account No. S/A 2004-0047245-
7, in the name of a regular customer of Caltex, Dante R. Gutierrez.
Gutierrez, however, disowned the savings account as well as his signatures
on the dorsal portions thereof. He also denied having withdrawn any amount
from said savings account. Further investigation revealed that said savings
account had actually been opened by petitioner; the forged checks were
deposited and endorsed by him under Gutierrezs name. A bank teller from
the Banco de Oro, Winnie P. Donable Dela Cruz, positively identified
petitioner as the person who opened the savings account using Gutierrezs
name.
4

In the meantime, the PCIB credited the amount of P581,229.00 to Caltex on
March 29, 1998. However, the City Prosecutor of Makati City was not
informed of this development. After the requisite preliminary investigation,
the City Prosecutor filed two (2) Informations for estafa through falsification
of commercial documents on June 29, 1998 against petitioner before the
Regional Trial Court (RTC) of Makati City, Branch 63. The Informations are
worded as follows:
Criminal Case No. 98-1611
That on or about the 24th day of September 1997 in the City of Makati,
Metro Manila, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, a private individual, with intent to defraud
and intent to gain, without the knowledge and consent of Caltex Philippines,
Inc. through its duly authorized officers/representatives, and by means of
falsification of commercial document, did then and there willfully, unlawfully
and feloniously defraud Caltex Phils., Inc., in the following manner, to wit:
said accused, having obtained possession of PCIBank check no. 72922
dated September 15, 1997 payable to Dante R. Gutierrez, in the amount of
Php1,790,757.50 with intent to defraud or cause damage to complainant
Caltex Phils., Inc., willfully, unlawfully and feloniously affixed or caused to be
affixed signatures purporting to be those of Ramon Romano and Victor
Goquingco, Caltex authorized officers/signatories, and of payee Dante R.
Gutierrez, causing it to appear that Ramon Romano and Victor Goquingco
have participated in the issuance of PCIBank check no. 72922 and that
Dante R. Gutierrez had endorsed it, when in truth and in fact, as said
accused well knew, such was not the case, since said check previously
stolen from Payables Section of CALTEX, was neither duly signed by Ramon
Romano and Victor Goquingco nor endorsed by Dante R. Gutierrez, after the
check, a commercial document, was falsified in the manner above set forth,
the said accused purporting himself to be the payee, Dante R. Gutierrez,
deposited the check with Banco De Oro under Account No. 2004-0047245-
7, thereby appropriating the proceeds of the falsified but cleared check, to
the damage and prejudice of complainant herein represented by Ramon
Romano, in the amount of Php1,790,757.50.
Criminal Case No. 98-1612
That on or about the 15th day of October 1997 in the City of Makati, Metro
Manila, Philippines, a place within the jurisdiction of this Honorable Court,
the above-named accused, a private individual, with intent to defraud and
intent to gain, without the knowledge and consent of Caltex Philippines, Inc.
through its duly authorized officers/representatives, and by means of
falsification of commercial document, did then and there willfully, unlawfully
and feloniously defraud Caltex Phils., Inc., in the following manner, to wit:
said accused, having obtained possession of PCIBank check no. 74001
dated October 13, 1997 payable to Dante R. Gutierrez, in the amount of
Php5,790,570.25 with intent to defraud or cause damage to complainant
Caltex Phils., Inc., willfully, unlawfully and feloniously affixed or caused to be
affixed signatures purporting to be those of Ramon Romano and Victor
Goquingco, Caltex authorized officers/signatories, and of payee Dante R.
Gutierrez, causing it to appear that Ramon Romano and Victor Goquingco
have participated in the issuance of PCIBank check no. 74001 and that
Dante R. Gutierrez had endorsed it, when in truth and in fact, as said
accused well knew, such was not the case, since said check previously
stolen from Payables Section of CALTEX, was neither duly signed by Ramon
Romano and Victor Goquingco nor endorsed by Dante R. Gutierrez, after the
check, a commercial document, was falsified in the manner above set forth,
the said accused purporting himself to be the payee, Dante R. Gutierrez,
deposited the check with Banco De Oro under Account No. 2004-0047245-
7, thereby appropriating the proceeds of the falsified but cleared check, to
the damage and prejudice of complainant herein represented by Ramon
Romano, in the amount of Php5,790,570.25.
5

Petitioner was arraigned on August 18, 1998, and pleaded not guilty to both
charges.
6
Pre-trial ensued and the cases were jointly tried. The prosecution
presented its witnesses, after which the Siguion Reyna, Montecillio and
Ongsiako Law Offices (SRMO) as private prosecutor filed a Formal Offer of
Evidence.
7
Petitioner opposed the pleading, contending that the private
complainant was represented by the ACCRA Law Offices and the Balgos and
Perez Law Office during trial, and it was only after the prosecution had rested
its case that SRMO entered its appearance as private prosecutor
representing the PCIB. Since the ACCRA and Balgos and Perez Law Offices
had not withdrawn their appearance, SRMO had no personality to appear as
private prosecutor. Under the Informations, the private complainant is Caltex
and not PCIB; hence, the Formal Offer of Evidence filed by SRMO should be
stricken from the records.
Petitioner further averred that unless the Informations were amended to
change the private complainant to PCIB, his right as accused would be
prejudiced. He pointed out, however, that the Informations can no longer be
amended because he had already been arraigned under the original
Informations.
8
He insisted that the amendments of the Informations to
substitute PCIB as the offended party for Caltex would place him in double
jeopardy.
PCIB, through SRMO, opposed the motion. It contended that the PCIB had
re-credited the amount to Caltex to the extent of the indemnity; hence, the
PCIB had been subrogated to the rights and interests of Caltex as private
complainant. Consequently, the PCIB is entitled to receive any civil indemnity
which the trial court would adjudge against the accused. Moreover, the re-
credited amount was brought out on cross-examination by Ramon Romano
who testified for the Prosecution. PCIB pointed out that petitioner had
marked in evidence the letter of the ACCRA Law Office to PCIBank dated
October 10, 1997 and the credit memo sent by PCIB to Caltex.
9

Petitioner filed a Motion to Expunge the Opposition of SRMO.
10
In his
Rejoinder, he averred that the substitution of PCIB as private complainant
cannot be made by mere oral motion; the Information must be amended to
allege that the private complainant was PCIB and not Caltex after the
preliminary investigation of the appropriate complaint of PCIB before the
Makati City Prosecutor.
In response, the PCIB, through SRMO, averred that as provided in Section 2,
Rule 110 of the Revised Rules of Criminal Procedure, the erroneous
designation of the name of the offended party is a mere formal defect which
can be cured by inserting the name of the offended party in the Information.
To support its claim, PCIB cited the ruling of this Court in Sayson v.
People.
11

On July 18, 2001, the RTC issued an Order granting the motion of the private
prosecutor for the substitution of PCIB as private complainant for Caltex. It
however denied petitioners motion to have the formal offer of evidence of
SRMO expunged from the record.
12
Petitioner filed a motion for
reconsideration which the RTC denied on November 14, 2001.
13

Petitioner filed a Petition for Certiorari under Rule 65 of the Rules of Court
with Urgent Application for Temporary Restraining Order with the Court of
Appeals (CA,) praying for the annulment of the RTCs Orders of July 18,
2001 and November 14, 2001. The petitioner averred that:
I
RESPONDENT JUDGE GRIEVEOUSLY (SIC) ERRED IN RENDERING ITS
ORDER ISSUED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO
LACK OF OR IN EXCESS OF JURISDICTION BY ALLOWING THE
SUBSTITUTION OF PRIVATE COMPLAINANT, AFTER THE ACUSED WAS
ALREADY ARRAIGNED AND PROSECUTION HAS ALREADY TERMINATED
PRESENTING ITS EVIDENCE THEREBY PATENTLY VIOLATING THE STRICT
CONDITION IMPOSED UPON BY RULE 110 SEC. 14 RULES ON CRIMINAL
ROCEDURE.
II
AND AS A COROLLARY GROUND RESPONDENT JUDGE COMMITTED
GRAVE ABUSE OF DISCRETION IN EXCESS OF JURISDICTION IN
RENDERING AN ORDER RECOGNIZING THE APPEARANCE OF A NEW
PROSECUTOR WITHOUT WRITTEN OR EVEN ORAL WITHDRAWAL OF THE
COUNSEL ON RECORD.
14

According to petitioner, damage or injury to the offended party is an
essential element of estafa. The amendment of the Informations substituting
the PCIBank for Caltex as the offended party would prejudice his rights since
he is deprived of a defense available before the amendment, and which
would be unavailable if the Informations are amended. Petitioner further
insisted that the ruling in the Sayson case did not apply to this case.
On November 5, 2002, the appellate court rendered judgment dismissing the
petition. The fallo reads:
WHEREFORE, premises considered, the petition to annul the orders dated
July 18, 2001 and November 14, 2001 of the Regional Trial Court, Branch
63, Makati City in Criminal Case Nos. 98-1611 and 98-1612 is hereby
DENIED and consequently DISMISSED.
SO ORDERED.
15

The appellate court declared that when PCIB restored the amount of the
checks to Caltex, it was subrogated to the latters right against petitioner. It
further declared that in offenses against property, the designation of the
name of the offended party is not absolutely indispensable for as long as the
criminal act charged in the complaint or information can be properly
identified. The appellate court cited the rulings of this Court in People v.
Ho
16
and People v. Reyes.
17

On October 17, 2003, the CA issued a Resolution denying petitioners Motion
for Reconsideration and Supplemental Motion for Reconsideration.
18

Hence, petitioner filed the instant petition which is anchored on the following
grounds:
I. THE PEOPLE V. YU CHAI HO 53 PHILIPPINES 874 IS
INAPPLICABLE TO THE CASE AT BAR CONSIDERING THE PACTS
ARE SUBSTANTIALLY DIFFERENT.
II. LIKEWISE, THE CASE OF PEOPLE VS. REYES CA, 50 (2) OG 665,
NOVEMBER 11, 1953 HAS NO MATERIAL BEARING TO THE
PRESENT CASE.
III. THE SUBSTITUTION OF PCIBANK WILL SUBSTANTIALLY
PREJUDICE THE RIGHTS OF THE PETITIONER HENCE, IT IS
PROHIBITED BY SEC. 14 OF RULE 110.
IV. THERE IS NO VALID SUBROGATION BETWEEN CALTEX AND
PCIBANK. ASSUMING THERE IS, THE CIVIL CASE SHOULD BE
DISMISSED TO PROSECUTE.
V. THE TWIN INFORMATIONS UPON WHICH PETITIONER WAS
INDICTED, ARRAIGNED, PRE-TRIAL HELD AND PUBLIC
PROSECUTOR TERMINATED THE PRESENTATION OF ITS EVIDENCE
IN CHIEF ARE DEFECTIVE AND VOID, HENCE THE DISMISSAL IS IN
ORDER.
VI. PETITIONER TIMELY OBJECTED TO THE APPEARANCE OF
PRIVATE PROSECUTOR FOR PCIBANK.
VII. THE FINDINGS OF MATERIAL FACTS ARE NOT SUPORTED BY
THE RECORD NOR EVIDENCE AND BASED ON MISAPPRECIATION
OF FACTS.
VIII. PETITIONERS SUPPLEMENTAL MOTION FOR
RECONSIDERATION DID NOT VIOLATE THE OMNIBUS MOTION RULE
UNDER SEC. 8, RULE 15 OF THE 1997 RULES OF CIVIL
PROCEDURE.
19

The Courts Ruling
Petitioner argues that the substitution of Caltex by PCIB as private
complainant at this late stage of the trial is prejudicial to his defense. He
argues that the substitution is tantamount to a substantial amendment of the
Informations which is prohibited under Section 14, Rule 110 of the Rules of
Court.
Under Section 5, Rule 110
20
of the Revised Rules of Rules, all criminal
actions covered by a complaint or information shall be prosecuted under the
direct supervision and control of the public prosecutor. Thus, even if the
felonies or delictual acts of the accused result in damage or injury to
another, the civil action for the recovery of civil liability based on the said
criminal acts is impliedly instituted, and the offended party has not waived
the civil action, reserved the right to institute it separately or instituted the
civil action prior to the criminal action, the prosecution of the action
(including the civil) remains under the control and supervision of the public
prosecutor. The prosecution of offenses is a public function. Under Section
16, Rule 110 of the Rules of Criminal Procedure, the offended party may
intervene in the criminal action personally or by counsel, who will act as
private prosecutor for the protection of his interests and in the interest of the
speedy and inexpensive administration of justice. A separate action for the
purpose would only prove to be costly, burdensome and time-consuming for
both parties and further delay the final disposition of the case. The
multiplicity of suits must be avoided. With the implied institution of the civil
action in the criminal action, the two actions are merged into one composite
proceeding, with the criminal action predominating the civil. The prime
purpose of the criminal action is to punish the offender in order to deter him
and others from committing the same or similar offense, to isolate him from
society, reform and rehabilitate him or, in general, to maintain social order.
21

On the other hand, the sole purpose of the civil action is for the resolution,
reparation or indemnification of the private offended party for the damage or
injury he sustained by reason of the delictual or felonious act of the
accused.
22
Under Article 104 of the Revised Penal Code, the following are
the civil liabilities of the accused:
ART. 104. What is included in civil liability. The civil liability established in
Articles 100, 101, 102 and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
On the other hand, Section 14, Rule 110 of the Revised Rules of Criminal
Procedure states:
Section 14. Amendment or substitution. A complaint or information may be
amended, in form or in substance, without leave of court, at any time before
the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with notice to
the offended party and with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall be furnished all parties,
especially the offended party.
Thus, before the accused enters his plea, a formal or substantial
amendment of the complaint or information may be made without leave of
court. After the entry of a plea, only a formal amendment may be made but
with leave of court and if it does not prejudice the rights of the accused.
After arraignment, a substantial amendment is proscribed except if the same
is beneficial to the accused.
23

A substantial amendment consists of the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All other
matters are merely of form.
24
The following have been held to be mere
formal amendments: (1) new allegations which relate only to the range of the
penalty that the court might impose in the event of conviction; (2) an
amendment which does not charge another offense different or distinct from
that charged in the original one; (3) additional allegations which do not alter
the prosecutions theory of the case so as to cause surprise to the accused
and affect the form of defense he has or will assume; (4) an amendment
which does not adversely affect any substantial right of the accused; and (5)
an amendment that merely adds specifications to eliminate vagueness in the
information and not to introduce new and material facts, and merely states
with additional precision something which is already contained in the original
information and which adds nothing essential for conviction for the crime
charged.
25

The test as to whether a defendant is prejudiced by the amendment is
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. An amendment to an information which does not
change the nature of the crime alleged therein 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.
26

