ABAY vs.

PEOPLE
DECISION
QUISUMBING, J.:
This petition for review assails the Decision[1] dated October 27, 2003 and the Resolution[2] dated October 14, 2004 of
the Court of Appeals in CA G.R. CR No. 25212. The Court of Appeals had affirmed the Decision[3] of the Regional Trial
Court (RTC) of San Pedro, Laguna, Branch 31, finding petitioners guilty of the crime of Highway Robbery in Criminal
Case No. 9045-B.
The facts are as follows:
On January 13, 1995, an Information was filed charging Rustico Abay, Jr., Reynaldo Darilag, Ramoncito Aban, Ernesto
Ricalde, Ramon Punzalan, Ariston Reyes, Isagani Espeleta, Cesar Camacho, Leonardo Perello and Danilo Pascual with the
crime of Highway Robbery/Brigandage. Said information reads:
x x x x
That on or about 7:30 oclock in the evening of February 17, 1994, at the South Luzon Expressway, Municipality of
Bian, Province of Laguna, and within the jurisdiction of this Honorable Court, accused Ramoncito Aban y Casiano,
Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolinario,
Leonardo Perello y Esguerra and Danilo Pascual y Lagata, who are principals by direct participation, conspiring and
confederating together with Ariston Reyes y Plaza, Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, who are
principals by indispensable cooperation and mutually helping each other, form themselves as band of robbers and
conveniently armed with handguns and deadly bladed weapons, and while on board a Kapalaran Bus Line with plate
number DVT-527 bound for Sta. Cruz, Laguna and a semi stainless owner type jeep with plate number PJD-599 as
backup vehicle, accused with the use of the aforesaid handguns and bladed weapons with intent to gain and taking the
passengers of the bus by surprise, did then and there wilfully, unlawfully and feloniously divest and take away
personalties of the passengers and/or occupants therein, among them were:
a) Thelma Andrade y Lorenzana, P3,500.00 cash;
b) Gloria Tolentino y Pamatmat, P30,000.00 cash, $2,000.00 dollars and eyeglasses (Perare) worth P5,000.00;
c) Lilian Ojeda y Canta, P120.00 cash;
d) Paul Masilang y Reyes, assorted used clothes of undetermined amount;
and by reason or on occasion of the said robbery, accused shot passenger Rogelio Ronillo y Lumboy, inflicting upon
him gunshot wounds on the neck, thus, accused performed all the acts of execution that would produce the crime of
homicide, but nevertheless, did not produce by reason of causes independent of the will of the accused, that is by the
timely medical assistance rendered to Rogelio Ronillo y Lumboy, and to his damage and prejudice and to the damages
and prejudices of the following:
a) Thelma Andrade y Lorenzana in the sum of P3,500.00;
b) Gloria Tolentino y Pamatmat in the sum of P30,000.00;
c) Lilian Ojeda y Canta in the sum of P120.00
That the commission of the offense was attended with the aggravating circumstances of nighttime, by a band and with
the use of motor vehicle.
With the additional aggravating circumstance that accused Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo,
being prison guards, have taken advantage of their public position by bringing out prison inmates and equipped them
with deadly weapons and were utilized in the commission of robbery:
With the further additional aggravating circumstance on the following accused/inmates, as follows:
1) Ramoncito Aban y Casiano with prison number 121577 as recidivist, having been convicted by final judgment on
June 15, 1984 by the RTC, Branch VI, Malolos, Bulacan, in Criminal Case No. 3874-M for Robbery with Homicide;
2) Ariston Reyes y Plaza with prison number 115906-P, as recidivist, having been convicted by final judgment on March
11, 1982 by the CFI, Manila in Criminal Case No. 82-3001 for Robbery; having been convicted by final judgment on
September 2, 1987 by the RTC Branch 94, Quezon City, in Criminal Case No. 37432 for Robbery; and for Reiteracion or
habituality for having served sentence for Homicide, convicted on March 25, 1991 by the RTC, Branch 34, Quezon City;
3) Reynaldo Darilag y Apolinario with prison number 129552-P for reiteracion or habituality for having been previously
punished for an offense of murder in Criminal Case No. 039 by the RTC, Branch 5, Tuguegarao, Cagayan and as a
recidivist for having been previously convicted by final judgment on July 8, 1987 by the same Court in Criminal Case
No. 040 for Robbery;
4) Rustico Abay, Jr. y Serafico with prison number 132566-P as a recidivist for having been previously convicted by final
judgment on August 31, 1988 by the RTC, Branch 163 Manila, in Criminal Case No. 71060 for Theft;
5) Ramon Punzalan y Carpena with prison number 113605-P as recidivist for having been previously convicted by final
judgment by the RTC, Branch 111, San Pablo City on the following dates, to wit:
January 8, 1981 in Criminal Case No. 2454-SP, for Robbery in Band;
December 8, 1981, in Criminal Case No. 2549 for Theft;
October 7, 1983 in Criminal Case No. 2550-SP for Carnapping; and
Having been previously convicted by final judgment by the City Court of San Pablo City on March 30, 1981 in Criminal
Case No. 17738 for simple theft;
6) Ernesto R[i]calde y Jov[i]llano with prison number N92P-2735, as a recidivist for having been previously convicted by
final judgment on August 2, 1992 by the RTC, Branch 54, Lucena City in Criminal Case No. 91-679 for simple theft.
CONTRARY TO LAW.[4]
When arraigned, all the accused pleaded not guilty. However, upon motion filed by accused Ramoncito Aban, with the
conformity of the public prosecutor and private complainants Thelma Andrade and Gloria Tolentino, he was allowed to
withdraw his earlier plea of "not guilty". Thus, on September 11, 1997, Ramoncito Aban, with the assistance of his
counsel, pleaded "guilty" to the crime of simple robbery and on even date, the trial court sentenced him. Meanwhile,
trial proceeded with respect to the other accused.
The prosecution presented the following witnesses: Thelma Andrade, Gloria Tolentino and Ramoncito Aban.
Thelma Andrade, a conductress of the Kapalaran Bus Line, testified that in the evening of February 17, 1994, the bus
she was on was held-up. She said that Ramoncito Aban took from her, at gunpoint, the fares she collected from the
passengers of the bus. She also identified Rustico Abay, Jr. and Ernesto Ricalde as two of the other companions of
Aban.[5]
Gloria Tolentino, a passenger of the bus, testified that someone shouted "hold-up" and ordered them to bow their
heads. She obeyed the order but once in a while she would raise her head. According to Tolentino, the man seated
beside her, Ariston Reyes, took her money and pieces of jewelry and handed them over to Reynaldo Darilag. She also
identified Rustico Abay, Jr. as one of the companions of the robbers.[6]
Ramoncito Aban, the last witness, testified that on February 22, 1994, Camacho and Espeleta, who were both prison
guards of the New Bilibid Prison (NBP), took him and his companions, Ricalde, Abay, Jr., Punzalan, Darilag, Reyes,
Perello and Pascual, on board the owner-type jeepney of Camacho to stage a hold-up. He said they held-up a Kapalaran
bus and it was Punzalan and Darilag who took the money and other belongings of the passengers in the bus. He further
testified that the February 22, 1994 hold-up was the fourth staged by their group. According to Aban, the other hold-
ups were carried out on February 11, 13 and 17, and all four hold-ups were staged by the same persons.[7]
The defense, for its part, presented the testimony of petitioners Rustico Abay, Jr., and Reynaldo Darilag, the other co-
accused, and Genaro Alberto.
All the accused denied participation in the robbery that happened on February 17, 1994. Abay, Jr., Darilag, Reyes and
Ricalde, who were detention prisoners, testified that they were confined in the NBP at the time the incident
happened.[8] Pascual and Perello, both civilians, testified that they were at home then.[9] Genaro Alberto, a prison
guard at the Bureau of Corrections, testified that during the headcount of the inmates conducted at 5:00 p.m. and 8:00
p.m. on February 17, 1994, no inmate was found to be missing.[10]
In a Decision dated November 29, 2000, the RTC of San Pedro, Laguna, Branch 31 found petitioners Abay, Jr. and
Darilag, as well as the other accused guilty of the crime charged. The trial court decreed as follows:
WHEREFORE, this Court hereby renders judgment convicting accused Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y
Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolicario, Ariston Reyes y Plaza, Isagani Espeleta y Arguelles,
Cesar Camacho y Deolazo, Leonardo Perello y Esguerra and Danilo Pascual y Lagata of the crime of highway
robbery/holdup attended by the aggravating circumstance of a band only and hereby sentences each of them:
1) to suffer an indeterminate penalty of imprisonment [of] 17 twelve (12) years and one (1) day as minimum to
thirteen (13) years, nine (9) months and eleven (11) days as maximum, both of reclusion temporal in its minimum
period;
2) to indemnify Thelma Andrade, the amount of P3,500 and Gloria Tolentino, the amount of P30,000 and US$2,000;
and
3) to pay the costs.
SO ORDERED.[11]
The Court of Appeals on appeal acquitted Espeleta, Camacho and Punzalan of the crime charged but affirmed the
conviction of petitioners Abay, Jr. and Darilag, Ricalde and Reyes. The dispositive portion of the Decision dated October
27, 2003 states:
WHEREFORE, the assailed decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No.
9045-B, is REVERSED and SET ASIDE, but only insofar as accused-appellants Isagani Espeleta, Cesar Camacho and
Ramon Punzalan, are concerned, for insufficiency of evidence. Isagani Espeleta, Cesar Camacho and Ramon Punzalan
are hereby ACQUITTED. Unless held for any other charge/charges their immediate release is hereby ordered.
With respect to accused-appellants Rustico Abay, Jr., Ernesto Ricalde, Reynaldo Darilag and Ariston Reyes, the said
decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No. 9045-B, finding them guilty
beyond reasonable doubt of the crime of highway robbery/hold-up is hereby AFFIRMED IN TOTO.
SO ORDERED.[12]
Petitioners Abay, Jr. and Darilag moved for a reconsideration of the aforesaid decision, but their motion was denied.
Hence, they filed the instant petition raising a single issue:
WHETHER OR NOT PETITIONERS MAY BE CONVICTED ON THE BASIS OF THE TESTIMONIES OF RAMONCITO ABAN,
THELMA ANDRADE AND GLORIA TOLENTINO.
13

