PEOPLE OF THE PHILIPPINES, G.R. Nos.

154218 & 154372

Petitioner,

First, the facts.

Present:
PUNO, J., Chairperson,
- versus - SANDOVAL-GUTIERREZ, *CORONA,
AZCUNA, and
GARCIA, JJ.
HON. JUDGE JOSE R. HERNANDEZ,
in his capacity as Presiding Judge, Promulgated:
Br. 158, RTC-Pasig City, ATTY.
LIGAYA P. SALAYON and ATTY.
ANTONIO M. LLORENTE,
Respondents. August 28, 2006
x------------------------------------------------- -x

The instant case stemmed from a complaint filed by Aquilino

Pimentel, Jr., a senatorial candidate in the May 1995 elections,
against private respondents Salayon and Llorente, Chairman and
Vice-Chairman, respectively, of the City Board of Canvassers of
Pasig City, and a certain Reynaldo San Juan, Campaign Manager of
senatorial candidate Juan Ponce Enrile, for allegedly decreasing
Pimentel's votes in the Statement of Votes per precinct and in the
City Certificate of Canvass for Pasig City. Pimentel filed a petition

DECISION

with this Court, docketed as G.R. No. 133509, which sought the
reversal of the resolutions of the COMELEC dismissing his complaint

PUNO, J.:

for lack of probable cause. On February 9, 2000, we promulgated

Before us is a Petition for Review on Certiorari under Rule 45 of the

our Decision in said case, granting Pimentel's petition and ordering

Rules of Court, seeking the reversal of the Joint Decision [1] of the

the COMELEC "to file forthwith with the proper [RTC] the necessary

Court of Appeals (CA) in CA-G.R. SP Nos. 68922 and 69703 which

criminal information for violation of Section 27(b) of [Republic Act]

affirmed

the

Order[2] issued

by

respondent

Judge

Jose

R.

Hernandez, presiding judge of Branch 158 of the Regional Trial

No. 6646,[3] otherwise known as the Electoral Reforms Law of 1987,

against private respondents Ligaya Salayon and Antonio Llorente." [4]

Court (RTC) of Pasig City, dismissing Criminal Case Nos. 11882331, 118848-91, 118902-9063 and 119099-204 for violation of private

Pursuant thereto, the COMELEC filed a total of 321 informations for

respondents Llorente and Salayon's right to speedy trial.

violation of Section 27(b) of R.A. No. 6646 against private

respondents Llorente and Salayon on the following dates: a) nine (9)

informations were filed on August 28, 2000, docketed as Criminal

for violation of Section 27(b) of R.A. No. 6646; and 4) to allow him to

Case Nos. 118823-118831; b) forty-four (44) informations on August

post bail to only one information.

29, 2000, docketed as Criminal Case Nos. 118848-118891; c) one

hundred sixty-two (162) informations on August 31, 2000, docketed

After finding private respondent Llorente's prayer to consolidate to be

as Criminal Case Nos. 118902-119063; and d) 106 informations on

"meritorious and there being no objection" from the prosecution,

September 7, 2000, docketed as Criminal Case Nos. 119099-

Judge Ericcio C. Ygaa of Branch 153 granted the same and

119204. The four sets of informations were raffled to Branches 164,

remanded Criminal Case Nos. 118902-119063 to the Office of the

158, 153 and 69, respectively, of the RTC of Pasig City.

Clerk of Court of the RTC of Pasig City for proper disposition.

[7]

Similarly, Judge Lorifel Lacap Pahimna of Branch 69 granted

Private respondent Llorente filed an Urgent Ex-Parte Motion for

private respondent Llorente's motion to consolidate, finding that "it is

Consolidation[5] of Criminal Case Nos. 118823-118831 (pending

for the convenience of the parties that these cases (Criminal Case

before Branch 164) with Criminal Case Nos. 118848-118891

Nos. 119099-119204) be consolidated with those cases pending

(pending before Branch 158). This motion was granted by Branch

before Branch 158 considering that all cases involved common

164,[6] thereby consolidating the nine (9) informations pending before

questions of fact and law and the parties may have to introduce

it with the 44 other informations pending with Branch 158.

common evidence in support of their respective positions in these

cases." Judge Pahimna forwarded the cases pending before Branch

Subsequently, private respondent Llorente filed three (3) Omnibus

69 to Branch 158 "unless the presiding judge of said branch

Motions before Branches 158, 153 and 69 of the RTC of Pasig City,

interposes objection to such consolidation." Moreover, the other

asking them: 1) to consolidate all the cases filed against him for

issues raised by private respondent Llorente were referred to Branch

violation of Section 27(b) of R.A. No. 6646; 2) to declare the multiple

158 for appropriate action.[8]

informations filed against him as constituting only one offense; 3) to

On September 27, 2000, Senior State Prosecutor Rogelio Bagabuyo

treat the 321 informations filed against him as only one information

filed his Notice of Appearance with Branch 158 of the RTC of Pasig

City.[9] He likewise filed an Urgent Omnibus Motion To: 1) hold in

abeyance the implementation of the orders of the court prior to his
appearance as counsel; 2) remand all the cases pending before it to
the Office of the Clerk of Court of the RTC of Pasig City; 3) hold in
abeyance the resolution of all motions filed by private respondent
Llorente with the court; 4) order the Office of the Clerk of Court of the
RTC of Pasig City to hold in abeyance the re-raffling of all the
"dagdag-bawas" cases against private respondents; and 5) allow him
ample time to secure from the Supreme Court a transfer of venue of
the cases from Pasig City to Manila or Pasay City.[10]

WHEREFORE, accused Llorente's Omnibus Motion

dated September 5, 2000, Omnibus Motion dated
September 6, 2000 and Omnibus Motion dated
September 8, 2000 are granted allowing the
consolidation of cases against accused Llorente
pending before Branches 69, 153 and 164 of this
Court with those pending before this branch. The
multiple acts alleged in the 321 Informations filed
against him are declared to constitute only one
violation of Section 27(b) of Republic Act No.
6646. There should then be only one information
against accused Llorente. This benefit applies also
to accused Salayon. Public Prosecutor's (sic)
Bagabuyo's Omnibus Motion dated September 25,
2000 is denied.
The arraignment and pre-trial of both accused is
(sic) set on March 20, 2001 at 8:30 in the morning.
SO ORDERED.[13]

Private respondent Llorente filed an Opposition (to the Prosecution's

Urgent Omnibus Motion dated 25 September 2000)[11] with Branch

The trial court noted that during the hearing on private respondent

158 of the RTC of Pasig City. On December 13, 2000, petitioner,

Llorente's motion on September 12, 2000, the prosecution, then

through Senior State Prosecutor Bagabuyo, filed with Branch 158 of

through Director Jose P. Balbuena of the COMELEC, was heard on

the RTC of Pasig City its Comment/Opposition to [the] Omnibus

the matter of consolidation of the cases and in fact gave its consent

Motions filed by Accused Llorente, [12] reiterating its prayers in its

thereto. Even the representative from the office of Senator Aquilino

Omnibus Motion dated September 25, 2000.

Pimentel, Jr., an Atty. Luis Gana, did not register any objection
thereto. In ruling that only one information for violation of Section

On March 2, 2001, respondent Judge issued an Order, the

dispositive portion which reads:

27(b) of R.A. No. 6646 should have been filed, the trial court held:
[I]n this case[,] the unity of criminal intent is
manifested by the fact that the several acts of
tampering[,] while allegedly done separately over a

three-day period, were perpetuated on one single

occasion which is the canvassing of the votes cast
in the May 8, 1995 elections in Pasig City, and,
significantly, perpetuated only on one single
document, the SoV, a document of fifty-eight (58)
pages. While there maybe several acts of
tampering, this Court could attribute only one crime
against accused Llorente. This is what the Comelec
did in People vs. Maria Arsenia Garcia, et al.
docketed as Criminal Case No. 3485-A before the
Regional Trial Court of Alaminos, Pangasinan. The
multiple acts of tampering by the accused were
treated by the COMELEC as one offense or a
single count of (sic) the violation of Section 27(b) of
R.A. 6646. There is no reason then why accused
Llorente should be treated differently.[14]

On March 25, 2001, petitioner moved for the reconsideration of

the March 2, 2001 Order of the trial court.[15] Private respondent
Llorente filed his Comment and Opposition, [16] to which petitioner
filed its rejoinder.[17]

Bagabuyo was absent during the arraignment but the same

nevertheless proceeded in the presence of Public Prosecutor Jose
Danilo C. Jabson, the assigned prosecutor in the trial court. The trial
court held:
Both accused, assisted by their respective
counsels, after having been informed of the charge
filed against them and its attending consequences,
entered a plea of NOT GUILTY.
Pursuant to the Order of March 2, 2001, the three
hundred [twenty-one] (321) informations filed
against both accused were treated to be only a
single offense for which they should be made
answerable. It is for this reason that both accused
were arraigned and entered their plea to a single or
one information only.
Having entered their plea, set the pre-trial of this
case on June 29, 2001 at 8:30 in the morning.[19]
On June 27, 2001, petitioner filed an Omnibus Motion to Postpone
and Motion for Reconsideration[20] of the Order dated June 15,

In his Order[18] dated May 11, 2001, respondent Judge denied

2001 of the trial court, asking the trial court to nullify the arraignment

petitioner's motion for reconsideration of the March 2, 2001 Order

of respondents for lack of notice to the prosecution. The June 29,

and set the arraignment and pre-trial of private respondents "on

2001 hearing was reset to July 6, 2001 in view of the prosecution's

June 15, 2001 at 8:30 in the morning."

filing of the Omnibus Motion to Postpone and Motion for

Reconsideration. The July 6, 2001 hearing was cancelled as Senior

On June 15, 2001, private respondents Llorente and Salayon were

State Prosecutor Bagabuyo did not appear, a representative having

arraigned and pleaded "not guilty." Senior State Prosecutor

telephoned the trial court that he was indisposed. The hearing was

reset to July 26, 2001.[21] However, the hearing on July 26, 2001 was

pre-trial on June 15, 2001 was received by the Department of

again cancelled and reset to August 2, 2001 for Senior State

Justice on May 17, 2001. As a consequence, the arraignment of

Prosecutor Bagabuyo's failure to appear, thus:

private respondents Llorente and Salayon proceeded as scheduled.

The Motion for Reconsideration of the trial court's March 2, 2001

Since Prosecutor Rogelio Bagabuyo is again not

available for today's hearing because he is
indisposed as relayed to this Court by his
representative, Atty. Jay I. Dejaresco, and through a
telephone call from his secretary Orlando Nicolas,
as prayed for, and over the vehement objection of
counsels for both accused, the pre-trial/trial
scheduled today is cancelled and reset on August
2, 2001 at 8:30 in the morning.

Order was likewise denied for being in the nature of a second motion
for reconsideration which is a prohibited pleading under the Rules of
Court. Despite the denial of the prosecution's motions, the pre-trial
and trial were cancelled and reset to September 4, 2001 in view of
the prosecution's manifestation that it was appealing the trial court's

xxx

order to a higher court. The court warned that "[i]n the event that the

In the event that there will again be no appearance

from Prosecutor Bagabuyo at the next scheduled
hearing, the Legal Department of the COMELEC
shall then make its appearance and take over the
prosecution of this case.

prosecution shall not be able to get any restraining order to stop the
proceedings in this case, the hearing on said date shall proceed as
scheduled."[24]

SO ORDERED.[22]
Accordingly, petitioner, through Senior State Prosecutor
After considering the respective positions of the prosecution and the

Bagabuyo, filed a petition for Certiorari, Prohibition, Mandamus,

private respondents, the trial court issued its Order dated August 2,

Injunction with Prayer for a Temporary Restraining Order with the

2001[23] denying the prosecution's Omnibus Motion to Postpone and

CA, docketed as CA-G.R. No. SP No. 65966. On August 16, 2001,

Motion

the

said petition was dismissed outright for having been filed without the

prosecution's claim that it was not notified of the arraignment

participation of the Office of the Solicitor General (OSG), in violation

on June 15, 2001, the records revealed that the Order of the trial

of Section 35(1), Chapter 12, Title III, Book IV of the 1987

court dated May 11, 2001 which set the date of the arraignment and

Administrative Code.[25] Petitioner filed a Motion for Reconsideration,

for

Reconsideration. It

found

that

contrary

to

to no avail.[26] Unhindered, petitioner filed a Motion for Extension of

denial of their right to speedy trial. The trial court denied their motion

Time to File Petition for Review on Certiorari[27] with this Court

and gave the prosecution the last opportunity to prosecute the

on October 30, 2001, pursuant to Section 2, Rule 45 of the Rules of

instant cases, setting the next hearings on October 3 and 15, 2001,

Court. We

with the admonition that failure to proceed will be dealt with

granted

petitioner's

motion

in

our

Resolution

dated December 12, 2001. Petitioner filed its Petition for Review

accordingly.[30]

on January 10, 2002, docketed as G.R. No. 150317. We resolved to

deny the petition on January 30, 2002 for having been filed out of

On October 3, 2001, the prosecution refused to proceed

time and for Senior State Prosecutor Bagabuyo's failure to sign the

with pre-trial and trial, giving as reason its pending petition before

petition.[28] Petitioner again filed a Motion for Reconsideration with

the CA. Private respondent Llorente reiterated his motion to dismiss

this Court, to no avail.[29]

the case on the ground of violation of his right to speedy trial. The
trial court granted private respondents a period of three (3) days

Meantime, in the trial court, the hearing set on September 4,

therefrom within which to formalize their motions to dismiss and the

2001 did not proceed due to Senior State Prosecutor Bagabuyo's

prosecution was also given three (3) days from receipt of private

absence. Another representative from the office of Senator Pimentel,

respondents' motions within which to file its comment or objection. [31]

an Atty. Galimpin, appeared in court and requested for a

postponement. Again, the court received a call from the secretary of

Private respondent Llorente filed his Motion to Dismiss

Senior State Prosecutor Bagabuyo that the latter had his tooth

dated October 4, 2001.[32] Before petitioner could file an opposition, it

extracted, hence, could not appear in court. The trial court found this

filed its Motion to Inhibit [33] dated October 5, 2001, asking Judge

excuse quite odd since Atty. Galimpin informed the court that he saw

Hernandez to voluntarily inhibit himself from hearing the instant

Senior State Prosecutor Bagabuyo at the Office of the Clerk of Court

cases and remand the same to the Clerk of Court of Pasig City for

in the first floor of the same building where the court sits. Private

re-raffling. Later, the prosecution likewise filed its Opposition (to

respondents moved for the dismissal of the instant cases due to the

[Private Respondent's Motion to] Dismiss with Prayer to Hold in

Abeyance its Resolution until after Resolution of our Motion to

Inhibit). Private respondent Llorente filed his Reply (to Prosecution's

Petitioner, through Senior State Prosecutor Bagabuyo, then

filed with

Opposition dated October 7, 2001) and Comment-Opposition (to

Prosecution's Prayer for Inhibition). The prosecution filed its
Rejoinder (to Reply to Opposition to the Motion to Dismiss with
Prayer to Hold in Abeyance its Resolution until after Resolution of
our Motion to Inhibit) and Counter-Comment (to the Opposition to
Motion to Inhibit). Private respondent Salayon filed a Manifestation
dated October 6, 2001, adopting all the allegations mentioned in the
Motion to Dismiss of his co-respondent Llorente. On October 15,
2001, the parties opted not to have a hearing after having agreed to
put all their arguments in their respective pleadings.[34]

On November 23, 2001, the trial court rendered its assailed

order, the dispositive portion of which states:
WHEREFORE, the Motion to Dismiss
dated October 4, 2001 filed by accused Antonio M.
Llorente, adopted by co-accused Ligaya P.
Salayon, is granted and this case is dismissed. The
cash bail posted by each accused is ordered
released to them.
SO ORDERED.[35]

this

Court

Petition

for

Certiorari,

Prohibition

and

Pursuant to Section 6, Rule 56 of the Rules of Court, we

Mandamus[36] dated February 1, 2002 under Rule 65 of the Rules of

referred said petition to the CA for appropriate action. [38] In the CA,

Court, docketed as G.R. Nos. 151461-151781. Petitioner prayed

the case was docketed as CA-G.R. SP No. 69703.

that:
1. Upon the filing hereof, this case be consolidated
with [the] Petition for Review, filed last January 10,
2002 [with the Supreme Court], and docketed as
G.R. No. 150317;
2. The Order dismissing the instant cases be
recalled, set aside and the 321 criminal cases filed
against both accused Salayon and Llorente be
reinstated; after which they be arraigned for the 321
counts for the violation of Section 27(b) of R.A.
6646;
3. The Order, dated June 15, 2001, be declared as
null and void and set aside;
4. All the cases that used to be pending before the
respondent, Honorable RTC-158 be ordered
remanded to the Office of the Clerk of Court for reraffle to the other branches, except those where
these cases were originally assigned to; or in the
alternative,

Meantime, on February 2, 2001, petitioner, this time through

the OSG, filed a Motion for Extension of Time to File a petition for
certiorari under Rule 65 directly with the CA, docketed as CA-G.R.
SP No. 68922. The motion having been granted, [39] petitioner,
through the OSG, filed its petition [40] contending that respondent
Judge "committed grave abuse of discretion and/or acted without or
in excess of jurisdiction in issuing the order of dismissal dated
November 23, 2001 allegedly on account of the speedy trial rule." [41]

Subsequently,

CA-G.R.

SP

Nos.

69703

and

68922

were

consolidated.[42]

5. An Order be issued changing venue from the City

of Pasig to either Manila, Pasay or Makati; and,

On July 4, 2002, the CA rendered its assailed Joint Decision in CA-

6. Plaintiff-petitioner prays for such other relief

consistent with law and equity on the matter.[37]

states:

G.R. SP Nos. 69703 and 68922, the dispositive portion of which

WHEREFORE, premises considered, the

petitions in CA-G.R. SP No. 68922 and CA-G.R. SP
No. 69703 are hereby both DENIED DUE COURSE
and accordingly DISMISSED, for lack of merit. The

assailed Order dated November 23, 2001 issued by

Branch 158 of the Regional Trial Court of Pasig City
in Criminal Case Nos. 118823-31; 118848-91;
118902-9063; and 119099-204, all entitled People of
the Philippines v. Ligaya P. Salayon and Antonio M.
Llorente, is hereby AFFIRMED and UPHELD.
No pronouncement as to costs.
SO ORDERED.[43]

rendered his assailed Order dated November 23, 2001. The ruling of
the trial court was found to be supported by Sections 6 and 9 of the
Revised Rules of Criminal Procedure, Sections 9 and 13 of R.A. No.
8493 and Sections 14(2) and 16, Article III of the 1987 Constitution. It
restated the principle that "[t]he right to speedy trial means one free
from vexatious, capricious and oppressive delays, its salutary
objective being to assure that an innocent person may be freed from

The CA noted that as to CA-G.R. SP No. 69703, Senior State

Prosecutor Bagabuyo filed an Urgent Motion to Withdraw Petition
dated April 21, 2002 with the Supreme Court despite our referral of
the case to the CA. The CA held that the petition instituted by Senior
State Prosecutor Bagabuyo should be "effectively withdrawn" as the
same was filed without the participation of the OSG, in violation of
Section 35(1), Chapter 12, Title III, Book IV of the 1987
Administrative Code. At any rate, the CA likewise found no merit in
the petition instituted by the OSG.It held that petitioner was
essentially assailing an error of judgment and not of jurisdiction,
hence, its resort to a special civil action for certiorari under Rule 65
of the Rules of Court instead of an ordinary appeal was
erroneous. Even assuming that petitioner's recourse was proper, the
CA held that respondent Judge did not act with grave abuse of
discretion amounting to lack or excess of jurisdiction when he

the anxiety and expense of a court litigation or, if otherwise, of having

his guilt determined within the shortest possible time compatible with
the presentation and considerations of whatever legitimate defense
he may interpose."[44] The CA found that the cancellation of the
hearings in the trial court by the prosecution without any valid
grounds

was

"certainly

vexatious,

capricious

and

oppressive." Citing People v. Abao,[45] it held that "the dismissal of

the cases following a number of postponements at the instance of
the prosecution is not an abuse of discretion." The CA likewise held
that

"delay

resulting

from

extraordinary

remedies

against

interlocutory orders," as an exclusion to the computation of the 80day period within which to commence trial under Section 3(3), Rule
119 of the Rules of Court, should be read in harmony with Section 7
of Rule 65 of the Rules of Court. Hence, in the case at bar, the mere
expedient of petitioner's filing before the CA of a petition for certiorari,

prohibition and mandamus under Rule 65 questioning the trial court's

the cases before the trial court on the ground of the denial of private

interlocutory order did not interrupt the running of the 80-day

respondents' right to speedy trial; and b) whether the CA erred in

period. Moreover, petitioner's reliance on Section 3(7) of Rule 119 is

finding that respondent Judge did not commit grave abuse of

also misplaced as the trial court did not state in its orders granting

discretion in dismissing the instant criminal cases against private

continuance that the ends of justice in granting the continuance

respondents upon a finding that the right of private respondents to

outweigh the best interest of the public and the right of the accused

speedy trial has been violated.

to a speedy trial. Finally, the CA pointed out that the prosecution

failed to commence with the trial even after the lapse of 122 days

We shall first resolve the procedural issue.

from the arraignment of private respondents.

Hence, the instant petition on certiorari under Rule 45 in
which petitioner raises the following issues:
I. [WHETHER] THE COURT OF APPEALS ERRED
ON A QUESTION OF LAW IN HOLDING THAT
THE
WRIT
OF
CERTIORARI
IS
NOT
WARRANTED INASMUCH AS WHAT IS BEING
IMPUGNED IS "AN ERROR OF JUDGMENT."
II. [WHETHER] THE COURT OF APPEALS
ERRED ON A QUESTION OF LAW IN
UPHOLDING THE DISMISSAL OF THE 321
CRIMINAL
CASES
AGAINST
PRIVATE
RESPONDENTS.[46]

Petitioner contends that its petition for certiorari under Rule 65 with
the CA was the proper remedy since respondent Judge committed
grave abuse of discretion amounting to lack or excess of jurisdiction
when he consolidated the 321 criminal cases into one information
and dismissed the "criminal case" on the ground of the denial of
private respondents' right to speedy trial, without giving the
prosecution the chance to present evidence. Citing People v.
Velasco,[47] petitioner contends that the dismissal of the "criminal
case" against private respondents is tantamount to their acquittal
which, as a general rule, the prosecution cannot appeal from in the
absence of a statute clearly conferring that right. In any case, the

The issues to be resolved are: a) whether a special civil action for

certiorari under Rule 65 is the proper remedy from the dismissal of

alleged existence of the remedy of appeal does not always foreclose

the remedy of a petition for certiorari under Rule 65.