In the case at bar, the substitution of Caltex by PCIB as private complaint is
not a substantial amendment. The substitution did not alter the basis of the
charge in both Informations, nor did it result in any prejudice to petitioner.
The documentary evidence in the form of the forged checks remained the
same, and all such evidence was available to petitioner well before the trial.
Thus, he cannot claim any surprise by virtue of the substitution.
Petitioner next argues that in no way was PCIB subrogated to the rights of
Caltex, considering that he has no knowledge of the subrogation much less
gave his consent to it. Alternatively, he posits that if subrogation was proper,
then the charges against him should be dismissed, the two Informations
being "defective and void due to false allegations."
Petitioner was charged of the crime of estafa complex with falsification
document. In estafa one of the essential elements "to prejudice of another"
as mandated by article 315 of the Revise Penal Code.
The element of "to the prejudice of another" being as essential element of
the felony should be clearly indicated and charged in the information with
TRUTH AND LEGAL PRECISION.
This is not so in the case of petitioner, the twin information filed against him
alleged the felony committed " to the damage and prejudice of Caltex." This
allegation is UNTRUE and FALSE for there is no question that as early as
March 24, 1998 or THREE (3) LONG MONTHS before the twin information
were filed on June 29, 1998, the prejudice party is already PCIBank since the
latter Re-Credit the value of the checks to Caltex as early as March 24,
1998. In effect, assuming there is valid subrogation as the subject decision
concluded, the subrogation took place an occurred on March 24, 1998
THREE (3) MONTHS before the twin information were filed.
The phrase "to the prejudice to another" as element of the felony is limited to
the person DEFRAUDED in the very act of embezzlement. It should not be
expanded to other persons which the loss may ultimately fall as a result of a
contract which contract herein petitioner is total stranger.
In this case, there is no question that the very act of commission of the
offense of September 24, 1997 and October 15, 1997 respectively, Caltex
was the one defrauded by the act of the felony.
In the light of these facts, petitioner submits that the twin information are
DEFECTIVE AND VOID due to the FALSE ALLEGATIONS that the offense was
committed to the prejudice of Caltex when it truth and in fact the one
prejudiced here was PCIBank.
The twin information being DEFECTIVE AND VOID, the same should be
dismissed without prejudice to the filing of another information which should
state the offense was committed to the prejudice of PCIBank if it still legally
possible without prejudicing substantial and statutory rights of the
petitioner.
27

Petitioners argument on subrogation is misplaced. The Court agrees with
respondent PCIBs comment that petitioner failed to make a distinction
between legal and conventional subrogation. Subrogation is the transfer of
all the rights of the creditor to a third person, who substitutes him in all his
rights.
28
It may either be legal or conventional. Legal subrogation is that
which takes place without agreement but by operation of law because of
certain acts.
29
Instances of legal subrogation are those provided in Article
1302
30
of the Civil Code. Conventional subrogation, on the other hand, is
that which takes place by agreement of the parties.
31
Thus, petitioners
acquiescence is not necessary for subrogation to take place because the
instant case is one of legal subrogation that occurs by operation of law, and
without need of the debtors knowledge.
Contrary to petitioners asseverations, the case of People v. Yu Chai
Ho
32
relied upon by the appellate court is in point. The Court declared
We do not however, think that the fiscal erred in alleging that the commission
of the crime resulted to the prejudice of Wm. H. Anderson & Co. It is true
that originally the International Banking Corporation was the prejudiced party,
but Wm. H. Anderson & Co. compensated it for its loss and thus became
subrogated to all its rights against the defendant (article 1839, Civil Code).
Wm. H. Anderson & Co., therefore, stood exactly in the shoes of the
International Banking Corporation in relation to the defendant's acts, and the
commission of the crime resulted to the prejudice of the firm previously to
the filing of the information in the case. The loss suffered by the firm was the
ultimate result of the defendant's unlawful acts, and we see no valid reason
why this fact should not be stated in the information; it stands to reason
that, in the crime of estafa, the damage resulting therefrom need not
necessarily occur simultaneously with the acts constituting the other essential
elements of the crime.
Thus, being subrogated to the right of Caltex, PCIB, through counsel, has
the right to intervene in the proceedings, and under substantive laws is
entitled to restitution of its properties or funds, reparation, or indemnification.
Petitioners gripe that the charges against him should be dismissed because
the allegations in both Informations failed to name PCIB as true offended
party does not hold water.
Section 6, Rule 110 of the Rules on Criminal Procedure states:
Sec. 6. Sufficiency of complaint or information. A complaint or information
is sufficient if it states the name of the accused; the designation of the
offense by the statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate time of the
commission of the offense; and the place wherein the offense was
committed.
When the offense is committed by more than one person, all of them shall
be included in the complaint or information.
On the other hand, Section 12 of the same Rule provides:
Section. 12. Name of the offended party. The complaint or information
must state the name and surname of the person against whom or against
whose property the offense was committed, or any appellation or nickname
by which such person has been or is known. If there is no better way of
identifying him, he must be described under a fictitious name.
(a) In offenses against property, if the name of the offended party is
unknown, the property must be described with such particularity as to
properly identify the offense charged.
(b) If the true name of the person against whom or against whose
property the offense was committed is thereafter disclosed or
ascertained, the court must cause such true name to be inserted in
the complaint or information and the record.
(c) If the offended party is a juridical person, it is sufficient to state
its name, or any name or designation by which it is known or by
which it may be identified, without need of averring that it is a
juridical person or that it is organized in accordance with law. (12a)
In Sayson v. People,
33
the Court held that in case of offenses against
property, the designation of the name of the offended party is not absolutely
indispensable for as long as the criminal act charged in the complaint or
information can be properly identified:
The rules on criminal procedure require the complaint or information to state
the name and surname of the person against whom or against whose
property the offense was committed or any appellation or nickname by which
such person has been or is known and if there is no better way of Identifying
him, he must be described under a fictitious name (Rule 110, Section 11,
Revised Rules of Court; now Rule 110, Section 12 of the 1985 Rules on
Criminal Procedure.] In case of offenses against property, the designation of
the name of the offended party is not absolutely indispensable for as long as
the criminal act charged in the complaint or information can be properly
identified. Thus, Rule 110, Section 11 of the Rules of Court provides that:
Section 11. Name of the offended party-

(a) In cases of offenses against property, if the name of the
offended party is unknown, the property, subject matter of the
offense, must be described with such particularity as to properly
Identify the particular offense charged.
(b) If in the course of the trial, the true name of the person against
whom or against whose property the offense was committed is
disclosed or ascertained, the court must cause the true name to be
inserted in the complaint or information or record.

In U.S. v. Kepner [1 Phil. 519 (1902)], this Court laid down the rule that
when an offense shall have been described in the complaint with sufficient
certainty as to Identify the act, an erroneous allegation as to the person
injured shall be deemed immaterial as the same is a mere formal defect
which did not tend to prejudice any substantial right of the defendant.
Accordingly, in the aforementioned case, which had a factual backdrop
similar to the instant case, where the defendant was charged with estafa for
the misappropriation of the proceeds of a warrant which he had cashed
without authority, the erroneous allegation in the complaint to the effect that
the unlawful act was to the prejudice of the owner of the cheque, when in
reality the bank which cashed it was the one which suffered a loss, was held
to be immaterial on the ground that the subject matter of the estafa, the
warrant, was described in the complaint with such particularity as to properly
Identify the particular offense charged. In the instant suit for estafa which is
a crime against property under the Revised Penal Code, since the check,
which was the subject-matter of the offense, was described with such
particularity as to properly identify the offense charged, it becomes
immaterial, for purposes of convicting the accused, that it was established
during the trial that the offended party was actually Mever Films and not
Ernesto Rufino, Sr. nor Bank of America as alleged in the information.
Lastly, on petitioners claim that he timely objected to the appearance of
SRMO
34
as private prosecutor for PCIB, the Court agrees with the observation
of the CA that contrary to his claim, petitioner did not question the said entry
of appearance even as the RTC acknowledged the same on October 8,
1999.
35
Thus, petitioner cannot feign ignorance or surprise of the incident,
which are "all water under the bridge for [his] failure to make a timely
objection thereto."
36

WHEREFORE, the petition is DENIED. The assailed decision and resolution
of the Court of Appeals are AFFIRMED. This case is REMANDED to the
Regional Trial Court of Makati City, Branch 63, for further proceedings.
SO ORDERED.

SECOND DIVISION


HEIRS OF SARAH MARIE G.R. No. 169711
PALMA BURGOS,
Petitioners, Present:

Carpio, J., Chairperson,
- versus - Brion,
Del Castillo,
Abad, and
Perez, JJ.
COURT OF APPEALS and
JOHNNY CO y YU, Promulgated:
Respondents.
February 8, 2010
x -----------------------------------------------------------
---------------------------- x

DECISION

ABAD, J.:


This case is about the legal standing of the offended parties in a
criminal case to seek, in their personal capacities and without the Solicitor
Generals intervention, reversal of the trial courts order granting bail to the
accused on the ground of absence of strong evidence of guilt.

The Facts and the Case

On January 7, 1992 a number of assailants attacked the household
of Sarah Marie Palma Burgos while all were asleep, killing Sarah and her
uncle Erasmo Palma (Erasmo). Another uncle, Victor Palma (Victor), and a
friend, Benigno Oquendo (Oquendo), survived the attack. The theory of the
police was that a land transaction gone sour between Sarahs live-in partner,
David So (David), and respondent Johnny Co (Co) motivated the assault.

Four months after the incident, the police arrested Cresencio Aman
(Aman) and Romeo Martin (Martin) who executed confessions, allegedly
admitting their part in the attack. They pointed to two others who helped
them, namely, Artemio Pong Bergonia and Danilo Say, and to respondent
Co who allegedly masterminded the whole thing. The Regional Trial Court
(RTC) of Manila, Branch 51, tried the case against Aman and Martin in
Criminal Cases 92-104918-21. The three others remained at large. After
trial, the RTC acquitted them both.

After 10 years or on September 5, 2002 respondent Co surrendered
to the National Bureau of Investigation. The prosecution charged him with
two counts of murder for the deaths of Sarah
[1]
and Erasmo
[2]
and two
counts of frustrated murder committed against Oquendo
[3]
and
Victor.
[4]
Upon arraignment, Co pleaded not guilty to the charges.

On September 25, 2002 respondent Co filed a petition for admission
to bail.
[5]
After hearing or on April 14, 2004, the RTC
[6]
granted bail on the
ground that the evidence of guilt of respondent Co was not strong. The RTC
summarized the prosecutions evidence as follows:

1. Aman and Martins extrajudicial confessions
that pointed to Co as the one who hired them to kill David
and his family.

2. Davids testimony as alleged witness to the
killing of Sarah. Aman supposedly told David later when they
met that it was Co who ordered the massacre.

3. Police officer Leopoldo Vasquez, assistant
leader of the police team that investigated the case, said that
his team conducted two operations to take Co into
custody. The first was in a restaurant where they waited for
him. But Co got suspicious and when he saw the police, he
immediately left the restaurant, got into his car, and sped
away. The police also tried to arrest Co at his residence but
the police did not find him there. Co also offered to settle
the case.

The RTC had a low estimate, however, of the above evidence. First,
the extrajudicial confessions of Aman and Martin, apart from having been
irregularly executed, merely proved their participation in the killing. Neither,
however, claimed conspiracy with respondent Co. Further, the prosecution
did not present Aman or Martin during the bail hearing, reportedly because
Aman was already dead and Martin could not be located. To admit their
sworn statements in evidence would deprive Co of his constitutional right to
cross-examine them.

Second, Davids narrations were, to the RTC, contradictory,
uncorroborated, and self-serving, thus lacking in evidentiary weight.

Third, police officer Vasquezs story was likewise
uncorroborated. Besides, while flight is often indicative of guilt, it requires a
clear showing of the identity of the offender and his evasion of arrest. Here,
said the RTC, the prosecution failed to establish Cos identity as the
assailant and his reason for fleeing from the police.

Fourth, the prosecution failed to prove that the offer of settlement
came from Co.

Petitioner heirs of Sarah moved for reconsideration
[7]
but the RTC,
now presided over by another judge,
[8]
denied the same in its Order of May
18, 2005.
[9]
This prompted the victims heirs to file a special civil action
of certiorari with prayer for a temporary restraining order or preliminary
injunction
[10]
before the Court of Appeals (CA) in CA-G.R. SP 90028.

The CA dismissed the petition,
[11]
however, for having been filed
without involving the Office of the Solicitor General (OSG), in violation of
jurisprudence
[12]
and the law, specifically, Section 35, Chapter 12, Title III,
Book IV of the Administrative Code which states that:

Sec. 35. Powers and Functions.The Office of the
Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials
and agents in any litigation, proceedings, investigation or
matter requiring the services of lawyers. When authorized by
the President or head of the office concerned, it shall also
represent government-owned or controlled corporations. The
Office of the Solicitor General shall constitute the law office of
the Government and, as such, shall discharge duties requiring
the services of lawyers. It shall have the following specific
powers and functions:

x x x x

(1) Represent the Government in the Supreme Court and
the Court of Appeals in all criminal proceedings;
represent the Government and its officers in the
Supreme Court, Court of Appeals, and all other courts
or tribunals in all civil actions and special proceedings
in which the Government or any officer thereof in his
official capacity is a party.

Petitioner heirs of Sarah moved for reconsideration
[13]
but the CA
denied it for lack of merit in its Resolution of September 16,
2005,
[14]
hence, the heirs recourse to this Court.

The Issue

The case raises one issue: whether or not the CA correctly dismissed
the special civil action of certiorari, which questioned the RTCs grant of bail
to respondent Co, for having been filed in the name of the offended parties
and without the OSGs intervention.

The Courts Ruling

Generally, a criminal case has two aspects, the civil and the criminal.
The civil aspect is borne of the principle that every person criminally liable is
also civilly liable.
[15]


The civil action, in which the offended party is the plaintiff and the
accused is the defendant,
[16]
is deemed instituted with the criminal action
unless the offended party waives the civil action or reserves the right to
institute it separately or institutes the civil action prior to the criminal
action.
[17]


The law allows the merger of the criminal and the civil actions to
avoid multiplicity of suits.
[18]
Thus, when the state succeeds in prosecuting
the offense, the offended party benefits from such result and is able to
collect the damages awarded to him.

But, when the trial court acquits the accused
[19]
or dismisses the
case
[20]
on the ground of lack of evidence to prove the guilt of the accused
beyond reasonable doubt, the civil action is not automatically extinguished
since liability under such an action can be determined based on mere
preponderance of evidence. The offended party may peel off from the
terminated criminal action and appeal from the implied dismissal of his
claim for civil liability.
[21]


The purpose of a criminal action, in its purest sense, is to determine
the penal liability of the accused for having outraged the state with his crime
and, if he be found guilty, to punish him for it. In this sense, the parties to
the action are the People of the Philippines and the accused.
[22]
The
offended party is regarded merely as a witness for the state.
[23]
Also in this
wise, only the state, through its appellate counsel, the OSG,
[24]
has the sole
right and authority to institute proceedings before the CA or the Supreme
Court.
[25]


As a general rule, the mandate or authority to represent the state lies
only in the OSG. Thus

It is patent that the intent of the lawmaker was to give
the designated official, the Solicitor General, in this case, the
unequivocal mandate to appear for the government in legal
proceedings. Spread out in the laws creating the office is the
discernible intent which may be gathered from the term shall
x x x.

x x x x

The Court is firmly convinced that considering the spirit
and the letter of the law, there can be no other logical
interpretation of Sec. 35 of the Administrative Code than that it
is, indeed, mandatory upon the OSG to represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of a
lawyer.
[26]


For the above reason, actions essentially involving the interest of the
state, if not initiated by the Solicitor General, are, as a rule,
[27]
summarily
dismissed.
[28]


Here, the question of granting bail to the accused is but an aspect of
the criminal action, preventing him from eluding punishment in the event of
conviction. The grant of bail or its denial has no impact on the civil liability
of the accused that depends on conviction by final judgment. Here,
respondent Co has already been arraigned. Trial and judgment, with award
for civil liability when warranted, could proceed even in his absence.