Stated simply, did the Court of Appeals err in affirming on the basis of the testimonies of said three witnesses the
conviction of petitioners Abay, Jr. and Darilag?
In their petition,[14] petitioners Abay, Jr. and Darilag assert that their guilt has not been proven beyond reasonable
doubt. They argue that Ramoncito Aban is not a credible witness and that he testified on an incident which happened
on February 22, 1994 and not on February 17, 1994 as alleged in the information. Petitioners also claim that no
physical evidence linking petitioners to the crime was presented. They likewise point to a related case filed against
them wherein they were acquitted. They fault the trial court and Court of Appeals for disregarding their defense of alibi
and in giving credence to the testimonies of Andrade and Tolentino, contending that these testimonies were incredible
and unsubstantiated. They likewise contend that the lower courts erred in relying on Abans extrajudicial confession
which was coerced.
The Office of the Solicitor General (OSG) challenges the petition on the ground that the petition raises a question of
fact. It also maintains that Aban is a credible witness and that petitioners17 defense of alibi cannot prevail over the
positive testimonies of the prosecution witnesses.[15]
After a thorough examination of the evidence presented, we are in agreement that the appeal lacks merit.
At the outset, we note that it was not Abans extrajudicial confession but his court testimony reiterating his declarations
in his extrajudicial admission, pointing to petitioners as his co-participants, which was instrumental in convicting
petitioners of the crime charged. Settled is the rule that when the extrajudicial admission of a conspirator is confirmed
at the trial, it ceases to be hearsay. It becomes instead a judicial admission, being a testimony of an eyewitness
admissible in evidence against those it implicates.[16] Here, the extrajudicial confession of Aban was affirmed by him in
open court during the trial. Thus, such confession already partook of judicial testimony which is admissible in evidence
against the petitioners.
We likewise agree in finding without merit the petitioners17 argument that, since Abans testimony is not credible as
to Espeleta, Camacho and Punzalan who were acquitted, then it should also be held not credible as to them. But in our
considered view, the petitioners are not similarly situated as their aforementioned co-accused. Other than the testimony
of Aban, there were no other witnesses who testified on the participation of Espeleta, Camacho and Punzalan. In
contrast, anent the herein petitioners17 participation in the crime, not only is their conviction based on the testimony
of Aban, but it was also established by the eyewitness testimony of Andrade and Tolentino who identified positively the
petitioners in open court.
Petitioners further aver that Aban testified on a robbery which took place on February 22, 1994, not February 17, 1994.
Granted that Ramoncito Aban in fact testified on the details of the robbery which happened on February 22, 1994.
However, it is also worth stressing as part of the prosecution evidence that Aban testified that malefactors used the
same route and strategy in the perpetration of the robberies which happened on four occasions -- February 11, 13, 17
and 22, 1994. What happened on February 22 was but a replication, so to speak, of the robbery scenarios earlier
perpetrated by the same gang on three previous dates. It is very clear, however, that Aban, on the witness stand was
testifying specifically also about the offense that took place on February 17 in the Expressway, Bian, Laguna.
Petitioners claim that no physical evidence was presented by the prosecution linking the petitioners to the crime
charged. But in this case, the alleged failure of the prosecution to present physical evidence does not adversely affect
the over-all weight of the evidence actually presented. Physical evidence would be merely corroborative because there
are credible witnesses who testified on the complicity of petitioners in the crime charged.[17]
Further, petitioners assert that in a similar case filed against them, they were acquitted by the trial court of Imus,
Cavite. As correctly observed by the OSG, there is no showing that the amount and quality of evidence in the present
case and those in the case where petitioners were allegedly acquitted are the same. Indeed, if petitioners truly believed
that the prosecution evidence is deficient to establish their guilt, their defense could have earlier filed a demurrer to
evidence in this case. But, they did not.[18]
Additionally, petitioners claim that the trial court and the Court of Appeals erred in disregarding their defense of
alibi.[19] However, we are in agreement with the OSG that the defense of alibi cannot prevail over the positive
identification of the accused in this case.
Worth stressing, this Court has consistently ruled that the defense of alibi must be received with suspicion and caution,
not only because it is inherently weak and unreliable, but also because it can be easily fabricated.[20] Alibi is a weak
defense that becomes even weaker in the face of the positive identification of the accused. An alibi cannot prevail over
the positive identification of the petitioners by credible witnesses who have no motive to testify falsely.[21]
In this case, petitioners17 defense of alibi rested solely upon their own self-serving testimonies. For their defense of
alibi to prosper, it should have been clearly and indisputably demonstrated by them that it was physically impossible for
them to have been at, or near, the scene of the crime at the time of its commission. But as the trial court correctly
ruled, it was not impossible for the petitioners to be at the scene of the crime since petitioners17 place of detention
is less than an hour ride from the crime scene. Moreover, no dubious reason or improper motive was established to
render the testimonies of Andrade, Tolentino and Aban false and unbelievable. Absent the most compelling reason, it is
highly inconceivable why Andrade, Tolentino and Aban would openly concoct a story that would send innocent men to
jail.[22]
Similarly, petitioners assert that the testimonies of Andrade and Tolentino are incredible and unsubstantiated. They
question the failure of Tolentino to identify Punzalan in court, and stress that Andrade and Tolentino were not able to
identify all the accused. The OSG, on the other hand, maintains that the testimonies of Andrade and Tolentino are
credible since the facts testified to by them and Aban support each other.
We find petitioners17 allegations untenable. The testimonies given by Andrade, Tolentino and Aban corroborate each
other. Their testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole. The
failure of Tolentino to point to Punzalan in court does not dent her credibility as a witness. It must be noted that it took
years before Tolentino was placed on the witness stand. As to the allegation that the testimony of Andrade and
Tolentino are incredible because they were not able to identify all the accused deserves scant consideration. During the
robbery, they were told to bow their heads and hence, they were only able to raise their heads from time to time. It is
but logical that the witnesses would not be able to identify all of the accused.
Considering the testimonies of witnesses and the evidence presented by the parties, we are in agreement that the crime
of Highway Robbery/Brigandage was duly proven in this case. As defined under Section 2(e) of Presidential Decree No.
532,[23] Highway Robbery/Brigandage is the seizure of any person for ransom, extortion or other unlawful purposes, or
the taking away of the property of another by means of violence against or intimidation of person or force upon things
or other unlawful means, committed by any person on any Philippine highway. Also, as held in People v. Puno:[24]
In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular
robbery, the crime is only robbery, or robbery in band if there are at least four armed participants17
Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated
by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of
robbery committed against only a predetermined or particular victim[Emphasis supplied.]
The elements of the crime of Highway Robbery/Brigandage have been clearly established in this case. First, the
prosecution evidence demonstrated with clarity that the petitioners17 group was organized for the purpose of
committing robbery in a highway. Next, there is no predetermined victim. The Kapalaran bus was chosen
indiscriminately by the accused upon reaching their agreed destination -- Alabang, Muntinlupa.
All told, we rule that petitioners Rustico Abay, Jr. and Reynaldo Darilag are guilty beyond reasonable doubt of the crime
of Highway Robbery/Brigandage.
WHEREFORE, the Decision dated October 27, 2003 and the Resolution dated October 14, 2004 of the Court of Appeals
in CA G.R. CR No. 25212, affirming the Decision dated November 29, 2000 of the Regional Trial Court of San Pedro,
Laguna, Branch 31 in Criminal Case No. 9045-B, are hereby AFFIRMED.
No pronouncement as to costs.
--
PEOPLE OF THE PHILIPPINES vs. PEDRO CEDENIO Y RASONABLE, FELIPE ANTIPOLO Y MISA, and JURITO AMARGA Y
BAHI-AN
BELLOSILLO, J.:
The silence of the slumbering night was suddenly shattered by wailing cries for help. A sheet of fire raged, its crimson
brightness overwhelming the velvet darkness enshrouding the sleepy barangay as it enveloped the lair of a mandadaut,
1
the flames only fading away with the first blush of dawn. As the smoke thinned and the ashes settled, the debris
yielded five (5) fatalities among them a 22-day old female infant. Unlike the other victims, she did not sustain any stab
or hack wound. She could have died of suffocation if not of burning.
Bonifacio Palomas recounts that on 26 November 1986, at about ten-thirty in the evening, he was roused from his sleep
by bangs and slams and what sounded like womens desperate cries for help coming from the direction of a neighbors
house some thirty (30) meters away. It was Hilario Dorios house on fire. Peeping through his window, Palomas saw
around seven (7) persons, among them appellants Pedro Cedenio, Jurito Amarga and Felipe Antipolo, emerge from the
house of Dorio that was afire. The blaze was so bright he was able to recognize them. They were wielding unsheathed
bolos. Afraid, Palomas remained home. The following morning, he narrated to Romeo, son of Hilario Dorio, what he
witnessed the night before. Then he went with the younger Dorio to the rubble and saw the charred bodies of his
father, Hilario Dorio, his mother Flora, his sister Maria, his niece Dioscora, and his maternal grandmother Nicanora
Tabanao, said to be a family of sorcerers in the village.
2

Policarpio Apostadero was resting at around ten-thirty that fateful evening when he heard dogs barking. Thinking that a
carabao may have gone astray, he went out of his house and headed for the cornfield. On his way, he noticed some
thirty (30) meters away that the house of Hilario Dorio was on fire. From where he stood, he also saw people running
out of the burning house. As the fierce fire illumed the surroundings, he recognized three (3) of them as his neighbors
Pedro Cedenio, Jurito Amarga and Felipe Antipolo. When they drew nearer, he saw them holding bolos stained with
blood so he retreated home. The next morning, he went to the burned house, joined the people already milling around,
and saw the seared bodies of the five (5) members of the Dorio household.
3

Albino Calunod, Sr., Barangay Captain of Gandingan, Pangantucan, Bukidnon, also narrated that on 27 November 1986,
at around seven oclock in the morning, he was informed by Cristituto Gajo that the Dorio residence was gutted by fire
the night before and that five (5) members of the Dorio family then occupying the house were burned to death. He thus
proceeded to the scene and found the house razed to the ground. The five (5) bodies retrieved from the site were those
of Hilario Dorio with wounds on the head and chest, Flora Dorio with a wound on the leg and head almost severed;
Maria Dorio with wounds in the neck and left nipple; Nicanora Tabanao with a wound in the stomach; and, infant
Dioscora Dorio with no wounds at all but charred to the bone.
4

Perfecto Antifuesto implicated Pedro Cedenio to the heinous crime. Antifuesto said that on 26 November 1986, at
around seven oclock in the evening, he was awakened by Cedenio who borrowed his bolo. At around three oclock the
following morning, Pito Panla-an woke him up to return the bolo earlier borrowed by Cedenio. It was placed in its
scabbard and left leaning against the wall below the window. When Panla-an left, Antifuesto got his bolo and found
bloodstains on its handle. Upon unsheathing it, he discovered fresh blood on its blade. Thirty (30) minutes later,
Cedenio arrived and appeased him, ". . . do not worry, if this incident reaches the court I will answer (for) everything."
5