10

of cases, we have held that a dismissal on the ground of the denial

Petitioner's remedy with the CA was correct.

of the accused's right to a speedy trial will have the effect of acquittal
that would

Section 1, Rule 122 of the Revised Rules of Criminal Procedure

provides that [a]ny party may appeal from a judgment or final
order, unless the accused will be placed in double jeopardy.
As a general rule, the prosecution cannot appeal or bring error
proceedings from a judgment in favor of the defendant in a criminal
case in the absence of a statute clearly conferring that right. [48] Thus,
errors of judgment are not appealable by the prosecution. Appeal by
the prosecution from the order of dismissal of the criminal case by
the trial court may be allowed only on errors of jurisdiction when
there was denial of due process resulting in loss or lack of
jurisdiction.[49] This is so as while it is true that double jeopardy will
attach in case the prosecution appeals a decision acquitting the
accused, an acquittal rendered in grave abuse of discretion
amounting to lack or excess of jurisdiction does not really "acquit"
and therefore does not terminate the case as there can be no double
jeopardy based on a void indictment.[50]

In the case at bar, the trial court dismissed the cases against private
respondents for the denial of their right to speedy trial. In a long line

11

bar further prosecution of the accused for the same offense. [51] Thus,

of jurisdiction in dismissing the instant cases against private

we have held that where after such dismissal the prosecution moved

respondents for the denial of their right to speedy trial?

for the reconsideration of the order of dismissal and the court re-set
the case for trial, the accused can successfully claim double

A writ of certiorari is warranted when 1) any tribunal, board or officer

jeopardy as the said order was actually an acquittal, was final and

has acted without or in excess of its or his jurisdiction, or with grave

cannot be reconsidered.[52] Hence, petitioner was correct in filing a

abuse of discretion amounting to lack or excess of jurisdiction; and 2)

petition for certiorari under Rule 65, alleging that "respondent judge

there is no appeal, nor any plain, speedy and adequate remedy in

committed grave abuse of discretion and/or acted without or in

the ordinary course of law.[54] An act of a court or tribunal may be

excess of jurisdiction in issuing the order of dismissal dated

considered as in grave abuse of discretion when the same was

November 23, 2001 allegedly on account of the speedy trial rule" as

performed in a capricious or whimsical exercise of judgment

an appeal was not available to it. Where the dismissal of the case

amounting to lack of jurisdiction. The abuse of discretion must be so

was allegedly capricious, certiorari lies from such order of dismissal

patent and gross as to amount to an evasion of a positive duty, or to

and does not involve double jeopardy, as the petition challenges not

a virtual refusal to perform a duty enjoined by law, as where the

the correctness but the validity of the order of dismissal and such

power is exercised in an arbitrary and despotic manner because of

grave abuse of discretion amounts to lack of jurisdiction which

passion or hostility.[55]

prevents double jeopardy from attaching.[53]

We affirm the CA's ruling that no such grave abuse of discretion was
Having settled that a petition for certiorari under Rule 65 with the CA

shown to exist in respondent Judge's dismissal of the instant cases.

was the proper remedy from the dismissal of the instant cases by the
trial court, the crucial issue is: was the CA correct in ruling that a writ

The right of the accused to a speedy trial is guaranteed under

of certiorari was not warranted inasmuch as the respondent Judge

Sections 14(2) and 16, Article III of the 1987 Constitution. [56] In 1998,

did not act in grave abuse of discretion amounting to lack or excess

Congress enacted R.A. No. 8493, otherwise known as the "Speedy

12

Trial Act of 1998." The law provided for time limits in order "to ensure

denial of speedy trial as provided by Article III, Section 14(2), of the

a speedy trial of all criminal cases before the Sandiganbayan, [RTC],

1987

Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit

limits, jurisprudence continues to adopt the view that the concept of

Trial Court." On August 11, 1998, the Supreme Court issued Circular

"speedy trial" is a relative term and must necessarily be a flexible

No. 38-98, the Rules Implementing R.A. No. 8493. The provisions of

concept.[58] In Corpuz v. Sandiganbayan,[59] we held:

said circular were adopted in the 2000 Revised Rules of Criminal

Procedure. As to the time limit within which trial must commence
after arraignment, the 2000 Revised Rules of Criminal Procedure
states:
Sec. 6, Rule 119. Extended time limit.-Notwithstanding the provisions of section 1(g), Rule
116 and the preceding section 1, for the first twelvecalendar-month period following its effectivity
on September 15, 1998,the time limit with
respect to the period from arraignment to trial
imposed by said provision shall be one hundred
eighty (180) days. For the second twelve-month
period, the time limit shall be one hundred twenty
(120) days, and for the third twelve-month period,
the time limit shall be eighty (80) days.

R.A. No. 8493 and its implementing rules and the Revised
Rules of Criminal Procedure enumerate certain reasonable delays as
exclusions in the computation of the prescribed time limits. They also
provide that "no provision of law on speedy trial and no rule
implementing the same shall be interpreted as a bar to any charge of

Constitution."[57] Thus,

in

spite

of the

prescribed

time

The right of the accused to a speedy trial

and to a speedy disposition of the case against him
was designed to prevent the oppression of the
citizen by holding criminal prosecution suspended
over him for an indefinite time, and to prevent
delays in the administration of justice by mandating
the courts to proceed with reasonable dispatch in
the trial of criminal cases. Such right to a speedy
trial and a speedy disposition of a case is
violated only when the proceeding is attended
by vexatious, capricious and oppressive
delays. x x x
While justice is administered with dispatch,
the essential ingredient is orderly, expeditious and
not mere speed. It cannot be definitely said how
long is too long in a system where justice is
supposed to be swift, but deliberate. It is consistent
with delays and depends upon circumstances. It
secures rights to the accused, but it does not
preclude the rights of public justice. Also, it must
be borne in mind that the rights given to the
accused by the Constitution and the Rules of Court
are shields, not weapons; hence, courts are to give
meaning to that intent.
A balancing test of applying societal
interests and the rights of the accused
necessarily compels the court to approach
speedy trial cases on an ad hoc basis.

13

In determining whether the accused has

been deprived of his right to a speedy
disposition of the case and to a speedy trial,
four factors must be considered: (a) length of
delay; (b) the reason for the delay; (c) the
defendants assertion of his right; and (d)
prejudice to the defendant. (citations omitted)
In the cases at bar, in finding that private respondents were
denied of their right to speedy trial, respondent Judge recounted the
following incidents in the trial court:
The Court considers the accused['s] arraignment
of June 15, 2001 and notes that the pre-trial was
initially set on June 29, 2001. This initial setting did
not proceed, as earlier, the Prosecution, through
State Prosecutor Bagabuyo, filed an Omnibus
Motion
to
Postpone
and
Motion
for
Reconsideration. The Court, nevertheless, set the
hearing to July 5, 2001 and gave proper notice to the
Prosecution. This July 6 setting also did not proceed
as a staff of Prosecutor Bagabuyo made a telephone
call with this Court seeking for a postponement as
Prosecutor Bagabuyo was not feeling well. The
Court issued its Order of July 6, 2001 setting the
pre-trial again to July 26, 2001 at 8:30 a.m. The July
26 pre-trial hearing likewise did not proceed, as
Prosecutor Bagabuyo was indisposed. This matter
was relayed to this Court in a telephone call of
Orlando
Nicolas,
secretary
of
Prosecutor
Bagabuyo. During the hearing, Atty. Jay I.
Dejaresco, a lawyer from the office of Senator
Aquilino Pimentel, appeared and confirmed the
inability of Prosecutor Bagabuyo to appear during
the pre-trial hearing. The Court also requested Atty.
Dejaresco to inform Senator Pimentel on the delay
caused
by
the
non-appearance
of
the

Prosecutor. The hearing was reset to August 2,

2001, the date suggested by Atty. Dejaresco.
The August 2, 2001 hearing was held, but the
Prosecution,
through
Prosecutor
Bagabuyo,
manifested that it would question the Order of this
Court dated June 15, 2001 and the Courts Order on
said date denying the Prosecutions Motion for
Reconsideration to the Order of June 15, 2001. As
requested, the Court granted the Prosecution 30
days to file the proper petition before the higher
court, and the pre-trial and trial was reset anew
to September 4, 2001. The Court [h]as impressed
with the commitment of the Prosecution that in the
event no restraining order was issued to stop the
proceedings in this case, the pre-trial and trial shall
proceed on September 4, 2001. But the hearing
of September 4, 2001 did not proceed on account of
the absence of Prosecutor Bagabuyo. Another
representative from the office of Senator Pimentel, a
certain Atty. Rolando Galimpin, appeared and
requested for another postponement. Like before,
the Court received a call from the secretary of
Prosecutor Bagabuyo that the latter had his tooth
extracted and would not be in a position to appear at
the hearing. This Court found the motion for
postponement odd because Atty. Galimpin informed
the Court he saw Prosecutor Bagabuyo at the Office
of the Clerk of Court, which is located at the first
floor of the building where this Court sits. Even then,
the Court denied the accused['s] oral motion to
dismiss and gave the Prosecution the last
opportunity to prosecute this case. The Prosecution
was given two dates, October 3 and 15, 2001, the
dates Prosecutor Bagabuyo would be available as
represented by Atty. Galimpin. Despite these dates
of October 3 and 15, 2001, the Prosecution still
failed to proceed to pre-trial and trial. Given the
period of time to prosecute this case as above
narrated, the last opportunity on October 3 and 15,

14

2001, this Court resolves that this case must now be

dismissed. The accused[s] right to speedy trial under
Section 9, Rule 116 (sic) of the Revised Rules of
Criminal Procedure has been violated.[60]

capricious and oppressive and it has been held that

the dismissal of the case following a number of
postponements at the instance of the prosecution is
not an abuse of discretion,[62] and especially taking
into account the periods in Rule 119 which are
explicitly provided.[63]

Clearly, the one hundred eleven (111) days that have

elapsed from the time private respondents were arraigned on June
15, 2001 up to the filing of the Motion to Dismiss by private
respondents on the ground of the denial of their right to speedy trial
on October 4, 2001 is beyond the 80-day limit provided under the
law and the rules. The incidents that transpired before the trial court

Petitioner invokes the exclusions provided in Section 3(a)(3)

and (f), Rule 119 of the 2000 Revised Rules of Criminal Procedure
which state:
Sec. 3. Exclusions.-- The following periods
of delay shall be excluded in computing the time
within which trial must commence:
a) Any period of delay resulting from
other proceedings concerning the
accused, including but not limited to
the following:

likewise show that the postponements at the instance of the

prosecution were not justified. As found by the CA:
The Court a quo has sufficiently justified its order of
dismissal for failure to prosecute in violation of the
constitutional right of the accused to a speedy trial
as mandated by Section 14(2) and Section 16 of
Article III of the 1987 Constitution. The right to
speedy trial means one free from vexatious,
capricious and oppressive delays, its salutary
objective being to assure that an innocent person
may be freed from the anxiety and expense of a
court litigation or, if otherwise, of having his guilt
determined within the shortest possible time
compatible with the presentation and consideration
of whatever legitimate defense he may interpose.[61]
xxx
The cancellation of the hearings by the prosecution
without any valid ground is certainly vexatious,

xxx
3) Delay resulting
from extraordinary
remedies against
interlocutory
orders;
xxx
f) Any period of delay resulting
from a continuance granted by any
court motu proprio, or on motion of
either the accused or his counsel, or
the prosecution, if the court granted
the continuance on the basis of its
findings set forth in the order that
the ends of justice served by taking

15

such action outweigh the best

interest of the public and the
accused in a speedy trial.

Section 6 of Rule 119 has not yet lapsed. Deducting the time it took
Judge Hernandez to resolve petitioner's Omnibus Motion to
Postpone and Motion for Reconsideration dated June 27, 2001, only

Petitioner contends that there was no inordinate delay on

41 days had lapsed after private respondents' arraignment on June

the part of the prosecution to justify a dismissal of the cases based

15, 2001. Section 3 of Rule 119 provides that "delay resulting from

on a violation of the private respondents' right to speedy trial. The

extraordinary remedies against interlocutory orders" is excluded in

date of arraignment was June 15, 2001. Senior State Prosecutor

computing the time within which trial must commence. This provision

Bagabuyo filed a certiorari petition questioning the arraignment

is not in conflict with Section 3(f) of Rule 119 as they speak of two

before the CA on August 6, 2001. Thus, a total of 51 days elapsed

different kinds of delay. If Section 3(f) is not applicable, Section 3(a)

before the filing of the CA petition. On August 24, 2001, Senior State

definitely is.

Prosecutor Bagabuyo received a copy of the CA Resolution

dismissing his petition. On September 6, 2001, he filed a motion for

We are not persuaded. As correctly held by the CA, "delay resulting

reconsideration of the CA Resolution. At this point, only 64 days

from extraordinary remedies against interlocutory orders" must be

have passed since the arraignment. On October 17, 2001, Senior

read in harmony with Section 7, Rule 65 of the Rules of Court which

State Prosecutor Bagabuyo received a copy of the CA Resolution

provides that the "[p]etition [under Rule 65] shall not interrupt the

denying his motion for reconsideration. On October 30, 2001, he

course of the principal case unless a temporary restraining order

filed a motion for extension of time to file a petition under Rule 45

or a writ of preliminary injunction has been issued against the

with this Court.Prior to his filing of this motion for extension, 76 days

public respondent from further proceeding in the case." This

have lapsed from the date of arraignment. This Court granted him 30

was clearly spelled out by respondent Judge when, in addition to

days within which to file the petition or until December 1,

granting a 30-day continuance in view of the manifestation of the

2001.Hence, when Judge Hernandez issued an Order of dismissal

prosecution that it would file an appeal from the interlocutory order of

dated November 23, 2001, the 80-day period mandated under

the trial court with a higher court, the trial court, in its August 2, 2001

16

Order, gave a warning that "[i]n the event that the prosecution shall

proceed with the pre-trial and trial. The orders of the court contained

not be able to get any restraining order to stop the proceedings in

repeated warnings that "[i]n the event that there will again be no

this case, the hearing on [September 4, 2001] shall proceed as

appearance from Prosecutor Bagabuyo at the next scheduled

scheduled." Despite this warning, however, Senior State Prosecutor

hearing, the Legal Department of the COMELEC shall then make its

Bagabuyo did not appear for the prosecution on the September 4,

appearance and take over the prosecution of this case." In its

2001 hearing set by the trial court and the court only received a call

September 4, 2001 Order denying private respondents' oral motions

from the secretary of said Senior State Prosecutor that the latter had

to dismiss and giving the prosecution another chance to prosecute

his tooth extracted and would not be in a position to appear at the

the cases by resetting the hearings to October 3 and 15, 2001, the

hearing. What made the manner of postponement worse was that

trial court gave an admonition that the prosecution's failure to appear

Atty. Galimpin, the private prosecutor, informed the trial court that he

will be dealt with accordingly. Even when Senior State Prosecutor

saw Senior State Prosecutor Bagabuyo at the Office of the Clerk of

Bagabuyo appeared on October 3, 2001, the prosecution refused to

Court, which is located at the first floor of the same building where

proceed with the pre-trial and trial of the cases on the ground of the

the trial court sits.

pendency of its petition with the CA. This, despite the fact that as
early as August 16, 2001, the CA has dismissed CA-G.R. No. SP.

Petitioner's reliance on Section 3(f) of Rule 119 is also

misplaced as nowhere in the Orders granting continuance did
respondent Judge set forth that his order was based on findings that
the ends of justice served by taking such action outweigh the best
interest of the public and the accused in a speedy trial, as required
under the law and the Rules of Court. To the contrary, the
successive continuances granted by the trial court were compelled
by the repeated absence of the public prosecutor or his refusal to

No. 65966 which raised the issue of the validity of the private
respondents' arraignment. As the trial court held:
The Court notes the petition for certiorari
that Prosecutor Bagabuyo filed before the Court of
Appeals docketed as CA-GR SP No. 65966
questioning the propriety of [the] June 15, 2001
Order of this Court and the Honorable Court of
Appeals dated August 16, 2001 dismissed the
petition outright. It also notes the resolution of the
said Court dated October 9, 2001 denying the
Prosecutions Motion for Reconsideration.Given
these resolution, the Prosecution had no option

17

under the circumstances but to proceed to pre-trial

and trial during the October 15, 2001 hearing. All
and still, the Prosecution stood on its ground not to
prosecute this case and would only have itself to
blame for the dismissal of this case.[64]

What

this

argument

reflects

is

petitioner's

stubborn

insistence not to recognize the trial court's interlocutory Orders

dated March 2, 2001 and June 15, 2001, granting private respondent
Petitioner also contends in the instant petition that respondent
Judge's decision declaring the 321 Informations against private
respondents for violation of Section 27(b) of R.A. No. 6646 as only
one Information, the arraignment of the accused to only one
information and his Decision dismissing the "case" against private
respondents give rise to the following questions:1) Which one of the
321 Informations did private respondents plead "not guilty" to? and
2) What case did Judge Hernandez dismiss when he stated that "this
case is dismissed"?

Llorente's motion to consider all the 321 informations filed against

each of them as constituting only one offense and declaring the
arraignment of private respondents to only one information,
respectively. Notably, petitioner's Motion for Reconsideration of this
Order on March 25, 2001 has been denied by the trial court and was
denied again when re-raised by petitioner with the trial court in its
Omnibus Motion to Postpone and Motion for Reconsideration
on June 27, 2001. On appeal to the CA raising said issue, the CA
dismissed the appeal for the non-participation of the OSG and the
CA likewise denied the motion for reconsideration it filed. Petitioner

The contention is unavailing. Contrary to petitioner's claim, a

filed a petition with this Court raising the same issue and was

reading of the June 15, 2001 Order of the trial court during

likewise denied on January 30, 2002 for having been filed out of

arraignment leaves no room for vagueness. It states:

time. We likewise denied its Motion for Reconsideration on April 24,

Pursuant to the Order of March 2, 2001,

the three hundred [twenty-one] (321) informations
filed against both accused were treated to be only a
single offense for which they should be made
answerable. It is for this reason that both accused
were arraigned and entered their plea to a single or
one information only.[65]

2002. Hence petitioner can no longer raise the same issue in this
petition. In Zarate v. Director of Lands,[66] we held that:
A well-known legal principle is that when
an appellate court has once declared the law in a
case, such declaration continues to be the law of
that case even on a subsequent appeal. The rule

18

made by an appellate court, while it may be

reversed in other cases, cannot be departed from in
subsequent proceedings in the same case. The
Law of the Case, as applied to a former decision of
an appellate court, merely expresses the practice of
the courts in refusing to reopen what has been
decided. Such a rule is "necessary to enable an
appellate court to perform its duties satisfactorily
and efficiently, which would be impossible if a
question, once considered and decided by it, were
to be litigated anew in the same case upon any and
every subsequent appeal." Again, the rule is
necessary as a matter of policy in order to end
litigation. "There would be no end to a suit if every
obstinate litigant could, by repeated appeals,
compel a court to listen to criticisms on their
opinions, or speculate of chances from changes in
its members."

trial, as clearly shown by the events that transpired in the trial court,
was due to its own fault.

In order that a judgment or order of acquittal may be

successfully challenged in a petition for certiorari under Rule 65, the
petitioner must prove that the trial court, in acquitting the accused,
committed not merely errors of judgment, but grave abuse of
discretion amounting to lack or excess of jurisdiction. [67] No such
grave abuse of discretion can be attributed to respondent Judge in
dismissing the instant cases for the denial of private respondents'
right to speedy trial.

Petitioner's contention that the prosecution was clearly deprived of its

day in court when it was not afforded the right to be present during
the private respondents' arraignment and to proceed to trial cannot
stand scrutiny. Again, the issue of the validity of the arraignment of
the private respondents without the presence of Senior State
Prosecutor Bagabuyo has already been established with finality in
the prosecution's previous appeal with the CA in CA-G.R. SP. No.
65966 and with this Court in G.R. No. 150317 and, thus, constitutes
the law of the case between the parties. Petitioner cannot re-raise
said issue in this petition. Moreover, petitioner's failure to proceed to

A last note. The first and the foremost state principle

announced in our Constitution is that the Philippines is a democratic
and republican State. Sovereignty resides in the people and all
government authority emanates from them. [68] Our people express
their mighty sovereignty mainly thru the election ballot where they
decide,

free

from

any fetter, who

will

represent

them

in

government. In a representative government, the choice by the

people of who will be their voice is nothing less than sacred, hence,
its desecration is unpardonable. Regrettably, the prosecutor failed in
vindicating this constitutional principle whose wisdom has not been

19

diminished by the erosions of time. The lack of zealousness on the

part of the prosecution to prove that the senatorial elections held in
May 1995 was marred by the condemnable practice of dagdagbawas which led to the dismissal of the criminal charges against the
private respondents cannot but be lamented. The inexplicable failure
has left this Court no alternative except to affirm the dismissal of said
charges for the constitutional right of the accused to speedy trial
cannot be held hostage by the disinterest and mistakes of the
prosecution in discharging its duty.

IN VIEW WHEREOF, the petition is denied. The Joint

Decision dated July 4, 2002 of the Court of Appeals in CA-G.R. SP
Nos. 68922 and 69703 is affirmed.

No cost.

20

JEFFREY RESO DAYAP, G.R. No. 177960

Petitioner,
Present:

Serious Physical Injuries, and Damage to Property. The pertinent

portion of the information reads:

QUISUMBING, J.,
Chairperson,
- versus - CORONA,*
CARPIO MORALES,
TINGA, and
CHICO-NAZARIO,
J.
PRETZY-LOU SENDIONG,
GENESA SENDIONG, ELVIE Promulgated:
SY and DEXIE DURAN,
Respondents. January 29, 2009
x---------------------------------------------------------------------------x
DECISION
TINGA, J.:
Before

us

is

petition

for

review [1] on

certiorari

of

the

Decision[2] dated 17 August 2006 and Resolution[3] dated 25 April

2007 by the Court of Appeals in CA-G.R. SP No. 01179
entitled,Pretzy-Lou P. Sendiong, Genesa R. Sendiong, Elvie H. Sy
and Dexie Duran v. Hon. Judge Cresencio Tan and Jeffrey Reso
Dayap.