In Narciso v. Sta. Romana-Cruz,
[29]
this Court allowed the offended
party to challenge before it the trial courts order granting bail. But in that
case, the trial court gravely abused its discretion amounting to lack of
jurisdiction in granting bail without conducting any hearing at all. Thus, to
disallow the appeal on the basis of lack of intervention of the OSG would
leave the private complainant without any recourse to rectify the public
injustice.
[30]
It is not the case here. The trial court took time to hear the
parade of witnesses that the prosecution presented before reaching the
conclusion that the evidence of guilt of respondent Co was not strong.

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court
of Appeals Decision in CA-G.R. SP 90028 dated June 29, 2005 and its
Resolution dated September 16, 2005.

SO ORDERED.

FIRST DIVISION
[G.R. No. 147703. April 14, 2004]
PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
D E C I S I O N
PANGANIBAN, J.:
When the accused-employee absconds or jumps bail, the judgment
meted out becomes final and executory. The employer cannot defeat the
finality of the judgment by filing a notice of appeal on its own behalf in the
guise of asking for a review of its subsidiary civil liability. Both the primary
civil liability of the accused-employee and the subsidiary civil liability of the
employer are carried in one single decision that has become final and
executory.
The Case
Before this Court is a Petition for Review
[1]
under Rule 45 of the Rules of
Court, assailing the March 29, 2000
[2]
and the March 27, 2001
[3]
Resolutions
of the Court of Appeals (CA) in CA-GR CV No. 59390. Petitioners appeal
from the judgment of the Regional Trial Court (RTC) of San Fernando, La
Union in Criminal Case No. 2535 was dismissed in the first Resolution as
follows:
WHEREFORE, for all the foregoing, the motion to dismiss is GRANTED and
the appeal is ordered DISMISSED.
[4]

The second Resolution denied petitioners Motion for Reconsideration.
[5]

The Facts
The facts of the case are summarized by the CA in this wise:
On July 27, 1994, accused [Napoleon Roman y Macadangdang] was found
guilty and convicted of the crime of reckless imprudence resulting to triple
homicide, multiple physical injuries and damage to property and was
sentenced to suffer the penalty of four (4) years, nine (9) months and eleven
(11) days to six (6) years, and to pay damages as follows:
a. to pay the heirs of JUSTINO TORRES the sum of P50,000.00
as indemnity for his death, plus the sum of P25,383.00, for
funeral expenses, his unearned income for one year
at P2,500.00 a month,P50,000.00 as indemnity for the
support of Renato Torres, and the further sum
of P300,000.00 as moral damages;
b. to the heirs of ESTRELLA VELERO, the sum of P50,000.00
as indemnity for her death, the sum of P237,323.75 for
funeral expenses, her unearned income for three years
at P45,000.00 per annum, and the further sum
of P1,000,000.00 as moral damages and P200,000.00 as
attorneys fees[;]
c. to the heirs of LORNA ANCHETA, the sum of P50,000.00 as
indemnity for her death, the sum of P22,838.00 as funeral
expenses, the sum of P20,544.94 as medical expenses and
her loss of income for 30 years at P1,000.00 per month, and
the further sum of P100,000.00 for moral damages;
d. to MAUREEN BRENNAN, the sum of P229,654.00 as
hospital expenses, doctors fees of P170,000.00 for the
orthopedic surgeon, P22,500.00 for the [n]eurologist, an
additional indemnity [of] at leastP150,000.00 to cover future
correction of deformity of her limbs, and moral damages in
the amount of P1,000,000.00;
e. to ROSIE BALAJO, the sum of P3,561.46 as medical
expenses, P2,000.00 as loss of income, and P25,000.00 as
moral damages;
f. to TERESITA TAMONDONG, the sum of P19,800.47 as
medical expenses, P800.00 for loss of income,
and P25,000.00 as moral damages;
g. to JULIANA TABTAB, the amount of P580.81 as medical
expenses, P4,600.00 as actual damages and her loss
earnings of P1,400.00 as well as moral damages in the
amount of P10,000.00;
h. to MIGUEL ARQUITOLA, the sum of P12,473.82 as hospital
expenses, P14,530.00 as doctors fees, P1,000.00 for
medicines and P50,000.00 as moral damages;
i. to CLARITA CABANBAN, the sum of P155.00 for medical
expenses, P87.00 for medicines, P1,710.00 as actual
damages and P5,000.00 as moral damages;
j. to MARIANO CABANBAN, the sum of P1,395.00 for hospital
bills, P500.00 for medicine, P2,100.00 as actual
damages, P1,200.00 for loss of income and P5,000.00 as
moral damages;
k. to La Union Electric Company as the registered owner of the
Toyota Hi-Ace Van, the amount of P250,000.00 as actual
damages for the cost of the totally wrecked vehicle; to the
owner of the jeepney, the amount of P22,698.38 as actual
damages;
The court further ruled that [petitioner], in the event of the insolvency of
accused, shall be liable for the civil liabilities of the accused. Evidently, the
judgment against accused had become final and executory.
Admittedly, accused had jumped bail and remained at-large. It is worth
mention[ing] that Section 8, Rule 124 of the Rules of Court authorizes the
dismissal of appeal when appellant jumps bail. Counsel for accused, also
admittedly hired and provided by [petitioner], filed a notice of appeal which
was denied by the trial court. We affirmed the denial of the notice of appeal
filed in behalf of accused.
Simultaneously, on August 6, 1994, [petitioner] filed its notice of appeal
from the judgment of the trial court. On April 29, 1997, the trial court gave
due course to [petitioners] notice of appeal. On December 8, 1998,
[petitioner] filed its brief. On December 9, 1998, the Office of the Solicitor
General received [a] copy of [petitioners] brief. On January 8, 1999, the
OSG moved to be excused from filing [respondents] brief on the ground
that the OSGs authority to represent People is confined to criminal cases on
appeal. The motion was however denied per Our resolution of May 31,
1999. On March 2, 1999, [respondent]/private prosecutor filed the instant
motion to dismiss.
[6]
(Citations omitted)
Ruling of the Court of Appeals
The CA ruled that the institution of a criminal case implied the institution
also of the civil action arising from the offense. Thus, once determined in
the criminal case against the accused-employee, the employers subsidiary
civil liability as set forth in Article 103 of the Revised Penal Code becomes
conclusive and enforceable.
The appellate court further held that to allow an employer to dispute
independently the civil liability fixed in the criminal case against the accused-
employee would be to amend, nullify or defeat a final judgment. Since the
notice of appeal filed by the accused had already been dismissed by the CA,
then the judgment of conviction and the award of civil liability became final
and executory. Included in the civil liability of the accused was the
employers subsidiary liability.
Hence, this Petition.
[7]

The Issues
Petitioner states the issues of this case as follows:
A. Whether or not an employer, who dutifully participated in the
defense of its accused-employee, may appeal the judgment of conviction
independently of the accused.
B. Whether or not the doctrines of Alvarez v. Court of Appeals (158
SCRA 57) and Yusay v. Adil (164 SCRA 494) apply to the instant case.
[8]

There is really only one issue. Item B above is merely an adjunct to
Item A.
The Courts Ruling
The Petition has no merit.
Main Issue:
Propriety of Appeal by the Employer
Pointing out that it had seasonably filed a notice of appeal from the RTC
Decision, petitioner contends that the judgment of conviction against the
accused-employee has not attained finality. The former insists that its
appeal stayed the finality, notwithstanding the fact that the latter had jumped
bail. In effect, petitioner argues that its appeal takes the place of that of the
accused-employee.
We are not persuaded.
Appeals in Criminal Cases
Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure
states thus:
Any party may appeal from a judgment or final order, unless the accused
will be placed in double jeopardy.
Clearly, both the accused and the prosecution may appeal a criminal
case, but the government may do so only if the accused would not thereby
be placed in double jeopardy.
[9]
Furthermore, the prosecution cannot appeal
on the ground that the accused should have been given a more severe
penalty.
[10]
On the other hand, the offended parties may also appeal the
judgment with respect to their right to civil liability. If the accused has the
right to appeal the judgment of conviction, the offended parties should have
the same right to appeal as much of the judgment as is prejudicial to
them.
[11]

Appeal by the Accused
Who Jumps Bail
Well-established in our jurisdiction is the principle that the appellate
court may, upon motion or motu proprio, dismiss an appeal during its
pendency if the accused jumps bail. The second paragraph of Section 8 of
Rule 124 of the 2000 Revised Rules of Criminal Procedure provides:
The Court of Appeals may also, upon motion of the appellee or motu
proprio, dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the pendency of
the appeal.
[12]

This rule is based on the rationale that appellants lose their standing in
court when they abscond. Unless they surrender or submit to the courts
jurisdiction, they are deemed to have waived their right to seek judicial
relief.
[13]

Moreover, this doctrine applies not only to the accused who jumps bail
during the appeal, but also to one who does so during the trial. Justice
Florenz D. Regalado succinctly explains the principle in this wise:
x x x. When, as in this case, the accused escaped after his arraignment and
during the trial, but the trial in absentia proceeded resulting in the
promulgation of a judgment against him and his counsel appealed, since he
nonetheless remained at large his appeal must be dismissed by analogy with
the aforesaid provision of this Rule [Rule 124, 8 of the Rules on Criminal
Procedure]. x x x
[14]

The accused cannot be accorded the right to appeal unless they
voluntarily submit to the jurisdiction of the court or are otherwise arrested
within 15 days from notice of the judgment against them.
[15]
While at large,
they cannot seek relief from the court, as they are deemed to have waived
the appeal.
[16]

Finality of a Decision
in a Criminal Case
As to when a judgment of conviction attains finality is explained in
Section 7 of Rule 120 of the 2000 Rules of Criminal Procedure, which we
quote:
A judgment of conviction may, upon motion of the accused, be modified or
set aside before it becomes final or before appeal is perfected. Except
where the death penalty is imposed, a judgment becomes final after the
lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in
writing his right to appeal, or has applied for probation.
In the case before us, the accused-employee has escaped and refused
to surrender to the proper authorities; thus, he is deemed to have abandoned
his appeal. Consequently, the judgment against him has become final and
executory.
[17]

Liability of an Employer
in a Finding of Guilt
Article 102 of the Revised Penal Code states the subsidiary civil liabilities
of innkeepers, as follows:
In default of the persons criminally liable, innkeepers, tavernkeepers, and
any other persons or corporations shall be civilly liable for crimes committed
in their establishments, in all cases where a violation of municipal ordinances
or some general or special police regulation shall have been committed by
them or their employees.
Innkeepers are also subsidiary liable for restitution of goods taken by
robbery or theft within their houses from guests lodging therein, or for
payment of the value thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore have followed the
directions which such innkeeper or his representative may have given them
with respect to the care and vigilance over such goods. No liability shall
attach in case of robbery with violence against or intimidation of persons
unless committed by the innkeepers employees.
Moreover, the foregoing subsidiary liability applies to employers,
according to Article 103 which reads:
The subsidiary liability established in the next preceding article shall also
apply to employers, teachers, persons, and corporations engaged in any
kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
Having laid all these basic rules and principles, we now address the
main issue raised by petitioner.
Civil Liability Deemed Instituted
in the Criminal Prosecution
At the outset, we must explain that the 2000 Rules of Criminal
Procedure has clarified what civil actions are deemed instituted in a criminal
prosecution.
Section 1 of Rule 111 of the current Rules of Criminal Procedure
provides:
When a criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted with the
criminal action unless the offended party waives the civil action, reserves the
right to institute it separately or institutes the civil action prior to the criminal
action.
x x x x x x x x x
Only the civil liability of the accused arising from the crime charged is
deemed impliedly instituted in a criminal action, that is, unless the offended
party waives the civil action, reserves the right to institute it separately, or
institutes it prior to the criminal action.
[18]
Hence, the subsidiary civil liability
of the employer under Article 103 of the Revised Penal Code may be
enforced by execution on the basis of the judgment of conviction meted out
to the employee.
[19]

It is clear that the 2000 Rules deleted the requirement of reserving
independent civil actions and allowed these to proceed separately from
criminal actions. Thus, the civil actions referred to in Articles
32,
[20]
33,
[21]
34
[22]
and 2176
[23]
of the Civil Code shall remain separate,
distinct and independent of any criminal prosecution based on the same
act. Here are some direct consequences of such revision and omission:
1. The right to bring the foregoing actions based on the Civil Code need
not be reserved in the criminal prosecution, since they are not deemed
included therein.
2. The institution or the waiver of the right to file a separate civil action
arising from the crime charged does not extinguish the right to bring such
action.
3. The only limitation is that the offended party cannot recover more
than once for the same act or omission.
[24]

What is deemed instituted in every criminal prosecution is the civil
liability arising from the crime or delict per se (civil liability ex delicto), but not
those liabilities arising from quasi-delicts, contracts or quasi-contracts. In
fact, even if a civil action is filed separately, the ex delicto civil liability in the
criminal prosecution remains, and the offended party may -- subject to the
control of the prosecutor -- still intervene in the criminal action, in order to
protect the remaining civil interest therein.
[25]

This discussion is completely in accord with the Revised Penal Code,
which states that [e]very person criminally liable for a felony is also civilly
liable.
[26]

Petitioner argues that, as an employer, it is considered a party to the
criminal case and is conclusively bound by the outcome
thereof. Consequently, petitioner must be accorded the right to pursue the
case to its logical conclusion -- including the appeal.
The argument has no merit. Undisputedly, petitioner is not a direct
party to the criminal case, which was filed solely against Napoleon M.
Roman, its employee.
In its Memorandum, petitioner cited a comprehensive list of cases
dealing with the subsidiary liability of employers. Thereafter, it noted that
none can be applied to it, because in all th[o]se cases, the accuseds
employer did not interpose an appeal.
[27]
Indeed, petitioner cannot cite any
single case in which the employer appealed, precisely because an appeal in
such circumstances is not possible.
The cases dealing with the subsidiary liability of employers uniformly
declare that, strictly speaking, they are not parties to the criminal cases
instituted against their employees.
[28]
Although in substance and in effect,
they have an interest therein, this fact should be viewed in the light of their
subsidiary liability. While they may assist their employees to the extent of
supplying the latters lawyers, as in the present case, the former cannot act
independently on their own behalf, but can only defend the accused.
Waiver of Constitutional Safeguard
Against Double Jeopardy
Petitioners appeal obviously aims to have the accused-employee
absolved of his criminal responsibility and the judgment reviewed as a
whole. These intentions are apparent from its Appellants Brief
[29]
filed with
the CA and from its Petition
[30]
before us, both of which claim that the trial
courts finding of guilt is not supported by competent evidence.
[31]