Although it appears that around nine (9) persons were involved in the commission of the felony,
6
only three (3) were
convicted by the trial court.
7
Thus on 16 March 1990, it found Pedro Cedenio, Felipe Antipolo and Jurito Amarga guilty
of "Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No. 1613 (amending the
law on Arson)"
8
and sentenced them to reclusion perpetua. On 4 April 1990, they filed their notice of appeal.
Appellants now argue that there is no direct and positive evidence showing that they killed the victims and burned their
house. The fact that prosecution witnesses saw them coming out of the burning house cannot by itself sustain the
conviction as this lone circumstance is capable of several interpretations. If witnesses indeed saw them there, that must
be the time when they (appellants) were trying to save the burning house and its occupants. They likewise contend that
the testimonies of the prosecution witnesses are contrary to human experience and should not inspire credence. Thus
the claim of witness Antifuesto that his bolo was borrowed and later returned with bloodstains is highly improbable for
it is unnatural for criminals to openly bare the instruments used in perpetrating a crime.
Finally, appellants maintain that their denial and alibi should prevail over the insufficient evidence of the prosecution. In
asserting their innocence, they allege that they were in the area because of their moral obligation to save life and
property. Hence, appellant Cedenio claimed that he cut up banana trunks and hurled them into the fire while appellant
Antipolo gathered soil and threw it into the blaze. While witnesses might have indeed seen them (appellants) coming
out of the burning house, that was probably after they (appellants) checked on and tried to save the occupants of the
house.
We are far from persuaded. While we cannot affirm the findings of the trial court that accused-appellants are guilty of
"Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No. 1613" as there is no
such offense, we nevertheless find them guilty of as many crimes as are alleged in the Information and proven by the
evidence.
It is settled that there is no complex crime of arson with homicide. The late Mr. Chief Justice Ramon C. Aquino cites
Groizard
. . . when fire is used with the intent to kill a particular person who may be in a house and that
objective is attained by burning the house, the crime is murder only. When the Penal Code declares
that killing committed by means of fire is murder, it intends that fire should be purposely adopted as
a means to that end. There can be no murder without a design to take life. In other words, if the
main object of the offender is to kill by means of fire, the offense is murder. But if the main objective
is the burning of the building, the resulting homicide may be absorbed by the crime of arson.
9

. . . in the classification of crimes committed by fire, attention must be given to the intention of the
author. When fire is used with intent to kill a . . . person who may be in shelter, and that objective is
secured, the crime is . . . murder. Murder or homicide in a juridical sense would exist if the killing
were the objective of the malefactor and the burning of the building was resorted only as the means
of accomplishing his purpose. The rule is otherwise when arson is itself the end and death is a mere
consequence. The crime in such a case would be arson only, absorbing the homicide.
10

Except for the imposable penalty, the rule has not changed. Accordingly, if death results by reason or on the occasion
of arson, the crime is simply arson although the imposable penalty as provided in Sec. 5 of P.D. No. 1613, which
expressly repealed Arts. 320 to 326-B of The Revised Penal Code, is now reclusion perpetua to death. If the objective of
the offender is to kill and arson is resorted to as the means to accomplish the crime, the offender can be charged with
murder only. But if the objective is to killand in fact the offender has already done soand arson is resorted to as a
means to cover up the killing, the offender may be convicted of two separate crimes of either homicide or murder, and
arson.
Consequently, in (People v. Paterno)
11
where the defendants killed a Japanese spy and his wife, and thereafter set the
victims house afire with their lifeless bodies inside and their three-day old infant who perished in the fire, we found the
accused guilty of murder for the killing and of arson for burning the house with the resulting death to the infant. In
(People v. Basay)
12
we said that where the house was burned to conceal the stabbing and hacking, separate crimes of
murder and arson were committed.
The Information in this case however, although erroneously charging the crime of "Arson with Multiple Murder," clearly
charges appellants with six (6) distinct criminal acts. It accuses them of "wilfully, unlawfully and criminally attack(ing),
assault(ing) and stab(bing) Hilario G. Dorio, Nicanora G. Tabanao, Maria T. Dorio, Dioscora T. Dorio and Flora T. Dorio,
inflicting on their persons multiple mortal wounds . . . (and) set(ting) on fire and burn(ing) the house of the victims . . ."
13
Since appellants failed to move to quash the information on the ground of multiplicity of charges or object thereto at
any other time, the defect has been waived, and thus the trial court may validly render judgment against them for as
many crimes as were alleged.
14
In order to sustain a conviction for as many offenses as are alleged, it is elementary that
all the allegations must be proven with moral certainty. Hence, considering that the Information alleges that appellants
burned the house of the victims and killed them with treachery and (evident) premeditation, both the arson and the
multiple murder must be proven beyond reasonable doubt.
We accord credence to the testimonies of the prosecution witnesses. We see no reason to depart from the conclusion of
the trial court that it was "morally convinced that the three accused are all guilty . . . .
15
The court a quo had the
opportunity to observe the witnesses thus its findings are given great weight and respect.
Palomas, Apostadero and Antifuesto are disinterested witnesses and there is not a shiver of evidence to indicate that
they are suborned witnesses. In fact, the records show that witness Antifuesto even lent his bolo to appellant Cedenio
so that the former could not have had a grudge against the latter, otherwise, he would not have lent his bolo.
16
Absent
the most compelling reason or motive, it is inconceivable why the prosecution witnesses would openly and publicly lie
or concoct a story which would send three innocent men to jail.
17
Where the defense failed to show any evil or improper
motive on the part of prosecution witnesses, the presumption is that their testimonies are true and thus entitled to full
faith and credence.
18

While the prosecution witnesses did not see the actual killing of the victims and the burning of the house, we have
repeatedly ruled that guilt may be established through circumstantial evidence provided that (1) there is more than one
circumstance; (2) the facts from which the inferences are derived are proven; and, (3) the combination of all the
circumstances is such as to produce conviction beyond reasonable doubt.
19
Thus in (People v. Adriano)
20
and (People v.
Galendez)
21
we ruled that there can be a conviction based on circumstantial evidence when the circumstances proven
form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused as the perpetrator of
the crime.
This is another lucid illustration of a case where a conviction can be sustained on the basis of circumstantial evidence.
First, appellant Cedenio borrowed the bolo of witness Antifuesto at around seven oclock in the evening. Second,
Cedenio together with appellants Antipolo and Amarga were positively identified as brandishing their bloodstained
bolos while rushing out of the victims burning house around ten-thirty that same evening. Third, Antifuestos bolo was
returned to him at around three oclock the following morning after appellants were seen outside the victims burning
house. Fourth, the bolo had bloodstains when it was returned. Fifth, Cedenio called on Antifuesto at three-thirty that
same morning to appease the latter and assure him not to worry because " . . . if this incident reaches the court, I will
answer (for)
everything."
22
Sixth, when retrieved from the burned house, the bodies of the victims bore stab and hack wounds. For
sure, these circumstances "form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the
accused as the perpetrators of the crime."
23

We disagree with appellants submission that the testimony of prosecution witness Antifuesto is not in accord with
human nature. On the contrary, his testimony that the bolo was returned to him with bloodstains is worthy of belief.
Appellants never thought that Antifuesto would testify against them. Thus, appellant Cedenio borrowed Antifuestos
bolo and after its return even mollified him.
In fine, we believe that when appellants were seen in the vicinity of the burning house, they were not there to save lives
and property but rather to escape from the locus criminis and avoid being made to answer for the consequences of
their wicked act. In other words, they were not there to save the lives and valuables of the victims but to save their own.
We are convinced that appellants conspired to inflict fatal blows on the victims which cost their lives and thereafter set
their house on fire to conceal the dastardly deed.
24
Conspiracy, as we said, may be inferred from the acts of the accused
when such acts point to a joint purpose or design.
25

From the evidence adduced, it is evident that after the victims were hacked and stabbed to death, appellants set the
house afire to hide their gruesome act. This is the only logical conclusion for the burning of the house. For, appellants
and some six (6) others, all bolo-wielding, have already inflicted fatal wounds on the victims, save for the 22-day old
infant. If their objective was merely to kill the victims then there would be no reason for them to burn the victims
abode. On the other hand, if their objective was merely arson, they would not have attacked the victims with their
bolos.
We however cannot consider the qualifying circumstance of treachery. For treachery to be appreciated, there must be
proof that at the time of the attack, the victims were not in a position to defend themselves and that the offenders
consciously and deliberately adopted particular means, method or form of attack which they employed to ensure the
accomplishment of their purpose with impunity.
26
There is no proof of such fact in the instant case; neither is there any
testimony on how the attack was actually carried out. Where no particulars are known as to the manner in which the
aggression was made or how the act which resulted in the death of the victims began and developed, it can in no way
be established from mere suppositions that the killing was perpetrated by treachery.
27
For, the rule is settled that
treachery cannot be presumed; it must be proved by clear and convincing evidence as conclusively as the killing itself.
28

Hence, when the manner of the attack is not proven, the accused should be given the benefit of the doubt and the
crime should be considered homicide only,
29
absent any other circumstance which would qualify the killing.
Nevertheless, we qualify the killing to murder on account of evident premeditation. For evident premeditation to be
considered, it must affirmatively appear from the overt acts of the accused that they definitely resolved to commit the
offense; that they coolly and dispassionately reflected on the means of carrying their resolution into execution and on
the consequences of their criminal design; and, that an appreciable length of time elapsed as to expect an aroused
conscience to otherwise relent and desist from the accomplishment of the intended crime.
30
These, the prosecution
established.
The fact alone that appellants burned the victims house after inflicting fatal wounds on them already suggests that
they clung to their determination to commit the crime. The circumstance that appellant Cedenio borrowed the bolo of
witness Antifuesto and later placated the latter when his bolo was returned to him already bloodstained strongly
indicates that appellants pondered on the means of executing the crime and on the consequences of their criminal
design. Since appellant Cedenio borrowed the bolo at around seven oclock in the evening and the crime was committed
around ten oclock that same evening, certainly, there was sufficient interval of time within which to reflect upon the
consequences of the crime they planned to commit.
The death certificates of victims Hilario Dorio, Flora Dorio, Maria Dorio and Nicanora Tabanao state as cause of death
"incised wounds" which could definitely be caused by a bolo, while the infants death was due to "burns." Hence,
appellants should be held responsible only for the murder of the four (4) victims who sustained fatal hack and stab
wounds. They cannot be convicted of homicide for the death of the infant who died presumably of suffocation or
incineration but of arson resulting in death, as defined in Sec. 5 of P.D. No. 1613.
Considering that the prosecution was able to show with moral certainty that the killing of the four (4) victims was
attended with evident premeditation and the burning was done to disguise the murder, appellants are guilty of arson
and four (4) counts of murder, each count aggravated by dwelling which, while not alleged in the Information, was
sufficiently proven during the trial.
The penalty prescribed by law for murder if committed with evident premeditation is reclusion temporal in its maximum
period to death,
31
while for arson where death results, it is reclusion perpetua to death.
32
Since the murder was
attended by the aggravating circumstance of dwelling, with no mitigating circumstance, the imposable penalty against
appellants is death for each of the four (4) counts of murder they committed. However, considering that the death
penalty was prescribed at the time appellants committed the crime, their sentence should be reduced to four (4) terms
of reclusion perpetua. For the arson where death resulted, appellants should be sentenced to a separate term of
reclusion perpetua.
Furthermore, it appearing from the records that the heirs of the deceased did not waive nor reserve their right to
institute a civil action, nor did they institute a civil action prior to the criminal action, the civil action prior to the
criminal action, the civil action for recovery of civil liability is impliedly instituted with the instant criminal action.
33