That at about 11:55 oclock in the evening

of 28 December 2004 at Brgy. Maslog, Sibulan,
Negros Oriental, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, did then and there, willfully,
unlawfully and feloniously drive in a reckless and
imprudent manner a 10-wheeler cargo truck with
plate number ULP-955, color blue, fully loaded with
sacks of coconut shell, registered in the name of
Ruben Villabeto of Sta. Agueda Pamplona, Negros
Oriental, thereby hitting an automobile, a Colt
Galant with plate number NLD-379 driven by Lou
Gene R. Sendiong who was with two female
passengers, namely: Dexie Duran and Elvie Sy,
thus causing the instantaneous death of said Lou
Gene R. Sendiong, less serious physical injuries
on the bodies of Dexie Duran and Elvie Sy and
extensive damage to the above-mentioned Colt
Galant which is registered in the name of Cristina
P. Weyer of 115 Dr. V. Locsin St., Dumaguete City,
to the damage of the heirs of the same Lou Gene
R. Sendiong and the other two offended parties
above-mentioned.
An act defined and penalized by Article 365 of the
Revised Penal Code.

The case had its origins in the filing of an Information [4] on 29

December 2004 by the Provincial Prosecutors Office, Sibulan,
Negros Oriental, charging herein petitioner Jeffrey Reso Dayap with
the crime of Reckless Imprudence resulting to Homicide, Less

21

reasonable doubt that he is criminally liable for reckless imprudence,

On 10 January 2005, before the Municipal Trial Court (MTC) of

to which respondents filed a Comment[11] dated 25 April 2005.

Sibulan, Negros Oriental, petitioner was arraigned and he pleaded

In the Order[12] dated 16 May 2005, the MTC granted the

not guilty to the charge.[5]

demurrer and acquitted petitioner of the crime of reckless

On 17 January 2005, respondents Pretzy-Lou P. Sendiong, Genesa

imprudence. The MTC found that the evidence presented by

Sendiong and Dexie Duran filed a motion for leave of court to file an

respondents

amended information.[6] They sought to add the allegation of

Information. Pertinent portions of the order state:

abandonment of the victims by petitioner, thus: The driver of the 10wheeler cargo truck abandoned the victims, at a time when said
[Lou-Gene] R. Sendiong was still alive inside the car; he was only
extracted from the car by the by-standers.[7]

On 21 January 2005, however, the Provincial Prosecutor filed an

Omnibus Motion praying that the motion to amend the information be
considered withdrawn.[8] On 21 January 2003, the MTC granted the
withdrawal and the motion to amend was considered withdrawn. [9]

Pre-trial and trial of the case proceeded. Respondents testified for

the prosecution. After the prosecution had rested its case, petitioner
sought

leave

to

file

demurrer

to

evidence

which

was

granted. Petitioner filed his Demurrer to Evidence [10] dated 15 April

2005 grounded on the prosecutions failure to prove beyond

failed

to

establish

the

allegations

in

the

An examination of the allegations in the information

and comparing the same with the evidence
presented by the prosecution would reveal that the
evidence presented has not established said
allegations. The
facts
and
circumstances
constituting the allegations charged have not been
proven. It is elementary in the rules of evidence
that a party must prove his own affirmative
allegations.
xxxx
Nowhere in the evidence of the prosecution can
this Court find that it was the accused who
committed the crime as charged. Its witnesses
have never identified the accused as the one who
has committed the crime.The prosecution never
bothered to establish if indeed it was the accused
who committed the crime or asked questions which
would have proved the elements of the crime. The
prosecution did not even establish if indeed it was
the accused who was driving the truck at the time
of the incident. The Court simply cannot find any
evidence which would prove that a crime has been
committed and that the accused is the person
responsible for it. There was no evidence on the

22

allegation of the death of Lou Gene R. Sendiong

as there was no death certificate that was offered
in evidence. The alleged less serious physical
injuries on the bodies of Dexie Duran and Elvie Sy
were not also proven as no medical certificate was
presented to state the same nor was a doctor
presented to establish such injuries. The alleged
damage to the [C]olt [G]alant was also not
established in any manner as no witness ever
testified on this aspect and no documentary
evidence was also presented to state the
damage. The prosecution therefore failed to
establish if indeed it was the accused who was
responsible for the death of Lou Gene R. Sendiong
and the injuries to Dexie Duran and Elvie Sy,
including the damage to the Colt Galant. The
mother of the victim testified only on the expenses
she incurred and the shock she and her family
have suffered as a result of the incident. But sad to
say, she could not also pinpoint if it was the
accused who committed the crime and be held
responsible for it. This Court could only say that
the prosecution has practically bungled this case
from its inception.

which was the effect of vehicle 1s ramming into the

rear left portion of vehicle 2 causing the differential
guide of vehicle 2 to be cut, its tires busted and
pulled out together with their axle. The cutting of
the differential guide cause[d] the entire housing
connecting the tires to the truck body to collapse,
thus causing vehicle 2 to tilt to its left side and
swerve towards the lane of vehicle 1. It was this
accident that caused the swerving, not of [sic] any
negligent act of the accused.
xxxx
Every criminal conviction requires of the
prosecution to prove two thingsthe fact of the
crime, i.e., the presence of all the elements of the
crime for which the accused stands charged, and
the fact that the accused is the perpetrator of the
crime. Sad to say, the prosecution has miserably
failed to prove these two things. When the
prosecution fails to discharge its burden of
establishing the guilt of the accused, an accused
need not even offer evidence in his behalf.
xxxx

xxxx
The defense furthermore argued that on
the contrary, the prosecutions [evidence]
conclusively show that the swerving of vehicle 1
[the Colt Galant] to the lane of vehicle 2 [the cargo
truck] is the proximate cause of the accident. The
court again is inclined to agree with this argument
of the defense. It has looked carefully into the
sketch of the accident as indicated in the police
blotter and can only conclude that the logical
explanation of the accident is that vehicle 1
swerved into the lane of vehicle 2, thus hitting the
latters inner fender and tires. Exhibit 7 which is a
picture of vehicle 2 shows the extent of its damage

WHEREFORE, premises considered, the demurrer

is granted and the accused JEFFREY RESO
DAYAP is hereby acquitted for insufficiency of
evidence. The bail bond posted for his temporary
liberty is also hereby cancelled and ordered
released to the accused or his duly authorized
representative.
SO ORDERED.[13]

23

civil liability might arise did not exist. Thus, the RTC declared that the
Respondents thereafter filed a petition for certiorari under
Rule 65,[14] alleging that the MTCs dismissal of the case was done
without

considering

the

evidence

adduced

by

aspect of civil liability was not passed upon and resolved to remand
the issue to the MTC. The dispositive portion of the decision states:

the
WHEREFORE, the questioned order of the
Municipal Trial Court of Sibulan on accuseds
acquittal is AFFIRMED. The case is REMANDED
to the court of origin or its successor for further
proceedings on the civil aspect of the case. No
costs.

prosecution. Respondents added that the MTC failed to observe the

manner the trial of the case should proceed as provided in Sec. 11,
Rule 119 of the Rules of Court as well as failed to rule on the civil
liability of the accused in spite of the evidence presented. The case

SO ORDERED.[16]

was raffled to the Regional Trial Court (RTC) of Negros Oriental, Br.
32.

Both parties filed their motions for reconsideration of the

In the order[15] dated 23 August 2005, the RTC affirmed the
acquittal of petitioner but ordered the remand of the case to the MTC

RTC order, but these were denied for lack of merit in the
order[17] dated 12 September 2005.

for further proceedings on the civil aspect of the case. The RTC ruled
that the MTCs recital of every fact in arriving at its conclusions
disproved the allegation that it failed to consider the evidence
presented by the prosecution. The records also demonstrated that
the MTC conducted the trial of the case in the manner dictated by
Sec. 11, Rule 119 of the Rules of Court, except that the defense no
longer presented its evidence after the MTC gave due course to the
accuseds demurrer to evidence, the filing of which is allowed under
Sec. 23, Rule 119. The RTC however agreed that the MTC failed to

Respondents then filed a petition for review with the Court of Appeals
under Rule 42, docketed as CA-G.R. SP. No. 01179. The appellate
court

subsequently

rendered

the

assailed

decision

and

resolution. The Court of Appeals ruled that there being no proof of

the total value of the properties damaged, the criminal case falls
under the jurisdiction of the RTC and the proceedings before the
MTC are

rule on the accuseds civil liability, especially since the judgment of

acquittal did not include a declaration that the facts from which the

24

Petitioner moved for reconsideration of the Court of Appeals

null and void. In so ruling, the appellate court cited Tulor v.

decision,[20] arguing that jurisdiction over the case is determined by

Garcia (correct title of the case is Cuyos v. Garcia)[18] which ruled that

the allegations in the information, and that neither the 1991 Rule on

in complex crimes involving reckless imprudence resulting in

Summary Procedure nor Sec. 36 of the Judiciary Reorganization

homicide or physical injuries and damage to property, the jurisdiction

Act of 1980 can be the basis of the RTCs jurisdiction over the

of the court to take cognizance of the case is determined by the fine

case. However, the Court of Appeals denied the motion for

imposable for the damage to property resulting from the reckless

reconsideration for lack of merit in the Resolution dated 25 April

imprudence, not by the corresponding penalty for the physical

2007.[21] It reiterated that it is the RTC that has proper jurisdiction

injuries charged. It also found support in Sec. 36 of the Judiciary

considering that the information alleged a willful, unlawful, felonious

Reorganization Act of 1980 and the 1991 Rule 8 on Summary

killing as well as abandonment of the victims.

Procedure, which govern the summary procedure in first-level courts

in offenses involving damage to property through criminal negligence

In the present petition for review, petitioner argues that the MTC had

where the imposable fine does not exceed P10,000.00. As there was

jurisdiction to hear the criminal case for reckless imprudence, owing

no proof of the total value of the property damaged and respondents

to the enactment of Republic Act (R.A.) No. 7691, [22] which confers

were claiming the amount of P1,500,000.00 as civil damages, the

jurisdiction to first-level courts on offenses involving damage to

case falls within the RTCs jurisdiction. The dispositive portion of the

property through criminal negligence. He asserts that the RTC could

Decision dated 17 August 2006 reads:

not have acquired jurisdiction on the basis of a legally unfiled and

officially

WHEREFORE, premises considered, judgment is

hereby rendered by Us REMANDING the case to
the Regional Trial Court (RTC), Judicial Region,
Branch 32, Negros Oriental for proper disposition
of the merits of the case.

withdrawn

amended

information

alleging

abandonment. Respondents are also faulted for challenging the

MTCs order acquitting petitioner through a special civil action for
certiorari under Rule 65 in lieu of an ordinary appeal under Rule 42.

SO ORDERED.[19]
The petition has merit. It should be granted.

25

The first issue is whether the Court of Appeals erred in ruling that

upon the defendant the penalty of prision correccional in its medium

jurisdiction over the offense charged pertained to the RTC.

and maximum periods.

Both the MTC and the RTC proceeded with the case on the

The offense with which petitioner was charged is reckless

basis of the Information dated 29 December 2004 charging petitioner

imprudence resulting in homicide, less serious physical injuries and

only with the complex crime of reckless imprudence resulting to

damage to property, a complex crime. Where a reckless, imprudent,

homicide, less serious physical injuries and damage to property. The

or negligent act results in two or more grave or less grave felonies, a

Court of Appeals however declared in its decision that petitioner

complex crime is committed.[24] Article 48 of the Revised Penal Code

should have been charged with the same offense but aggravated by

provides that when the single act constitutes two or more grave or

the circumstance of abandonment of the victims. It appears from the

less grave felonies, or when an offense is a necessary means for

records however that respondents attempt to amend the information

committing the other, the penalty for the most serious crime shall be

by charging the aggravated offense was unsuccessful as the MTC

imposed, the same to be applied in its maximum period. Since Article

had approved the Provincial Prosecutors motion to withdraw their

48 speaks of felonies, it is applicable to crimes through negligence in

motion to amend the information. The information filed before the

view of the definition of felonies in Article 3 as acts or omissions

trial court had remained unamended. [23] Thus, petitioner is deemed to

punishable by law committed either by means of deceit (dolo) or fault

have been charged only with the offense alleged in the original

(culpa).[25] Thus, the penalty imposable upon petitioner, were he to be

Information without any aggravating circumstance.

found guilty, is prision correccional in its medium period (2 years, 4

months and 1 day to 4 years) and maximum period (4 years, 2

Article 365 of the Revised Penal Code punishes any person who, by

months and 1 day to 6 years).

reckless imprudence, commits any act which, had it been intentional,

would constitute a grave felony, with the penalty ofarresto mayor in
its

maximum

period

to prision

correccional in

its

Applicable as well is the familiar rule that the jurisdiction of

medium

the court to hear and decide a case is conferred by the law in force

period. When such reckless imprudence the use of a motor vehicle,

at the time of the institution of the action, unless such statute

resulting in the death of a person attended the same article imposes

provides for a retroactive application thereof. [26] When this case was

26

filed on 29 December 2004, Section 32(2) of Batas Pambansa Bilang

sufficiency to warrant conviction beyond reasonable doubt, resulting

129 had already been amended by R.A. No. 7691. R.A. No. 7691

in a dismissal of the case on the merits, tantamount to an acquittal of

extended the jurisdiction of the first-level courts over criminal cases

the accused.[28] Such dismissal of a criminal case by the grant of

to include all offenses punishable with imprisonment not exceeding

demurrer to evidence may not be appealed, for to do so would be to

six (6) years irrespective of the amount of fine, and regardless of

place the accused in double jeopardy.[29] But while the dismissal

other imposable accessory or other penalties including those for civil

order consequent to a demurrer to evidence is not subject to appeal,

liability. It

the same is still reviewable but only by certiorari under Rule 65 of the

explicitly states

that in offenses involving damage to property

Rules of Court. Thus, in such case, the factual findings of the trial

throughcriminal negligence, they shall have exclusive original

court are conclusive upon the reviewing court, and the only legal

jurisdiction thereof. It follows that criminal cases for reckless

basis to reverse and set aside the order of dismissal upon demurrer

imprudence punishable with prision correccional in its medium and

to evidence is by a clear showing that the trial court, in acquitting the

maximum periods should fall within the jurisdiction of the MTC and

accused, committed grave abuse of discretion amounting to lack or

not the RTC. Clearly, therefore, jurisdiction to hear and try the same

excess of jurisdiction or a denial of due process, thus rendering the

pertained to the MTC and the RTC did not have original jurisdiction

assailed judgment void.[30]

over the criminal case.[27] Consequently, the MTC of Sibulan, Negros

Oriental had properly taken cognizance of the case and the
proceedings before it were valid and legal.

Accordingly, respondents filed before the RTC the petition for

certiorari alleging that the MTC gravely abused its discretion in
dismissing the case and failing to consider the evidence of the

As the records show, the MTC granted petitioners demurrer

prosecution in resolving the same, and in allegedly failing to follow

to evidence and acquitted him of the offense on the ground of

the proper procedure as mandated by the Rules of Court. The RTC

insufficiency of evidence. The demurrer to evidence in criminal

correctly ruled that the MTC did not abuse its discretion in dismissing

cases, such as the one at bar, is filed after the prosecution had

the criminal complaint. The MTCs conclusions were based on facts

rested its case, and when the same is granted, it calls for an

diligently recited in the order thereby disproving that the MTC failed

appreciation of the evidence adduced by the prosecution and its

to consider the evidence presented by the prosecution. The records

27

also show that the MTC correctly followed the procedure set forth in

judgment in the criminal action that the act or omission from which

the Rules of Court.

the civil liability may arise did not exist [32] or where the accused did
not commit the acts or omission imputed to him.[33]

The second issue is whether the Court of Appeals erred in

ordering the remand of the case of the matter of civil liability for the
reception of evidence.

Thus, if demurrer is granted and the accused is acquitted by

the court, the accused has the right to adduce evidence on the civil
aspect of the case unless the court also declares that the act or

We disagree with the Court of Appeals on directing the

omission from which the civil liability may arise did not exist. [34] This is

remand of the case to the RTC for further proceedings on the civil

because when the accused files a demurrer to evidence, he has not

aspect, as well as with the RTC in directing a similar remand to the

yet adduced evidence both on the criminal and civil aspects of the

MTC.

case. The only evidence on record is the evidence for the

prosecution. What the trial court should do is issue an order or partial
judgment granting the demurrer to evidence and acquitting the
accused, and set the case for continuation of trial for the accused to
adduce evidence on the civil aspect of the case and for the private
The acquittal of the accused does not automatically preclude

a judgment against him on the civil aspect of the case. The extinction

complainant to adduce evidence by way of rebuttal. Thereafter, the

court shall render judgment on the civil aspect of the case. [35]

of the penal action does not carry with it the extinction of the civil
liability where: (a) the acquittal is based on reasonable doubt as only

A scrutiny of the MTCs decision supports the conclusion that

preponderance of evidence is required; (b) the court declares that

the acquittal was based on the findings that the act or omission from

the liability of the accused is only civil; and (c) the civil liability of the

which the civil liability may arise did not exist and that petitioner did

accused does not arise from or is not based upon the crime of which

not commit the acts or omission imputed to him; hence, petitioners

the accused is acquitted. [31] However, the civil action based on delict

civil liability has been extinguished by his acquittal. It should be

may be deemed extinguished if there is a finding on the final

noted that the MTC categorically stated that it cannot find any

28

evidence which would prove that a crime had been committed and
that accused was the person responsible for it. It added that the
prosecution failed to establish that it was petitioner who committed
the crime as charged since its witnesses never identified petitioner
as the one who was driving the cargo truck at the time of the
incident. Furthermore, the MTC found that the proximate cause of
the accident is the damage to the rear portion of the truck caused by
the swerving of the Colt Galant into the rear left portion of the cargo
truck and not the reckless driving of the truck by petitioner, clearly
establishing

that

petitioner

is

not

guilty

of

reckless

imprudence. Consequently, there is no more need to remand the

case to the trial court for proceedings on the civil aspect of the case,
since petitioners acquittal has extinguished his civil liability.
WHEREFORE, the petition is GRANTED. The Court of
Appeals Decision dated 17 August 2006 and Resolution dated 25
April 2007 in CA-G.R. SP. No. 01179 are REVERSED and SET
ASIDE. The Order dated 16 May 2005 of the Municipal Trial Court of
Sibulan, Negros Oriental in Criminal Case No. 3016-04 granting the
Demurrer to Evidence and acquitting petitioner Jeffrey Reso Dayap
of the offense charged therein is REINSTATED and AFFIRMED.

SO ORDERED.

29

ANAMER SALAZAR, petitioner, vs. THE PEOPLE OF THE

PHILIPPINES and J.Y. BROTHERS MARKETING
CORPORATION, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the
1997 Rules of Criminal Procedure of the Order [1] of the Regional Trial
Court, 5th Judicial Region, Legazpi City, Branch 5, [2] dated November
19, 2001, and its Order [3] dated January 14, 2002 denying the motion
for reconsideration of the decision of the said court on the civil
aspect thereof and to allow her to present evidence thereon.
On June 11, 1997, an Information for estafa was filed against
herein petitioner Anamer D. Salazar and co-accused Nena Jaucian
Timario with the Regional Trial Court of Legazpi City, docketed as
Criminal Case No. 7474 which reads as follows:
That sometime in the month of October, 1996, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the
above named-accused, conspiring and confederating with each
other, with intent to defraud by means of false pretenses or
fraudulent acts executed simultaneously with the commission of the
fraud, did then and there wilfully, unlawfully and feloniously, on the
part of accused NENA JAUCIAN TIMARIO, drew and issue[d]
PRUDENTIAL BANK, LEGASPI CITY BRANCH CHECK NO.
067481, dated October 15, 1996, in the amount of P214,000.00 in
favor of J.Y. BROTHERS MARKETING CORPORATION,
represented by its Branch Manager, JERSON O. YAO, and accused
ANAMER D. SALAZAR endorsed and negotiated said check as
payment of 300 cavans of rice obtained from J.Y. BROTHERS
MARKETING CORPORATION, knowing fully well that at that
time said check was issued and endorsed, Nena Jaucian Timario did

not have sufficient funds in or credit with the drawee bank to cover
the amount called for therein and without informing the payee of
such circumstance; that when said check was presented to the
drawee bank for payment, the same was consequently dishonored
and refused payment for the reason of ACCOUNT CLOSED; that
despite demands, accused failed and refused and still fail and refuse
to pay and/or make arrangement for the payment of the said check,
to the damage and prejudice of said J.Y. BROTHERS MARKETING
CORPORATION.
CONTRARY TO LAW.[4]
Upon arraignment, the petitioner, assisted by counsel, entered a
plea of not guilty. Trial thereafter ensued.
The Evidence of the Prosecution
On October 15, 1996, petitioner Anamer Salazar purchased
300 cavans of rice from J.Y. Brothers Marketing Corporation, through
Mr. Jerson Yao. As payment for these cavans of rice, the petitioner
gave the private complainant Check No. 067481 drawn against the
Prudential Bank, Legazpi City Branch, dated October 15, 1996, by
one Nena Jaucian Timario in the amount of P214,000. Jerson Yao
accepted the check upon the petitioners assurance that it was a
good check. The cavans of rice were picked up the next day by the
petitioner. Upon presentment, the check was dishonored because it
was drawn under a closed account (Account Closed). The petitioner
was informed of such dishonor. She replaced the Prudential Bank
check with Check No. 365704 drawn against the Solid Bank, Legazpi
Branch, which, however, was returned with the word DAUD (Drawn
Against Uncollected Deposit).
After the prosecution rested its case, the petitioner filed a
Demurrer to Evidence with Leave of Court [5] alleging that she could
not be guilty of the crime as charged for the following reasons: (a)

30

she was merely an indorser of the check issued by Nena Timario,

and Article 315, paragraph 2(d) on estafa penalizes only the issuer of
the check and not the indorser thereof; (b) there is no sufficient
evidence to prove that the petitioner conspired with the issuer of the
check, Nena Jaucian Timario, in order to defraud the private
complainant; (c) after the first check was dishonored, the petitioner
replaced it with a second one. The first transaction had therefore
been effectively novated by the issuance of the second
check. Unfortunately, her personal check was dishonored not for
insufficiency of funds, but for DAUD, which in banking parlance
means drawn against uncollected deposit. According to the
petitioner, this means that the account had sufficient funds but was
still restricted because the deposit, usually a check, had not yet been
cleared.
The prosecution filed its comment/opposition to the petitioners
demurrer to evidence.
On November 19, 2001, the trial court rendered judgment
acquitting the petitioner of the crime charged but ordering her to
remit to the private complainant the amount of the check as payment
for her purchase. The trial court ruled that the evidence for the
prosecution did not establish the existence of conspiracy beyond
reasonable doubt between the petitioner and the issuer of the check,
her co-accused Nena Jaucian Timario, for the purpose of defrauding
the private complainant. In fact, the private complainant, Jerson Yao,
admitted that he had never met Nena Jaucian Timario who remained
at large. As a mere indorser of the check, the petitioners breach of
the warranty that the check was a good one is not synonymous with
the fraudulent act of falsely pretending to possess credit under Article
315(2)(d). The decretal portion of the trial courts judgment reads as
follows:
WHEREFORE, premises considered, the accused Anamer D.
Salazar is hereby ACQUITTED of the crime charged but is hereby

held liable for the value of the 300 bags of rice. Accused Anamer D.
Salazar is therefore ordered to pay J.Y. Brothers Marketing
Corporation the sum of P214,000.00. Costs against the accused.[6]
Within the reglementary period therefor, the petitioner filed a
motion for reconsideration on the civil aspect of the decision with a
plea that he be allowed to present evidence pursuant to Rule 33 of
the Rules of Court. On January 14, 2002, the court issued an order
denying the motion.
In her petition at bar, the petitioner assails the orders of the trial
court claiming that after her demurrer to evidence was granted by the
trial court, she was denied due process as she was not given the
opportunity to adduce evidence to prove that she was not civilly
liable to the private respondent. The petitioner invokes the
applicability of Rule 33 of the Rules of Civil Procedure in this case,
contending that before being adjudged liable to the private offended
party, she should have been first accorded the procedural relief
granted in Rule 33.
The Petition Is Meritorious
According to Section 1, Rule 111 of the Revised Rules of
Criminal Procedure
SECTION 1. Institution of criminal and civil actions. (a) When a
criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted
with the criminal action unless the offended party waives the civil
action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.
The reservation of the right to institute separately the civil action shall
be made before the prosecution starts presenting its evidence and

31

under circumstances affording the offended party a reasonable

opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the
accused by way of moral, nominal, temperate, or exemplary
damages without specifying the amount thereof in the complaint or
information, the filing fees therefor shall constitute a first lien on the
judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the
complaint or information, the corresponding filing fees shall be paid
by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be
required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by
the accused in the criminal case, but any cause of action which could
have been the subject thereof may be litigated in a separate civil
action.
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall
be deemed to include the corresponding civil action. No reservation
to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount of
the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary damages, the
offended party shall pay additional filing fees based on the amounts
alleged therein. If the amounts are not so alleged but any of these
damages are subsequently awarded by the court, the filing fees
based on the amount awarded shall constitute a first lien on the
judgment.