An appeal from the sentence of the trial court implies a waiver of the
constitutional safeguard against double jeopardy and throws the whole case
open to a review by the appellate court. The latter is then called upon to
render judgment as law and justice dictate, whether favorable or unfavorable
to the appellant.
[32]
This is the risk involved when the accused decides to
appeal a sentence of conviction.
[33]
Indeed, appellate courts have the power
to reverse, affirm or modify the judgment of the lower court and to increase
or reduce the penalty it imposed.
[34]

If the present appeal is given course, the whole case against the
accused-employee becomes open to review. It thus follows that a penalty
higher than that which has already been imposed by the trial court may be
meted out to him. Petitioners appeal would thus violate his right against
double jeopardy, since the judgment against him could become subject to
modification without his consent.
We are not in a position to second-guess the reason why the accused
effectively waived his right to appeal by jumping bail. It is clear, though, that
petitioner may not appeal without violating his right against double jeopardy.
Effect of Absconding
on the Appeal Process
Moreover, within the meaning of the principles governing the prevailing
criminal procedure, the accused impliedly withdrew his appeal by jumping
bail and thereby made the judgment of the court below final.
[35]
Having been
a fugitive from justice for a long period of time, he is deemed to have waived
his right to appeal. Thus, his conviction is now final and executory. The
Court inPeople v. Ang Gioc
[36]
ruled:
There are certain fundamental rights which cannot be waived even by the
accused himself, but the right of appeal is not one of them. This right is
granted solely for the benefit of the accused. He may avail of it or not, as
he pleases. He may waive it either expressly or by implication. When the
accused flees after the case has been submitted to the court for decision,
he will be deemed to have waived his right to appeal from the judgment
rendered against him. x x x.
[37]

By fleeing, the herein accused exhibited contempt of the authority of the
court and placed himself in a position to speculate on his chances for a
reversal. In the process, he kept himself out of the reach of justice, but
hoped to render the judgment nugatory at his option.
[38]
Such conduct is
intolerable and does not invite leniency on the part of the appellate court.
[39]

Consequently, the judgment against an appellant who escapes and who
refuses to surrender to the proper authorities becomes final and
executory.
[40]

Thus far, we have clarified that petitioner has no right to appeal the
criminal case against the accused-employee; that by jumping bail, he has
waived his right to appeal; and that the judgment in the criminal case against
him is now final.
Subsidiary Liability
Upon Finality of Judgment
As a matter of law, the subsidiary liability of petitioner now
accrues. Petitioner argues that the rulings of this Court in Miranda v. Malate
Garage & Taxicab, Inc.,
[41]
Alvarez v. CA
[42]
andYusay v. Adil
[43]
do not
apply to the present case, because it has followed the Courts directive to
the employers in these cases to take part in the criminal cases against their
employees. By participating in the defense of its employee, herein petitioner
tries to shield itself from the undisputed rulings laid down in these leading
cases.
Such posturing is untenable. In dissecting these cases on subsidiary
liability, petitioner lost track of the most basic tenet they have laid down --
that an employers liability in a finding of guilt against its accused-employee
is subsidiary.
Under Article 103 of the Revised Penal Code, employers are subsidiarily
liable for the adjudicated civil liabilities of their employees in the event of the
latters insolvency.
[44]
The provisions of the Revised Penal Code on
subsidiary liability -- Articles 102 and 103 -- are deemed written into the
judgments in the cases to which they are applicable.
[45]
Thus, in the
dispositive portion of its decision, the trial court need not expressly
pronounce the subsidiary liability of the employer.
In the absence of any collusion between the accused-employee and the
offended party, the judgment of conviction should bind the person who is
subsidiarily liable.
[46]
In effect and implication, the stigma of a criminal
conviction surpasses mere civil liability.
[47]

To allow employers to dispute the civil liability fixed in a criminal case
would enable them to amend, nullify or defeat a final judgment rendered by
a competent court.
[48]
By the same token, to allow them to appeal the final
criminal conviction of their employees without the latters consent would also
result in improperly amending, nullifying or defeating the judgment.
The decision convicting an employee in a criminal case is binding and
conclusive upon the employer not only with regard to the formers civil
liability, but also with regard to its amount. The liability of an employer
cannot be separated from that of the employee.
[49]

Before the employers subsidiary liability is exacted, however, there must
be adequate evidence establishing that (1) they are indeed the employers of
the convicted employees; (2) that the former are engaged in some kind of
industry; (3) that the crime was committed by the employees in the
discharge of their duties; and (4) that the execution against the latter has not
been satisfied due to insolvency.
[50]

The resolution of these issues need not be done in a separate civil
action. But the determination must be based on the evidence that the
offended party and the employer may fully and freely present. Such
determination may be done in the same criminal action in which the
employees liability, criminal and civil, has been pronounced;
[51]
and in a
hearing set for that precise purpose, with due notice to the employer, as part
of the proceedings for the execution of the judgment.
Just because the present petitioner participated in the defense of its
accused-employee does not mean that its liability has transformed its
nature; its liability remains subsidiary. Neither will its participation erase its
subsidiary liability. The fact remains that since the accused-employees
conviction has attained finality, then the subsidiary liability of the
employer ipso facto attaches.
According to the argument of petitioner, fairness dictates that while the
finality of conviction could be the proper sanction to be imposed upon the
accused for jumping bail, the same sanction should not affect it. In effect,
petitioner-employer splits this case into two: first, for itself; and second, for
its accused-employee.
The untenability of this argument is clearly evident. There is only one
criminal case against the accused-employee. A finding of guilt has both
criminal and civil aspects. It is the height of absurdity for this single case to
be final as to the accused who jumped bail, but not as to an entity whose
liability is dependent upon the conviction of the former.
The subsidiary liability of petitioner is incidental to and dependent on the
pecuniary civil liability of the accused-employee. Since the civil liability of
the latter has become final and enforceable by reason of his flight, then the
formers subsidiary civil liability has also become immediately
enforceable. Respondent is correct in arguing that the concept of subsidiary
liability is highly contingent on the imposition of the primary civil liability.
No Deprivation
of Due Process
As to the argument that petitioner was deprived of due process, we
reiterate that what is sought to be enforced is the subsidiary civil liability
incident to and dependent upon the employees criminal negligence. In
other words, the employer becomes ipso facto subsidiarily liable upon the
conviction of the employee and upon proof of the latters insolvency, in the
same way that acquittal wipes out not only his primary civil liability, but also
his employers subsidiary liability for his criminal negligence.
[52]

It should be stressed that the right to appeal is neither a natural right nor
a part of due process.
[53]
It is merely a procedural remedy of statutory origin,
a remedy that may be exercised only in the manner prescribed by the
provisions of law authorizing such exercise.
[54]
Hence, the legal requirements
must be strictly complied with.
[55]

It would be incorrect to consider the requirements of the rules on appeal
as merely harmless and trivial technicalities that can be
discarded.
[56]
Indeed, deviations from the rules cannot be tolerated.
[57]
In
these times when court dockets are clogged with numerous litigations, such
rules have to be followed by parties with greater fidelity, so as to facilitate
the orderly disposition of those cases.
[58]

After a judgment has become final, vested rights are acquired by the
winning party. If the proper losing party has the right to file an appeal within
the prescribed period, then the former has the correlative right to enjoy the
finality of the resolution of the case.
[59]

In fact, petitioner admits that by helping the accused-employee, it
participated in the proceedings before the RTC; thus, it cannot be said that
the employer was deprived of due process. It might have lost its right to
appeal, but it was not denied its day in court.
[60]
In fact, it can be said that
by jumping bail, the accused-employee, not the court, deprived petitioner of
the right to appeal.
All told, what is left to be done is to execute the RTC Decision against
the accused. It should be clear that only after proof of his insolvency may
the subsidiary liability of petitioner be enforced. It has been sufficiently
proven that there exists an employer-employee relationship; that the
employer is engaged in some kind of industry; and that the employee has
been adjudged guilty of the wrongful act and found to have committed the
offense in the discharge of his duties. The proof is clear from the
admissions of petitioner that [o]n 26 August 1990, while on its regular trip
from Laoag to Manila, a passenger bus owned by petitioner, being then
operated by petitioners driver, Napoleon Roman, figured in an accident in
San Juan, La Union x x x.
[61]
Neither does petitioner dispute that there was
already a finding of guilt against the accused while he was in the discharge
of his duties.
WHEREFORE, the Petition is hereby DENIED, and the assailed
Resolutions AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna,
JJ., concur.

SECOND DIVISION
G.R. No. 165496 February 12, 2007
HUN HYUNG PARK, Petitioner,
vs.
EUNG WON CHOI, Respondent.
D E C I S I O N
CARPIO MORALES, J.:
Petitioner, Hun Hyung Park, assails the Court of Appeals (CA) Resolutions
dated May 20, 2004
1
and September 28, 2004
2
in CA G.R. CR No. 28344
dismissing his petition and denying reconsideration thereof, respectively.
In an Information
3
dated August 31, 2000, respondent, Eung Won Choi, was
charged for violation of Batas Pambansa Blg. 22, otherwise known as the
Bouncing Checks Law, for issuing on June 28, 1999 Philippine National Bank
Check No. 0077133 postdated August 28, 1999 in the amount
of P1,875,000 which was dishonored for having been drawn against
insufficient funds.
Upon arraignment, respondent, with the assistance of counsel, pleaded "not
guilty" to the offense charged. Following the pre-trial conference, the
prosecution presented its evidence-in-chief.
After the prosecution rested its case, respondent filed a Motion for Leave of
Court to File Demurrer to Evidence to which he attached his Demurrer,
asserting that the prosecution failed to prove that he received the notice of
dishonor, hence, the presumption of the element of knowledge of
insufficiency of funds did not arise.
4

By Order
5
of February 27, 2003, the Metropolitan Trial Court (MeTC) of
Makati, Branch 65 granted the Demurrer and dismissed the case. The
prosecutions Motion for Reconsideration was denied.
6

Petitioner appealed the civil aspect
7
of the case to the Regional Trial Court
(RTC) of Makati, contending that the dismissal of the criminal case should
not include its civil aspect.
By Decision of September 11, 2003, Branch 60 of the RTC held that while
the evidence presented was insufficient to prove respondents criminal
liability, it did not altogether extinguish his civil liability. It accordingly granted
the appeal of petitioner and ordered respondent to pay him the amount
of P1,875,000 with legal interest.
8

Upon respondents motion for reconsideration, however, the RTC set aside
its decision and ordered the remand of the case to the MeTC "for further
proceedings, so that the defendant [-respondent herein] may adduce
evidence on the civil aspect of the case."
9
Petitioners motion for
reconsideration of the remand of the case having been denied, he elevated
the case to the CA which, by the assailed resolutions, dismissed his petition
for the following reasons:
1. The verification and certification of non-forum shopping attached
to the petition does not fully comply with Section 4, as amended by
A.M. No. 00-2-10-SC, Rule 7, 1997 Rules of Court, because it does
not give the assurance that the allegations of the petition are true
and correct based on authentic records.
2. The petition is not accompanied by copies of certain pleadings
and other material portions of the record, (i.e., motion for leave to
file demurrer to evidence, demurrer to evidence and the opposition
thereto, and the Municipal [sic] Trial Courts Order dismissing
Criminal Case No. 294690) as would support the allegations of the
petition (Sec. 2, Rule 42, ibid.).
3. The Decision dated September 11, 2003 of the Regional Trial
Court attached to the petition is an uncertified and illegible mere
machine copy of the original (Sec. 2, Rule 42, ibid.).
4. Petitioners failed to implead the People of the Philippines as
party-respondent in the petition.
10

In his present petition, petitioner assails the above-stated reasons of the
appellate court in dismissing his petition.
The manner of verification for pleadings which are required to be verified,
such as a petition for review before the CA of an appellate judgment of the
RTC,
11
is prescribed by Section 4 of Rule 7 of the Rules of Court:
Sec. 4. Verification. Except when otherwise specifically required by law or
rule, pleadings need not be under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading
and that the allegations therein are true and correct of his personal
knowledge or based on authentic records.
A pleading required to be verified which contains a verification based on
"information and belief," or upon "knowledge, information and belief," or
lacks a proper verification shall be treated as an unsigned
pleading.
12
(Emphasis and underscoring supplied)
Petitioner argues that the word "or" is a disjunctive term signifying
disassociation and independence, hence, he chose to affirm in his petition
he filed before the court a quo that its contents are "true and correct of my
own personal knowledge,"
13
and not on the basis of authentic documents.
On the other hand, respondent counters that the word "or" may be
interpreted in a conjunctive sense and construed to mean as "and," or vice
versa, when the context of the law so warrants.
A reading of the above-quoted Section 4 of Rule 7 indicates that a pleading
may be verified under either of the two given modes or under both. The
veracity of the allegations in a pleading may be affirmed based on either
ones own personal knowledge or on authentic records, or both, as
warranted. The use of the preposition "or" connotes that either source
qualifies as a sufficient basis for verification and, needless to state, the
concurrence of both sources is more than sufficient.
14
Bearing both a
disjunctive and conjunctive sense, this parallel legal signification avoids a
construction that will exclude the combination of the alternatives or bar the
efficacy of any one of the alternatives standing alone.
15

Contrary to petitioners position, the range of permutation is not left to the
pleaders liking, but is dependent on thesurrounding nature of the
allegations which may warrant that a verification be based either purely on
personal knowledge, or entirely on authentic records, or on both sources.
As pointed out by respondent, "authentic records" as a basis for verification
bear significance in petitions wherein the greater portions of the allegations
are based on the records of the proceedings in the court of origin and/or the
court a quo, and not solely on the personal knowledge of the petitioner. To
illustrate, petitioner himself could not have affirmed, based on his personal
knowledge, the truthfulness of the statement in his petition
16
before the CA
that at the pre-trial conference respondent admitted having received the
letter of demand, because he (petitioner) was not present during the
conference.
17
Hence, petitioner needed to rely on the records to confirm its
veracity.
Verification is not an empty ritual or a meaningless formality. Its import must
never be sacrificed in the name of mere expedience or sheer caprice. For
what is at stake is the matter of verity attested by the sanctity of an oath
18
to
secure an assurance that the allegations in the pleading have been made in
good faith, or are true and correct and not merely speculative.
19

This Court has strictly been enforcing the requirement of verification and
certification and enunciating that obedience to the requirements of
procedural rules is needed if fair results are to be expected therefrom. Utter
disregard of the rules cannot just be rationalized by harking on the policy of
liberal construction.
20
While the requirement is not jurisdictional in nature, it
does not make it less a rule. A relaxed application of the rule can only be
justified by the attending circumstances of the case.
21

To sustain petitioners explanation that the basis of verification is a matter of
simple preference would trivialize the rationale and diminish the resoluteness
of the rule. It would play on predilection and pay no heed in providing
enough assurance of the correctness of the allegations.
On the second reason of the CA in dismissing the petition that the petition
was not accompanied by copies of certain pleadings and other material
portions of the record as would support the allegations of the petition (i.e.,
Motion for Leave to File Demurrer to Evidence, Demurrer to Evidence and the
Opposition thereto, and the MeTC February 27, 2003 Order dismissing the
case) petitioner contends that these documents are immaterial to his
appeal.
Contrary to petitioners contention, however, the materiality of those
documents is very apparent since the civil aspect of the case, from which he
is appealing, was likewise dismissed by the trial court on account of the
same Demurrer.
Petitioner, nonetheless, posits that he subsequently submitted to the CA
copies of the enumerated documents, save for the MeTC February 27, 2003
Order, as attachments to his Motion for Reconsideration.
The Rules, however, require that the petition must "be accompanied by
clearly legible duplicate original or true copies of the judgments or final
orders of both lower courts, certified correct by the clerk of court."
22