Consistently therefore with prevailing jurisprudence, appellants are jointly and severally liable to the heirs of the victims
in the amount of P50,000.00 for every death even without proof of pecuniary loss.
WHEREFORE, the Decision of the trial court is MODIFIED. Appellants PEDRO CEDENIO, FELIPE ANTIPOLO and JURITO
AMARGA are found guilty beyond reasonable doubt of four (4) counts of murder and another crime of arson.
Consequently, appellants are sentenced each to four (4) terms of reclusion perpetua for the murder of Hilario Dorio,
Flora Dorio, Maria Dorio and Nicanora Tabanao, and another reclusion perpetua for arson for the burning of the house
which resulted in the death of infant Dioscora Dorio, to be served successively in accordance with Art. 70 of The
Revised Penal Code. In addition, appellants are jointly and severally held liable to the heirs in the amount of P50,000.00
for the death of each victim.
--
THE UNITED STATES vs. SIMEON AGRAVANTE, ET AL.
SIMEON AGRAVANTE, appellant.
TORRES, J .:
At about 10 p. m. on the 13th of January, 1906, Marcelino Acupan and Apolinario Camacho,
members of the Constabulary detachment stationed at Bacolod, the capital of Occidental Negros,
tried to enter the Rizal Theater, where an acrobatic performance was going on, without the
necessary admission ticket; as Vicente Ibaez, the doorkeeper of the theater, refused to let them
in, Camacho pulled him by the hand and Acupan struck him a blow and invited him to come out
to the street where he would break his bones.
On account of the scandal created, the chief of the municipal police, Fortunato Vadlit, who was
standing by, approached to inquire what had taken place; at this moment Simeon Agravante,
another member of the Constabulary, carrying a gun, appeared and wanted to take Ibaez to the
cuartel, but he did not succeed in doing so because the doorkeeper stated that the performance
was not yet over; Agravante then went away, but shortly thereafter another Constabulary private,
also carrying a gun, made his appearance and compelled Ibaez to follow him to the cuartel. At
the request of Ibaez, Vadlit, the chief of police accompanied him, and when they reached the
cuartel Agravante asked Ibaez what complaint he had to make, to which the latter replied that
Acupan had struck him with his fist; Agravante then maltreated Ibaez and ordered another
private to take the man away and lock him up; Ibaez and Vadlit objected to the order because
there was no reason therefor, thereupon Corporal Agravante ordered that the chief of police be
locked up also; the order was obeyed by some of the soldiers who pushed Ibaez and Vadlit in to
the jail, where they remained for about an hour until sergeant Leandro Garguena was informed of
the occurrence, whereupon the latter ordered their release. Ibaez and Vadlit were subsequently
taken to the house of Lieutenant Caswell, but the latter, being ill, was unable to investigate the
matter. On that night the chief of police, Vadlit, was not in uniform.
A complaint was filed on the 14th of March 1906, charging Sixto Chaves, Simeon Agravante,
Apolinario Camacho, and Marcelino Acupan with the crimes of illegal detention, lesiones, and
attempt against an agent of the authorities. The corresponding proceedings were instituted, and
the judge rendered judgment on the 3rd of May, 1906, sentencing Simeon Agravante, for the
crime of arbitrary detention, to pay a fine of 500 pesetas and one-fourth of the costs, and to suffer
subsidiary imprisonment in case of insolvency in the payment of the fine; Marcelino Acupan was
sentenced for maltrato de obra to the penalty of five days of arresto menor and one-fourth of the
costs; Sixto Chaves and Apolinario Camacho were acquitted with the remainder of the costs de
oficio. From the above judgment the accused Agravante appealed.
From the evidence adduced at the trial of this case it appears that the crime of arbitrary detention,
included in case No. 1 of article 200 of the Penal Code, was committed, inasmuch as, from the
facts stated, it appears that on the night of January 13, 1906, Vicente Ibaez, doorkeeper at the
Rizal Circus, situated at the capital of Occidental Negros, was maltreated by Marcelino Acupan,
a constabulary soldier, for which reason, when Ibaez was conducted to the cuartel by another,
Fortunato Vadlit, the chief of the municipal police accompanied him to the door of the cuartel
when the latter, together with Ibaez, was locked up in the jail by the accused, Simeon
Agravante, a corporal of Constabulary; the detention lasted for about an hour. They were then
released by sergeant Leandro Garguea, when he became aware that there was no legal reason
for the detention, because the chief of police, Vadlit, had taken no part in the quarrel at the gate
when Ibaez was maltreated by Acupan; he merely approached the place of the incident in order
to find out what had occurred, and, at the request of Ibaez, accompanied him to the cuartel for
the purpose of assisting in the investigation of the matter.
The accused, Agravante, the only one who appealed from the judgment of the court below,
pleaded not guilty, but confessed to having detained both Ibaez and the chief of police,
Fortunato Vadlit, because the latter was drunk and wanted to force an entrance to the cuartel to
make an investigation. However, in view of the preponderance of evidence offered by the
prosecution in favor of the statements made by Vadlit, the allegations of the accused can not be
taken as proven; rather, to the contrary. It has been shown that by reason of the remarks made by
Vadlit to Agravante when Ibaez was detained, Vadlit was arrested; therefore, it is
unquestionable that the conduct of the accused was arbitrary, and illegal in ordering the detention
of the chief of police, because there was no legal reason for it.
In the commission of the crime of arbitrary detention no mitigating or aggravating circumstance
was present, and in view of the fact that the offended parties only remained about an hour in
confinement, the penalty to be imposed is that prescribed in case No. 1 of said article 200, a fine,
in the application of which the provisions of article 83 of the Penal Code should be taken into
account. Therefore, the judgment appealed from should be affirmed as to the appellant, even if
circumstance No. 8 of Article 9, referred to in the decision of the court below, is not considered,
inasmuch as the fact mentioned therein, that Corporal Agravante thought he had authority to
detain the chief of the municipal police for trying to investigate what had taken place, does not
constitute the circumstance No. 8 of article 9 of the Penal Code alluded to.
It is of record that, on the night in question, Fortunato Vadlit was not in uniform of chief of
police; hence he was not qualified to exercise his office and make himself known as such chief
of police, and for this reason the crime of attempt against an agent of authorities could not have
been committed. It should further be considered that without an order from competent authority
he could not have made an investigation in the cuartel of Constabulary; he should have reported
the matter to the municipal president or to the commanding officer, and then what afterwards
took place might have been avoided.
For the reasons above set forth it is our opinion that the judgment appealed from, whereby
Simeon Agravante is sentenced to pay a fine of 500 pesetas, and to suffer subsidiary
imprisonment in case of insolvency, with one-fourth of the costs, should be affirmed, all costs as
to this second instance to be also charged against him. So ordered.
--
THE UNITED STATES vs. HILARIO BRAGANZA AND MARTIN SALIBIO
WILLARD, J .:
We take the same view of this case as to the guilt of the defendants as that taken by the Attorney-
General. He says in his brief:
Article 200 of the Penal Code reads:
"The public official who, unless it be by reason of a crime, should detain a person
without being authorized to do so by a law, or by regulations of a general
character in force in the Philippines, shall incur the penalty of a fine of from 325
to 3,250 pesetas if the detention should not have exceeded three (3) days; . . . ."
At the time when the crime herein was committed the accused were municipal officials,
Hilario Braganza being then a councilor of the municipality of Sagay and Martin Salibio
a lieutenant of the barrio of Vito in said municipality; therefore, they were public officers.
. . .
There is no doubt as to the accused having detained Father Feliciano Gomez, inasmuch
as, according to the evidence, they themselves seized him within the church and took him
out of it, telling him that he was under arrest; they made him pass through the door of the
vestry and afterwards took him to the municipal building and there told him that he was
under arrest ... . The accused detained Father Gomez, not by reason of a crime but
arbitrarily. He had committed no crime, rather on the contrary, he was the victim of
coercion and other outrages. As a priest of the Roman Church, and the question herein
referring also to a Roman church which he is alleged to be in possession of, he went there
to say mass, but a group of Aglipayano women violently prevented him from carrying out
his purpose. No law or regulation of a general character in force authorizes the accused to
commit the act which they committed . . . . .
The judgment of the court below is affirmed, without taking into consideration, however article
11 of the Penal Code as an extenuating circumstance. So ordered.
--
MELENCIO SAYO and JOAQUIN MOSTERO vs. THE CHIEF OF POLICE and THE
OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF MANILA
FERIA, J .:
Upon complaint of Bernardino Malinao, charging the petitioners with having committed the
crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners
on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila. Until
April 7, 1948, when the petition for habeas corpus filed with this Court was heard, the
petitioners were still detained or under arrest, and the city fiscal had not yet released or filed
against them an information with the proper courts justice.
This case has not been decided before this time because there was not a sufficient number of
Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting in
division here in Baguio for deliberation and decision. We have not until now an official
information as to the action taken by the office of the city fiscal on the complaint filed by the
Dumlao against the petitioners. But whatever night have been the action taken by said office, if
there was any, we have to decide this case in order to lay down a ruling on the question involved
herein for the information and guidance in the future of the officers concerned.
The principal question to be determined in the present case in order to decide whether or not the
petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of
manila a judicial authority within the meaning of the provisions of article 125 of the Revised
Penal Code?
Article 125 of the Revised Penal Code provides that "the penalties provided in the next
proceeding article shall be imposed upon the public officer or employee who shall detain any
person for some legal ground and shall fail to deliver such person to the proper judicial
authorities within the period of six hours."
Taking into consideration the history of the provisions of the above quoted article, the precept of
our Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding
arrest and habeas corpus, we are of the opinion that the words "judicial authority", as used in
said article, mean the courts of justices or judges of said courts vested with judicial power to
order the temporary detention or confinement of a person charged with having committed a
public offense, that is, "the Supreme Court and such inferior courts as may be established by
law". (Section 1, Article VIII of the Constitution.)
Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal
Code formerly in force of these Islands, which penalized a public officer other than a judicial
officer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to
deliver such person to the judicial authority within twenty four hours after his arrest." There was
no doubt that a judicial authority therein referred to was the judge of a court of justice
empowered by law, after a proper investigation, to order the temporary commitment or detention
of the person arrested; and not the city fiscals or any other officers, who are not authorized by
law to do so. Because article 204, which complements said section 202, of the same Code
provided that "the penalty of suspension in its minimum and medium degrees shall be imposed
upon the following persons: 1. Any judicial officer who, within the period prescribed by the
provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest
or to commit such prisoner formally by written order containing a statement of the grounds upon
which the same is based."
Although the above quoted provision of article 204 of the old Penal Code has not been
incorporated in the Revised Penal Code the import of said words judicial authority or officer can
not be construed as having been modified by the mere omission of said provision in the Revised
Penal Code.
Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be
secure in their persons...against unreasonable seizure shall not be violated, and no warrant [of
arrest, detention or confinement] shall issue but upon probable cause, to be determined by the
judge after the examination under oath or affirmation of the complaint and the witness he may
produce." Under this constitutional precept no person may be deprived of his liberty, except by
warrant of arrest or commitment issued upon probable cause by a judge after examination of the
complainant and his witness. And the judicial authority to whom the person arrested by a public
officers must be surrendered can not be any other but court or judge who alone is authorized to
issue a warrant of commitment or provisional detention of the person arrested pending the trial of
the case against the latter. Without such warrant of commitment, the detention of the person
arrested for than six hours would be illegal and in violation of our Constitution.
Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to
the duty of an officer after arrest without warrant, provides that "a person making arrest for legal
ground shall, without unnecessary delay, and within the time prescribed in the Revised Penal
Code, take the person arrested to the proper court or judge for such action for they may deem
proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the defendant
and his delivery to the Court, he shall be informed of the complaint or information filed against
him. He shall also informed of the substance of the testimony and evidence presented against
him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be
allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the
defendant shall be taken in writing and subscribed by him.
And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of
Court. According to the provision of said section, "a writ of habeas corpus shall extend any
person to all cases of illegal confinement or detention by which any person is illegally deprived
of his liberty"; and "if it appears that the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge, or by virtue of a judgement or
order of a court of record, and that the court or judge had jurisdiction to issue the process, render
judgment, or make the order, the writ shall not be allowed. "Which a contrario sensu means that,
otherwise, the writ shall be allowed and the person detained shall be released.
The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed
to include the fiscal of the City of Manila or any other city, because they cannot issue a warrant
of arrest or of commitment or temporary confinement of a person surrendered to legalize the
detention of a person arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off.
Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz.,
1214). The investigation which the city of fiscal of Manila makes is not the preliminary
investigation proper provided for in section 11, Rule 108, above quoted, to which all person
charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it is
a mere investigation made by the city fiscal for the purpose of filing the corresponding
information against the defendant with the proper municipal court or Court of First Instance of
Manila if the result of the investigation so warrants, in order to obtain or secure from the court a
warrant of arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of the
preliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since
defendant charged with offenses triable by the courts in the City of Manila are not entitled to a
proper preliminary investigation.
The only executive officers authorized by law to make a proper preliminary investigation in case
of temporary absence of both the justice of the peace and the auxiliary justice of the peace from
the municipality, town or place, are the municipal mayors who are empowered in such case to
issue a warrant of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule
108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may conduct
under section 2, Rule 108, is the investigation referred to in the proceeding paragraph.
Under the law, a complaint charging a person with the commission of an offense cognizable by
the courts of Manila is not filed with municipal court or the Court of First Instance of Manila,
because as above stated, the latter do not make or conduct a preliminary investigation proper.
The complaint must be made or filed with the city fiscal of Manila who, personally or through
one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the
accused, but of filing with the proper court the necessary information against the accused if the
result of the investigation so warrants, and obtaining from the court a warrant of arrest or
commitment of the accused.
When a person is arrested without warrant in cases permitted bylaw, the officer or person making
the arrest should, as abovestated, without unnecessary delay take or surrender the person
arrested, within the period of time prescribed in the Revised Penal Code, to the court or judge
having jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule
109); and the court or judge shall try and decide the case if the court has original jurisdiction
over the offense charged, or make the preliminary investigation if it is a justice of the peace court
having no original jurisdiction, and then transfer the case to the proper Court of First Instance in
accordance with the provisions of section 13, Rule 108.
In the City of Manila, where complaints are not filed directly with the municipal court or the
Court of First Instance, the officer or person making the arrest without warrant shall surrender or
take the person arrested to the city fiscal, and the latter shall make the investigation above
mentioned and file, if proper, the corresponding information within the time prescribed by
section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment for
the temporary detention of the accused. And the city fiscal or his assistants shall make the
investigation forthwith, unless it is materially impossible for them to do so, because the
testimony of the person or officer making the arrest without warrant is in such cases ready and
available, and shall, immediately after the investigation, either release the person arrested or file
the corresponding information. If the city fiscal has any doubt as to the probability of the
defendant having committed the offense charged, or is not ready to file the information on the
strength of the testimony or evidence presented, he should release and not detain the person
arrested for a longer period than that prescribed in the Penal Code, without prejudice to making
or continuing the investigation and filing afterwards the proper information against him with the
court, in order to obtain or secure a warrant of his arrest. Of course, for the purpose of
determining the criminal liability of an officer detaining a person for more than six hours
prescribed by the Revised Penal Code, the means of communication as well as the hour of
arrested and other circumstances, such as the time of surrender and the material possibility for
the fiscal to make the investigation and file in time the necessary information, must be taken into
consideration.
To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal
Code, would be to authorize the detention of a person arrested without warrant for a period
longer than that permitted by law without any process issued by a court of competent
jurisdiction. The city fiscal, may not, after due investigation, find sufficient ground for filing an
information or prosecuting the person arrested and release him, after the latter had been illegally
detained for days or weeks without any process issued by a court or judge.
A peace officer has no power or authority to arrest a person without a warrant upon complaint of
the offended party or any other person, except in those cases expressly authorized by law. What
he or the complainant may do in such case is to file a complaint with the city fiscal of Manila, or
directly with the justice of the peace courts in municipalities and other political subdivisions. If
the City Fiscal has no authority, and he has not, to order the arrest even if he finds, after due
investigation, that there is a probability that a crime has been committed and the accused is guilty
thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an
offense upon complaint of the offended party or other persons even though, after investigation,
he becomes convinced that the accused is guilty of the offense charged.
In view of all the foregoing, without making any pronouncement as to the responsibility of the
officers who intervened in the detention of the petitioners, for the policeman Dumlao may have
acted in good faith, in the absence of a clear cut ruling on the matter in believing that he had
complied with the mandate of article 125 by delivering the petitioners within six hours to the
office of the city fiscal, and the latter might have ignored the fact that the petitioners were being
actually detained when the said policeman filed a complaint against them with the city fiscal, we
hold that the petitioners are being illegally restrained of their liberty, and their release is hereby
ordered unless they are now detained by virtue of a process issued by a competent court of
justice. So ordered.
--
LEVISTE vs. ALAMEDA
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 of
P300,000 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 of March 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 he voluntarily enters his plea and participates during trial, without
previously invoking his objections thereto.[19] There must be clear and convincing proof that petitioner had an actual
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 investigation with 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 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.