Where the civil action has been filed separately and trial thereof has
not yet commenced, it may be consolidated with the criminal action
upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing consolidation of the
civil and criminal actions.
The last paragraph of Section 2 of the said rule provides that the
extinction of the penal action does not carry with it the extinction of
the civil action. Moreover, the civil action based on delict shall be
deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability
may arise did not exist.[7]
The criminal action has a dual purpose, namely, the punishment
of the offender and indemnity to the offended party. The dominant
and primordial objective of the criminal action is the punishment of
the offender. The civil action is merely incidental to and consequent
to the conviction of the accused. The reason for this is that criminal
actions are primarily intended to vindicate an outrage against the
sovereignty of the state and to impose the appropriate penalty for the
vindication of the disturbance to the social order caused by the
offender. On the other hand, the action between the private
complainant and the accused is intended solely to indemnify the
former.[8]
Unless the offended party waives the civil action or reserves the
right to institute it separately or institutes the civil action prior to the
criminal action, there are two actions involved in a criminal case. The
first is the criminal action for the punishment of the offender. The
parties are the People of the Philippines as the plaintiff and the
accused. In a criminal action, the private complainant is merely a
witness for the State on the criminal aspect of the action. The second
is the civil action arising from the delict. The private complainant is

32

the plaintiff and the accused is the defendant. There is a merger of

the trial of the two cases to avoid multiplicity of suits.
The quantum of evidence on the criminal aspect of the case is
proof beyond reasonable doubt, while in the civil aspect of the action,
the quantum of evidence is preponderance of evidence. [9] Under
Section 3, Rule 1 of the 1997 Rules of Criminal Procedure, the said
rules shall govern the procedure to be observed in action, civil or
criminal.
The prosecution presents its evidence not only to prove the guilt
of the accused beyond reasonable doubt but also to prove the civil
liability of the accused to the offended party. After the prosecution
has rested its case, the accused shall adduce its evidence not only
on the criminal but also on the civil aspect of the case. At the
conclusion of the trial, the court should render judgment not only on
the criminal aspect of the case but also on the civil aspect thereof:
SEC. 2. Contents of the judgment. If the judgment is of conviction, it
shall state (1) the legal qualification of the offense constituted by the
acts committed by the accused and the aggravating or mitigating
circumstances which attended its commission; (2) the participation of
the accused in the offense, whether as principal, accomplice, or
accessory after the fact; (3) the penalty imposed upon the accused;
and (4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party, if
there is any, unless the enforcement of the civil liability by a separate
civil action has been reserved or waived.
In case the judgment is of acquittal, it shall state whether the
evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt beyond reasonable
doubt. In either case, the judgment shall determine if the act or
omission from which the civil liability might arise did not exist. [10]

The acquittal of the accused does not prevent a judgment

against him on the civil aspect of the case where (a) the acquittal is
based on reasonable doubt as only preponderance of evidence is
required; (b) where the court declared that the liability of the accused
is only civil; (c) where the civil liability of the accused does not arise
from or is not based upon the crime of which the accused was
acquitted.Moreover, the civil action based on the delict is
extinguished if there is a finding in the final judgment in the criminal
action that the act or omission from which the civil liability may arise
did not exist or where the accused did not commit the acts or
omission imputed to him.
If the accused is acquitted on reasonable doubt but the court
renders judgment on the civil aspect of the criminal case, the
prosecution cannot appeal from the judgment of acquittal as it would
place the accused in double jeopardy. However, the aggrieved party,
the offended party or the accused or both may appeal from the
judgment on the civil aspect of the case within the period therefor.
After the prosecution has rested its case, the accused has the
option either to (a) file a demurrer to evidence with or without leave
of court under Section 23, Rule 119 of the Revised Rules of Criminal
Procedure, or to (b) adduce his evidence unless he waives the
same. The aforecited rule reads:
Sec. 23. Demurrer to evidence. After the prosecution rests its case,
the court may dismiss the action on the ground of insufficiency of
evidence (1) on its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to evidence filed by the
accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court,
the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused

33

waives his right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a nonextendible period of five (5) days after the prosecution rests its
case. The prosecution may oppose the motion within a nonextendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to
evidence within a non-extendible period of ten (10) days from
notice. The prosecution may oppose the demurrer to evidence within
a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or
by certiorari before the judgment.
In criminal cases, the demurrer to evidence partakes of the
nature of a motion to dismiss the case for failure of the prosecution
to prove his guilt beyond reasonable doubt. In a case where the
accused files a demurrer to evidence without leave of court, he
thereby waives his right to present evidence and submits the case
for decision on the basis of the evidence of the prosecution. On the
other hand, if the accused is granted leave to file a demurrer to
evidence, he has the right to adduce evidence not only on the
criminal aspect but also on the civil aspect of the case if his demurrer
is denied by the court.
If demurrer is granted and the accused is acquitted by the court,
the accused has the right to adduce evidence on the civil aspect of
the case unless the court also declares that the act or omission from
which the civil liability may arise did not exist. If the trial court issues
an order or renders judgment not only granting the demurrer to
evidence of the accused and acquitting him but also on the civil

liability of the accused to the private offended party, said judgment on

the civil aspect of the case would be a nullity for the reason that the
constitutional right of the accused to due process is thereby
violated. As we held in Alonte v. Savellano, Jr.:[11]
Section 14, paragraphs (1) and (2), of Article III, of the Constitution
provides the fundamentals.
(1) No person shall be held to answer for a criminal offense without
due process of law.
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy, impartial, and
public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is
unjustifiable.
Jurisprudence acknowledges that due process in criminal
proceedings, in particular, require (a) that the court or tribunal trying
the case is properly clothed with judicial power to hear and
determine the matter before it; (b) that jurisdiction is lawfully acquired
by it over the person of the accused; (c) that the accused is given an
opportunity to be heard; and (d) that judgment is rendered only upon
lawful hearing.
The above constitutional and jurisprudentially postulates, by now
elementary and deeply imbedded in our own criminal justice system,
are mandatory and indispensable. The principles find universal
acceptance and are tersely expressed in the oft-quoted statement
that procedural due process cannot possibly be met without a law

34

which hears before it condemns, which proceeds upon inquiry and

renders judgment only after trial.[12]
This is so because when the accused files a demurrer to
evidence, the accused has not yet adduced evidence both on the
criminal and civil aspects of the case. The only evidence on record is
the evidence for the prosecution. What the trial court should do is to
issue an order or partial judgment granting the demurrer to evidence
and acquitting the accused; and set the case for continuation of trial
for the petitioner to adduce evidence on the civil aspect of the case,
and for the private complainant to adduce evidence by way of
rebuttal after which the parties may adduce their sur-rebuttal
evidence as provided for in Section 11, Rule 119 of the Revised
Rules of Criminal Procedure:
Sec. 11. Order of trial. The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and,
in the proper case, the civil liability.
(b) The accused may present evidence to prove his defense and
damages, if any, arising from the issuance of a provisional remedy in
the case.
(c) The prosecution and the defense may, in that order, present
rebuttal and sur-rebuttal evidence unless the court, in furtherance of
justice, permits them to present additional evidence bearing upon the
main issue.
(d) Upon admission of the evidence of the parties, the case shall be
deemed submitted for decision unless the court directs them to
argue orally or to submit written memoranda.

(e) When the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the order of
trial may be modified.
Thereafter, the court shall render judgment on the civil aspect of
the case on the basis of the evidence of the prosecution and the
accused.
In this case, the petitioner was charged with estafa under Article
315, paragraph 2(d) of the Revised Penal Code. The civil action
arising from the delict was impliedly instituted since there was no
waiver by the private offended party of the civil liability nor a
reservation of the civil action. Neither did he file a civil action before
the institution of the criminal action.
The petitioner was granted leave of court to file a demurrer to
evidence. The court issued an order granting the demurrer on its
finding that the liability of the petitioner was not criminal but only
civil.However, the court rendered judgment on the civil aspect of the
case and ordered the petitioner to pay for her purchases from the
private complainant even before the petitioner could adduce
evidence thereon. Patently, therefore, the petitioner was denied her
right to due process.
IN LIGHT OF ALL THE FOREGOING, the Petition is
GRANTED. The Orders dated November 19, 2001 and January 14,
2002 are SET ASIDE AND NULLIFIED. The Regional Trial Court of
Legazpi City, Branch 5, is hereby DIRECTED to set Criminal Case
No. 7474 for the continuation of trial for the reception of the
evidence-in-chief of the petitioner on the civil aspect of the case and
for the rebuttal evidence of the private complainant and the surrebuttal evidence of the parties if they opt to adduce any.
SO ORDERED.

35

Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Ting

a, JJ., concur.

respondent J.Y. Brothers Marketing Corporation (JYBMC) through

Jerson Yao for the purchase of
300 bags of rice. The check was dishonored by drawee Prudential
Bank as it is drawn against a
closed account. Salazar replaced said check with a new one, this
time drawn against Solid Bank. It is

ANAMER SALAZAR v. THE PEOPLE OF THE PHILIPPINES and

J.Y. BROTHERS

again dishonored for being drawn against uncollected deposit

(DAUD).

MARKETING CORPORATION

The DAUD means that the account to which the check was drawn
had sufficient funds.

G.R. No. 151931, 23 September 2003, Second Division (Callejo Sr.,

J.)
If the trial court issues an order or renders judgment not only
granting the demurrer to

However, the fund cannot be used because it was collected against

a deposited check which is yet to
be cleared.

evidence of the accused and acquitting him but also on the civil
liability, the judgment on

Trial ensued. After the prosecution presented its evidence, Salazar

filed a demurrer to evidence

the civil aspect of the case would be a nullity as it violates the

constitutional right to due

with leave of court, which the trial court granted.

process.

In 1997, petitioner Anmer Salazar and Nena Jaucian Timario were

charged with estafa before the
Legazpi City Regional Trial Court.
The estafa case allegedly stemmed from the payment of a check
worth P214,000 to private

In 2002, the trial court rendered judgment acquitting Salazar, but

ordered her to remit to
JYBMC P214,000. The trial court ruled that the evidence of the
prosecution failed to establish the
existence of conspiracy beyond reasonable doubt between the
petitioner and the issuer of the check,
Timario. As a mere endorser of the check, Salazar's breach of
warranty was a good one and did not

36

amount to estafa under Article 315 (2)(d) of the Revised Penal Code.
Timario remained at large.

reasonable doubt. In a case where the accused files a demurrer to

evidence without leave of court,

As a result, Salazar filed a motion for reconsideration on the civil

aspect of the decision with a

thereby waives his right to present evidence and submits the case
for decision on the basis of the

plea to be allowed to present evidence. The trial court denied the

motion.

prosecution's evidence he has the right to adduce evidence not only

on the criminal aspect, but also

Because of the denial of the motion, she filed petition for review on
certiorari before the

on the civil aspect of the case of the demurrer is denied by the court.

Supreme Court alleging she was denied due process as the trial
court did not give her the
opportunity to adduce evidence to controvert her civil liability.
ISSUE:
Whether or not Salazar was denied due process.
RECENT JURISPRUDENCE REMEDIAL LAW
U.S.T. Law Review, Volume XLVIII, January December 2004
HELD:
Salazar should have been given by the trial court the chance to
present her evidence as regards
the civil aspect of the case.
Under the Revised Rules of Criminal Procedure, the Court explained
the demurrer to evidence
partakes of a motion to dismiss the case for the failure of the
prosecution to prove his guilt beyond

In addition, the Court said if the demurrer is granted and the

accused is acquitted by the court,
the accused has the right to adduce evidence on the civil aspect of
the case unless the court also
declares that the act or omission from which the civil liability may
arise did not exist.
If the trial court issues an order or renders judgment not only
granting the demurrer to evidence
of the accused and acquitting him but also on the civil liability, the
judgment on the civil aspect of
the case would be a nullity as it violates the constitutional right to due
process.
The Supreme Court explained that the trial court erred in rendering
judgment on the civil aspect
of the case and ordering the petitioner to pay for her purchases from
the private complainant even
before the petitioner could adduce evidence thereon is patently a
denial of her right to due process.

37

Citing Aante vs Savelana, Jr., the Court stressed that Section 14 (1)
and (2) of Article III of the
1987 Constitution which are elementary and deeply imbedded in our
own criminal justice system are
mandatory and indispensable. The principles find universal
acceptance and are tersely expressed in
the oft-quoted statement that procedural due process cannot
possibly be met without a "law which
hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial".

CONCEPCION CUENCO VDA. DE MANGUERRA and

THE HON. RAMON C. CODILLA, JR., Presiding Judge
of theRegional Trial Court of Cebu City, Branch 19,
Petitioners,
- versus RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ
and ATTY. GAMALIEL D.B. BONJE,
Respondents.

G.R. No. 152643

Present:

YNARES-SANTIAGO, J
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
Promulgated:
August 28, 2008

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

38

DECISION

as

NACHURA, J.:

the

Gorordo

property,

affixed

her

signature

to

the

document. Hence, the criminal case.[6]

Earlier, on September 10, 1999, Concepcion, who was a
resident of Cebu City, while on vacation in Manila, was unexpectedly

This is a petition for review on certiorari under Rule 45 of the

Rules

of

Court,

assailing

the

Court

of

Appeals

(CA)

confined at the Makati Medical Center due to upper gastro-intestinal

bleeding; and was advised to stay in Manila for further treatment. [7]

Decision[1] dated August 15, 2001 and its Resolution[2] datedMarch

12, 2002. The CA decision set aside the Regional Trial Court (RTC)
Orders dated August 25, 2000[3] granting Concepcion Cuenco Vda.
de Manguerras (Concepcions) motion to take deposition, and
dated November 3, 2000[4] denying the motion for reconsideration of
respondents Raul G. Risos, Susana Yongco, Leah Abarquez, and
Atty. Gamaliel D.B. Bonje.

4,

1999,

respondents

were

charged

with Estafa Through Falsification of Public Document before the RTC

of

Cebu

City,

Branch

dated October 27, 1999,

Suspension of the Proceedings in Criminal Case No. CBU-52248 on

the ground of prejudicial question. They argued that Civil Case No.
CEB-20359, which was an action for declaration of nullity of the
mortgage, should first be resolved.[8] On May 11, 2000, the RTC
granted

the

aforesaid

motion. Concepcions

motion

for

reconsideration was denied on June 5, 2000.[9]

The facts of the case, as culled from the records, follow:

On November

On November 24, 1999, respondents filed a Motion for

19,

through

criminal

information

which was subsequently amended

on November 18, 1999. The case, docketed as Criminal Case No.

CBU-52248,[5] arose from the falsification of a deed of real estate
mortgage allegedly committed by respondents where they made it
appear that Concepcion, the owner of the mortgaged property known

This prompted Concepcion to institute a special civil action

for certiorari before the CA seeking the nullification of the May 11 and
June 5 RTC orders. The case was docketed as CA-G.R. SP No.
60266 and remains pending before the appellate court to date. [10]
On August 16, 2000, the counsel of Concepcion filed a
motion to take the latters deposition. [11] He explained the need to
perpetuate Concepcions testimony due to her weak physical
condition and old age, which limited her freedom of mobility.

39

On August 25, 2000, the RTC granted the motion and

an indispensable party. This notwithstanding, the appellate court

directed that Concepcions deposition be taken before the Clerk of

resolved the matter on its merit, declaring that the examination of

Court of Makati City.[12] The respondents motion for reconsideration

prosecution witnesses, as in the present case, is governed by

was denied by the trial court on November 3, 2000. The court

Section 15, Rule 119 of the Revised Rules of Criminal Procedure and

ratiocinated that procedural technicalities should be brushed aside

not Rule 23 of the Rules of Court. The latter provision, said the

because of the urgency of the situation, since Concepcion was

appellate court, only applies to civil cases. Pursuant to the specific

already of advanced age.[13] After several motions for change of

provision of Section 15, Rule 119, Concepcions deposition should

venue of the deposition-taking, Concepcions deposition was finally

have been taken before the judge or the court where the case is

taken on March 9, 2001 at her residence.[14]

pending, which is the RTC of Cebu, and not before the Clerk of Court
of Makati City; and thus, in issuing the assailed order, the RTC

Aggrieved, respondents assailed the August 25 and

clearly committed grave abuse of discretion. [18]

November 3 RTC orders in a special civil action for certiorari before

the CA in CA-G.R. SP No. 62551.[15]
On August

15,

2001,

In its Resolution dated March 12, 2002 denying petitioners motion for
the

CA

rendered

reconsideration, the CA added that the rationale of the Rules in

Decision[16] favorable to the respondents, the dispositive portion of

requiring the taking of deposition before the same court is the

which reads:

constitutional right of the accused to meet the witnesses face to

face. The appellate court likewise concluded that Rule 23 could not

WHEREFORE, the petition is GRANTED

and the August 25, 2000 and November 3,
2000 orders of the court a quo are hereby SET
ASIDE, and any deposition that may have been
taken on the authority of such void orders is similarly
declared void.
SO ORDERED.[17]

be applied suppletorily because the situation was adequately

addressed by a specific provision of the rules of criminal procedure.
[19]

Hence, the instant petition raising the following issues:

I.

At the outset, the CA observed that there was a defect in the

respondents petition by not impleading the People of the Philippines,

40

WHETHER OR NOT RULE 23 OF THE 1997

RULES OF CIVIL PROCEDURE APPLIES TO THE
DEPOSITION OF PETITIONER.

court, the latter may dismiss the complaint/petition for the

petitioners/plaintiffs failure to comply.[22]

II.
WHETHER OR NOT FAILURE TO IMPLEAD THE
PEOPLE OF THE PHILIPPINES IN A PETITION
FOR CERTIORARI ARISING FROM A CRIMINAL
CASE
A QUO CONSTITUTES
A WAIVABLE
DEFECT IN THE PETITION FOR CERTIORARI.[20]

In this case, the CA disregarded the procedural flaw by allowing the

petition to proceed, in the interest of substantial justice. Also
noteworthy is that, notwithstanding the non-joinder of the People of
the Philippines as party-respondent, it managed, through the Office
of the Solicitor General, to file its Comment on the petition

It is undisputed that in their petition for certiorari before the

CA, respondents failed to implead the People of the Philippines as a
party

thereto. Because

of

this,

the

petition

was

for certiorari. Thus, the People was given the opportunity to refute
the respondents arguments.

obviously

defective. As provided in Section 5, Rule 110 of the Revised Rules of

Criminal Procedure, all criminal actions are prosecuted under the
direction and control of the public prosecutor. Therefore, it behooved
the petitioners (respondents herein) to implead the People of
the Philippines as respondent in the CA case to enable the Solicitor
General to comment on the petition.[21]
However, this Court has repeatedly declared that the failure to
implead an indispensable party is not a ground for the dismissal of
an action. In such a case, the remedy is to implead the non-party
claimed to be indispensable. Parties may be added by order of the
court, on motion of the party or on its own initiative at any stage of

Instructive is the Courts pronouncement in Commissioner Domingo

v. Scheer[23] in this wise:
There is nothing sacred about processes or
pleadings, their forms or contents. Their sole
purpose is to facilitate the application of justice to the
rival claims of contending parties. They were
created, not to hinder and delay, but to facilitate and
promote, the administration of justice. They do not
constitute the thing itself, which courts are always
striving to secure to litigants. They are designed as
the means best adapted to obtain that thing. In other
words, they are a means to an end. When they lose
the character of the one and become the other, the
administration of justice is at fault and courts are
correspondingly remiss in the performance of their
obvious duty.[24]

the action and/or such times as are just. If the petitioner/plaintiff

refuses to implead an indispensable party despite the order of the

41

Accordingly, the CA cannot be faulted for deciding the case on the

In the case at bench, in issue is the examination of a prosecution

merits despite the procedural defect.

witness, who, according to the petitioners, was too sick to travel and
appear before the trial court. Section 15 of Rule 119 thus comes into

On the more important issue of whether Rule 23 of the Rules of

play, and it provides:

Court applies to the instant case, we rule in the negative.