A perusal of the petition filed before the CA shows that the only duplicate
original or certified true copies attached as annexes thereto are the January
14, 2004 RTC Order granting respondents Motion for Reconsideration and
the March 29, 2004 RTC Order denying petitioners Motion for
Reconsideration. The copy of the September 11, 2003 RTC Decision, which
petitioner prayed to be reinstated, is not a certified true copy and is not even
legible. Petitioner later recompensed though by appending to his Motion for
Reconsideration a duplicate original copy.
While petitioner averred before the CA in his Motion for Reconsideration that
the February 27, 2003 MeTC Order was already attached to his petition as
Annex "G," Annex "G" bares a replicate copy of a different order, however. It
was to this Court that petitioner belatedly submitted an uncertified true copy
of the said MeTC Order as an annex to his Reply to respondents Comment.
This Court in fact observes that the copy of the other MeTC Order, that dated
May 5, 2003, which petitioner attached to his petition before the CA is
similarly uncertified as true.
Since both Orders of the MeTC were adverse to him even with respect to the
civil aspect of the case, petitioner was mandated to submit them in the
required form.
23

In fine, petitioner fell short in his compliance with Section 2 (d) of Rule 42,
the mandatory tenor of which is discernible thereunder and is well
settled.
24
He has not, however, advanced any strong compelling reasons to
warrant a relaxation of the Rules, hence, his petition before the CA was
correctly dismissed.
Procedural rules are tools designed to facilitate the adjudication of cases.
Courts and litigants alike are thus enjoined to abide strictly by the rules.
And while the Court, in some instances, allows a relaxation in the application
of the rules, this we stress, was never intended to forge a bastion for erring
litigants to violate the rules with impunity. The liberality in the interpretation
and application of the rules applies only in proper cases and under justifiable
causes and circumstances. While it is true that litigation is not a game of
technicalities, it is equally true that every case must be prosecuted in
accordance with the prescribed procedure to insure an orderly and speedy
administration of justice.
25
(Emphasis supplied)
As to the third reason for the appellate courts dismissal of his petition
failure to implead the People of the Philippines as a party in the petition
indeed, as petitioner contends, the same is of no moment, he having
appealed only the civil aspect of the case. Passing on the dual purpose of a
criminal action, this Court ruled:
Unless the offended party waives the civil action or reserves the right to
institute it separately or institutes the civil action prior to the criminal
action, there are two actions involved in a criminal case. The first is the
criminal action for the punishment of the offender. The parties are the
People of the Philippines as the plaintiff and the accused. In a criminal
action, the private complainant is merely a witness for the State on the
criminal aspect of the action.The second is the civil action arising from the
delict. The private complainant is the plaintiff and the accused is the
defendant. There is a merger of the trial of the two cases to avoid multiplicity
of suits.
26
(Underscoring supplied)
It bears recalling that the MeTC acquitted respondent.
27
As a rule, a
judgment of acquittal is immediately final and executory and the prosecution
cannot appeal the acquittal because of the constitutional prohibition against
double jeopardy.
Either the offended party or the accused may, however, appeal the civil
aspect of the judgment despite the acquittal of the accused. The public
prosecutor has generally no interest in appealing the civil aspect of a
decision acquitting the accused. The acquittal ends his work. The case is
terminated as far as he is concerned. The real parties in interest in the civil
aspect of a decision are the offended party and the accused.
28

Technicality aside, the petition is devoid of merit.
When a demurrer to evidence is filed without leave of court, the whole case
is submitted for judgment on the basis of the evidence for the prosecution as
the accused is deemed to have waived the right to present evidence.
29
At
that juncture, the court is called upon to decide the case including its civil
aspect, unless the enforcement of the civil liability by a separate civil action
has been waived or reserved.
30

If the filing of a separate civil action has not been reserved or priorly
instituted or the enforcement of civil liability is not waived, the trial court
should, in case of conviction, state the civil liability or damages caused by
the wrongful act or omission to be recovered from the accused by the
offended party, if there is any.
31

For, in case of acquittal, the accused may still be adjudged civilly liable. The
extinction of the penal action does not carry with it the extinction of the civil
action where (a) the acquittal is based on reasonable doubt as only
preponderance of evidence is required; (b) the court declares that the liability
of the accused is only civil; and (c) the civil liability of the accused does not
arise from or is not based upon the crime of which the accused was
acquitted.
32

The civil action based on delict may, however, be deemed extinguished if
there is a finding on the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist.
33

In case of a demurrer to evidence filed with leave of court, the accused may
adduce countervailing evidence if the court denies the demurrer.
34
Such
denial bears no distinction as to the two aspects of the case because there
is a disparity of evidentiary value between the quanta of evidence in such
aspects of the case. In other words, a court may not deny the demurrer as
to the criminal aspect and at the same time grant the demurrer as to the civil
aspect, for if the evidence so far presented is not insufficient to prove the
crime beyond reasonable doubt, then the same evidence is likewise not
insufficient to establish civil liability by mere preponderance of evidence.
On the other hand, if the evidence so far presented is insufficient as proof
beyond reasonable doubt, it does not follow that the same evidence is
insufficient to establish a preponderance of evidence. For if the court grants
the demurrer, proceedings on the civil aspect of the case generally
proceeds. The only recognized instance when an acquittal on demurrer
carries with it the dismissal of the civil aspect is when there is a finding that
the act or omission from which the civil liability may arise did not exist.
Absent such determination, trial as to the civil aspect of the case must
perforce continue. Thus this Court, in Salazar v. People,
35
held:
If demurrer is granted and the accused is acquitted by the court, the
accused has the right to adduce evidence on the civil aspect of the
case unless the court also declares that the act or omission from which the
civil liability may arise did not exist.
36

In the instant case, the MeTC granted the demurrer and dismissed the case
without any finding that the act or omission from which the civil liability may
arise did not exist.
Respondent did not assail the RTC order of remand. He thereby recognized
that there is basis for a remand.
Indicatively, respondent stands by his defense that he merely
borrowed P1,500,000 with the remainder representing the interest, and that
he already made a partial payment of P1,590,000. Petitioner counters,
however, that the payments made by respondent pertained to other
transactions.
37
Given these conflicting claims which are factual, a remand of
the case would afford the fullest opportunity for the parties to ventilate, and
for the trial court to resolve the same.
Petitioner finally posits that respondent waived his right to present evidence
on the civil aspect of the case (1) when the grant of the demurrer was
reversed on appeal, citing Section 1 of Rule 33,
38
and (2) when respondent
orally opposed petitioners motion for reconsideration pleading that
proceedings with respect to the civil aspect of the case continue.
Petitioners position is tenuous.
Petitioners citation of Section 1 of Rule 33 is incorrect.1awphi1.net Where a
court has jurisdiction over the subject matter and over the person of the
accused, and the crime was committed within its territorial jurisdiction, the
court necessarily exercises jurisdiction over all issues that the law requires it
to resolve.
One of the issues in a criminal case being the civil liability of the accused
arising from the crime, the governing law is the Rules of Criminal Procedure,
not the Rules of Civil Procedure which pertains to a civil action arising from
the initiatory pleading that gives rise to the suit.
39

As for petitioners attribution of waiver to respondent, it cannot be
determined with certainty from the records the nature of the alleged oral
objections of respondent to petitioners motion for reconsideration of the
grant of the demurrer to evidence. Any waiver of the right to present
evidence must be positively demonstrated. Any ambiguity in the
voluntariness of the waiver is frowned upon,
40
hence, courts must indulge
every reasonable presumption against it.
41

This Court therefore upholds respondents right to present evidence as
reserved by his filing of leave of court to file the demurrer.
WHEREFORE, the petition is, in light of the foregoing discussions, DENIED.
The case is REMANDED to the court of origin, Metropolitan Trial Court of
Makati City, Branch 65 which is DIRECTED to forthwith set Criminal Case No.
294690 for further proceedings only for the purpose of receiving evidence on
the civil aspect of the case.
Costs against petitioner.
SO ORDERED.

FIRST DIVISION
G.R. No. 198389 December 11, 2013
VIVENCIO ROALLOS y TRILLANES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
R E S O L U T I O N
REYES, J.:
Before this Court is a Petition for Review on Certiorari
1
under Rule 45 of the
Rules of Court seeking to annul and set aside the Decision
2
dated April 29,
2011 and the Resolution
3
dated August 19, 2011 of the Court of Appeals
(CA) in CA-G.R. CR No. 32192. The CA affirmed with modification the
Decision
4
dated July 26, 2007 of the Regional Trial Court (RTC) of Quezon
City, Branch 88, finding Vivencio Roallos y Trillanes (Roallos) guilty beyond
reasonable doubt of the offense of sexual abuse punished under Section
5(b), Article III of Republic Act No. 7610 (R.A. No. 7610), otherwise known
as the "Special Protection of Children Against Abuse, Exploitation, and
Discrimination Act."
The Facts
Roallos was charged in an Information
5
for the crime of sexual abuse under
Section 5(b), Article III of R.A. No. 7610, docketed as Criminal Case No. Q-
02-108825 before the RTC, viz:
The undersigned accuses VIVENCIO ROALLOS Y TRILLANES of the crime of
Acts of Lasciviousness in relation to Sec. 5(b)[,] Art. III of R.A. 7610,
committed as follows:
That on or about the 15th day of April, 2002, in Quezon City, Philippines, the
said accused, with lewd design, by means of force and intimidation, did
then and there wilfully, unlawfully and feloniously commit acts of
lasciviousness upon the person of one [AAA]
6
, a minor, 15 years of age, by
then and there mashing her breast and kissing her cheek, against her will
which act debases, degrades or demeans the intrinsic worth and dignity of
said [AAA] as a human being.
CONTRARY TO LAW.
7

Upon arraignment, Roallos pleaded "not guilty" to the offense charged.
8
On
June 24, 2002, the pre-trial conference was deemed terminated. Trial on the
merits ensued thereafter.
9

Roallos, a retired officer of the Armed Forces of the Philippines, was the
Executive Director of the Aguinaldo Vets and Associates Credit Cooperative
(AVACC). BBB, AAAs mother, worked as the secretary and treasurer of
Roallos.
On April 15, 2002, at around 1:00 p.m., AAA went to BBBs office at Camp
Aguinaldo, Quezon City; BBB, however, was then out running office errands.
AAA decided to stay in her mothers office and wait for the latter to return. At
that time, two women were talking to Roallos inside the AVACC office.
AAA alleged that, after the two women left, Roallos went by the door of the
office, looked outside to see if anybody was around, and then locked it. He
then approached AAA and asked her if there was any pain bothering her; the
latter replied that her tooth ached. Thereupon, Roallos held AAAs hand and
intermittently pressed it. He then asked AAA if there is anything else aching
in her body. AAA said none. Roallos then placed his left hand on the table
while his right hand was on AAAs right shoulder. At this point, AAA was
seated on a chair without a backrest while Roallos was standing behind her.
Roallos then slid his hand towards AAAs right breast and mashed it. AAA
asked Roallos why he is touching her. Roallos ignored her. He then mashed
AAAs left breast. AAA shouted "Ano ba!," but Roallos still ignored her and,
instead slid his hand towards AAAs abdomen. AAA then stomped her feet
and pushed her chair towards Roallos. Roallos then left the office.
Thinking that her mother would soon return, AAA stayed inside the office.
However, after about ten minutes, Roallos returned to the office and
approached AAA. He then asked AAA if she was hungry, the latter told him
that she would just wait for BBB to return. Roallos then offered to give
money to AAA for her to buy food, but the latter refused the offer. AAA then
felt Roallos body pressing against her back. Thereafter, Roallos attempted
to kiss AAA. AAA was unable to escape as there was no space in front of
her; she just turned her face to avoid his kiss. He then held AAAs right
cheek, pulled her face towards him, and kissed her left cheek. AAA then
stomped her feet, still trying to free herself from the grasp of Roallos.
Roallos then left the office. This time, AAA decided to stay outside the
AVACC office and wait for her mother to return.
Upon her return to the office, BBB saw AAA crying. She asked AAA why she
was crying. AAA then relayed what Roallos did to her. BBB then confronted
Roallos about the incident. Roallos, however, denied having done anything
to AAA. BBB and AAA thereafter left the office. However, BBB saw that
Roallos was following them. Fearing that Roallos would do something to
harm them, BBB and AAA immediately entered the office of the Department
of National Defense (DND) in Camp Aguinaldo. They were then advised by
the employees therein to go to DNDs legal department office, where they
were advised to report the incident to the police authorities.
AAA and BBB went to the police station where a report regarding the incident
was prepared. They then referred the report to the provost marshal for proper
coordination and to effect the arrest of the accused. Thereafter, the police
and the provost marshal brought Roallos to the police station for
investigation.
In his defense, Roallos denied that he molested AAA. He claimed that, on
the date of the incident, he merely stayed with AAA in the AVACC office
while the latter waited for her mother; that he went out of the office twice to
meet clients of AVACC. Roallos further claimed that his arrest was illegal
since the same was effected sans any warrant of arrest. He likewise averred
that he was not informed of his rights when he was arrested nor was he
made to undergo any preliminary investigation.
On July 26, 2007, the RTC rendered a Decision
10
finding Roallos guilty
beyond reasonable doubt of violation of Section 5(b), Article III of R.A. No.
7610, viz:
WHEREFORE, premises considered, accused VIVENCIO ROALLOS Y
TRILLANES is hereby found GUILTY beyond reasonable doubt of violation of
Section 5 (b) of Republic Act 7610 and he is hereby sentenced to an
indeterminate penalty of EIGHT (8) YEARS and ONE (1) DAY of prision
mayor medium as minimum to SEVENTEEN (17) YEARS FOUR (4) MONTHS
and ONE (1) DAY of reclusion temporal maximum as maximum; to indemnify
[AAA] in the amount of [P]20,000.00 by way of moral damages; and pay
the fine of [P]15,000.00.
SO ORDERED.
11