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 foremost to
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.
--
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FEDERICO GERONIMO
alias Cmdr. OSCAR, ET AL., Defendants, FEDERICO GERONIMO alias Cmdr. OSCAR,
Defendant-Appellant.

D E C I S I O N
REYES, J. B. L., J .:
In an information filed on June 24, 1954 by the provincial Fiscal in the Court of First Instance of
Camarines Sur, Appellant Federico Geronimo, together with Mariano P. Balgos alias Bakal alias
Tony, alias Tony Collante alias Taoic, alias Mang Pacio, alias Bonny Abundio Romagosa alias
David, Jesus Polita alias Rex, Jesus Lava alias Jessie alias NMT, alias Balbas, alias Noli, alias
Noli Metangere, alias NKVD, Juan Ocompo alias Cmdr. Bundalian, alias Tagle, Rosendo
Manuel alias Cmdr. Sendong, alias Ruiz, Ernesto Herrero alias Cmdr. Ed, alias Rene, alias Eddy,
Santiago Rotas alias Cmdr. Jessie, Fernando Principe alias Cmdr. Manding, Alfredo Saguni alias
Godo, alias Terry, alias Terpy, Andres Diapera alias Maclang, alias Berto, alias Teny, Lorenzo
Saniel alias Wenny, Silvestre Sisno alias Tomo, alias Albert, Teodoro Primavera alias Nestor,
Lorenzo Roxas alias Argos, Vivencio Pineda alias Marquez, Pedro Anino alias Fernandez,
Mauro Llorera alias Justo, Richard Doe alias Cmdr. Danny and John Doe alias Cmdr. Berion,
alias Mayo, alias Cmdr. Paulito and many others, were charged with the complex crime of
rebellion with murders, robberies, and kidnapping committed as follows:chanroblesvirtuallawli brary
x x x x x x x x x
That on or about May 28, 1946 and for sometime prior and subsequent thereto continuously up
to the present time in the province of Camarines Sur, Philippines and within the jurisdiction of
this Honorable Court and in other municipalities, cities and provinces and other parts of the
country where they have chosen to carry out their rebellious activities, the above-named accused
being then ranking officers and/or members of, or otherwise affiliated with the Communist Party
of the Philippines (CPP) and the Hukbong Mapagpalaya Ng Bayan (HMB) or otherwise known
as the Hukbalahaps (HUKS) the latter being the armed force of said Communist Party of the
Philippines (CCP) having come to an agreement and decide to commit the crime of Rebellion,
and therefore, conspiring together and confederating among themselves with all of the thirty-one
accused in criminal case Nos. 14071, 14282, 14315, 14270, 15344 and with all the accused in
criminal case No. 19166 of the Court of First Instance of Manila with the other members,
officers and/or affiliates of the Communist Party of the Philippines and the Hukbong
Mapagpalaya Ng Bayan and with many others whose identities and whereabouts are still
unknown, acting in accordance with their conspiracy and in furtherance thereof, and mutually
helping one another, did, then and there, wilfully, unlawfully and feloniously, help, support,
promote, maintain, direct and/or command the Hukbalahaps (HUKS) or the Hukbong
Mapagpalaya Ng Bayan (HMB), to rise publicly and take arms against the government of the
Republic of the Philippines, or otherwise participate in such public armed uprisings for the
purpose of removing the territory of the Philippines from the allegiance to the government and
laws thereof as in fact the said Hukbong Mapagpalaya Ng Bayan (HMB) or the Hukbalahaps
(HUKS) pursuant to such conspiracy, have risen publicly and taken arms against the Government
of the Republic of the Philippines to attain said purpose, by then and there making armed raids,
sorties, and ambuscades, attacks against the Philippine Constabulary, the civilian guards, the
Police and the Army Patrols and other detachments as well as upon innocent civilians, and as a
necessary means to commit the crime of Rebellion, in connection therewith and in furtherance
thereof, have then and there committed wanton acts of murder, pillage, looting, plunder,
kidnapping and planned destructions of private and public property and plotted the liquidation of
government officials, to create and spread disorder, terror, confusion, chaos and fear so as to
facilitate the accomplishment of the aforesaid purpose, among which are as follows, to wit:chanroblesvirtuallawlibrary
1. That on or about April 28, 1949 at Kilometer 62 at Barrio Salubsob, municipality of Nueva
Ecija, an undetermined number of HUKS led by Commanders Viernes, Marzan, Lupon and
Mulong did, then and there, willfully, unlawfully and feloniously ambush, assault, attack and
fired upon the party of Mrs. Aurora A. Quezon and her PC escort whom they considered as their
enemies resulting in the killing of Mrs. Aurora A. Quezon, Baby Quezon, Mayor Bernardo of
Quezon City, Major P. San Agustin, Lieutenant Lasam, Philip Buencamino III, and several
soldiers and the wounding of General Jalandoni and Captain Manalang.
2. That on or about August 26, 1950 in Santa Cruz, Laguna, about one hundred armed HUKS
with intent to gain and for the purpose of securing supplies and other materials for the support
and meintenance of the Hukbong Mapagpalaya Ng Bayan (HMBS) did, then and there, willfully,
unlawfully and feloniously and forcibly bringing the Cashier of the Provincial Treasury, Mr.
Vicente Reventar from his house to the Provincial Capitol and at the point of guns forced him to
open the Treasury Vault and took therefrom Eighty Thousand Pesos (P80,000) consisting of
various denominations and including Fifty, One hundred and Five-Hundred Peso Bills and also
took away with them type- writers and other Office supplies which they found in the Provincial
Capitol Building, burning and looting private buildings in towns.
3. That on or about the years 1951 to 1952 in the municipality of Pasacao, Camarines Sur,
Philippines, a group of Armed Huks under Commander Rustum raided the house of one Nemesio
Palo, a police sergeant of Libmanan, Camarines Sur and as a result, said HUKS were able to
capture said Nemesio Palo and once captured, with evident premeditation, treachery and intent to
kill, stab, shot and cut the neck of said Nemesio Palo thereby causing the instantaneous death of
Nemesio Palo.
4. That on or about January 31, 1953, at barrio of Santa Rita, Del Gallego, Camarines Sur a
group of HMBS with Federico Geronimo alias Commander Oscar ambushed and fired upon an
Army Patrol headed by Cpl. Bayrante, resulting in seriously wounding of Pfc. Paneracio Torrado
and Eusebio Gruta a civilian.
5. That on or about February 1954 at barrio Cotmo, San Fernando, Camarines Sur, a group of
four HMBS led by accused Commander Oscar with evident premeditation, willfully, unlawfully
and feloniously killed one Policarpio Tipay a barrio lieutenant. (Appellees brief, pp. 1-8)
Accused Federico Geronimo first entered a plea of not guilty to the information. When the case
was called for trial on October 12, 1954, however, he asked the permission of the court to
substitute his original plea with one of guilty, and was allowed to change his plea. On the basis
of the plea of guilty, the fiscal recommended that the penalty of life imprisonment be imposed
upon the accused, his voluntary plea of guilty being considered as a mitigating circumstance.
Geronimos counsel, on the other hand, argued that the penalty imposable upon the accused was
only prision mayor, for the reason that in his opinion, there is no such complex crime as rebellion
with murders, robberies, and kidnapping, because the crimes of murders robberies, and
kidnapping being the natural consequences of the crime of rebellion, the crime charged against
the accused should be considered only as simple rebellion. On October 18, 1954, the trial court
rendered judgment finding the accused guilty of the complex crime of rebellion with murders,
robberies, and kidnappings; chan roblesvirtualawlibraryand giving him the benefit of the mitigating circumstance of
voluntary plea of guilty, sentenced him to suffer the penalty of reclusion perpetua, to pay a fine
of P10,000, to indemnify the heirs of the various persons killed, as listed in the information, in
the sum of P6,000 each, and to pay the proportionate costs of the proceedings. From this
judgment, accused Federico Geronimo appealed, raising the sole question of whether the crime
committed by him is the complex crime of rebellion with murders, robberies, and kidnappings,
or simple rebellion.
After mature consideration, a majority of seven justices 1 of this Court are of the opinion that the
issue posed by Appellant has been already decided in the recent resolution of this Court in the
case of People vs. Hernandez et al., (99 Phil., 529; chan roblesvirtualawlibrary 21 Lawyers Journal, No. 7 [July 31, 1956],
p. 316). As in treason, where both intent and overt act are necessary, the crime of rebellion is
integrated by the coexistence of both the armed uprising for the purposes expressed in article 134
of the Revised Penal Code, and the overt acts of violence described in the first paragraph of
article 135. That both purpose and overt acts are essential components of one crime, and that
without either of them the crime of rebellion legally does not exist, is shown by the absence of
any penalty attached to article 134. 2 It follows, therefore that any or all of the acts described in
article 135, when committed as a means to or in furtherance of the subversive ends described in
article 134, become absorbed in the crime of rebellion, and cannot be regarded or penalized as
distinct crimes in themselves. In law they are part and parcel of the rebellion itself, and cannot be
considered as giving rise to a separate crime that, under article 48 of the Code, would constitute a
complex one with that of rebellion.
The terms employed in the first paragraph of article 135 of the Revised Penal Code to describe
the component of violence in the crime of rebellion are broad and general. The Spanish text
(which is the one controlling, People vs. Manaba, 58 Phil. 665) states that the acts of the rebels
may consists of
Sosteniendo combate 3 con la fuerza leal, causando estragos en las propiedades, ejerciendo
violencia grave, exigiendo contribuciones, o distroyendo caudales publicos de su inversion
legitima.
If all the overt acts charged in the information against herein Appellant were committed for
political ends or in furtherance of the rebellion, they come within the preceding description.
Thus, count 4 (ambushing and firing upon army patrol) constitutes engaging in combat with the
loyal troops; chan roblesvirtualawlibrarycount 2 (taking funds and equipment from the Provincial Treasury of Laguna) is
diverting public funds from their ligitimate purpose; chan roblesvirtualawlibrarywhile the killings outlined in the other
counts (1, 3 and 5) are instances of committing serious violence.
The majority of the Court found no cogent reason for limiting commission of serious violence
in article 135 to hostilities against the Governments armed forces exclusively; chan roblesvirtualawlibraryfor in that case,
the former expression would be redundant and mere duplication of engaging in combat with
loyal troops, also described in the same article. If the infliction of serious violence was
separately expressed in the law, it is because the violence referred to is that inflicted upon
civilians. Again, to restrict serious violence to acts short of homicide, is to unwarrantedly
assume that the broad term violencia grave is used in the limited sense of lesiones graves,
which in our Penal Code has a specialized signification. In truth, if physical injuries constitute
grave violence, so would killing necessarily be, if not more. Additionally, it may be observed
that rebellion is by nature a crime of masses or multitudes, involving crowd action, that cannot
be confined a priori within predetermined bounds. (People vs. Hernandez, supra; chan roblesvirtualawli braryPeople vs.
Almazan, C. A., 31 Off. Gaz. 1932). Hence the broad terms employed by the statute.
The prosecution insists that the more serious crime of murder cannot be justifiably regarded as
absorbed by the lesser crime of rebellion. In the first place, it is not demonstrated that the killing
of an individual is intrinsically less serious or less dangerous to society than the violent
subversion of established government, which emperils the lives of many citizens, at least during
the period of the struggle for superiority between rebels and loyalists. If, on the other hand,
murder is punished by reclusion perpetua to death, and rebellion only by prision mayor, this
leniency is due to the political purpose that impels every rebellious act. As noted by Groizard
(Codigo Penal de 1870, Vol. 3, p. 239)
El analisis de toda clase de delitos politicos ofrece para el jurisconsulto un resultado precioso,
pues pone de relieve las diferencias cardinales que existen entre esta clase de hechos y los delitos
comunes; chan roblesvirtualawlibraryentre los reos de aquellos crimenes y los reos de estos otros. Para los delitos
comunes, la sociedad tiene una constante y energica reprobacion que no atenua ni el trascurso de
tiempo ni el cambio de las ideas. Para los delitos politicos, no. Quien se atrevera si de honrado se