Section 15. Examination of witness for the
prosecution. When it satisfactorily appears that a
witness for the prosecution is too sick or infirm to
appear at the trial as directed by the court, or has to
leave thePhilippines with no definite date of
returning, he may forthwith be conditionally
examined before the court where the case is
pending. Such examination, in the presence of the
accused, or in his absence after reasonable notice to
attend the examination has been served on him,
shall be conducted in the same manner as an
examination at the trial. Failure or refusal of the
accused to attend the examination after notice shall
be considered a waiver. The statement taken may
be admitted in behalf of or against the accused.

It is basic that all witnesses shall give their testimonies at the trial of
the case in the presence of the judge. [25] This is especially true in
criminal cases in order that the accused may be afforded the
opportunity to cross-examine the witnesses pursuant to his
constitutional right to confront the witnesses face to face. [26] It also
gives the parties and their counsel the chance to propound such
questions as they deem material and necessary to support their
position or to test the credibility of said witnesses. [27] Lastly, this rule
enables the judge to observe the witnesses demeanor.[28]
This rule, however, is not absolute. As exceptions, Rules 23 to 28 of

Petitioners contend that Concepcions advanced age and health

the Rules of Court provide for the different modes of discovery that

condition exempt her from the application of Section 15, Rule 119 of

may be resorted to by a party to an action. These rules are adopted

the Rules of Criminal Procedure, and thus, calls for the application of

either to perpetuate the testimonies of witnesses or as modes of

Rule 23 of the Rules of Civil Procedure.

discovery. In criminal proceedings, Sections 12,[29] 13[30] and 15,

[31]

Rule 119 of the Revised Rules of Criminal Procedure, which took

The contention does not persuade.

effect on December 1, 2000, allow the conditional examination of

both the defense and prosecution witnesses.

The

very

reason

offered

by

the

petitioners

to

exempt Concepcion from the coverage of Rule 119 is at once the

ground which places her squarely within the coverage of the same

42

provision.Rule 119 specifically states that a witness may be

pending. Accordingly, said the CA, the RTC order was issued with

conditionally examined: 1) if the witness is too sick or infirm to

grave abuse of discretion.

appear

at

the

trial;

the Philippines with

no

or

2)

if

definite

the

witness

date

of

has

to

leave

returning. Thus,

We agree with the CA and quote with approval its

ratiocination in this wise:

when Concepcion moved that her deposition be taken, had she not
been too sick at that time, her motion would have been
denied. Instead of conditionally examining her outside the trial court,
she would have been compelled to appear before the court for
examination during the trial proper.
Undoubtedly, the procedure set forth in Rule 119 applies to the case
at bar. It is thus required that the conditional examination be
made before the court where the case is pending. It is also

Unlike an examination of a defense witness which,

pursuant to Section 5, Rule 119 of the previous
Rules, and now Section 13, Rule 119 of the present
Revised Rules of Criminal Procedure, may be taken
before any judge, or, if not practicable, a member of
the Bar in good standing so designated by the judge
in the order, or, if the order be made by a court of
superior jurisdiction, before an inferior court to be
designated therein, the examination of a witness for
the prosecution under Section 15 of the Revised
Rules of Criminal Procedure (December 1, 2000)
may be done only before the court where the case is
pending.[32]

necessary that the accused be notified, so that he can attend the

examination, subject to his right to waive the same after reasonable
notice. As to the manner of examination, the Rules mandate that it
be conducted in the same manner as an examination during trial,
that is, through question and answer.
At this point, a query may thus be posed: in granting Concepcions
motion and in actually taking her deposition, were the above rules
complied with? The CA answered in the negative. The appellate
court considered the taking of deposition before the Clerk of Court of
Makati City erroneous and contrary to the clear mandate of
the Rules that the same be made before the court where the case is

Rule

119

categorically

states

that

the

conditional

examination of a prosecution witness shall be made before the court

where the case is pending. Contrary to petitioners contention, there
is nothing in the rule which may remotely be interpreted to mean that
such requirement applies only to cases where the witness is within
the jurisdiction of said court and not when he is kilometers away, as
in the present case. Therefore, the court may not introduce
exceptions or conditions. Neither may it engraft into the law (or the
Rules) qualifications not contemplated. [33] When the words are clear
and categorical, there is no room for interpretation. There is only
room for application.[34]

43

While we recognize the prosecutions right to preserve its witness

Petitioners further insist that Rule 23 applies to the instant case,

testimony to prove its case, we cannot disregard rules which are

because the rules on civil procedure apply suppletorily to criminal

designed mainly for the protection of the accuseds constitutional

cases.

rights. The giving of testimony during trial is the general rule. The
conditional examination of a witness outside of the trial is only an

It is true that Section 3, Rule 1 of the Rules of Court provides that the

exception, and as such, calls for a strict construction of the rules.

rules of civil procedure apply to all actions, civil or criminal, and

special proceedings. In effect, it says that the rules of civil procedure

WHEREFORE, the petition is hereby DENIED. The Court of Appeals

have suppletory application to criminal cases. However, it is likewise

Decision and Resolution dated August 25, 2000 and March 12, 2002,

true that the criminal proceedings are primarily governed by the

respectively, in CA-G.R. SP No. 62551, areAFFIRMED.

Revised Rules of Criminal Procedure.Considering that Rule 119

adequately and squarely covers the situation in the instant case, we

SO ORDERED.

find no cogent reason to apply Rule 23 suppletorily or otherwise.

To reiterate, the conditional examination of a prosecution witness for
the purpose of taking his deposition should be made before the
court, or at least before the judge, where the case is pending. Such
is the clear mandate of Section 15, Rule 119 of the Rules. We find no
necessity to depart from, or to relax, this rule. As correctly held by
the CA, if the deposition is made elsewhere, the accused may not be
able to attend, as when he is under detention. More importantly, this

G.R. No. 143093

May 21, 2007

RIMBERTO T. SALVANERA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and LUCITA
PARANE, Respondents.

requirement ensures that the judge would be able to observe the

DECISION

witness deportment to enable him to properly assess his

credibility. This is especially true when the witness testimony is

PUNO, C.J.:

crucial to the prosecutions case.

44

On appeal are the Decision dated April 30, 1999 and the two
Resolutions of the Court of Appeals, dated September 22, 1999 and
May 11, 2000, in CA-G.R. SP No. 46945. The Court of Appeals
discharged accused Feliciano Abutin and Domingo Tampelix from
the Information in Criminal Case No. TM-1730 for Murder, pending
before the Regional Trial Court of Trece Martires City, to become
state witnesses. The appellate court likewise cancelled the bail bond
of petitioner Rimberto Salvanera.
First, the facts:
In an Information1 dated November 30, 1996, petitioner Rimberto
Salvanera, together with Feliciano Abutin, Edgardo Lungcay and
Domingo Tampelix, is charged with the murder of Ruben Parane,
committed as follows:
That on or about October 23, 1995, in the Municipality of Gen. Trias,
Province of Cavite, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually helping each other, with treachery and
evident premeditation, then armed with a firearm, did, then and
there, wilfully, unlawfully and feloniously assault, attack and shoot
one RUBEN PARANE Y MAGSAMBOL, inflicting gunshot wound on
his body, resulting to his instantaneous death, to the damage and
prejudice of the heirs of the said victim.
CONTRARY TO LAW.
As per theory of the prosecution, petitioner was the alleged
mastermind; Lungcay, the hired hitman; Abutin, the driver of the
motorcycle which carried Lungcay to the place of the commission of
the crime; while Tampelix delivered the blood money to the latter. All
the accused have been arrested and detained, except Edgardo
Lungcay who remained at-large.

Respondent Lucita Parane is the spouse of victim Ruben Parane.

On January 22, 1997, petitioner applied for bail. The prosecution, on
March 4, 1997, moved for the discharge of accused Feliciano Abutin
and Domingo Tampelix, to serve as state witnesses.
In an Omnibus Order2 dated September 5, 1997, the trial court
granted petitioners application for bail and denied the prosecutions
motion for the discharge of accused Abutin and Tampelix. The
prosecution moved for reconsideration but the motion was denied.
The prosecution then appealed to the Court of Appeals. It contended
that the trial court committed grave abuse of discretion when it
denied the motion to discharge accused Abutin and Tampelix to be
state witnesses. It alleged that the testimonies of the two accused
are absolutely necessary to establish that petitioner masterminded
the murder of Ruben Parane. The prosecution likewise claimed that it
was premature and baseless for the trial court to grant petitioners
application for bail because the prosecution had not yet rested its
case in the hearing for the discharge of the two accused.
The Court of Appeals sustained the prosecution. It discharged
accused Feliciano Abutin and Domingo Tampelix from the
Information to become state witnesses, and cancelled the bail bond
of petitioner Salvanera. In its Resolution dated September 22, 1999,
it denied petitioner's Motion for Reconsideration. Petitioner then filed
his Motion for Clarification with Leave of Court. The same was also
denied in a Resolution dated May 11, 2000.
Hence, this appeal.
Petitioner enumerates the grounds for his appeal, as follows:
I. RESPONDENT COURT OF APPEALS COMMITTED
SERIOUS ERROR IN RENDERING THE FIRST, SECOND

45

AND THIRD ASSAILED ORDERS DEFYING LAW AND

JURISPRUDENCE THEREON WHEN IT RULED THAT THE
"SUBSTANTIAL CORROBORATION" REQUIREMENT
UNDER SECTION 9, RULE 119 OF THE REVISED RULES
OF COURT WAS SATISFIED BY THE PROSECUTION
DESPITE THE FACT THAT A. THE "SUBSTANTIAL CORROBORATION"
REQUIREMENT MUST BE SATISFIED THROUGH
THE TESTIMONY OF THE OTHER PROSECUTION
WITNESSES WHO ARE NOT AN (sic) ACCUSED
SOUGHT TO BE DISCHARGED AS STATE
WITNESS, NOT BY ANOTHER ACCUSED
LIKEWISE SOUGHT TO BE DISCHARGED.
B. THE SWORN STATEMENT OF AN ACCUSED
SOUGHT TO BE DISCHARGED CANNOT BE
USED AS EVIDENCE FOR PURPOSES OTHER
THAN HIS OWN DISCHARGE PRIOR TO THE
ISSUANCE BY A COMPETENT COURT OF THE
ORDER OF HIS DISCHARGE.
C. THE TESTIMONIES OF ABUTIN AND TAMPELIX
CANNOT BE SUBSTANTIALLY CORROBORATED
IN ITS MATERIAL POINTS BY THE OTHER
PROSECUTION WITNESSES.
D. THE TESTIMONY GIVEN BY AN ACCUSED
SOUGHT TO BE DISCHARGED AS STATE
WITNESS CANNOT BE USED TO CORROBORATE
THE TESTIMONY GIVEN BY ANOTHER ACCUSED
LIKEWISE SOUGHT TO BE DISCHARGED AS
STATE WITNESS.

II. RESPONDENT COURT OF APPEALS COMMITTED

SERIOUS ERROR IN RENDERING THE FIRST, SECOND
AND THIRD ASSAILED ORDERS, DEFYING LAW AND
JURISPRUDENCE ON THE MATTER, WHEN IT
CANCELLED PETITIONER'S BAIL BOND DESPITE THE
FACT THAT THE TRIAL COURT JUDGE ALREADY RULED
THAT THE EVIDENCE OF HIS GUILT IS NOT STRONG.3
We uphold the ruling of the Court of Appeals.
In the discharge of an accused in order that he may be a state
witness, the following conditions must be present, namely:
(1) Two or more accused are jointly charged with the
commission of an offense;
(2) The motion for discharge is filed by the prosecution
before it rests its case;
(3) The prosecution is required to present evidence and the
sworn statement of each proposed state witness at a hearing
in support of the discharge;
(4) The accused gives his consent to be a state witness; and
(5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of
the accused whose discharge is requested;
b) There is no other direct evidence available for the
proper prosecution of the offense committed, except
the testimony of said accused;

46

c) The testimony of said accused can be

substantially corroborated in its material points;
d) Said accused does not appear to be the most
guilty; and,
e) Said accused has not at any time been convicted
of any offense involving moral turpitude.4
According to petitioner, the testimony of an accused sought to be
discharged to become a state witness must be substantially
corroborated, not by a co-accused likewise sought to be discharged,
but by other prosecution witnesses who are not the accused in the
same criminal case. Petitioner justifies this theory on the general
principles of justice and sound logic. He contends that it is a
notorious fact in human nature that a culprit, confessing a crime, is
likely to put the blame on others, if by doing so, he will be freed from
any criminal responsibility. Thus, in the instant case, petitioner
supposes that both Abutin and Tampelix will naturally seize the
opportunity to be absolved of any liability by putting the blame on
one of their co-accused. Petitioner argues that prosecution witnesses
Parane and Salazar, who are not accused, do not have personal
knowledge of the circumstances surrounding the alleged conspiracy.
Thus, they could not testify to corroborate the statement of Abutin
and Tampelix that petitioner is the mastermind or the principal by
induction.
We agree with the Court of Appeals in dismissing this reasoning as
specious. To require the two witnesses Parane and Salazar to
corroborate the testimony of Abutin and Tampelix on the exact same
points is to render nugatory the other requisite that "there must be no
other direct evidence available for the proper prosecution of the
offense committed, except the testimony of the state witness." 5 The
corroborative evidence required by the Rules does not have to
consist of the very same evidence as will be testified on by the

proposed state witnesses. We have ruled that "a conspiracy is more

readily proved by the acts of a fellow criminal than by any other
method. If it is shown that the statements of the conspirator are
corroborated by other evidence, then we have convincing proof of
veracity. Even if the confirmatory testimony only applies to some
particulars, we can properly infer that the witness has told the truth in
other respects."6 It is enough that the testimony of a co-conspirator is
corroborated by some other witness or evidence. In the case at bar,
we are satisfied from a reading of the records that the testimonies of
Abutin and Tampelix are corroborated on important points by each
others testimonies and the circumstances disclosed through the
testimonies of the other prosecution witnesses, and "to such extent
that their trustworthiness becomes manifest." 7
As part of the conspiracy, Abutin and Tampelix can testify on the
criminal plan of the conspirators. Where a crime is contrived in
secret, the discharge of one of the conspirators is essential because
only they have knowledge of the crime.8 The other prosecution
witnesses are not eyewitnesses to the crime, as, in fact, there is
none. No one except the conspirators knew and witnessed the
murder. The testimonies of the accused and proposed state
witnesses Abutin and Tampelix can directly link petitioner to the
commission of the crime.
In Chua v. Court of Appeals,9 we ruled that the trial court has to rely
on the information offered by the public prosecutor as to who would
best qualify as a state witness. The prosecutor knows the evidence
in his possession and the witnesses he needs to establish his case.
In Mapa v. Sandiganbayan,10 we held:
The decision to grant immunity from prosecution forms a constituent
part of the prosecution process. It is essentially a tactical decision to
forego prosecution of a person for government to achieve a higher
objective. It is a deliberate renunciation of the right of the State to
prosecute all who appear to be guilty of having committed a crime.

47

Its justification lies in the particular need of the State to obtain the
conviction of the more guilty criminals who, otherwise, will probably
elude the long arm of the law. Whether or not the delicate power
should be exercised, who should be extended the privilege, the
timing of its grant, are questions addressed solely to the sound
judgment of the prosecution. The power to prosecute includes the
right to determine who shall be prosecuted and the corollary right to
decide whom not to prosecute.
We further ruled:
In reviewing the exercise of prosecutorial discretion in these areas,
the jurisdiction of the respondent court is limited. For the business of
a court of justice is to be an impartial tribunal, and not to get involved
with the success or failure of the prosecution to prosecute. Every
now and then, the prosecution may err in the selection of its
strategies, but such errors are not for neutral courts to rectify, any
more than courts should correct the blunders of the defense. For
fairness demands that courts keep the scales of justice at equipoise
between and among all litigants. Due process demands that courts
should strive to maintain the legal playing field perfectly even and
perpetually level.
Lastly, we affirm the ruling of the appellate court in cancelling the bail
bond of petitioner. The grant of petitioners application for bail is
premature. It has to await the testimony of state witnesses Abutin
and Tampelix. Their testimonies must be given their proper weight in
determining whether the petitioner is entitled to bail.
IN VIEW WHEREOF, the petition is DENIED and the Decision and
Resolutions of the Court of Appeals in CA-G.R. SP No. 46945, dated
April 30, 1999, September 22, 1999 and May 11, 2000, respectively,
are AFFIRMED in toto.
SO ORDERED.

48

July 22, 2009

x------------------------------------------------x
DECISION
CARPIO MORALES, J.:
Appellant Maritess Ang (Maritess) was charged before the
Regional Trial Court (RTC) of Quezon City with kidnapping for
ransom, allegedly committed as follows:

PEOPLE OF THEPHILIPPINES,
Appellee,

- versus -

PABLO L. ESTACIO, JR. and

MARITESS ANG,
Appellants.

G.R. No. 171655

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.
Promulgated:

49

That on or about the 10 th of October

1995, in Quezon City, Philippines, the abovenamed
accused
conspiring
together,
confederating with two (2) other persons whose
true names, identities and whereabouts have not
as yet been ascertained and mutually helping
one another did then and there, willfully,
unlawfully and feloniously kidnap one CHARLIE
CHUA, a businessman, from the Casa Leonisa
Bar located at Examiner Street, Quezon City and
brought him to an unknown place and detained
him up to the present for the purpose of extorting
ransom money in the amount of P15,000,000.00,
Philippine Currency, thereby depriving him of his
liberty from October 10, 1995 up to the present,
to the damage and prejudice of said offended
party.[1]

and there, willfully, unlawfully and feloniously

repeatedly stab said CHARLIE MANCILLAN
CHUA on the different parts of his body with the
use of [a] fan knife, thereby inflicting upon him
serious and mortal wounds, which were the direct
and immediate cause of his death, to the damage
and prejudice of the heirs of said Charlie
Mancillan Chua.[2] (Underscoring in the original.)

Still later, the Information was further amended to additionally

implead

one

Hildo

Sumipo

(Sumipo)[3] who

subsequently discharged as state witness.

was,

however,

[4]

The Information was subsequently amended to implead the

other appellant, Pablo Estacio, Jr. (Estacio), and to change the
charge from kidnapping for ransom to kidnapping with murder. The
accusatory portion of the Amended Information reads:
That on or about the 11th day of October,
1995, in Quezon City, Philippipnes, the abovenamed accused, conspiring, confederating with
another person whose true name and identity has
not as yet been ascertained and mutually helping
one another, did then and there, willfully,
unlawfully and feloniously kidnap one CHARLIE
MANCILLAN CHUA, a businessman, with the
use of motor vehicle from Casa Leonisa Bar
located at Examiner Street, Quezon City and
brought him to BRGY. STO. CRISTO, San Jose,
del Monte, Bulacan and thereafter with intent to
kill, qualified by evident premeditation, did, then

The evidence for the prosecution presents the following

version of events:[5]
At around 10:00 in the evening of October 10, 1995, Maritess,
together with Estacio and Sumipo, arrived at Casa Leonisa, a barrestaurant at Examiner Street, Quezon City where the three of them
would meet with Charlie Mancilla Chua (the victim). Maritess had
earlier told Sumipo that she would settle her debt to the victim and
then deretsong dukot na rin x x x kay Charlie [the victim].[6] Sumipo
assumed, however, that Maritess was just joking.

50

After the victim arrived past midnight and talked to Maritess

killed the victim, Estacio telling Maritess, Honey, wala na tayong

for a short while, the group boarded his car, Maritess taking the seat

problema dahil siguradong patay na si Charlie sa dami ng saksak na

beside the victim who was driving, as Estacio and Sumipo took the

nakuha niya.

backseat.
On Estacios and Maritess directive, Sumipo stopped by a
Not long after, Estacio pulled out a gun and ordered the victim
to pull the car over. As the victim complied, Estacio, with a gun
pointed at him, pulled him to the backseat as Maritess transferred to
the backseat, sat beside the victim, tied the victims hands behind his
back, and placed tape on his mouth. Estacio then directed Sumipo to
take over the wheels as he did.[7]

drug store where Maritess bought alcohol to clean their hands. Along
the way, Maritess and Estacio threw out the victims attach
case. Maritess later told Estacio Honey, sana hindi muna natin
pinatay si Charlie para makahingi pa tayo ng pera sa mga magulang
[niya].
The three later abandoned the car in Malinta.

While Sumipo tried to dissuade appellants from pursuing their

The following morning, Estacio went to the residence of

plan, they replied that they would kill the victim so that he would not

Sumipo where he called up by telephone the victims mother and

take revenge.[8] Thereupon, the victim told Maritess, bakit mo nagawa

demanded a P15,000,000 ransom. The mother replied, however, that

sa akin ito sa kabila ng lahat?, to which she replied, Bayad na ako sa

she could not afford that amount.

utang ko sa iyo ngayon.

In the afternoon of the same day, Maritess and Estacio went

On Estacios instruction, Sumipo drove towards San Jose del

to Sumipos residence again where Estacio again called up the victims

Monte, Bulacan and on reaching a secluded place, Estacio ordered

mother, this time lowering the ransom demand toP10,000,000 which

Sumipo to stop the car as he did. Maritess and Estacio then brought

she still found to be too steep. Sumipo expressed his misgivings

the victim to a grassy place. Estacio with bloodied hands later

about future calls, as they might get caught, but Estacio and Maritess

resurfaced.

assured him that that call would be the last.

The three then headed towards Malinta, Valenzuela,

The group then went to Greenhills where Estacio still again

Bulacan. On the way, Estacio and Maritess talked about how they

called up the victims mother, still lowering the ransom demand

51

to P5,000,000, P1,000,000 of which should be advanced.The victims

without her knowledge, while Estacio was jealous of the victim with

mother having agreed to the demand, Maritess and Estacio directed

whom Maritess had a relationship.[12]

her to place the money in a garbage can near Pizza Hut in Greenhills
at 11:30 in the evening. Estacio and Sumipo later proceeded to Pizza

In his affidavit[13] which he identified in open court, Estacio

Hut, and as they were seated there, a patrol car passed by, drawing

claimed that a quarrel broke out in the car between the victim and

them to leave and part ways.