Roallos Amended Motion for Reconsideration
12
was denied by the RTC in its
Order
13
dated June 30, 2008.
On appeal, the CA rendered the Decision dated April 29, 2011 which
affirmed the RTC Decision dated July 26, 2007, albeit with the modification
that the awards of moral damages and civil indemnity were both increased
toP50,000.00.
Roallos sought a reconsideration of the CA Decision dated April 29,
2011,
14
but it was likewise denied by the CA in its Resolution
15
dated August
19, 2011.
In support of the instant petition, Roallos claims that the CA erred in
affirming his conviction considering that the Information filed against him
was defective since it charged two crimes, i.e., acts of lasciviousness under
Article 336 of the Revised Penal Code (RPC) and sexual abuse under Section
5(b), Article III of R.A. No. 7610. He further argues that he was denied due
process as he was not made to undergo a preliminary investigation. Roallos
also asserts that his arrest was illegal considering that the same was
effected sans any warrant of arrest. Moreover, he alleges that the charge
against him should have been dismissed considering the unreasonable delay
in the prosecution of the case.
Further, Roallos avers that the charge against him was defective since
neither AAA nor BBB signed the Information that was filed against him and,
thus, Roallos claims that the prosecutor had no authority to file the said
Information and, accordingly, the charge against him was defective.
Furthermore, Roallos alleges that the offense of sexual abuse under Section
5(b), Article III of R.A. No. 7610 only applies when the victim is a child
engaged in prostitution or when they indulge in lascivious conduct due to the
coercion of an adult or a syndicate. Thus, he claims that he is not liable for
sexual abuse under Section 5(b), Article III of R.A. No. 7610 since AAA is
not a child engaged in prostitution. In any case, he avers that the evidence
adduced by the prosecution is not sufficient to establish his guilt beyond
reasonable doubt of the offense charged.
Issue
Essentially, the issue presented for the Courts resolution is whether the CA
erred in affirming Roallos conviction for the offense of sexual abuse under
Section 5(b), Article III of R.A. No. 7610.
The Courts Ruling
The petition is bereft of any merit.
First, Roallos claim that the Information filed against him is duplicitous as it
charged him with the commission of two crimes is plainly untenable. The
designation of the crime in the Information is clear Roallos was charged
with the crime of acts of lasciviousness in relation to Section 5(b), Article III
of R.A. No. 7610.
The mention of the phrase "acts of lasciviousness" in the Information does
not mean that Roallos was charged with the felony of acts of lasciviousness
under Article 336 of the RPC. The charge of acts of lasciviousness against
Roallos is specifically delimited to that committed in relation to Section 5(b),
Article III of R.A. No. 7610.
In any case, "the real nature of the criminal charge is determined not from
the caption or preamble of the information, or from the specification of the
provision of law alleged to have been violated, which are mere conclusions
of law, but by the actual recital of the facts in the complaint or
information."
16

The recital of the ultimate facts and circumstances in the Information that
was filed against Roallos clearly makes out a case for the offense of sexual
abuse under Section 5(b), Article III of R.A. No. 7610. The elements of
sexual abuse under Section 5(b), Article III of R.A. No. 7610 are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct[;]
2. The [said] act is performed with a child exploited in prostitution
or subjected to other sexual abuse[; and]
3. The child, whether male or female, is below 18 years of age.
17

(Emphasis supplied)
The Information that was filed against Roallos alleged that he committed
lascivious acts towards AAA, i.e., that he mashed the breasts and kissed the
cheeks of the latter. It likewise alleged that AAA, at the time she was
subjected to sexual abuse by Roallos, was only 15 years of age. Clearly, all
the elements of sexual abuse under Section 5(b), Article III of R.A. No. 7610
are set out in the Information that was filed against Roallos.
In this regard, the Court likewise finds that the CA and the RTC did not err in
finding Roallos criminally liable for violation of Section 5(b), Article III of R.A.
No. 7610. It is undisputed that AAA was only 15 years old at the time of the
incident. Further, the prosecution was able to establish beyond reasonable
doubt the committed lascivious conduct towards AAA, who is a child
subjected to sexual abuse within the purview of Section 5(b), Article III of
R.A. No. 7610.
That Roallos did in fact commit lascivious conduct towards AAA is a finding
of fact by the lower courts, which this Court cannot simply disregard. In a
criminal case, factual findings of the trial court are generally accorded great
weight and respect on appeal, especially when such findings are supported
by substantial evidence on record. It is only in exceptional circumstances,
such as when the trial court overlooked material and relevant matters, that
this Court will re-calibrate and evaluate the factual findings of the court
below.
18
The Court finds no reason to overturn the factual findings as the
lower courts in this case.
Roallos assertion that he is not liable for sexual abuse under Section 5(b),
Article III of R.A. No. 7610 since AAA is not a child engaged in prostitution is
plainly without merit. "[T]he law covers not only a situation in which a child is
abused for profit but also one in which a child, through coercion or
intimidation, engages in any lascivious conduct. The very title of Section 5,
Article III (Child Prostitution and Other Sexual Abuse) of R.A. No. 7610
shows that it applies not only to a child subjected to prostitution but also to a
child subjected to other sexual abuse. A child is deemed subjected to "other
sexual abuse" when he or she indulges in lascivious conduct under the
coercion or influence of any adult."
19

Second, Roallos claim that he was denied due process since he was
arrested without any warrant of arrest and that he was not afforded a
preliminary investigation is likewise untenable. In Miclat, Jr. v. People,
20
the
Court emphasized that the accused is estopped from assailing any
irregularity attending his arrest should he fail to move for the quashal of the
information against him on this ground prior to arraignment, viz:
At the outset, it is apparent that petitioner raised no objection to the
irregularity of his arrest before his arraignment. Considering this and his active
participation in the trial of the case, jurisprudence dictates that petitioner is
deemed to have submitted to the jurisdiction of the trial court, thereby curing
any defect in his arrest. An accused is estopped from assailing any
irregularity of his arrest if he fails to raise this issue or to move for the
quashal of the information against him on this ground before arraignment.
Any objection involving a warrant of arrest or the procedure by which the
court acquired jurisdiction over the person of the accused must be made
before he enters his plea; otherwise, the objection is deemed
waived.
21
(Citations omitted and emphasis ours)
Similarly, in Villarin v. People,
22
the Court stressed that the absence of a
proper preliminary investigation must be timely raised. The accused is
deemed to have waived his right to a preliminary investigation by entering his
plea and actively participating in the trial without raising the lack of a
preliminary investigation. Thus:
Moreover, the absence of a proper preliminary investigation must be timely
raised and must not have been waived. This is to allow the trial court to hold
the case in abeyance and conduct its own investigation or require the
prosecutor to hold a reinvestigation, which, necessarily "involves a re-
examination and re-evaluation of the evidence already submitted by the
complainant and the accused, as well as the initial finding of probable cause
which led to the filing of the Informations after the requisite preliminary
investigation."
Here, it is conceded that Villarin raised the issue of lack of a preliminary
investigation in his Motion for Reinvestigation. However, when the
Ombudsman denied the motion, he never raised this issue again. He
accepted the Ombudsmans verdict, entered a plea of not guilty during his
arraignment and actively participated in the trial on the merits by attending
the scheduled hearings, conducting cross-examinations and testifying on his
own behalf. It was only after the trial court rendered judgment against him
that he once again assailed the conduct of the preliminary investigation in
the Motion for Reconsideration. Whatever argument Villarin may have
regarding the alleged absence of a preliminary investigation has therefore
been mooted. By entering his plea, and actively participating in the trial, he is
deemed to have waived his right to preliminary investigation.
23
(Citations
omitted and emphases ours)
It is undisputed that, at the time of his arraignment, Roallos did not raise any
objection to the supposed illegality of his arrest and the lack of a proper
preliminary investigation. Indeed, he actively participated in the proceedings
before the RTC. Thus, he is deemed to have waived any perceived
irregularity in his arrest and has effectively submitted himself to the
jurisdiction of the RTC. He is likewise deemed to have waived his right to
preliminary investigation.
Third, Roallos failed to substantiate his claim that his right to speedy trial
was violated. The right to speedy trial is violated only when the proceedings
are attended by vexatious, capricious and oppressive delays. In the
determination of whether said right has been violated, particular regard must
be taken of the facts and circumstances peculiar to each case. The conduct
of both the prosecution and defendant, the length of the delay, the reasons
for such delay, the assertion or failure to assert such right by the accused,
and the prejudice caused by the delay are the factors to consider and
balance.
24
In order for the government to sustain its right to try the accused
despite a delay, it must show two things: first, that the accused suffered no
serious prejudice beyond that which ensued from the ordinary and inevitable
delay; and second, that there was no more delay that is reasonably
attributable to the ordinary processes of justice.
25

As aptly ruled by the CA, Roallos failed to show that the proceedings below
were attended by vexatious, capricious, and oppressive delays. The
postponements sought for by the prosecution did not, in any way, seriously
prejudice Roallos. If at all, the delay in the proceedings below is only
attributable to the ordinary processes of justice.
Lastly, that neither AAA nor BBB signed the Information filed against Roallos
would not render the charge against the latter defective; it does not signify
that they did not conform to the filing of the Information against Roallos.
AAA and BBB vigorously pursued the indictment against Roallos. Likewise,
contrary to Roallos claim, AAA executed a complaint-affidavit for the
indictment of Roallos.
26
The foregoing circumstances clearly indicate the
conformity of both AAA and BBB to the charge against Roallos.
For acts of lasciviousness performed on a child under Section 5(b), Article III
of R.A. No. 7610, the penalty prescribed is reclusion temporal in its medium
period to reclusion perpetua. Notwithstanding that R.A. No. 7610 is a special
law, Roallos may enjoy the benefits of the Indeterminate Sentence Law.
Applying the Indeterminate Sentence Law, Roallos shall be entitled to a
minimum term to be taken within the range of the penalty next lower to that
prescribed by R.A. No. 7610. The penalty next lower in degree is prision
mayor medium to reclusion temporalminimum, the range of which is from
eight (8) years and one (1) day to fourteen (14) years and eight (8) months.
On the other hand, the maximum term of the penalty should be taken from
the penalty prescribed under Section 5(b), Article III of R.A. No. 7610, which
is reclusion temporal in its medium period to reclusion perpetua, the range of
which is from fourteen (14) years, eight (8) months and one (1) day
to reclusion perpetua. The minimum, medium and maximum term of the
same is as follows: minimum fourteen (14) years, eight (8) months and
one (1) day to seventeen (17) years and four (4) months; medium
seventeen (17) years, four (4) months and one (1) day to twenty (20) years;
and maximum reclusion perpetua.
27

Considering that there are neither aggravating nor mitigating circumstances
extant in this case, both the RTC and the CA correctly imposed on Roallos
the indeterminate penalty of eight (8) years and one (1) day of prision
mayormedium as the minimum term to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal as the maximum term. The
Court likewise upholds the fine imposed by the lower courts in the amount
of P15,000.00.
Nevertheless, the Court hereby modifies the amount of moral damages and
civil indemnity awarded by the CA. The RTC directed Roallos to pay AAA
moral damages in the amount of P20,000.00. The CA increased the amount
of moral damages awarded by the RTC to P50,000.00 and imposed an
additional award for civil indemnity in the amount of P50,000.00. In line with
recent jurisprudence,
28
the Court deems it proper to reduce the award of
moral damages from P50,000.00 to P15,000.00, as well as the award of
civil indemnity from P50,000.00 to P20,000.00.
In addition, and in conformity with current policy, the Court imposes interest
on all monetary awards for damages at the rate of six percent ( 6%) per
annum from the date of finality of this Resolution until fully paid.
29

WHEREFORE, in consideration of the foregoing disquisitions, the petition
is DENIED. The Decision dated April 29, 2011 and the Resolution dated
August 19, 2011 of the Court of Appeals in CA-G.R. CR No. 32192 are
herebyAFFIRMED WITH MODIFICATION in that Vivencio Roallos y Trillanes is
ordered to pay P15,000.00 as moral damages and P20,000.00 as civil
indemnity. He is likewise ordered to pay interest on all monetary awards for
damages at the rate of six percent ( 6%) per annum from the date of finality
of this Resolution until fully satisfied.
SO ORDERED.

THIRD DIVISION
G.R. No. 180661 December 11, 2013
GEORGE ANTIQUERA y CODES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
ABAD, J.:
This case is about a supposed warrantless arrest and a subsequent search
prompted by the police officers' chance sighting through an ajar door of the
accused engaged in pot session.
The Facts and the Case
On January 13, 2004 the second Assistant City Prosecutor of Pasay City
charged the accused George Codes Antiquera* and Corazon Olivenza Cruz
with illegal possession of paraphernalia for dangerous drugs
1
before the
Regional Trial Court (RTC) of Pasay City in Criminal Case 04-0100-
CFM.
2
Since the accused Cruz jumped bail, the court tried her in absentia.
3

The prosecution evidence shows that at around 4:45 a.m. of February 11,
2004, PO1 Gregorio Recio, PO1 Laurence Cabutihan, P/Insp. Eric Ibon, PO1
Rodelio Rania, and two civilian operatives on board a patrol car and a
tricycle were conducting a police visibility patrol on David Street, Pasay City,
when they saw two unidentified men rush out of house number 107-C and
immediately boarded a jeep.
Suspecting that a crime had been committed, the police officers approached
the house from where the men came and peeked through the partially
opened door. PO1 Recio and PO1 Cabutihan saw accused Antiquera holding
an improvised tooter and a pink lighter. Beside him was his live-in partner,
Cruz, who was holding an aluminum foil and an improvised burner. They sat
facing each other at the living room. This prompted the police officers to
enter the house, introduce themselves, and arrest Antiquera and Cruz.
4

While inspecting the immediate surroundings, PO1 Cabutihan saw a wooden
jewelry box atop a table. It contained an improvised burner, wok, scissors,
10 small transparent plastic sachets with traces of white crystalline
substance, improvised scoop, and seven unused strips of aluminum foil. The
police officers confiscated all these and brought Antiquera and Cruz to the
Drug Enforcement Unit of the Philippine National Police in Pasay City for
further investigation and testing.
5

A forensic chemical officer examined the confiscated drug paraphernalia and
found them positive for traces of methamphetamine hydrochloride or
"shabu."
6

Accused Antiquera gave a different story. He said that on the date and time
in question, he and Cruz were asleep in their house when he was roused by
knocking on the door. When he went to open it, three armed police officers
forced themselves into the house. One of them shoved him and said, "Dyan
ka lang, pusher ka." He was handcuffed and someone instructed two of the
officers to go to his room. The police later brought accused Antiquera and
Cruz to the police station and there informed them of the charges against
them. They were shown a box that the police said had been recovered from
his house.
7

On July 30, 2004 the RTC rendered a Decision
8
that found accused
Antiquera and Cruz guilty of the crime charged and sentenced them to a
prison term ranging from six months and one day to two years and four
months, and to pay a fine of P10,000.00 each and the costs of the suit.
The RTC said that the prosecution proved beyond reasonable doubt that the
police caught accused Antiquera and Cruz in the act of using shabu and
having drug paraphernalia in their possession. Since no ill motive could be
attributed to PO1 Recio and PO1 Cabutihan, the court accorded full faith and
credit to their testimony and rejected the self-serving claim of Antiquera.
The trial court gave no weight to accused Antiqueras claim of illegal arrest,
given PO1 Recio and PO1 Cabutihans credible testimony that, prior to their
arrest, they saw Antiquera and Cruz in a pot session at their living room and
in possession of drug paraphernalia. The police officers were thus justified in
arresting the two without a warrant pursuant to Section 5, Rule 113 of the
Rules of Criminal Procedure.
9