precia, a hacer alarde de la amistad de un hombre condenado por robo o por asesinato? Y quien
no ha tendido la mano cariosa sin perder nada de respetabilidad, a algun reo de un delito
politico en la serie continuada de revoluciones y contrarevoluciones que constituyen
desgraciadamente los ultimos periodos de nuestra historia? La consumacion del delito y el exito
de la rebelion, ya lo hemos dicho, para el reo politico, es mas que la impunidad, es el triunfo, es
el poder, es el Gobierno, es casi la gloria. Pero no sucede lo mismo tratandose de delitos
comunes:chanroblesvirtuallawl ibrary la consumacion del delito ni apaga el remordimiento, ni aleja del criminal el peligro
de la pena, ni mejora en nada su condicion respecto de la justicia. Hay, pues, entre el delito
comun y el delito politico, entre las personas responsables de unos y otros diferencias
sustanciales, y el mayor error que en el estado actual de los estudios juridicos puede cometer el
legislador es no apreciar eses diferencias, sobre todo en la aplicacion de las penas.
And our history of three centuries of uninterrupted rebellions against sovereign Spain, until she
was finally driven from our shores, suffices to explain why the penalty against rebellion, which
stood at reclusion temporal maximum to death in the Spanish Penal Code of 1870, was reduced
only prision mayor in our revised Penal Code of 1932.
In addition, the government counsels theory that an act punished by more serious penalty cannot
be absorbed by an act for which a lesser penalty is provided, is not correct. The theory is
emphatically refuted by the treatment accorded by the Penal Code to the crime of forcible
abduction, for which the law imposes only reclusion temporal (article 342), notwithstanding that
such crime necessarily involves illegal detention of the abducted woman for which article 267 of
the same Penal Code fixes the penalty of reclusion temporal, in its maximum period, to death.
The same situation obtains in the crime of slavery defined in article 272, whereby the kidnapping
of a human being for the purpose of enslaving him is punished with prision mayor and a fine of
not more than P10,000.00, when kidnapping itself is penalized by article 267 with a much higher
penalty.
And we have already pointed out in the Hernandez resolution that to admit the complexing of the
crime of rebellion with the felonies committed in furtherance thereof, would lead to these
undesirable results:chanroblesvirtuallawl ibrary (1) to make the punishment for rebellion heavier than that of treason, since
it has been repeatedly held that the latter admits no complexing with the overt acts committed in
furtherance of the treasonous intent, and, in addition, requires two witnesses to every overt act
which is not true in the case of rebellion; chan roblesvirtualawlibrary(2) to nullify the policy expressed in article 135
(R.P.C.) of imposing lesser penalty upon the rebel followers as compared to their leaders,
because under the complexing theory every rebel, leader or follower, must suffer the heavier
penalty in its maximum degree; chan roblesvirtualawl ibraryand (3) to violate the fundamental rule of criminal law that all
doubts should be resolved in favor of the accused:chanroblesvirtuallawl ibrary in dubiis reus est absolvendus; chan roblesvirtualawl ibrarynullum
crimen, nulla poena, sine lege.
Of course, not every act of violence is to be deemed absorbed in the crime of rebellion solely
because it happens to be committed simultaneously with or in the course of the rebellion. If the
killing, robbing, etc. were done for private purposes or profit, without any political motivation,
the crime would be separately punishable and would not be absorbed by the rebellion. But ever
then, the individual misdeed could not be taken with the rebellion to constitute a complex crime,
for the constitutive acts and intent would be unrelated to each other; chan roblesvirtualawlibraryand the individual crime
would not be a means necessary for committing the rebellion as it would not be done in
preparation or in furtherance of the latter. This appears with utmost clarity in the case where an
individual rebel should commit rape; chan roblesvirtualawlibrarycertainly the latter felony could not be said to have been
done in furtherance of the rebellion or facilitated its commission in any way. The ravisher would
then be liable for two separate crimes, rebellion and rape, and the two could not be merged into a
juridical whole.
It is argued that the suppression in the present Penal Code of article 244 of the old one (article
259 of the Spanish Penal Code of 1870) indicates the intention of the Legislature to revive the
possibility of the crime of rebellion being complexed with the individual felonies committed in
the course thereof, because the suppressed article prohibited such complexing. The text of the
suppressed provision is as follows:chanroblesvirtuallawlibrary
ART. 244. Los delitos particulares cometidos en una rebelion o sedicion, o con motivo de ellas,
seran castigados respectivamente segun las disposiciones de este codigo.
Cuando no puedan descubrirse sus autores, seran penados como tales los jefes principales de la
rebelion o sedicion.
The first paragraph is to the effect that the delitos particulares (meaning felonies committed for
private non-political ends, as held by the commentators Cuello Calon and Viada, since the Penal
Code does not classify crimes into general and particular) are to be dealt with separately
from the rebellion, punishment for each felony to be visited upon the perpetrators thereof. This
paragraph has no bearing on the question of complex crimes, but is a mere consequence of the
fact that the delicts committed for private ends bear no relation to the political crime of rebellion
(other than a coincidence of time) and therefore must be separately dealt with. This is so obvious
that, as Groizard pointed out (Vol. 3, p. 650), such action (their punishment as a private misdeed)
would be taken by the courts even if this first paragraph of article 244 had not been written.
Far more significant, in the opinion of the majority, is that our Revised Penal Code of 1932 did
not revive the rule contained in the second paragraph of article 244 of the old Penal Code
(Article 259 of the Spanish), whereby the rebel leaders were made criminally responsible for the
individual felonies committed during the rebellion or on occasion thereof, in case the real
perpetrators could not be found. In effect that paragraph established a command responsibility; chan
roblesvirtualawli braryand in suppressing it, the Legislature plainly revealed a policy of rejecting any such command
responsibility. It was the legislative intent, therefore, that the rebel leaders (and with greater
reason, the mere followers) should be held accountable solely for the rebellion, and not for the
individual crimes (delitos particulares) committed during the same for private ends, unless their
actual participation therein was duly established. In other words, the suppression of article 244 of
the old Penal Code virtually negates the contention that the rebellion and the individual misdeeds
committed during the same should legally constitute one complex whole. Whether or not such
policy should be maintained is not for the courts, but for the Legislature, to say.
But while a majority of seven justices 4 are agreed that if the overt acts detailed in the
information against the Appellant had been duly proved to have been committed as a necessary
means to commit the crime of rebellion, in connection therewith and in furtherance thereof, then
the accused could only be convicted of simple rebellion, the opinions differ as to whether his
plea of guilty renders the accused amenable to punishment not only for rebellion but also for
murder or other crimes.
Six justices 5 believe that conceding the absence of a complex crime, still, by his plea of guilty
the accused-Appellant has admitted all the acts described in the five separate counts of the
information; chan roblesvirtualawlibraryand that if any of such counts constituted an independent crime committed within
the jurisdiction of the lower court as seems to be the case under the facts alleged in Count No. 5
(the killing of Policarpio Tibay), then the avertment in the information that it was perpetrated in
furtherance of the rebellion, being a mere conclusion, cannot be a bar to Appellants conviction
and punishment for said offense, he having failed, at the arraignment, to object to the information
on the ground of multiplicity of crimes charged. Hence, the acts charged in Counts 1 to 4 cannot
be taken into consideration in this case, either because they were committed outside the
territorial jurisdiction of the court below (Count 1), or because the allegations do not charge the
Appellants participation (Count 3), or else the acts charged are essentially acts of rebellion, with
out private motives (Counts 2 and 4).
Five justices, 6 on the other hand, hold that by his plea of guilty, the accused avowed having
committed the overt acts charged in all five counts; chan roblesvirtualawlibrarybut that he only admitted committing them
in fact as a necessary means, in connection and in furtherance of the rebellion, as expressly
alleged by the prosecution. This is not only because the information expressly alleged the
necessary connection between the overt acts and the political ends pursued by the accused, but in
addition, it failed to charge that the Appellant was impelled by private motives. Wherefore, such
overt acts must be taken as essential ingredients of the single crime of rebellion, and the accused
pleaded guilty to this crime alone. Hence, there being no complex crime, the Appellant can only
be sentenced for the lone crime of rebellion. Even more, the minority contends that under the
very theory of the majority, the circumstances surrounding the plea are such as to at least cast
doubt on whether the accused clearly understood that he was pleading guilty to two different
crimes or to only one; chan roblesvirtualawlibrary so that in fairness and justice, the case should be sent back for a
rehearing by the Court of origin, to ascertain whether or not the accused fully realized the import
of his plea (U.S. vs. Patala, 2 Phil., 752; chan roblesvirtualawlibraryU.S. vs. Agcaoili, 31 Phil., 91; chan roblesvirtualawlibraryU.S. vs. Jamad, 37
Phil., 305).
In view of the foregoing, the decision appealed from is modified and the accused convicted for
the simple (non-complex) crime of rebellion under article 135 of the Revised Penal Code, and
also for the crime of murder; chan roblesvirtualawlibraryand considering the mitigating effect of his plea of guilty, the
accused-Appellant Federico Geronimo is hereby sentenced to suffer 8 years of prision mayor
and to pay a fine of P10,000, (without subsidiary imprisonment pursuant to article 38 of the
Penal Code) for the rebellion; chan roblesvirtualawlibraryand, as above explained, for the murder, applying the
Indeterminate Sentence Law, to not less than 10 years and 1 day of prision mayor and not more
than 18 years of reclusion temporal; chan roblesvirtualawl ibraryto indemnify the heirs of Policarpio Tibay in the sum of
P6,000; chan roblesvirtualawlibraryand to pay the costs. SO ORDERED.
--
ENRILE vs. SALAZAR
NARVASA, J .:
Thirty-four years after it wrote history into our criminal jurisprudence, People vs.
Hernandez
1
once more takes center stage as the focus of a confrontation at law that
would re-examine, if not the validity of its doctrine, the limits of its applicability. To be
sure, the intervening period saw a number of similar cases
2
that took issue with the
ruling-all with a marked lack of success-but none, it would Beem, where season and
circumstance had more effectively conspired to attract wide public attention and excite
impassioned debate, even among laymen; none, certainly, which has seen quite the
kind and range of arguments that are now brought to bear on the same question.
The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority
Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by
Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant
issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in
Criminal Case No. 9010941. The warrant had issued on an information signed and
earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor
Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City
Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and
Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and
multiple frustrated murder allegedly committed during the period of the failed coup
attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held
overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having
been recommended in the information and none fixed in the arrest warrant. The
following morning, February 28, 1990, he was brought to Camp Tomas Karingal in
Quezon City where he was given over to the custody of the Superintendent of the
Northern Police District, Brig. Gen. Edgardo Dula Torres.
3