Maritess about a debt to the victim; that he tried to pacify the two, but
the victim got angry at him, prompting him to point a fan knife at his

Sumipo soon learned that Maritess and Estacio sold Chuas

neck; and that he then asked Sumipo to drive the car up to Barangay

gun, watch, and necklace from the proceeds of which he was

Sto. Cristo, San Jose del Monte, Bulacan where he dragged the

given P7,000.

victim away from the car and accidentally stabbed him.

On May 16, 1996, Sumipo surrendered to the National

When asked on cross-examination why the stabbing was

Bureau of Investigation. On May 23, 1996, Estacio surrendered to the

accidental, Estacio replied that he and Maritess originally planned to

police. The police then informed the victims mother that Estacio had

leave the victim in Bulacan, but since there was talk of the victim

admitted having killed her son, and that he offered to accompany

getting back at them, he got confused and so it happened. [14]

them to the crime scene.

Maritess for her part denied [15] having conspired with
The police, accompanied by the victims mother and Estacio,

Estacio. She claimed that while on board the car, the victim took issue

went to the crime scene and recovered the remains of the victim who

with her friendship with Estacio, whom he insulted.Incensed, Estacio

was identified by his mother by the clothes attached to his bones. The

grabbed the victim by the collar, prompting the victim to pull out a gun

victims dentist found his teeth to match his dental record.

from under the drivers seat which he aimed at Estacio.

Sumipo explained in an affidavit,[9] which he identified in open

Continuing, Maritess claimed that she tried to pacify the

court,[10] that Maritess got angry with the victim after he lent money to

quarreling men; that the car stopped at San Jose del Monte and the

her husband, one Robert Ong, [11] enabling him to leave the country

three men alighted; that Sumipo returned to the car and was later

52

CHARGED
WAS
PROVEN
REASONABLE DOUBT.

followed by Estacio who said Masama raw ang nangyari,[16] he adding

that he did not intend to stab the victim.

II
x x x CONVICTING HEREIN ACCUSEDAPPELLANT
OF
THE
CRIME
CHARGED DESPITE
FAILURE
OF
THE
PROSECUTION
TO
PROVE
THE
INDISPENSABLE ELEMENTS OF DETENTION
AND LOCK UP.[20] (Emphasis and underscoring
supplied)

Branch 219 of the Quezon City RTC found both Estacio and
Maritess guilty of kidnapping on the occasion of which the victim was
killed, disposing as follows:
WHEREFORE, finding accused Pablo
Estacio, Jr. and Maritess Ang guilty beyond
reasonable doubt of the crime of kidnapping on
the occasion of which the victim was killed, the
court hereby sentences each of them to suffer
the maximum penalty of Death; to jointly and
severally pay the heirs of Charlie Chua the
amount of P200,000.00, as actual damages,
and P1,000,000.00, as moral damages; and to
pay the costs.
SO
ORDERED.[17] (Emphasis
underscoring supplied)

As for Maritess, she faulted the trial court for:

A.

B.

and

C.
The case was forwarded to this Court for automatic review.
[18]

BEYOND

However, the Court referred it to the Court of Appeals for

x x x Discharging Sumipo as State

Witness and in Relying on His Testimony
for the Conviction of Appellant Ang.[21]
xxx
x x x Finding That There was
Kidnapping
with
Murder and
That
Appellant Ang is Guilty Thereof.
x x x Not Concluding that the Crime
Committed was Plain Homicide, and That
Accused Estacio is Solely Responsible
Therefor.[22] (Emphasis and underscoring in
the original)

intermediate review following People v. Mateo.[19]

By Decision[23] of May 12, 2005, the Court of Appeals

Estacio faulted the trial court for:

affirmed, with modification, the trial courts decision, disposing as

I

follows:

x x x FINDING THAT THE GUILT OF HEREIN

ACCUSED-APPELLANT FOR THE CRIME

53

WHEREFORE, in view of all the

foregoing, the decision of the Regional Trial Court
of Quezon City in Criminal Case No. Q-95-63818
finding accused-appellants Maritess Ang and
Pablo Estacio, Jr. guilty beyond reasonable doubt
of the crime of kidnapping with murder and
sentencing them to each suffer the penalty
of DEATH,
is
AFFIRMED
with
MODIFICATION. Accused-appellants are ordered
to pay, jointly and severally, the heirs of the
deceased the amounts of P50,000.00 as civil
indemnity; P25,000.00
as
exemplary
damages and P500,000.00 as moral damages.
In view of the death penalty imposed, let
the entire records of this case be forwarded to
the Honorable Supreme Court for further review.
SO
ORDERED.
underscoring supplied)

[24]

(Emphasis

and

fact of the trial court, especially if they have been affirmed on appeal
by the appellate court, as in the present case. [27] Nevertheless, the
Court combed through the records of the case and found no ground
to merit a reversal of appellants conviction.
The Court finds, however, that the offense of which appellants
were convicted was erroneously designated.
Appellants were eventually charged with and convicted of the
special complex crime of kidnapping with murder, defined in the last
paragraph of Article 267 of the Revised Penal Code.In a special
complex crime, the prosecution must prove each of the component
offenses with the same precision that would be necessary if they were
made the subject of separate complaints.[28]

Appellants manifested before this Court that supplemental

In the case at bar, kidnapping was not sufficiently proven.

pleadings would not be necessary, all relevant matters having already

Although appellants bound and gagged Chua and transported him to

been taken up.[25]

Bulacan against his will, they did these acts to facilitate his killing, not
because they intended to detain or confine him. As soon as they

Findings of fact of the trial court, its calibration of the

arrived at the locus criminis, appellants wasted no time in killing

testimonies of witnesses, and its assessment of the probative weight

him. That appellants intention from the beginning was to kill the victim

thereof, as well as its conclusions anchored on said findings are

is confirmed by the conversation which Sumipo heard in the car in

accorded high respect, if not conclusive effect, by this Court because

which Maritess said that a knife would be used to kill him so that it

of the trial courts unique advantage in observing and monitoring at

would not create noise.[29] The subsequent demand for ransom was

close range the demeanor, deportment, and conduct of the witnesses

an afterthought which did not qualify appellants prior acts as

as they testify.[26] This Court need not thus pass upon the findings of

kidnapping.

54

People v. Padica[30] instructs:

We have consistently held that where the
taking of the victim was incidental to the basic
purpose to kill, the crime is only murder, and this
is true even if, before the killing but for purposes
thereof, the victim was taken from one place to
another. Thus, where the evident purpose of
taking the victims was to kill them, and from the
acts of the accused it cannot be inferred that the
latters purpose was actually to detain or deprive
the victims of their liberty, the subsequent killing
of the victims constitute the crime of murder,
hence the crime of kidnapping does not exist and
cannot be considered as a component felony to
produce the complex crime of kidnapping with
murder. In fact, as we held in the aforecited case
of Masilang, et. al., although the accused had
planned to kidnap the victim for ransom but they
first killed him and it was only later that they
demanded and obtained the money, such
demand for ransom did not convert the crime into
kidnapping since no detention or deprivation of
liberty was involved, hence the crime committed
was only murder.
That from the beginning of their criminal
venture appellant and his brothers intended to kill
the victim can be readily deduced from the
manner by which they swiftly and cold-bloodedly
snuffed out his life once they reached the isolated
sugarcane
plantation
in
Calamba,
Laguna. Furthermore, there was no evidence
whatsoever to show or from which it can be
inferred that from the outset the killers of the
victim intended to exchange his freedom for
ransom money. On the contrary, the demand for
ransom appears to have arisen and was
consequently made as an afterthought, as it was
relayed to the victims family very much later that

afternoon after a sufficient interval for

consultation and deliberation among the felons
who had killed the victim around five hours
earlier.
x x x The fact alone that ransom money
is demanded would not per se qualify the act of
preventing the liberty of movement of the victim
into the crime of kidnapping, unless the victim is
actually restrained or deprived of his liberty for
some appreciable period of time or that such
restraint was the basic intent of the
accused. Absent such determinant intent and
duration of restraint, the mere curtailment of
freedom of movement would at most constitute
coercion.[31] (Underscoring supplied)
The crime committed was thus plain Murder. The killing was
qualified by treachery. The victim was gagged, bound, and taken
from Quezon City to an isolated place in Bulacan against his will to
prevent him from defending himself and to facilitate the killing.
This Courts finding that the offense committed is Murder
notwithstanding, the resulting penalty is the same. Under Article 248
of the Revised Penal Code, murder shall be punished byreclusion
perpetua to death. The use of a motor vehicle, having been alleged in
the Information and proven, can be appreciated as a generic
aggravating circumstance. There being one generic aggravating
circumstance, the resulting penalty is death. In view, however, of the
enactment of Republic Act No. 9346 on June 24, 2006 prohibiting the
imposition of death penalty, the penalty is reduced to reclusion
perpetua, without eligibility for parole.

55

said, Diretsong dukot na rin kay Charlie. He tried to dissuade

Respecting the assigned error in discharging Sumipo as a
state witness, the same does not lie.

appellants from pursuing their plan. He did not participate in the

actual stabbing. And he tried to extricate himself from the attempts to
extract ransom from the victims family.

The conditions for the discharge of an accused as a state

Sumipos testimony was corroborated on material points. The

victims mother testified regarding the demands for ransom. [33] Cesar

witness are as follows:

Moscoso, an employee of Casa Leonisa, testified to seeing the victim,

(a)
(b)

(c)
(d)
(e)

There is absolute necessity for the

testimony of the accused whose
discharge is requested;
There is no other direct evidence
available for the proper prosecution of
the offense committed, except the
testimony of said accused;
The testimony of said accused can
be substantially corroborated in its
material points;
Said accused does not appear to be
the most guilty; and
Said accused has not at any time
been convicted of any offense involving
moral turpitude.[32]

Estacio, and Maritess at the bar-restaurant on the day and at the time
in question.[34] Henry Hong, the victims cousin who arrived at Pizza
Hut, Greenhills ahead of the victims brother during the scheduled
delivery of the ransom, testified to seeing Estacio there with
companions.[35] And the victims skeletal remains were found at the
scene of the crime upon Estacios information and direction.
And there is no proof that Sumipo had, at any time, been
convicted of a crime involving moral turpitude.
Even assuming arguendo that the discharge of Sumipo as a

These

conditions

were

established

by

the

prosecution. Sumipo was the only person other than appellants who

state witness was erroneous, such error would not affect the
competency and quality of his testimony.[36]

had personal knowledge of the acts for which they were being
prosecuted. Only he could positively identify appellants as the

Finally,

the

Court

brushes

aside

Maritess

disclaimer

perpetrators of the crime. He does not appear to be the most

of participation in killing the victim. It was she who bound the hands

guilty. He did not participate in planning the commission of the

and gagged the victim. When Estacio, in Maritess company, brought

crime. He in fact at first thought that Maritess was joking when she

the victim to the scene of the crime and thereafter returned to the car,
her and Estacios hands were bloodied.

56

Parenthetically,

prosecution

witness

Arlene

Francisco,

Maritess friend who visited her in prison, testified that Maritess

admitted having killed Chua.[37] And the prosecution presented letters
from Maritess to Estacio, written from prison, where she admitted the
deed.[38]
WHEREFORE, the Decision of the Court of Appeals of May 12,
2005 is AFFIRMED with MODIFICATION. The Court finds appellants
Maritess Ang and Pablo Estacio, Jr. guilty beyond reasonable doubt
of Murder, with the generic aggravating circumstance of use of motor
vehicle. And in view of the enactment of Republic Act No. 9346
on June

24,

2006,

the

penalty

is

reduced

to reclusion

perpetua without eligibility for parole.

SO ORDERED.

57

Branch 47, in Criminal Case Nos. 9482-83 finding petitioner Juanito

T. Merencillo guilty of violating Section 3(b) of RA 3019 [5] and Article
210[6] of the Revised Penal Code.
The information charging petitioner for violation of Section
3(b) of RA 3019 in Criminal Case No. 9482 read:

JUANITO T. MERENCILLO, G.R. Nos. 142369-70

Petitioner,
Present:
PUNO, C.J.
, Chairpers
on,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.
PEOPLE OF THE PHILIPPINES,*
Respondent. Promulgated:
April 13, 2007
x------------------------------------------x
DECISION
CORONA, J.:

This petition for review[1] assails the June 18, 1999 decision [2] of the
Sandiganbayan in A.R. Case Nos. 004-005 affirming [3] the omnibus
decision[4] of the Regional Trial Court (RTC) of Tagbilaran City,

That, on or about the 28 th day of September, 1995,

in the City of Tagbilaran, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused being then a publicofficial
connected with the Bureau of Internal Revenue as
its Group Supervising Examiner, did then and there
willfully, unlawfully and feloniously and with intent of
personal gain, directly demand and extort from a
certain Mrs. Maria Angeles Ramasola Cesar the
amount of TWENTY THOUSAND PESOS
(P20,000.00), Philippine Currency, in connection, in
consideration and in exchange for the release of the
certification of her payment of the capital gains tax
for the land purchased by the Ramasola
[Superstudio] Inc. from one Catherine Corpuz
Enerio, a transaction wherein the aforesaid accused
has to intervene in his official capacity, and to which
the said Mrs. Maria Angeles Ramasola Cesar
reluctantly agreed but upon prior consultation with
the military authorities particularly the elements of
the 702nd Criminal Investigation Command [CIC]
who set up the accused for a possible entrapment
resulting to (sic) his being caught in the act of
receiving an envelope supposedly containing the
amount of TWENTY THOUSAND PESOS
(P20,000.00) but consisting only of four (4) marked
one hundred peso bills and the rest all bogus
(paper) monies, to the damage and prejudice of the

58

said Mrs. Maria Angeles Ramasola Cesar in

particular and the public and the government in
general in the amount to be proved during the trial
of the case.
Acts committed contrary to the provisions of Section
3(b) of [RA] 3019.[7]

marked one hundred pesos bills and the rest all

bogus (paper) monies, an act performed by the
accused in his official capacity as Group Supervising
Examiner of the BIR, to the damage and prejudice of
Mrs. Maria Angeles Ramasola Cesar in particular and
the public and the government in general in the
amount to be proved during the trial of the case.

On the other hand, the information for direct bribery

Acts committed contrary to the provisions of Article

210 of the Revised Penal Code of the Philippines. [8]

penalized under Article 210 of the Revised Penal Code in Criminal

Case No. 9483 charged:
That, on or about the 28th day of September, 1995 in
the City of Tagbilaran, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused being then a public official connected with
the performance of official duty as its Group
Supervising Examiner, did then and there willfully,
unlawfully and feloniously and with intent of personal
gain, demand, extort and agree to perform an act
constituting a crime, an act which is in violation of the
Anti-Graft and Corrupt Practices Act, that is that the
certification for payment of the capital gains tax
relative to the land purchased by the Ramasola
Superstudio Incorporated from Catherine Corpus
Enerio be released by him only upon payment of an
additional under the table transaction in the amount of
TWENTY THOUSAND
PESOS
(P20,000.00),
Philippine Currency, which Mrs. Maria Angeles
Ramasola Cesar reluctantly agreed, but upon prior
consultation with the military authorities particularly
the elements of the 702nd Criminal [Investigation]
Command (CIC) who set up the accused for a
possible entrapment resulting to (sic) his being
caught in the act of receiving an envelope supposedly
containing the amount of TWENTY THOUSAND
PESOS (P20,000.00) but, consisting only of four (4)

Petitioner pleaded not guilty to both charges when arraigned.

Thereafter trial ensued and the cases were tried jointly.

THE FACTS ESTABLISHED

BY THE PROSECUTION

In the morning of September 13, 1995, Lucit Estillore went to

the Bureau of Internal Revenue (BIR) office in Tagbilaran City to ask
for the computation of taxes due on the sale of real property to
Ramasola Superstudio, Inc. and to apply for a certificate authorizing
registration (CAR).[9] At the BIR office, she was entertained by
revenue examiner Lourdes Fuentes who computed the documentary
stamp tax (P37,500) and capital gains tax (P125,000) due on the
transaction. The computation was approved by petitioner in his

59

capacity as group supervisor. Estillore paid the taxes in the bank and

Cesar received another call from petitioner who told her that she

returned to apply for a CAR. She submitted the application together

could get the CAR after four or five days.

with relevant documents to Fuentes for processing. Fuentes

Cesar was able to return to the BIR only on September 20,
prepared the revenue audit reports and submitted them together with
1995. When petitioner saw her, he repeated his demand for P20,000
the application for the CAR to petitioner for preliminary approval.
although the CAR had in fact been signed by RDO Galahad Balagon
[The application was to be forwarded thereafter to the Revenue
the day before, on September 19, 1995, and was therefore ready for
District Officer (RDO) for final approval.] Fuentes advised Estillore
release. On Cesars inquiry, the releasing clerk, Susan Cabangon,
that the CAR would be released after seven days.
informed Cesar that she (Cabangon) was still waiting for petitioners
At around 10:00 a.m. of the same day, private complainant

go signal to release the document.

Maria Angeles Ramasola Cesar[10] (Cesar) received a call from

On September 22, 1995, Cesar visited RDO Balagon and

Estillore. She was told that petitioner wanted to see her for some

complained about petitioners refusal to release the CAR unless his

negotiation. She proceeded to petitioners office where the latter

demand was met. RDO Balagon assured Cesar that he would look

demanded P20,000 in exchange for the approval of the CAR. Cesar

into her complaint. Subsequently, Cesar received a call from

replied that she needed to confer with her two brothers who were her

petitioner informing her that she could get the CAR but reminded her

business associates.

of his demand. He told her that he was willing to accept a lesser

amount. It was at this point that Cesar decided to report the matter to

The following day, on September 14, 1995, Cesar received a

the authorities. She sought the help of the Provincial Director of the
call from petitioner who was following up his demand. Later that day,
Philippine National Police (PNP) in Bohol, Senior Superintendent
Dionaid Baraguer.

60

acknowledgment for the release of the CAR, he informed her that he

The following day, Sr. Supt. Baraguer referred Cesars
was going down to the second floor. Cesar took this as a cue for her
complaint to the chief of police of Tagbilaran City who coordinated
to follow.
with Cesar for the entrapment of petitioner. Cesar was instructed to
prepare two bundles of bogus money by putting a one-hundred peso

As petitioner left his office, he held the door open for Cesar

bill on each side of each of the two bundles to make it appear that

to follow. On reaching the third floor lobby, petitioner uttered Here

the two bundles amounted to P10,000 each or a total of P20,000.

only. Cesar handed the envelope containing the two bundles of

After the serial numbers of the four one-hundred peso bills were

marked money to petitioner who, upon receiving it, asked Why is this

recorded, the entrapment was set for September 28, 1995.

thick? Before Cesar could answer, a member of the PNP entrapment

team photographed petitioner holding the envelope. Petitioner

On the appointed day, Cesar called petitioner and pleaded

panicked, hid the envelope behind his back and turned towards the
for the release of the CAR as well as for the reduction of petitioners
window at the back of the BIR building. On seeing that the window
demand. Petitioner cautiously told Cesar not to talk about the matter
was closed, he turned around towards the open window facing the
on the phone and asked her to see him instead. Cesar went to
street. He threw the envelope towards the window but it hit the
petitioners office with the two bundles of bogus money inside a white
ceiling instead, bounced and fell to the first floor of the BIR building.
envelope.
[11]

Petitioner was entertaining a lady visitor when Cesar arrived.

The PNP entrapment team then introduced themselves to

petitioner and invited him to go with them to their headquarters.

The members of the PNP entrapment team were already in

Charges were filed against petitioner. During the trial,
petitioners office posing as civilians. On seeing Cesar, petitioner
petitioners evidence consisted of nothing more than a general denial
handed

the

CAR

to

her

and,

as

she

was

signing

the

61

of the charges against him. He claimed that he never asked for

money and that the allegations of demand for money existed only in
Cesars mind after she was told that there was a misclassification of
the asset and additional taxes had to be paid. He was surprised
when policemen suddenly arrested him as soon as Cesar handed
him a white envelope the contents of which he suspected to be
money.
After trial, the RTC found petitioner guilty as charged. The dispositive

from public office, and the Court further finds the

accused guilty beyond reasonable doubt as
principal by direct participation, for the crime of
Direct Bribery defined and penalized by Article
210 of the Revised Penal Code and sentences
him to suffer the indeterminate penalty of four (4)
years and one (1) day as minimum to eight (8)
years of prision mayor as maximum and a fine of
Sixty Thousand (P60,000.00) Pesos, all as
mandated by law. The accused Juanito T.
Merencillo likewise is ordered to indemnify
private complainant [Cesar] to pay moral
damages in the amount of P50,000.00 and
attorneys fees in the amount of Five Thousand
(P5,000.00) Pesos. Costs shall also be taxed
against the accused.
CONTRARY TO LAW.[12]

portion of the decision read:

WHEREFORE, premises considered, the Court
finds the accused Juanito T. Merencillo,
guilty beyond reasonable doubt as principal by
direct participation, defined and penalized by
Section 3(b) of [RA] 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, and
sentences him to suffer the indeterminate penalty
of imprisonment for eight (8) years and one (1)
month as minimum to fifteen (15) years as
maximum,
there
being
aggravating
circumstances considered under Section 3(e)
and Section (f) of [RA] 3019 in relation to Article
14(1) and (11) of the [RPC] in the sense that the
offender have taken advantage of his public
position, and that the crime was committed in
consideration of a price or promise, without any
mitigating or extenuating circumstances to
neutralize or offset any of the aggravating
circumstances, with perpetual disqualification

Petitioner appealed the RTC decision to the Sandiganbayan.

The Sandiganbayan, however, denied the appeal and affirmed the
RTC decision with modification reducing the penalty of imprisonment
for violation of Section 3(b) of RA 3019 to an indeterminate sentence
of six years and one month of prision mayor, as minimum, to ten
years of prision mayor, as maximum.[13] Thus, this petition.
Petitioner

basically

raises

two

points:

(1)

the

Sandiganbayans refusal to believe his evidence over that of the

62

prosecutions and (2) the Sandiganbayans failure to recognize that he

money from private complainant Cesar for the release of the CAR)

was placed in double jeopardy.

sufficient and credible enough to sustain conviction.