On appeal, the Court of Appeals (CA) rendered a Decision
10
on September
21, 2007 affirming in full the decision of the trial court. The accused moved
for reconsideration but the CA denied it.
11
The accused is now before this
Court seeking acquittal.
The Issue Presented
The issue in this case is whether or not the CA erred in finding accused
Antiquera guilty beyond reasonable doubt of illegal possession of drug
paraphernalia based on the evidence of the police officers that they saw him
and Cruz in the act of possessing drug paraphernalia.
Ruling of the Court
The prosecutions theory, upheld by both the RTC and the CA, is that it was
a case of valid warrantless arrest in that the police officers saw accused
Antiquera and Cruz through the door of their house, in the act of having a
pot session. That valid warrantless arrest gave the officers the right as well to
search the living room for objects relating to the crime and thus seize the
paraphernalia they found there.
The prosecution contends that, since the seized paraphernalia tested positive
for shabu, they were no doubt used for smoking, consuming, administering,
injecting, ingesting, or introducing dangerous drug into the body in violation
of Section 12 of Republic Act 9165. That the accused tested negative
for shabu, said the prosecution, had no bearing on the crime charged which
was for illegal possession of drug paraphernalia, not for illegal use of
dangerous drugs. The prosecution added that even assuming that the arrest
of the accused was irregular, he is already considered to have waived his
right to question the validity of his arrest when he voluntarily submitted
himself to the courts jurisdiction by entering a plea of not guilty.
12

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that a
"peace officer or a private person may, without a warrant, arrest a person
when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense." This is an arrest in
flagrante delicto.
13
The overt act constituting the crime is done in the
presence or within the view of the arresting officer.
14

But the circumstances here do not make out a case of arrest made in
flagrante delicto.
1. The police officers claim that they were alerted when they saw two
unidentified men suddenly rush out of 107 David Street, Pasay City. Since
they suspected that a crime had been committed, the natural thing for them
to do was to give chase to the jeep that the two fleeing men boarded, given
that the officers were in a patrol car and a tricycle. Running after the fleeing
suspects was the more urgent task but the officers instead gave priority to
the house even when they heard no cry for help from it.
2. Admittedly, the police officers did not notice anything amiss going on in
the house from the street where they stood. Indeed, even as they peeked
through its partially opened door, they saw no activity that warranted their
entering it. Thus, PO1 Cabutihan testified:
THE COURT:
Q By the way, Mr. Cabutihan, when you followed your companion towards
the open door, how was the door open? Was it totally open, or was it
partially open?
A It was partially open Your Honor.
Q By how much, 1/3, 1/2? Only by less than one (1) foot?
A More or less 4 to 6 inches, Your Honor.
Q So how were you able to know, to see the interior of the house if the door
was only open by 6 inches? Or did you have to push the door?
A We pushed the door, Your Honor.
x x x x
Q Were you allowed to just go towards the door of the house, push its door
and peeped inside it, as a police officer?
A Kasi po naghinala po kami baka may
Q Are you not allowed to Are you not required to get a search warrant
before you can search the interior of the house?
A Yes, Your Honor.
Q What do you mean by yes? Would you first obtain a search warrant
before searching the interior of the house?
A Yes, Your Honor.
Q So why did you not a [sic] secure a search warrant first before you tried
to investigate the house, considering your admission that you suspected that
there was something wrong inside the house?
A Because we saw them that they were engaged in pot session, Your
Honor.
Q But before you saw them, you just had to push the door wide open to
peep through its opening because you did not know what was happening
inside?
A Yes, Your Honor.
15
(Emphasis supplied)
Clearly, no crime was plainly exposed to the view of the arresting officers
that authorized the arrest of accused Antiquera without warrant under the
above-mentioned rule. Considering that his arrest was illegal, the search and
seizure that resulted from it was likewise illegal.
16
Consequently, the various
drug paraphernalia that the police officers allegedly found in the house and
seized are inadmissible, having proceeded from an invalid search and
seizure. Since the confiscated drug paraphernalia is the very corpus delicti of
the crime charged, the Court has no choice but to acquit the accused.
17

One final note. The failure of the accused to object to the irregularity of his
arrest by itself is not enough to sustain his conviction. A waiver of an illegal
warrantless arrest does not carry with it a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.
18

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated
September 21, 2007 and Resolution dated November 16, 2007 of the Court
of Appeals in CA-G.R. CR 28937 and ACQUITS the accused George
Antiquera y Codes of the crime of which he is charged for lack of evidence
sufficient to establish his guilt beyond reasonable doubt.1wphi1 The Court
further ORDERS the cancellation and release of the bail bond he posted for
his provisional liberty.
SO ORDERED.

THIRD DIVISION


JOSE ANTONIO C. LEVISTE,
Petitioner,


- versus -



HON. ELMO M. ALAMEDA, HON. RAUL M.
GONZALEZ, HON. EMMANUEL Y. VELASCO,
HEIRS OF THE LATE RAFAEL DE LAS ALAS,
Respondents.
G.R. No. 182677

Present:

CARPIO MORALES, Chairperson,
NACHURA,
*

BERSAMIN,
ABAD,
**
and
VILLARAMA, JR., JJ.


Promulgated:

August 3, 2010


x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - -x


D E C I S I O N


CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present petition for
review filed on May 30, 2008 the August 30, 2007 Decision
[1]
and the April
18, 2008 Resolution
[2]
of the Court of Appeals in CA-G.R. SP No. 97761
that affirmed the trial courts Orders of January 24, 31, February 7, 8, all in
2007, and denied the motion for reconsideration, respectively.

Petitioner was, by Information
[3]
of January 16, 2007, charged
with homicide for the death of Rafael de las Alas on January 12, 2007 before
the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case
was raffled, presided by Judge Elmo Alameda, forthwith issued a
commitment order
[4]
against petitioner who was placed under police custody
while confined at the Makati Medical Center.
[5]


After petitioner posted a P40,000 cash bond which the trial court
approved,
[6]
he was released from detention, and his arraignment was set
on January 24, 2007.

The private complainants-heirs of De las Alas filed, with the
conformity of the public prosecutor, an Urgent Omnibus
Motion
[7]
praying, inter alia, for the deferment of the proceedings to allow
the public prosecutor to re-examine the evidence on record or to conduct a
reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January 24,
2007
[8]
deferring petitioners arraignment and allowing the prosecution to
conduct a reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order
of January 31, 2007
[9]
denying reconsideration of the first order. Petitioner
assailed these orders via certiorari and prohibition before the Court of
Appeals.



Meantime, petitioner filed an Urgent Ex-Parte Manifestation and
Motion before the trial court to defer acting on the public prosecutors
recommendation on the proper offense until after the appellate court
resolves his application for injunctive reliefs, or alternatively, to grant him
time to comment on the prosecutors recommendation and thereafter set a
hearing for the judicial determination of probable cause.
[10]
Petitioner also
separately moved for the inhibition of Judge Alameda with prayer to defer
action on the admission of the Amended Information.
[11]


The trial court nonetheless issued the other assailed orders,
viz: (1) Order of February 7, 2007
[12]
that admitted the Amended
Information
[13]
for murder and directed the issuance of a warrant of arrest;
and (2) Order of February 8, 2007
[14]
which set the arraignment on February
13, 2007. Petitioner questioned these two orders via supplemental petition
before the appellate court.

The appellate court dismissed petitioners petition, hence, his present
petition, arguing that:


PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO
CAUSE THE REINVESTIGATION OF THE CRIMINAL CASE
BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY
BEEN FILED WITH THE LOWER COURT. HENCE, THE COURT
OF APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE
HAVING NO BASIS IN THE RULES OF COURT[;]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOS
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT,
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO
THE QUESTIONABLE REINVESTIGATION AND ILLEGAL
AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY
THIS HONORABLE COURT (sic); [AND]

CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN
HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY
BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE
BEING ADDUCED DURING THE REINVESTIGATION,
RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.
[15]
(emphasis in the
original omitted)

Records show that the arraignment scheduled on March 21,
2007 pushed through during which petitioner refused to plead, drawing the
trial court to enter a plea of not guilty for him.

Prior thereto or on February 23, 2007, petitioner filed an Urgent
Application for Admission to Bail Ex Abundanti Cautela
[16]
which the trial
court, after hearings thereon, granted by Order of May 21, 2007,
[17]
it finding
that the evidence of guilt for the crime of murder is not strong. It accordingly
allowed petitioner to post bail in the amount ofP300,000 for his provisional
liberty.

The trial court, absent any writ of preliminary injunction from the
appellate court, went on to try petitioner under the Amended Information. By
Decision of January 14, 2009, the trial court found petitioner guilty of
homicide, sentencing him to suffer an indeterminate penalty of six years and
one day of prision mayor as minimum to 12 years and one day of reclusion
temporal as maximum. From the Decision, petitioner filed an appeal to the
appellate court, docketed as CA-G.R. CR No. 32159, during the pendency of
which he filed an urgent application for admission to bail pending
appeal. The appellate court denied petitioners application which this Court,
in G.R. No. 189122, affirmed by Decision ofMarch 17, 2010.

The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded.
[18]


Waiver on the part of the accused must be distinguished
from mootness of the petition, for in the present case, petitioner did not, by
his active participation in the trial, waive his stated objections.

Section 26, Rule 114 of the Rules of Court provides:

SEC. 26. Bail not a bar to objections on illegal arrest,
lack of or irregular preliminary investigation. An application
for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before
entering his plea. The court shall resolve the matter as early
as practicable but not later than the start of the trial of the
case.

By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under
the Amended Information, as he vigorously raised them prior to his
arraignment. During the arraignment on March 21, 2007, petitioner refused to
enter his plea since the issues he raised were still pending resolution by the
appellate court, thus prompting the trial court to enter a plea of not guilty
for him.

The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary
investigation applies only if hevoluntarily enters his plea and participates
during trial, without previously invoking his objections thereto.
[19]
There must
be clear and convincing proof that petitioner had anactual intention to
relinquish his right to question the existence of probable cause. When the
only proof of intention rests on what a party does, his act should be so
manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his
conduct is possible.
[20]


From the given circumstances, the Court cannot reasonably infer a
valid waiver on the part of petitioner to preclude him from obtaining a definite
resolution of the objections he so timely invoked. Other than its allegation of
active participation, the OSG offered no clear and convincing proof that
petitioners participation in the trial was unconditional with the intent to
voluntarily and unequivocally abandon his petition. In fact, on January 26,
2010, petitioner still moved for the early resolution of the present petition.
[21]


Whatever delay arising from petitioners availment of remedies
against the trial courts Orders cannot be imputed to petitioner to operate as
a valid waiver on his part. Neither can the non-issuance of a writ of
preliminary injunction be deemed as a voluntary relinquishment of petitioners
principal prayer. The non-issuance of such injunctive relief only means that
the appellate court did not preliminarily find any exception
[22]
to the long-
standing doctrine that injunction will not lie to enjoin a criminal
prosecution.
[23]
Consequently, the trial of the case took its course.

The petition is now moot, however, in view of the trial courts
rendition of judgment.

A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value.
[24]


The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the
present petition. Assuming that there is ground
[25]
to annul the finding of
probable cause for murder, there is no practical use or value in abrogating
the concluded proceedings and retrying the case under the original
Information for homicide just to arrive, more likely or even definitely, at the
same conviction of homicide. Mootness would have also set in had
petitioner been convicted of murder, for proof beyond reasonable doubt,
which is much higher than probable cause, would have been established in
that instance.

Instead, however, of denying the petition outright on the ground of
mootness, the Court proceeds to resolve the legal issues in order to
formulate controlling principles to guide the bench, bar and public.
[26]
In the
present case, there is compelling reason to clarify the remedies
available before and after the filing of an information in cases subject of
inquest.

After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate
court in finding no grave abuse of discretion in the issuance of the four trial
court Orders.

In his first assignment of error, petitioner posits that the prosecution
has no right under the Rules to seek from the trial court an investigation or
reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without
a warrant, petitioner contends that the remedy of preliminary investigation
belongs only to the accused.

The contention lacks merit.

Section 6,
[27]
Rule 112 of the Rules of Court reads:

When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary investigation,
the complaint or information may be filed by a
prosecutor without need of such investigation provided an
inquest has been conducted in accordance with existing
rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party
or a peace officer directly with the proper court on the basis of
the affidavit of the offended party or arresting officer or
person.

Before the complaint or information is filed, the
person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding
the waiver, he may apply for bail and the investigation must
be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court
without a preliminary investigation, the accused may, within
five (5) days from the time he learns of its filing, ask for a
preliminary investigationwith the same right to adduce
evidence in his defense as provided in this Rule. (underscoring
supplied)


A preliminary investigation is required before the filing of a complaint
or information for an offense where the penalty prescribed by law is at least
four years, two months and one day without regard to fine.
[28]
As an
exception, the rules provide that there is no need for a preliminary
investigation in cases of a lawful arrest without a warrant
[29]
involving such
type of offense, so long as an inquest, where available, has been
conducted.
[30]


Inquest is defined as an informal and summary investigation
conducted by a public prosecutor in criminal cases involving persons
arrested and detained without the benefit of a warrant of arrest issued by the
court for the purpose of determining whether said persons should remain
under custody and correspondingly be charged in court.
[31]


It is imperative to first take a closer look at the predicament of both
the arrested person and the private complainant during the brief period of
inquest, to grasp the respective remedies available to them before and after
the filing of a complaint or information in court.

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT,
the private complainant may proceed in coordinating with the arresting
officer and the inquest officer during the latters conduct of
inquest. Meanwhile, the arrested person has the option to avail of a 15-day
preliminary investigation, provided he duly signs a waiver of any objection
against delay in his delivery to the proper judicial authorities under Article 125
of the Revised Penal Code. For obvious reasons, this remedy is not
available to the private complainant since he cannot waive what he does not
have. The benefit of the provisions of Article 125, which requires the filing of
a complaint or information with the proper judicial authorities within the
applicable period,
[32]
belongs to the arrested person.

The accelerated process of inquest, owing to its summary nature and
the attendant risk of running against Article 125, ends with either the prompt
filing of an information in court or the immediate release of the arrested
person.
[33]
Notably, the rules on inquest do not provide for a motion for
reconsideration.
[34]


Contrary to petitioners position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available in
cases subject of inquest.

Noteworthy is the proviso that the appeal to the DOJ Secretary is by
petition by a proper party under such rules as the Department of Justice
may prescribe.
[35]
The rule referred to is the 2000 National Prosecution
Service Rule on Appeal,
[36]
Section 1 of which provides that the Rule shall
apply to appeals from resolutions x x x in cases subject of preliminary
investigation/ reinvestigation. In cases subject of inquest, therefore, the
private party should first avail of a preliminary investigation or reinvestigation,
if any, before elevating the matter to the DOJ Secretary.

In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a preliminary
investigation.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the
rules yet provide the accused with another opportunity to ask for a
preliminary investigation within five days from the time he learns of its
filing. The Rules of Court and the New Rules on Inquest are silent, however,
on whether the private complainant could invoke, as respondent heirs of the
victim did in the present case, a similar right to ask for a reinvestigation.

The Court holds that the private complainant can move for
reinvestigation, subject to and in light of the ensuing disquisition.

All criminal actions commenced by a complaint or information shall
be prosecuted under the direction and control of the public
prosecutor.
[37]
The private complainant in a criminal case is merely a
witness and not a party to the case and cannot, by himself, ask for the
reinvestigation of the case after the information had been filed in court, the
proper party for that being the public prosecutor who has the control of the
prosecution of the case.
[38]
Thus, in cases where the private complainant is
allowed to intervene by counsel in the criminal action,
[39]
and is granted the
authority to prosecute,
[40]
the private complainant, by counsel and with the
conformity of the public prosecutor, can file a motion for reinvestigation.