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the
petition for habeas corpus herein (which was followed by a supplemental petition filed
on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or
having been:
(a) held to answer for criminal offense which does not exist in the statute books;
(b) charged with a criminal offense in an information for which no complaint was initially
filed or preliminary investigation was conducted, hence was denied due process;
(c) denied his right to bail; and
(d) arrested and detained on the strength of a warrant issued without the judge who
issued it first having personally determined the existence of probable cause.
4

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for
hearing on March 6, 1990.
5
On March 5, 1990, the Solicitor General filed a consolidated
return
6
for the respondents in this case and in G.R. No. 92164
7
Which had been
contemporaneously but separately filed by two of Senator Enrile's co-accused, the
spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged
that the petitioners' case does not fall within the Hernandez ruling because-and this is
putting it very simply-the information in Hernandez charged murders and other common
crimes committed as a necessary means for the commission of rebellion, whereas the
information against Sen. Enrile et al. charged murder and frustrated murder committed
on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor
General would distinguish between the complex crime ("delito complejo") arising from
an offense being a necessary means for committing another, which is referred to in the
second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez
ruling, and the compound crime ("delito compuesto") arising from a single act
constituting two or more grave or less grave offenses referred to in the first clause of the
same paragraph, with which Hernandez was not concerned and to which, therefore, it
should not apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990, after which
the Court issued its Resolution of the same date
8
granting Senator Enrile and the
Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from
notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for
the Panlilios), respectively. The Resolution stated that it was issued without prejudice to
a more extended resolution on the matter of the provisional liberty of the petitioners and
stressed that it was not passing upon the legal issues raised in both cases. Four
Members of the Court
9
voted against granting bail to Senator Enrile, and two
10
against
granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated in
Senator Enrile's petition, G.R. No. 92163.
The parties' oral and written pleas presented the Court with the following options:
(a) abandon Hernandez and adopt the minority view expressed in the main dissent of
Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and
that under Article 48 of the Revised Penal Code rebellion may properly be complexed
with common offenses, so-called; this option was suggested by the Solicitor General in
oral argument although it is not offered in his written pleadings;
(b) hold Hernandez applicable only to offenses committed in furtherance, or as a
necessary means for the commission, of rebellion, but not to acts committed in the
course of a rebellion which also constitute "common" crimes of grave or less grave
character;
(c) maintain Hernandez as applying to make rebellion absorb all other offenses
committed in its course, whether or not necessary to its commission or in furtherance
thereof.
On the first option, eleven (11) Members of the Court voted against abandoning
Hernandez. Two (2) Members felt that the doctrine should be re-examined.
10
-A In the
view of the majority, the ruling remains good law, its substantive and logical bases have
withstood all subsequent challenges and no new ones are presented here persuasive
enough to warrant a complete reversal. This view is reinforced by the fact that not too
long ago, the incumbent President, exercising her powers under the 1986 Freedom
Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former
regime which precisely sought to nullify or neutralize Hernandez by enacting a new
provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by reason,
or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3,
which includes rebellion), acts which constitute offenses upon which graver penalties
are imposed by law are committed, the penalty for the most serious offense in its
maximum period shall be imposed upon the offender."'
11
In thus acting, the President in
effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law.
The Court can do no less than accord it the same recognition, absent any sufficiently
powerful reason against so doing.
On the second option, the Court unanimously voted to reject the theory that Hernandez
is, or should be, limited in its application to offenses committed as a necessary means
for the commission of rebellion and that the ruling should not be interpreted as
prohibiting the complexing of rebellion with other common crimes committed on the
occasion, but not in furtherance, thereof. While four Members of the Court felt that the
proponents' arguments were not entirely devoid of merit, the consensus was that they
were not sufficient to overcome what appears to be the real thrust of Hernandez to rule
out the complexing of rebellion with any other offense committed in its course under
either of the aforecited clauses of Article 48, as is made clear by the following excerpt
from the majority opinion in that case:
There is one other reason-and a fundamental one at that-why Article 48 of our Penal
Code cannot be applied in the case at bar. If murder were not complexed with rebellion,
and the two crimes were punished separately (assuming that this could be done), the
following penalties would be imposable upon the movant, namely: (1) for the crime of
rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period,
depending upon the modifying circumstances present, but never exceeding 12 years of
prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period
to death, depending upon the modifying circumstances present. in other words, in the
absence of aggravating circumstances, the extreme penalty could not be imposed upon
him. However, under Article 48 said penalty would have to be meted out to him, even in
the absence of a single aggravating circumstance. Thus, said provision, if construed in
conformity with the theory of the prosecution, would be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit,
not of sentencing him to a penalty more severe than that which would be proper if the
several acts performed by him were punished separately. In the words of Rodriguez
Navarro:
La unificacion de penas en los casos de concurso de delitos a que hace
referencia este articulo (75 del Codigo de 1932), esta basado
francamente en el principio pro reo.' (II Doctrina Penal del Tribunal
Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish
Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932,
reading:
Las disposiciones del articulo anterior no son aplicables en el caso de
que un solo hecho constituya dos o mas delitos, o cuando el uno de
ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas
grave en su grado maximo, hasta el limite que represents la suma de las
que pudieran imponerse, penando separadamente los delitos.
Cuando la pena asi computada exceda de este limite, se sancionaran
los delitos por separado. (Rodriguez Navarro, Doctrina Penal del
Tribunal Supremo, Vol. II, p. 2163)
and that our Article 48 does not contain the qualification inserted in said amendment,
restricting the imposition of the penalty for the graver offense in its maximum period to
the case when it does not exceed the sum total of the penalties imposable if the acts
charged were dealt with separately. The absence of said limitation in our Penal Code
does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act
constitutes two or more offenses, there can be no reason to inflict a punishment graver
than that prescribed for each one of said offenses put together. In directing that the
penalty for the graver offense be, in such case, imposed in its maximum period, Article 48
could have had no other purpose than to prescribe a penalty lower than the aggregate of
the penalties for each offense, if imposed separately. The reason for this benevolent spirit
of article 48 is readily discernible. When two or more crimes are the result of a single act,
the offender is deemed less perverse than when he commits said crimes thru separate
and distinct acts. Instead of sentencing him for each crime independently from the other,
he must suffer the maximum of the penalty for the more serious one, on the assumption
that it is less grave than the sum total of the separate penalties for each offense.
12