Petitioner faults the Sandiganbayan for affirming the RTC

This notwithstanding, petitioner now asks this Court to

decision and disregarding his evidence. He claims that, had the RTC

review the entire evidence anew, re-evaluate the credibility of

and the Sandiganbayan not ignored the inconsistencies in the

witnesses and make another factual determination of the case a

testimonies of the prosecutions witnesses,[14] he would have been

course of action clearly improper given the nature of the instant

acquitted. He also asserts that he was placed twice in jeopardy when

petition.[15] Questions of fact cannot generally be raised for the

he was prosecuted for violation of Section 3(b) of RA 3019 and for

consideration of this Court.

direct bribery.
The calibration of evidence and the relative weight thereof belongs to
Petitioner is wrong.
TRIAL
COURTS
EVALUATION
OF
EVIDENCE WI
LL NOT BE DI
STURBED

the appellate court.[16] Its findings and conclusions cannot be set

aside by this Court unless there is no evidence on record to support
them.[17] In this case, however, the findings of fact of the
Sandiganbayan, affirming the factual findings of the RTC, were
amply supported by evidence and the conclusions therein were not
against the law and jurisprudence. There is no reason to disturb the

Both the RTC and the Sandiganbayan found the testimonies of the
prosecutions witnesses (that petitioner demanded and received

congruent findings of the trial and appellate courts.

Moreover, findings and conclusions of the trial court on the
credibility of witnesses enjoy the respect of appellate courts because

63

trial courts have the distinct advantage of observing the demeanor of

not detract from the truth of the prosecutions testimonial evidence.

witnesses as they testify.[18] In the absence of any arbitrariness in the

We agree.

trial courts findings and evaluation of evidence tending to show that it

Witnesses testifying on the same event do not have to be consistent

overlooked certain material facts and circumstances, its findings and

in each and every detail. Differences in the recollection of the event

evaluation of evidence should be respected on review.[19] The

are inevitable and inconsequential variances are commonly regarded

presiding judge of the trial court had the opportunity to actually

as signs of truth instead of falsehood. Inconsistencies in the

observe the conduct and demeanor of the witnesses on the witness

testimonies of prosecution witnesses with respect to minor details

stand on direct examination by the prosecution, cross-examination

and collateral matters do not affect either the substance of their

by the defense as well as during clarificatory questioning by the trial

declaration, their veracity or the weight of their testimony.[22] In fact,

judge himself.[20] Between the trial judge and this Court, the former

such minor flaws may even enhance the worth of a testimony for

was concededly in a better position to determine whether or not a

they guard against memorized falsities.[23]

witness was telling the truth.[21] Based on the records, we find no

Minor discrepancies or inconsistencies do not impair the
reason to disagree with the trial courts assessment and to discredit
essential integrity of the prosecutions evidence as a whole or reflect
the prosecutions witnesses.
on the witnesses honesty.[24] The test is whether the testimonies
Contrary to petitioners contention, the RTC and the

agree on essential facts and whether the respective versions

Sandiganbayan considered the alleged inconsistencies in the

corroborate and substantially coincide with each other so as to make

testimonies of the prosecution witnesses. Both courts, however,

a consistent and coherent whole.[25] Thus, inconsistencies and

ruled that the inconsistencies referred only to minor details that did

discrepancies in details which are irrelevant to the elements of the

crime cannot be successfully invoked as grounds for acquittal. [26]

64

One may therefore be charged with violation of RA 3019 in addition

The RTC and the Sandiganbayan correctly ruled that the
to a felony under the Revised Penal Code for the same delictual act,
inconsistencies pointed out by petitioner were neither material nor
that is, either concurrently or subsequent to being charged with a
relevant to the elements of the offenses for which he was charged.
felony under the Revised Penal Code. [27] There is no double jeopardy
For instance, whether or not it was petitioner himself who handed the
if a person is charged simultaneously or successively for violation of
CAR to private respondent was immaterial. The fact was that
Section 3 of RA 3019 and the Revised Penal Code.
petitioner demanded and received money in consideration for the
issuance of the CAR.
PETITIO
NER
WAS
NOT
PLACED
IN DOUBLE JEOP
ARDY

The rule against double jeopardy prohibits twice placing a

person in jeopardy of punishment for the same offense. [28] The test is
whether one offense is identical with the other or is an attempt to
commit it or a frustration thereof; or whether one offense necessarily
includes or is necessarily included in the other, as provided in

Section 3 of RA 3019 begins with the following statement:

Sec. 3. In addition to acts or omissions
of public officers already penalized by existing
law, the following [acts] shall constitute corrupt
practices of any public officer and are hereby
declared unlawful:
xxx xxx xxx (emphasis supplied)

Section 7 of Rule 117 of the Rules of Court. [29] An offense charged

necessarily includes that which is proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter; and an offense charged is
necessarily included in the offense proved when the essential
ingredients of the former constitute or form a part of those
constituting the latter.[30]

65

A comparison of the elements of the crime of direct bribery

defined and punished under Article 210 of the Revised Penal Code
and those of violation of Section 3(b) of RA 3019 shows that there is
neither identity nor necessary inclusion between the two offenses.
Section 3(b) of RA 3019 provides:
Sec. 3. In addition to acts or omissions of
public officers already penalized by existing law, the
following shall constitute corrupt practices of any
public officer and are hereby declared unlawful:

(3) he made the request or receipt on behalf of the

offender or any other person;
(4) the request or receipt was made in connection
with a contract or transaction with the
government and
(5) he has the right to intervene, in an official
capacity under the law, in connection with a
contract or transaction has the right to
intervene.[31]

On the other hand, direct bribery has the following essential

elements:

xxx xxx xxx

(b) Directly or indirectly requesting or
receiving any gift, present, share
percentage or benefit, for himself or for
any other person, in connection with
any contract or transaction between
the Government and any other party,
wherein the public officer in his official
capacity has to intervene under the
law.
xxx xxx xxx
The elements of the crime penalized under Section 3(b) of RA 3019
are:
(1) the offender is a public officer;

(1) the offender is a public officer;

(2) the offender accepts an offer or promise or
receives a gift or present by himself or through
another;
(3) such offer or promise be accepted or gift or
present be received by the public officer with a
view to committing some crime, or in
consideration of the execution of an act which
does not constitute a crime but the act must
be unjust, or to refrain from doing something
which it is his official duty to do and
(4) the act which the offender agrees to perform or
which he executes is connected with the
performance of his official duties.[32]

(2) he requested or received a gift, present,

share, percentage or benefit;

66

Clearly, the violation of Section 3(b) of RA 3019 is neither

identical nor necessarily inclusive of direct bribery. While they have

constitutional protection against double jeopardy proceeds from a

second prosecution for the same offense, not for a different one. [34]

common elements, not all the essential elements of one offense are
WHEREFORE, the petition is hereby DENIED. The June 18,
included among or form part of those enumerated in the other.
1999 decision of the Sandiganbayan in A.R. Case Nos. 004-005
Whereas the mere request or demand of a gift, present, share,
is AFFIRMED.
percentage or benefit is enough to constitute a violation of Section
3(b) of RA 3019, acceptance of a promise or offer or receipt of a gift

Costs against petitioner.

SO ORDERED.

or present is required in direct bribery. Moreover, the ambit of Section

3(b) of RA 3019 is specific. It is limited only to contracts or
transactions involving monetary consideration where the public
officer has the authority to intervene under the law. Direct bribery, on
the other hand, has a wider and more general scope: (a)
performance of an act constituting a crime; (b) execution of an unjust
act which does not constitute a crime and (c) agreeing to refrain or
refraining from doing an act which is his official duty to do.
Although the two charges against petitioner stemmed from
the same transaction, the same act gave rise to two separate and
distinct offenses. No double jeopardy attached since there was a
variance between the elements of the offenses charged. [33] The

67

(appellant) of Robbery with Intimidation of Persons, appellant filed

the present petition.
The accusatory portion of the Information against appellant reads:

PEDRO C. CONSULTA,
Appellant,
-versus-

That on or about the 7th day of June, 1999, in the

City of Makati, Philippines and within the jurisdiction
of this Honorable Court, the above-named
accused, with intent of gain, and by means of force,
violence and intimidation, did then and there willfully,
G.R. No. 179462
unlawfully and feloniously take, steal and carry away
complainants NELIA R. SILVESTRE gold necklace
worth P3,500.00, belonging to said complainant, to
Present:
the damage and prejudice of the owner thereof in
QUISUMBING, J., Chairperson, the aforementioned amount of P3,500.00.
CARPIO MORALES,
CONTRARY TO LAW.[2] (Emphasis in the original,
TINGA,
underscoring supplied)
VELASCO, JR. and
BRION, JJ.

PEOPLE OF THE PHILIPPINES,

Appellee,

From the evidence for the prosecution, the following version

Promulgated: February 12,
2009
is gathered:
x-------------------------------------------------x
DECISION

At about 2:00 oclock in the afternoon of June 7, 1999, private

complainant Nelia R. Silvestre (Nelia), together with Maria Viovicente
(Maria) and Veronica Amar (Veronica), boarded a tricycle on their

CARPIO MORALES, J.:

The Court of Appeals having, by Decision of April 23, 2007,
[1]

affirmed the December 9, 2004 Decision of the Regional Trial

Court of Makati City, Branch 139 convicting Pedro C. Consulta

way to Pembo, Makati City. Upon reaching Ambel Street, appellant

and his brother Edwin Consulta (Edwin) blocked the tricycle and
under their threats, the driver alighted and left. Appellant and Edwin
at once shouted invectives at Nelia, saying Putang ina mong
matanda ka, walanghiya ka, kapal ng mukha mo, papatayin ka

68

namin. Appellant addedPutang ina kang matanda ka, wala kang

He and his family used to rent the ground floor of Nelias

kadala dala, sinabihan na kita na kahit saan kita matiempuhan,

house in Pateros. Nelia is his godmother. The adjacent house was

papatayin kita.

occupied by Nelias parents with whom she often quarreled as to

whom the rental payments should be remitted. Because of the

Appellant thereafter grabbed Nelias 18K gold necklace with

perception of the parents of Nelia that his family was partial towards

a crucifix pendant which, according to an alajera in the province, was

her, her parents disliked his family. Nelias father even filed a case for

of 18k gold, and which was worth P3,500, kicked the tricycle and left

maltreatment against him which was dismissed and, on learning of

saying Putang ina kang matanda ka! Kayo mga nurses lang, anong

the maltreatment charge, Nelia ordered him and his family to move

ipinagmamalaki niyo, mga nurses lang kayo. Kami, marami kaming

out of their house and filed a case against him for grave threats and

mga abogado. Hindi niyo kami maipapakulong kahit kailan!

another for light threats which were dismissed or in which he was

acquitted.

Nelia and her companions immediately went to the Pembo barangay

hall where they were advised to undergo medical examination. They,

Appellant went on to claim that despite frequent transfers of

however, repaired to the Police Station, Precinct 8 in Comembo,

residence to avoid Nelia, she would track his whereabouts and

Makati City and reported the incident. They then proceeded to Camp

cause scandal.

Crame where they were advised to return in a few days when any
injuries they suffered were expected to manifest.

Appellants witness Darius Pacaa testified that on the date of the

alleged

robbery, Nelia,

together

with

her

two

companions,

Nine days after the incident or on June 16, 1999, Nelia

approached him while he was at Ambel Street in the company of

submitted a medico-legal report and gave her statement before a

Michael Fontanilla and Jimmy Sembrano, and asked him (Pacaa) if

police investigator.

he knew a bald man who is big/stout with a big tummy and with a
sister named Maria. As he replied in the affirmative, Nelia at once

Denying the charge, appellant branded it as fabricated to

spite him and his family in light of the following antecedent facts:

asked him to accompany them to appellants house, to which he

acceded. As soon as the group reached appellants house, appellant,
on his (Pacaas) call, emerged and on seeing the group, told them to

69

go away so as not to cause trouble. Retorting, Nelia uttered Mga

hayop kayo, hindi ko kayo titigilan.

The appellate court affirmed appellants conviction with modification

on the penalty.

Another defense witness, Thelma Vuesa, corroborated

Pacaas account.

In his present appeal, appellant raises the following issues:

The trial court, holding that intent to gain on appellants part

is presumed from the unlawful taking of the necklace, and brushing
aside appellants denial and claim of harassment, convicted appellant
of Robbery, disposing as follows:
WHEREFORE, premises considered, this Court
finds accused PEDRO C. CONSULTA guilty beyond
reasonable doubt, as principal of the felony of
Robbery with Intimidation of Persons defined and
penalized underArticle 294, paragraph No. 5, in
relation to Article 293 of the Revised Penal
Code and hereby sentences him to suffer the
penalty of imprisonment from one (1) year, seven (7)
months and eleven (11) days of arresto mayor, as
minimum, to eight (8) years, eight (8) months and
one (1) day of prision mayor, as maximum, applying
the Indeterminate Sentence Law, there being no
mitigating or aggravating circumstances which
attended the commission of the said crime.
The said accused is further ordered to pay
unto the complainant Nelia Silvestre the amount of
P3,500.00 representing the value of her necklace
taken by him and to pay the costs of this suit.
SO ORDERED. (Italics
underscoring supplied)

in

the

original,

(1) Whether or not appellant was validly arraigned;

(2) Whether or not
process having
lawyer during
presentation of
prosecution;

appellant was denied due

been represented by a fake
arraignment, pre-trial and
principal witnesses for the

(3) Whether or not appellant has committed the

crime of which he was charged; and
(4) Whether or not the prosecution was able to prove
the guilt of the appellant beyond reasonable
doubt. (Underscoring supplied)

The first two issues, which appellant raised before the appellate
court only when he filed his Motion for Reconsideration of said courts
decision, were resolved in the negative in this wise:
On the matter of accused-appellants claim of having
been denied due process, an examination of the
records shows that while accused-appellant was
represented by Atty. Jocelyn P. Reyes, who seems
not a lawyer, during the early stages of trial, the
latter withdrew her appearance with the conformity
of the former as early as July 28, 2000 and
subsequently, approved by the RTC in its Order

70

dated August 4, 2000. Thereafter, accused-appellant

was represented by Atty. Rainald C. Paggao from
the Public Defenders (Attorneys) Office of Makati
City. Since the accused-appellant was already
represented by a member of the Philippine Bar who
principally
handled
his
defense,
albeit
unsuccessfully, then he cannot now be heard to
complain about having been denied of due process.
[3]
(Underscoring supplied)

Art. 293. Who are guilty of robbery. Any

person who, with intent to gain, shall take any
personal property belonging to another, by means of
violence against or intimidation of any person, or
using force upon anything, shall be guilt of robbery.
(Italics in the original, underscoring supplied)

Article 294, paragraph 5, under which appellant was penalized

provides:
That appellants first counsel may not have been a member of the bar
does not dent the proven fact that appellant prevented Nelia and
company from proceeding to their destination. Further, appellant was
afforded competent representation by the Public Attorneys Office
during the presentation by the prosecution of the medico-legal officer
and

during

the

presentation

of

his

evidence. People

v.

[4]

Elesterio enlightens:
As for the circumstance that the defense counsel
turned out later to be a non-lawyer, it is observed
that he was chosen by the accused himself and
that his representation does not change the fact that
Elesterio was undeniably carrying an unlicensed
firearm when he was arrested. At any rate, he has
since been represented by a member of the
Philippine bar, who prepared the petition for habeas
corpus and the appellants brief.(Underscoring
supplied)

Art. 294. Robbery with violence against or

intimidation of persons Penalties. Any person guilty
of robbery with the use of violence against or
intimidation of any person shall suffer:
xxxx
5. The penalty of prision correccional in its
maximum period to prision mayor in its medium
period in other cases. x x x (Citations omitted; italics
in the original; underscoring supplied)

The elements of robbery are thus: 1) there is a taking of personal

property; 2) the personal property belongs to another; 3) the taking is
with animus lucrandi; and 4) the taking is with violence against or
intimidation of persons or with force upon things.
Animus lucrandi or intent to gain is an internal act which can

On the third and fourth issues. Article 293 of the Revised Penal Code
under which appellant was charged provides:

be established through the overt acts of the offender. It may be

presumed from the furtive taking of useful property pertaining to

71

another, unless special circumstances reveal a different intent on the

the offense charged, or of the offense charged which is included in

part of the perpetrator.[5]

the offense proved.[8]

The

Court

finds

that

under

the

above-mentioned

circumstances surrounding the incidental encounter of the parties,

the taking of Nelias necklace does not indicate presence of intent to
gain on appellants part. That intent to gain on appellants part is
difficult to appreciate gains light given his undenied claim that his
relationship with Nelia is rife with ill-feelings, manifested by, among
other things, the filing of complaints [6] against him by Nelia and her

SEC. 5. When an offense includes or is

included in another. An offense charged necessarily
includes the offense proved when some of the
essential elements or ingredients of the former, as
alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily
included in the offense proved, when the essential
ingredients of the former constitute or form part of
those constituting the latter.[9](Italics in the original,
underscoring supplied)

family which were subsequently dismissed or ended in his acquittal. [7]

Grave coercion, like robbery, has violence for one of its
Absent intent to gain on the part of appellant, robbery does
not lie against him. He is not necessarily scot-free, however.
From the pre-existing sour relations between Nelia and her
family on one hand, and appellant and family on the other, and under
the circumstances related above attendant to the incidental
encounter of the parties, appellants taking of Nelias necklace could
not have been animated with animus lucrandi. Appellant is, however,
just the same, criminally liable.
For [w]hen there is variance between the offense charged in the
complaint or information and that proved, and the offense as charged

elements. Thus Article 286 of the Revised Penal Code provides:

Art. 286. Grave coercions. The penalty of prision
correccional and a fine not exceeding six thousand
pesos shall be imposed upon any person who,
without
authority
of
law,
shall, by means of violence, threats orintimidation, pr
event another from doing something not prohibited b
y law or compel him to do something against his will,
whether it be right or wrong.
If the coercion be committed in violation of the
exercise of the right of suffrage or for the purpose of
compelling another to perform any religious act or to
prevent him from exercising such right or from doing
such act, the penalty next higher in degree shall be
imposed. (Italics in the original; underscoring
supplied)

is included in or necessarily includes the offense proved, the

accused shall be convicted of the offense proved which is included in

72

The difference in robbery and grave coercion lies in the intent in the

imposed in its medium term. Applying the Indeterminate Sentence

commission of the act. The motives of the accused are the prime

Law, the minimum that may be imposed is anywhere from one (1)

criterion:

month and one (1) day to six (6) months of arresto mayor, as
minimum, and from two (2) years, four (4) months and one (1) day to

The distinction between the two lines of decisions,

the one holding to robbery and the other to coercion,
is deemed to be the intention of the accused. Was
the purpose with intent to gain to take the property of
another by use of force or intimidation? Then,
conviction for robbery. Was the purpose, without
authority of law but still believing himself the owner
or the creditor, to compel another to do something
against his will and to seize property? Then,
conviction for coercion under Article 497 of the Penal
Code. The motives of the accused are the prime
criterion. And there was no common robber in the
present case, but a man who had fought bitterly for
title to his ancestral estate, taking the law into his
own hands and attempting to collect what he thought
was due him. Animus furandi was lacking.[10] (Italics
in the original; citations omitted; underscoring
supplied)

four (4) years and two (2) months of prision correccional, as

maximum.
WHEREFORE, the Court SETS ASIDE the challenged Court of
Appeals Decision and another is rendered finding appellant, Pedro
C.

Consulta, GUILTY beyond

reasonable

doubt

ofGrave Coercion and sentences him to suffer the indeterminate

penalty of from six (6) months of arresto mayor as minimum, to three
(3) years and six (6) months of prision correccionalmedium as
maximum.
Appellant is further ordered to return the necklace, failing which he is
ordered to pay its value, Three Thousand Five Hundred (P3,500)
Pesos.

The Court finds that by appellants employment of threats,

intimidation

and

violence

consisting

of, inter

alia, uttering

of

Costs de oficio.

invectives, driving away of the tricycle driver, and kicking of the

tricycle, Nelia was prevented from proceeding to her destination.

SO ORDERED.