In fact, the DOJ instructs that before the arraignment of the accused,
trial prosecutors must examine the Information vis--vis the resolution of
the investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and
substance.
[41]




x x x Since no evidence has been presented at that
stage, the error would appear or be discoverable from a
review of the records of the preliminary investigation. Of
course, that fact may be perceived by the trial judge himself
but, again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as
offenses includible in the offense charged be taken into
account. It necessarily follows, therefore, that the prosecutor
can and should institute remedial measures[.]
[42]
(emphasis
and underscoring supplied)

The prosecution of crimes appertains to the executive department of
the government whose principal power and responsibility is to see that our
laws are faithfully executed. A necessary component of this power to
execute our laws is the right to prosecute their violators. The right to
prosecute vests the prosecutor with a wide range of discretion the
discretion of what and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors.
[43]


The prosecutions discretion is not boundless or infinite,
however.
[44]
The standing principle is that once an information is filed in
court, any remedial measure such as a reinvestigation must be addressed to
the sound discretion of the court. Interestingly, petitioner supports this
view.
[45]
Indeed, the Court ruled in one case that:

The rule is now well settled that once a complaint or
information is filed in court, any disposition of the case,
whether as to its dismissal or the conviction or the acquittal of
the accused, rests in the sound discretion of the
court. Although the prosecutor retains the direction and
control of the prosecution of criminal cases even when the
case is already in court, he cannot impose his opinion upon
the tribunal. For while it is true that the prosecutor has the
quasi-judicial discretion to determine whether or not a criminal
case should be filed in court, once the case had already been
brought therein any disposition the prosecutor may deem
proper thereafter should be addressed to the court for its
consideration and approval. The only qualification is that the
action of the court must not impair the substantial rights of the
accused or the right of the People to due process of law.

x x x x

In such an instance, before a re-investigation of the
case may be conducted by the public prosecutor, the
permission or consent of the court must be secured. If after
such re-investigation the prosecution finds a cogent basis to
withdraw the information or otherwise cause the dismissal of
the case, such proposed course of action may be taken but
shall likewise be addressed to the sound discretion of the
court.
[46]
(underscoring supplied)

While Abugotal v. Judge Tiro
[47]
held that to ferret out the truth, a trial
is to be preferred to a reinvestigation, the Court therein recognized that a trial
court may, where the interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.

Once the trial court grants the prosecutions motion for
reinvestigation, the former is deemed to have deferred to the authority of the
prosecutorial arm of the Government. Having brought the case back to the
drawing board, the prosecution is thus equipped with discretion wide and
far reaching regarding the disposition thereof,
[48]
subject to the trial courts
approval of the resulting proposed course of action.

Since a reinvestigation may entail a modification of the criminal
information as what happened in the present case, the Courts holding is
bolstered by the rule on amendment of an information under Section 14,
Rule 110 of the Rules of Court:

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

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

If it appears at any time before judgment that a
mistake has been made in charging the proper offense, the
court shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense in
accordance with section 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. (emphasis supplied)

In fine, before the accused enters a plea, a formal or substantial
amendment of the complaint or information may be made without leave of
court.
[49]
After the entry of a plea, only a formal amendment may be made
but with leave of court and only if it does not prejudice the rights of the
accused. After arraignment, a substantial amendment is proscribed except
if the same is beneficial to the accused.
[50]


It must be clarified though that not all defects in an information are
curable by amendment prior to entry of plea. An information which is
void ab initio cannot be amended to obviate a ground for quashal.
[51]
An
amendment which operates to vest jurisdiction upon the trial court is likewise
impermissible.
[52]


Considering the general rule that an information may be amended
even in substance and even without leave of court at any time before entry of
plea, does it mean that the conduct of a reinvestigation at that stage is a
mere superfluity?

It is not.

Any remedial measure springing from the reinvestigation be it a
complete disposition or an intermediate modification
[53]
of the charge is
eventually addressed to the sound discretion of the trial court, which must
make an independent evaluation or assessment of the merits of the
case. Since the trial court would ultimately make the determination on
the proposed course of action, it is for the prosecution to consider whether a
reinvestigation is necessary to adduce and review the evidence for purposes
of buttressing the appropriate motion to be filed in court.

More importantly, reinvestigation is required in cases involving a
substantial amendment of the information. Due process of law demands
that no substantial amendment of an information may be admitted without
conducting another or a new preliminary investigation. In Matalam v. The
2nd Division of the Sandiganbayan,
[54]
the Court ruled that a substantial
amendment in an information entitles an accused to another preliminary
investigation, unless the amended information contains a charge related to
or is included in the original Information.

The question to be resolved is whether the amendment of the
Information from homicide to murder is considered a substantial
amendment, which would make it not just a right but a duty of the
prosecution to ask for a preliminary investigation.

The Court answers in the affirmative.

A substantial amendment consists of the recital of
facts constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of
form. The following have been held to be mere formal
amendments: (1) new allegations which relate only to the
range of the penalty that the court might impose in the event
of conviction; (2) an amendment whichdoes not charge
another offense different or distinct from that charged in the
original one; (3) additional allegations which do not alter the
prosecutions theory of the case so as to cause surprise to the
accused and affect the form of defense he has or will
assume; (4) an amendment which does not adversely affect
any substantial right of the accused; and (5) an amendment
that merely adds specifications to eliminate vagueness in the
information and not to introduce new and material facts, and
merely states with additional precision something which is
already contained in the original information and which adds
nothing essential for conviction for the crime charged.

The test as to whether a defendant is prejudiced by
the amendment is 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. An amendment to an information which does not
change the nature of the crime alleged therein 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.
[55]
(emphasis and underscoring supplied)

Matalam adds that the mere fact that the two charges are related
does not necessarily or automatically deprive the accused of his right to
another preliminary investigation. Notatu dignum is the fact that both the
original Information and the amended Information in Matalam were similarly
charging the accused with violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act.

In one case,
[56]
it was squarely held that the amendment of the
Information from homicide to murder is one of substance with very serious
consequences.
[57]
The amendment involved in the present case consists of
additional averments of the circumstances of treachery, evident
premeditation, and cruelty, which qualify the offense charged from homicide
to murder. It being a new and material element of the offense, petitioner
should be given the chance to adduce evidence on the matter. Not being
merely clarificatory, the amendment essentially varies the prosecutions
original theory of the case and certainly affects not just the form but the
weight of defense to be mustered by petitioner.

The Court distinguishes the factual milieus in Buhat v.
CA
[58]
and Pacoy v. Cajigal,
[59]
wherein the amendment of the caption of the
Information from homicide to murder was not considered substantial
because there was no real change in the recital of facts constituting the
offense charged as alleged in the body of the Information, as the allegations
of qualifying circumstances were already clearly embedded in the original
Information. Buhat pointed out that the original Information for homicide
already alleged the use of superior strength, while Pacoy states that the
averments in the amended Information for murder are exactly the same as
those already alleged in the original Information for homicide. None of these
peculiar circumstances obtains in the present case.

Considering that another or a new preliminary investigation is
required, the fact that what was conducted in the present case was a
reinvestigation does not invalidate the substantial amendment of the
Information. There is no substantial distinction between a preliminary
investigation and a reinvestigation since both are conducted in the same
manner and for the same objective of determining whether there exists
sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof and should be held
for trial.
[60]
What is essential is that petitioner was placed on guard to
defend himself from the charge of murder
[61]
after the claimed
circumstances were made known to him as early as the first motion.

Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the
reinvestigation. Mercado v. Court of Appeals states that the rules do not
even require, as a condition sine qua non to the validity of a preliminary
investigation, the presence of the respondent as long as efforts to reach him
were made and an opportunity to controvert the complainants evidence was
accorded him.
[62]


In his second assignment of error, petitioner basically assails the
hurried issuance of the last two assailed RTC Orders despite the pendency
before the appellate court of the petition for certiorari challenging the first
two trial court Orders allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the
course of the principal case unless a temporary retraining order or a writ of
preliminary injunction has been issued.
[63]
The appellate court, by
Resolution of February 15, 2007,
[64]
denied petitioners application for a
temporary restraining order and writ of preliminary injunction. Supplementary
efforts to seek injunctive reliefs proved futile.
[65]
The appellate court thus did
not err in finding no grave abuse of discretion on the part of the trial court
when it proceeded with the case and eventually arraigned the accused
on March 21, 2007, there being no injunction order from the appellate
court. Moreover, petitioner opted to forego appealing to the DOJ Secretary,
a post-inquest remedy that was available after the reinvestigation and which
could have suspended the arraignment.
[66]


Regarding petitioners protestations of haste, suffice to state that the
pace in resolving incidents of the case is not per se an indication of
bias. In Santos-Concio v. Department of Justice,
[67]
the Court held:

Speed in the conduct of proceedings by a judicial or
quasi-judicial officer cannot per se be instantly attributed to
an injudicious performance of functions. For ones prompt
dispatch may be anothers undue haste. The orderly
administration of justice remains as the paramount and
constant consideration, with particular regard of the
circumstances peculiar to each case.

The presumption of regularity includes the public
officers official actuations in all phases of work. Consistent
with such presumption, it was incumbent upon petitioners to
present contradictory evidence other than a mere tallying of
days or numerical calculation. This, petitioners failed to
discharge. The swift completion of the Investigating Panels
initial task cannot be relegated as shoddy or shady without
discounting the presumably regular performance of not just
one but five state prosecutors.
[68]



There is no ground for petitioners protestations against the DOJ
Secretarys sudden designation of Senior State Prosecutor Emmanuel
Velasco as Acting City Prosecutor of Makati City for the present case
[69]
and
the latters conformity to the motion for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the
public prosecutor who will conduct the reinvestigation or preliminary
investigation.
[70]
There is a hierarchy of officials in the prosecutory arm of
the executive branch headed by the Secretary of Justice
[71]
who is vested
with the prerogative to appoint a special prosecutor or designate an acting
prosecutor to handle a particular case, which broad power of control has
been recognized by jurisprudence.
[72]


As for the trial courts ignoring the DOJ Secretarys uncontested
statements to the media which aired his opinion that if the assailant merely
intended to maim and not to kill the victim, one bullet would
have sufficed the DOJ Secretary reportedly uttered that the filing of the
case of homicide against ano against Leviste lintek naman eh I told you to
watch over that case there should be a report about the ballistics, about
the paraffin, etc., then thats not a complete investigation, thats why you
should use that as a ground no abuse of discretion, much less a grave
one, can be imputed to it.

The statements of the DOJ Secretary do not evince a determination
to file the Information even in the absence of probable cause.
[73]
On the
contrary, the remarks merely underscored the importance of securing basic
investigative reports to support a finding of probable cause. The original
Resolution even recognized that probable cause for the crime of murder
cannot be determined based on the evidence obtained [u]nless and until a
more thorough investigation is conducted and eyewitness/es [is/]are
presented in evidence[.]
[74]


The trial court concluded that the wound sustained by the victim at
the back of his head, the absence of paraffin test and ballistic examination,
and the handling of physical evidence,
[75]
as rationalized by the prosecution
in its motion, are sufficient circumstances that require further inquiry.

That the evidence of guilt was not strong as subsequently assessed
in the bail hearings does not affect the prior determination of probable cause
because, as the appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly
higher than the standard of judicial probable cause which is sufficient to
initiate a criminal case.
[76]


In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.

Petitioners argument is specious.

There are two kinds of determination of probable cause: executive
and judicial. The executive determination of probable cause is one made
during preliminary investigation. It is a function that properly pertains to the
public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have
committed the crime as defined by law and thus should be held for
trial. Otherwise stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in court. Whether
that function has been correctly discharged by the public prosecutor, i.e.,
whether he has made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not and may not
be compelled to pass upon.
[77]


The judicial determination of probable cause is one made by the
judge to ascertain whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in order
not to frustrate the ends of justice. If the judge finds no probable cause, the
judge cannot be forced to issue the arrest warrant.
[78]
Paragraph (a),
Section 5,
[79]
Rule 112 of the Rules of Court outlines the procedure to be
followed by the RTC.

To move the court to conduct a judicial determination of probable
cause is a mere superfluity, for with or without such motion, the judge is
duty-bound to personally evaluate the resolution of the public prosecutor and
the supporting evidence. In fact, the task of the presiding judge when the
Information is filed with the court is first and foremostto determine the
existence or non-existence of probable cause for the arrest of the
accused.
[80]


What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. But the judge is
not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he
shall (1) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the
existence of probable cause, and on the basis thereof, he
may already make a personal determination of the existence
of probable cause; and (2) if he is not satisfied that probable
cause exists, he may disregard the prosecutors report and
require the submission of supporting affidavits of witnesses
to aid him in arriving at a conclusion as to the existence of
probable cause.
[81]
(emphasis and underscoring supplied)

The rules do not require cases to be set for hearing to determine
probable cause for the issuance of a warrant of arrest of the accused before
any warrant may be issued.
[82]
Petitioner thus cannot, as a matter of right,
insist on a hearing for judicial determination of probable cause. Certainly,
petitioner cannot determine beforehand how cursory or exhaustive the
[judge's] examination of the records should be [since t]he extent of the
judges examination depends on the exercise of his sound discretion as the
circumstances of the case require.
[83]
In one case, the Court emphatically
stated:

The periods provided in the Revised Rules of
Criminal Procedure are mandatory, and as such, the judge
must determine the presence or absence of probable cause
within such periods. The Sandiganbayans determination of
probable cause is made ex parte and is summary in nature,
not adversarial. The Judge should not be stymied and
distracted from his determination of probable cause by
needless motions for determination of probable cause filed by
the accused.
[84]
(emphasis and underscoring supplied)


Petitioner proceeds to discuss at length evidentiary matters, arguing
that no circumstances exist that would qualify the crime from homicide to
murder.

The allegation of lack of substantial or material new evidence
deserves no credence, because new pieces of evidence are not prerequisites
for a valid conduct of reinvestigation. It is not material that no new matter
or evidence was presented during the reinvestigation of the case. It
should


be stressed that reinvestigation, as the word itself implies, is merely a repeat
investigation of the case. New matters or evidence are not prerequisites for
a reinvestigation, which is simply a chance for the prosecutor to review and
re-evaluate its findings and the evidence already submitted.
[85]


Moreover, under Rule 45 of the Rules of Court, only questions of law
may be raised in, and be subject of, a petition for review on certiorari since
this Court is not a trier of facts. The Court cannot thus review the evidence
adduced by the parties on the issue of the absence or presence of probable
cause, as there exists no exceptional circumstances to warrant a factual
review.
[86]


In a petition for certiorari, like that filed by petitioner before the
appellate court, the jurisdiction of the court is narrow in scope. It is limited
to resolving only errors of jurisdiction. It is not to stray at will and resolve
questions and issues beyond its competence, such as an error of
judgment.
[87]
The courts duty in the pertinent case is confined to
determining whether the executive and judicial determination of probable
cause was done without or in excess of jurisdiction or with grave abuse of
discretion. Although it is possible that error may be committed in the
discharge of lawful functions, this does not render the act amenable to
correction and annulment by the extraordinary remedy of certiorari, absent
any showing of grave abuse of discretion amounting to excess of
jurisdiction.
[88]


WHEREFORE, the petition is DENIED. The assailed Decision and
Resolution of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.

SO ORDERED.