The rejection of both options shapes and determines the primary ruling of the Court,
which is that Hernandez remains binding doctrine operating to prohibit the complexing
of rebellion with any other offense committed on the occasion thereof, either as a
means necessary to its commission or as an unintended effect of an activity that
constitutes rebellion.
This, however, does not write finis to the case. Petitioner's guilt or innocence is not here
inquired into, much less adjudged. That is for the trial court to do at the proper time. The
Court's ruling merely provides a take-off point for the disposition of other questions
relevant to the petitioner's complaints about the denial of his rights and to the propriety
of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed against the
petitioner does in fact charge an offense. Disregarding the objectionable phrasing that
would complex rebellion with murder and multiple frustrated murder, that indictment is to
be read as charging simple rebellion. Thus, in Hernandez, the Court said:
In conclusion, we hold that, under the allegations of the amended information against
defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described
therein are mere ingredients of the crime of rebellion allegedly committed by said
defendants, as means "necessary" (4) for the perpetration of said offense of rebellion;
that the crime charged in the aforementioned amended information is, therefore, simple
rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies;
that the maximum penalty imposable under such charge cannot exceed twelve (12) years
of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this
court in dealing with accused persons amenable to a similar punishment, said defendant
may be allowed bail.
13

The plaint of petitioner's counsel that he is charged with a crime that does not exist in
the statute books, while technically correct so far as the Court has ruled that rebellion
may not be complexed with other offenses committed on the occasion thereof, must
therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez,
the information does indeed charge the petitioner with a crime defined and punished by
the Revised Penal Code: simple rebellion.
Was the petitioner charged without a complaint having been initially filed and/or
preliminary investigation conducted? The record shows otherwise, that a complaint
against petitioner for simple rebellion was filed by the Director of the National Bureau of
Investigation, and that on the strength of said complaint a preliminary investigation was
conducted by the respondent prosecutors, culminating in the filing of the questioned
information.
14
There is nothing inherently irregular or contrary to law in filing against a
respondent an indictment for an offense different from what is charged in the initiatory
complaint, if warranted by the evidence developed during the preliminary investigation.
It is also contended that the respondent Judge issued the warrant for petitioner's arrest
without first personally determining the existence of probable cause by examining under
oath or affirmation the complainant and his witnesses, in violation of Art. III, sec. 2, of
the Constitution.
15
This Court has already ruled, however, that it is not the unavoidable
duty of the judge to make such a personal examination, it being sufficient that he follows
established procedure by personally evaluating the report and the supporting
documents submitted by the prosecutor.
16
Petitioner claims that the warrant of arrest
issued barely one hour and twenty minutes after the case was raffled off to the
respondent Judge, which hardly gave the latter sufficient time to personally go over the
voluminous records of the preliminary investigation.
17
Merely because said respondent
had what some might consider only a relatively brief period within which to comply with
that duty, gives no reason to assume that he had not, or could not have, so complied;
nor does that single circumstance suffice to overcome the legal presumption that official
duty has been regularly performed.
Petitioner finally claims that he was denied the right to bail. In the light of the Court's
reaffirmation of Hernandez as applicable to petitioner's case, and of the logical and
necessary corollary that the information against him should be considered as charging
only the crime of simple rebellion, which is bailable before conviction, that must now be
accepted as a correct proposition. But the question remains: Given the facts from which
this case arose, was a petition for habeas corpus in this Court the appropriate vehicle
for asserting a right to bail or vindicating its denial?
The criminal case before the respondent Judge was the normal venue for invoking the
petitioner's right to have provisional liberty pending trial and judgment. The original
jurisdiction to grant or deny bail rested with said respondent. The correct course was for
petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a
right to bail per se by reason of the weakness of the evidence against him. Only after
that remedy was denied by the trial court should the review jurisdiction of this Court
have been invoked, and even then, not without first applying to the Court of Appeals if
appropriate relief was also available there.
Even acceptance of petitioner's premise that going by the Hernandez ruling, the
information charges a non-existent crime or, contrarily, theorizing on the same basis
that it charges more than one offense, would not excuse or justify his improper choice of
remedies. Under either hypothesis, the obvious recourse would have been a motion to
quash brought in the criminal action before the respondent Judge.
18

There thus seems to be no question that All the grounds upon which petitioner has
founded the present petition, whether these went into the substance of what is charged
in the information or imputed error or omission on the part of the prosecuting panel or of
the respondent Judge in dealing with the charges against him, were originally justiciable
in the criminal case before said Judge and should have been brought up there instead
of directly to this Court.
There was and is no reason to assume that the resolution of any of these questions was
beyond the ability or competence of the respondent Judge-indeed such an assumption
would be demeaning and less than fair to our trial courts; none whatever to hold them to
be of such complexity or transcendental importance as to disqualify every court, except
this Court, from deciding them; none, in short that would justify by passing established
judicial processes designed to orderly move litigation through the hierarchy of our
courts. Parenthentically, this is the reason behind the vote of four Members of the Court
against the grant of bail to petitioner: the view that the trial court should not thus be
precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that
matter, denied an opportunity to correct its error. It makes no difference that the
respondent Judge here issued a warrant of arrest fixing no bail. Immemorial practice
sanctions simply following the prosecutor's recommendation regarding bail, though it
may be perceived as the better course for the judge motu proprio to set a bail hearing
where a capital offense is charged.
19
It is, in any event, incumbent on the accused as to
whom no bail has been recommended or fixed to claim the right to a bail hearing and
thereby put to proof the strength or weakness of the evidence against him.
It is apropos to point out that the present petition has triggered a rush to this Court of
other parties in a similar situation, all apparently taking their cue from it, distrustful or
contemptuous of the efficacy of seeking recourse in the regular manner just outlined.
The proliferation of such pleas has only contributed to the delay that the petitioner may
have hoped to avoid by coming directly to this Court.
Not only because popular interest seems focused on the outcome of the present
petition, but also because to wash the Court's hand off it on jurisdictional grounds would
only compound the delay that it has already gone through, the Court now decides the
same on the merits. But in so doing, the Court cannot express too strongly the view that
said petition interdicted the ordered and orderly progression of proceedings that should
have started with the trial court and reached this Court only if the relief appealed for was
denied by the former and, in a proper case, by the Court of Appeals on review.
Let it be made very clear that hereafter the Court will no longer countenance, but will
give short shrift to, pleas like the present, that clearly short-circuit the judicial process
and burden it with the resolution of issues properly within the original competence of the
lower courts. What has thus far been stated is equally applicable to and decisive of the
petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of
petitioner Enrile in factual milieu and is therefore determinable on the same principles
already set forth. Said spouses have uncontestedly pleaded
20
that warrants of arrest
issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941,
that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1,
1990, they were taken into custody and detained without bail on the strength of said
warrants in violation-they claim-of their constitutional rights.
It may be that in the light of contemporary events, the act of rebellion has lost that
quitessentiany quixotic quality that justifies the relative leniency with which it is regarded
and punished by law, that present-day rebels are less impelled by love of country than
by lust for power and have become no better than mere terrorists to whom nothing, not
even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing
so underscores this aberration as the rash of seemingly senseless killings, bombings,
kidnappings and assorted mayhem so much in the news these days, as often
perpetrated against innocent civilians as against the military, but by and large
attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion.
It is enough to give anyone pause-and the Court is no exception-that not even the
crowded streets of our capital City seem safe from such unsettling violence that is
disruptive of the public peace and stymies every effort at national economic recovery.
There is an apparent need to restructure the law on rebellion, either to raise the penalty
therefor or to clearly define and delimit the other offenses to be considered as absorbed
thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal
activity undertaken in its name. The Court has no power to effect such change, for it can
only interpret the law as it stands at any given time, and what is needed lies beyond
interpretation. Hopefully, Congress will perceive the need for promptly seizing the
initiative in this matter, which is properly within its province.
WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs.
Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and
the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion
only, hence said petitioners are entitled to bail, before final conviction, as a matter of
right. The Court's earlier grant of bail to petitioners being merely provisional in
character, the proceedings in both cases are ordered REMANDED to the respondent
Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said
respondent for any of the petitioners, the corresponding bail bond flied with this Court
shall become functus oficio. No pronouncement as to costs.