Appellant is thus guilty of grave coercion which carries the penalty

of prision correccional and a fine not exceeding P6,000. There being
no aggravating or mitigating circumstance, the penalty shall be

73

On October 21, 1997, petitioner Ching, a Chinese national, instituted

criminal complaints for eleven (11) counts of violation of BP 22
against respondent Nicdao. Consequently, eleven (11) Informations
were filed with the First Municipal Circuit Trial Court (MCTC) of
Dinalupihan-Hermosa, Province of Bataan, which, except as to the
amounts and check numbers, uniformly read as follows:
The undersigned accuses Clarita S. Nicdao of a VIOLATION OF
BATAS PAMBANSA BILANG 22, committed as follows:

G.R. No. 141181

April 27, 2007

SAMSON CHING, Petitioner,

vs.
CLARITA NICDAO and HON. COURT OF APPEALS, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari filed by Samson
Ching of the Decision1 dated November 22, 1999 of the Court of
Appeals (CA) in CA-G.R. CR No. 23055. The assailed decision
acquitted respondent Clarita Nicdao of eleven (11) counts of violation
of Batas Pambansa Bilang (BP) 22, otherwise known as "The
Bouncing Checks Law." The instant petition pertains and is limited to
the civil aspect of the case as it submits that notwithstanding
respondent Nicdaos acquittal, she should be held liable to pay
petitioner Ching the amounts of the dishonored checks in the
aggregate sum of P20,950,000.00.
Factual and Procedural Antecedents

That on or about October 06, 1997, at Dinalupihan, Bataan,

Philippines, and within the jurisdiction of this Honorable Court, the
said accused did then and there willfully and unlawfully make or draw
and issue Hermosa Savings & Loan Bank, Inc. Check No. [002524]
dated October 06, 1997 in the amount of [P20,000,000.00] in
payment of her obligation with complainant Samson T.Y. Ching, the
said accused knowing fully well that at the time she issued the said
check she did not have sufficient funds in or credit with the drawee
bank for the payment in full of the said check upon presentment,
which check when presented for payment within ninety (90) days
from the date thereof, was dishonored by the drawee bank for the
reason that it was drawn against insufficient funds and
notwithstanding receipt of notice of such dishonor the said accused
failed and refused and still fails and refuses to pay the value of the
said check in the amount of [P20,000,000.00] or to make
arrangement with the drawee bank for the payment in full of the
same within five (5) banking days after receiving the said notice, to
the damage and prejudice of the said Samson T.Y. Ching in the
aforementioned amount of [P20,000,000.00], Philippine Currency.
CONTRARY TO LAW.
Dinalupihan, Bataan, October 21, 1997.
(Sgd.) SAMSON T.Y. CHING
Complainant

74

The cases were docketed as Criminal Cases Nos. 9433 up to 9443

involving the following details:

Date

Private
Complainant

Reason for
the
Dishonor

0025242

Oct.
P 20,000,000 6,
1997

Samson T.Y.
Ching

DAIF*

0088563

Oct.
150,000 6,
1997

"

"

0121424

Oct.
100,000 6,
1997

"

"

0045315

Oct.
50,000 6,
1997

"

0022546

Oct.
100,000 6,
1997

"

"

0088757

Oct.
100,000 6,
1997

"

"

0089368

Oct.
50,000 6,
1997

"

"

0022739

Oct.
50,000 6,
1997

"

"

00894810

Oct.
150,000 6,
1997

"

"

Check No. Amount

"

00893511

Oct.
100,000 6,
1997

"

"

01037712

Oct.
100,000 6,
1997

"

"

At about the same time, fourteen (14) other criminal complaints, also
for violation of BP 22, were filed against respondent Nicdao by
Emma Nuguid, said to be the common law spouse of petitioner
Ching. Allegedly fourteen (14) checks, amounting to P1,150,000.00,
were issued by respondent Nicdao to Nuguid but were dishonored
for lack of sufficient funds. The Informations were filed with the same
MCTC and docketed as Criminal Cases Nos. 9458 up to 9471.
At her arraignment, respondent Nicdao entered the plea of "not
guilty" to all the charges. A joint trial was then conducted for Criminal
Cases Nos. 9433-9443 and 9458-9471.
For the prosecution in Criminal Cases Nos. 9433-9443, petitioner
Ching and Imelda Yandoc, an employee of the Hermosa Savings &
Loan Bank, Inc., were presented to prove the charges against
respondent Nicdao. On direct-examination,13 petitioner Ching
preliminarily identified each of the eleven (11) Hermosa Savings &
Loan Bank (HSLB) checks that were allegedly issued to him by
respondent Nicdao amounting to P20,950,000.00. He identified the
signatures appearing on the checks as those of respondent Nicdao.
He recognized her signatures because respondent Nicdao allegedly
signed the checks in his presence. When petitioner Ching presented
these checks for payment, they were dishonored by the bank, HSLB,
for being "DAIF" or "drawn against insufficient funds."
Petitioner Ching averred that the checks were issued to him by
respondent Nicdao as security for the loans that she obtained from
him. Their transaction began sometime in October 1995 when
respondent Nicdao, proprietor/manager of Vignette Superstore,
together with her husband, approached him to borrow money in
order for them to settle their financial obligations. They agreed that

75

respondent Nicdao would leave the checks undated and that she
would pay the loans within one year. However, when petitioner Ching
went to see her after the lapse of one year to ask for payment,
respondent Nicdao allegedly said that she had no cash.
Petitioner Ching claimed that he went back to respondent Nicdao
several times more but every time, she would tell him that she had
no money. Then in September 1997, respondent Nicdao allegedly
got mad at him for being insistent and challenged him about seeing
each other in court. Because of respondent Nicdao's alleged refusal
to pay her obligations, on October 6, 1997, petitioner Ching
deposited the checks that she issued to him. As he earlier stated, the
checks were dishonored by the bank for being "DAIF." Shortly
thereafter, petitioner Ching, together with Emma Nuguid, wrote a
demand letter to respondent Nicdao which, however, went
unheeded. Accordingly, they separately filed the criminal complaints
against the latter.
On cross-examination,14 petitioner Ching claimed that he had been a
salesman of the La Suerte Cigar and Cigarette Manufacturing for
almost ten (10) years already. As such, he delivered the goods and
had a warehouse. He received salary and commissions. He could
not, however, state his exact gross income. According to him, it
increased every year because of his business. He asserted that
aside from being a salesman, he was also in the business of
extending loans to other people at an interest, which varied
depending on the person he was dealing with.
Petitioner Ching confirmed the truthfulness of the allegations
contained in the eleven (11) Informations that he filed against
respondent Nicdao. He reiterated that, upon their agreement, the
checks were all signed by respondent Nicdao but she left them
undated. Petitioner Ching admitted that he was the one who wrote
the date, October 6, 1997, on those checks when respondent Nicdao
refused to pay him.
With respect to the P20,000,000.00 check (Check No. 002524),
petitioner Ching explained that he wrote the date and amount
thereon when, upon his estimation, the money that he regularly lent

to respondent Nicdao beginning October 1995 reached the said sum.

He likewise intimated that prior to 1995, they had another transaction
amounting to P1,200,000.00 and, as security therefor, respondent
Nicdao similarly issued in his favor checks in varying amounts
of P100,000.00 and P50,000.00. When the said amount was fully
paid, petitioner Ching returned the checks to respondent Nicdao.
Petitioner Ching maintained that the eleven (11) checks subject of
Criminal Cases Nos. 9433-9443 pertained to respondent Nicdaos
loan transactions with him beginning October 1995. He also
mentioned an instance when respondent Nicdaos husband and
daughter approached him at a casino to borrow money from him. He
lent themP300,000.00. According to petitioner Ching, since this
amount was also unpaid, he included it in the other amounts that
respondent Nicdao owed to him which totaled P20,000,000.00 and
wrote the said amount on one of respondent Nicdaos blank checks
that she delivered to him.
Petitioner Ching explained that from October 1995 up to 1997, he
regularly delivered money to respondent Nicdao, in the amount
of P1,000,000.00 until the total amount reached P20,000,000.00. He
did not ask respondent Nicdao to acknowledge receiving these
amounts. Petitioner Ching claimed that he was confident that he
would be paid by respondent Nicdao because he had in his
possession her blank checks. On the other hand, the latter allegedly
had no cause to fear that he would fill up the checks with just any
amount because they had trust and confidence in each other. When
asked to produce the piece of paper on which he allegedly wrote the
amounts that he lent to respondent Nicdao, petitioner Ching could
not present it; he reasoned that it was not with him at that time.
It was also averred by petitioner Ching that respondent Nicdao
confided to him that she told her daughter Janette, who was married
to a foreigner, that her debt to him was only between P3,000,000.00
and P5,000,000.00. Petitioner Ching claimed that he offered to
accompany respondent Nicdao to her daughter in order that they
could apprise her of the amount that she owed him. Respondent
Nicdao refused for fear that it would cause disharmony in the family.
She assured petitioner Ching, however, that he would be paid by her
daughter.

76

Petitioner Ching reiterated that after the lapse of one (1) year from
the time respondent Nicdao issued the checks to him, he went to her
several times to collect payment. In all these instances, she said that
she had no cash. Finally, in September 1997, respondent Nicdao
allegedly went to his house and told him that Janette was only willing
to pay him between P3,000,000.00 and P5,000,000.00 because, as
far as her daughter was concerned, that was the only amount
borrowed from petitioner Ching. On hearing this, petitioner Ching
angrily told respondent Nicdao that she should not have allowed her
debt to reach P20,000,000.00 knowing that she would not be able to
pay the full amount.
Petitioner Ching identified the demand letter that he and Nuguid sent
to respondent Nicdao. He explained that he no longer informed her
about depositing her checks on his account because she already
made that statement about seeing him in court. Again, he admitted
writing the date, October 6, 1997, on all these checks.
Another witness presented by the prosecution was Imelda Yandoc,
an employee of HSLB. On direct-examination,15 she testified that she
worked as a checking account bookkeeper/teller of the bank. As
such, she received the checks that were drawn against the bank and
verified if they were funded. On October 6, 1997, she received
several checks issued by respondent Nicdao. She knew respondent
Nicdao because the latter maintained a savings and checking
account with them. Yandoc identified the checks subject of Criminal
Cases Nos. 9433-9443 and affirmed that stamped at the back of
each was the annotation "DAIF". Further, per the banks records, as
of October 8, 1997, only a balance of P300.00 was left in respondent
Nicdaos checking account andP645.83 in her savings account. On
even date, her account with the bank was considered inactive.
On cross-examination,16 Yandoc stated anew that respondent
Nicdaos checks bounced on October 7, 1997 for being "DAIF" and
her account was closed the following day, on October 8, 1997. She
informed the trial court that there were actually twenty-five (25)
checks of respondent Nicdao that were dishonored at about the
same time. The eleven (11) checks were purportedly issued in favor
of petitioner Ching while the other fourteen (14) were purportedly
issued in favor of Nuguid. Yandoc explained that respondent Nicdao

or her employee would usually call the bank to inquire if there was an
incoming check to be funded.
For its part, the defense proffered the testimonies of respondent
Nicdao, Melanie Tolentino and Jocelyn Nicdao. On directexamination,17 respondent Nicdao stated that she only dealt with
Nuguid. She vehemently denied the allegation that she had
borrowed money from both petitioner Ching and Nuguid in the total
amount ofP22,950,000.00. Respondent Nicdao admitted, however,
that she had obtained a loan from Nuguid but only forP2,100,000.00
and the same was already fully paid. As proof of such payment, she
presented a Planters Bank demand draft dated August 13, 1996 in
the amount of P1,200,000.00. The annotation at the back of the said
demand draft showed that it was endorsed and negotiated to the
account of petitioner Ching.
In addition, respondent Nicdao also presented and identified several
cigarette wrappers18 at the back of which appeared computations.
She explained that Nuguid went to the grocery store everyday to
collect interest payments. The principal loan was P2,100,000.00 with
12% interest per day. Nuguid allegedly wrote the payments for the
daily interests at the back of the cigarette wrappers that she gave to
respondent Nicdao.
The principal loan amount of P2,100,000.00 was allegedly delivered
by Nuguid to respondent Nicdao in varying amounts of P100,000.00
and P150,000.00. Respondent Nicdao refuted the averment of
petitioner Ching that prior to 1995, they had another transaction.
With respect to the P20,000,000.00 check, respondent Nicdao
admitted that the signature thereon was hers but denied that she
issued the same to petitioner Ching. Anent the other ten (10) checks,
she likewise admitted that the signatures thereon were hers while the
amounts and payee thereon were written by either Jocelyn Nicdao or
Melanie Tolentino, who were employees of Vignette Superstore and
authorized by her to do so.
Respondent Nicdao clarified that, except for the P20,000,000.00
check, the other ten (10) checks were handed to Nuguid on different

77

occasions. Nuguid came to the grocery store everyday to collect the

interest payments. Respondent Nicdao said that she purposely left
the checks undated because she would still have to notify Nuguid if
she already had the money to fund the checks.
Respondent Nicdao denied ever confiding to petitioner Ching that
she was afraid that her daughter would get mad if she found out
about the amount that she owed him. What allegedly transpired was
that when she already had the money to pay them (presumably
referring to petitioner Ching and Nuguid), she went to them to
retrieve her checks. However, petitioner Ching and Nuguid refused to
return the checks claiming that she (respondent Nicdao) still owed
them money. She demanded that they show her the checks in order
that she would know the exact amount of her debt, but they refused.
It was at this point that she got angry and dared them to go to court.
After the said incident, respondent Nicdao was surprised to be
notified by HSLB that her check in the amount ofP20,000,000.00 was
just presented to the bank for payment. She claimed that it was only
then that she remembered that sometime in 1995, she was informed
by her employee that one of her checks was missing. At that time,
she did not let it bother her thinking that it would eventually surface
when presented to the bank.
Respondent Nicdao could not explain how the said check came into
petitioner Chings possession. She explained that she kept her
checks in an ordinary cash box together with a stapler and the
cigarette wrappers that contained Nuguids computations. Her
saleslady had access to this box. Respondent Nicdao averred that it
was Nuguid who offered to give her a loan as she would allegedly
need money to manage Vignette Superstore. Nuguid used to run the
said store before respondent Nicdaos daughter bought it from
Nuguids family, its previous owner. According to respondent Nicdao,
it was Nuguid who regularly delivered the cash to respondent Nicdao
or, if she was not at the grocery store, to her saleslady. Respondent
Nicdao denied any knowledge that the money loaned to her by
Nuguid belonged to petitioner Ching.

At the continuation of her direct-examination,19 respondent Nicdao

said that she never dealt with petitioner Ching because it was Nuguid
who went to the grocery store everyday to collect the interest
payments. When shown theP20,000,000.00 check, respondent
Nicdao admitted that the signature thereon was hers but she denied
issuing it as a blank check to petitioner Ching. On the other hand,
with respect to the other ten (10) checks, she also admitted that the
signatures thereon were hers and that the amounts thereon were
written by either Josie Nicdao or Melanie Tolentino, her employees
whom she authorized to do so. With respect to the payee, it was
purposely left blank allegedly upon instruction of Nuguid who said
that she would use the checks to pay someone else.
On cross-examination,20 respondent Nicdao explained that Josie
Nicdao and Melanie Tolentino were caretakers of the grocery store
and that they manned it when she was not there. She likewise
confirmed that she authorized them to write the amounts on the
checks after she had affixed her signature thereon. She stressed,
however, that the P20,000,000.00 check was the one that was
reported to her as lost or missing by her saleslady sometime in 1995.
She never reported the matter to the bank because she was
confident that it would just surface when it would be presented for
payment.
Again, respondent Nicdao identified the cigarette wrappers which
indicated the daily payments she had made to Nuguid. The latter
allegedly went to the grocery store everyday to collect the interest
payments. Further, the figures at the back of the cigarette wrappers
were written by Nuguid. Respondent Nicdao asserted that she
recognized her handwriting because Nuguid sometimes wrote them
in her presence. Respondent Nicdao maintained that she had
already paid Nuguid the amount of P1,200,000.00 as evidenced by
the Planters Bank demand draft which she gave to the latter and
which was subsequently negotiated and deposited in petitioner
Chings account. In connection thereto, respondent Nicdao refuted
the prosecutions allegation that the demand draft was payment for a
previous transaction that she had with petitioner Ching. She clarified
that the payments that Nuguid collected from her everyday were only
for the interests due. She did not ask Nuguid to make written
acknowledgements of her payments.

78

Melanie Tolentino was presented to corroborate the testimony of

respondent Nicdao. On direct-examination,21Tolentino stated that she
worked at the Vignette Superstore and she knew Nuguid because
her employer, respondent Nicdao, used to borrow money from her.
She knew petitioner Ching only by name and that he was the
"husband" of Nuguid.

Tolentino stated that she left the employ of respondent Nicdao

sometime in 1996. After the checks were dishonored in October
1997, Tolentino got a call from respondent Nicdao. After she was
shown a fax copy thereof, Tolentino confirmed that
the P20,000,000.00 check was the same one that she reported as
missing in 1995.

As an employee of the grocery store, Tolentino stated that she acted

as its caretaker and was entrusted with the custody of respondent
Nicdaos personal checks. Tolentino identified her own handwriting
on some of the checks especially with respect to the amounts and
figures written thereon. She said that Nuguid instructed her to leave
the space for the payee blank as she would use the checks to pay
someone else. Tolentino added that she could not recall respondent
Nicdao issuing a check to petitioner Ching in the amount
of P20,000,000.00. She confirmed that they lost a check sometime in
1995. When informed about it, respondent Nicdao told her that the
check could have been issued to someone else, and that it would
just surface when presented to the bank.

Jocelyn Nicdao also took the witness stand to corroborate the

testimony of the other defense witnesses. On directexamination,23 she averred that she was a saleslady at the Vignette
Superstore from August 1994 up to April 1998. She knew Nuguid as
well as petitioner Ching.

Tolentino recounted that Nuguid came to the grocery store everyday

to collect the interest payments of the loan. In some instances, upon
respondent Nicdaos instruction, Tolentino handed to Nuguid checks
that were already signed by respondent Nicdao. Sometimes,
Tolentino would be the one to write the amount on the checks.
Nuguid, in turn, wrote the amounts on pieces of paper which were
kept by respondent Nicdao.
On cross-examination,22 Tolentino confirmed that she was authorized
by respondent Nicdao to fill up the checks and hand them to Nuguid.
The latter came to the grocery store everyday to collect the interest
payments. Tolentino claimed that in 1995, in the course of
chronologically arranging respondent Nicdaos check booklets, she
noticed that a check was missing. Respondent Nicdao told her that
perhaps she issued it to someone and that it would just turn up in the
bank. Tolentino was certain that the missing check was the same one
that petitioner Ching presented to the bank for payment in the
amount of P20,000,000.00.

Jocelyn Nicdao further testified that respondent Nicdao was indebted

to Nuguid. Jocelyn Nicdao used to fill up the checks of respondent
Nicdao that had already been signed by her and give them to
Nuguid. The latter came to the grocery store everyday to pick up the
interest payments. Jocelyn Nicdao identified the checks on which
she wrote the amounts and, in some instances, the name of Nuguid
as payee. However, most of the time, Nuguid allegedly instructed her
to leave as blank the space for the payee.
Jocelyn Nicdao identified the cigarette wrappers as the documents
on which Nuguid acknowledged receipt of the interest payments.
She explained that she was the one who wrote the minus entries and
they represented the daily interest payments received by Nuguid.
On cross-examination,24 Jocelyn Nicdao stated that she was a
distant cousin of respondent Nicdao. She stopped working for her in
1998 because she wanted to take a rest. Jocelyn Nicdao reiterated
that she handed the checks to Nuguid at the grocery store.
After due trial, on December 8, 1998, the MCTC rendered judgment
in Criminal Cases Nos. 9433-9443 convicting respondent Nicdao of
eleven (11) counts of violation of BP 22. The MCTC gave credence
to petitioner Chings testimony that respondent Nicdao borrowed
money from him in the total amount of P20,950,000.00. Petitioner
Ching delivered P1,000,000.00 every month to respondent Nicdao
from 1995 up to 1997 until the sum reachedP20,000,000.00. The

79

MCTC also found that subsequent thereto, respondent Nicdao still

borrowed money from petitioner Ching. As security for these loans,
respondent Nicdao issued checks to petitioner Ching. When the
latter deposited the checks (eleven in all) on October 6, 1997, they
were dishonored by the bank for being "DAIF."

The MCTC further ruled that there was no evidence to show that
petitioner Ching was not a holder in due course as to cause it (the
MCTC) to believe that the said check was not issued to him.
Respondent Nicdaos admission of indebtedness was sufficient to
prove that there was consideration for the issuance of the checks.

The MCTC explained that the crime of violation of BP 22 has the

following elements: (a) the making, drawing and issuance of any
check to apply to account or for value; (b) the knowledge of the
maker, drawer or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its presentment; and (c) subsequent dishonor
of the check by the drawee bank for insufficiency of funds or credit or
dishonor for the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment.25

The second element was also found by the MCTC to be present as it

held that respondent Nicdao, as maker, drawer or issuer, had
knowledge that at the time of issue she did not have sufficient funds
in or credit with the drawee bank for the payment in full of the checks
upon their presentment.

According to the MCTC, all the foregoing elements are present in the
case of respondent Nicdaos issuance of the checks subject of
Criminal Cases Nos. 9433-9443. On the first element, respondent
Nicdao was found by the MCTC to have made, drawn and issued the
checks. The fact that she did not personally write the payee and date
on the checks was not material considering that under Section 14 of
the Negotiable Instruments Law, "where the instrument is wanting in
any material particular, the person in possession thereof has a prima
facie authority to complete it by filling up the blanks therein. And a
signature on a blank paper delivered by the person making the
signature in order that the paper may be converted into a negotiable
instrument operates as a prima facie authority to fill it up as such for
any amount x x x." Respondent Nicdao admitted that she authorized
her employees to provide the details on the checks after she had
signed them.
The MCTC disbelieved respondent Nicdaos claim that
the P20,000,000.00 check was the same one that she lost in 1995. It
observed that ordinary prudence would dictate that a lost check
would at least be immediately reported to the bank to prevent its
unauthorized endorsement or negotiation. Respondent Nicdao made
no such report to the bank. Even if the said check was indeed lost,
the MCTC faulted respondent Nicdao for being negligent in keeping
the checks that she had already signed in an unsecured box.

As to the third element, the MCTC established that the checks were
subsequently dishonored by the drawee bank for being "DAIF" or
drawn against insufficient funds. Stamped at the back of each check
was the annotation "DAIF." The bank representative likewise testified
to the fact of dishonor.
Under the foregoing circumstances, the MCTC declared that the
conviction of respondent Nicdao was warranted. It stressed that the
mere act of issuing a worthless check was malum prohibitum; hence,
even if the checks were issued in the form of deposit or guarantee,
once dishonored, the same gave rise to the prosecution for and
conviction of BP 22.26 The decretal portion of the MCTC decision
reads:
WHEREFORE, in view of the foregoing, the accused is found guilty
of violating Batas Pambansa Blg. 22 in 11 counts, and is hereby
ordered to pay the private complainant the amount
of P20,950,000.00 plus 12% interest per annum from date of filing of
the complaint until the total amount had been paid. The prayer for
moral damages is denied for lack of evidence to prove the same.
She is likewise ordered to suffer imprisonment equivalent to 1 year
for every check issued and which penalty shall be served
successively.
SO ORDERED.27

80

Incidentally, on January 11, 1999, the MCTC likewise rendered its

judgment in Criminal Cases Nos. 9458-9471 and convicted
respondent Nicdao of the fourteen (14) counts of violation of BP 22
filed against her by Nuguid.
On appeal, the Regional Trial Court (RTC) of Dinalupihan, Bataan,
Branch 5, in separate Decisions both dated May 10, 1999, affirmed
in toto the decisions of the MCTC convicting respondent Nicdao of
eleven (11) and fourteen (14) counts of violation of BP 22 in Criminal
Cases Nos. 9433-9443 and 9458-9471, respectively.
Respondent Nicdao forthwith filed with the CA separate petitions for
review of the two decisions of the RTC. The petition involving the
eleven (11) checks purportedly issued to petitioner Ching was
docketed as CA-G.R. CR No. 23055 (assigned to the 13th Division).
On the other hand, the petition involving the fourteen (14) checks
purportedly issued to Nuguid was docketed as CA-G.R. CR No.
23054 (originally assigned to the 7th Division but transferred to the
6th Division). The Office of the Solicitor General (OSG) filed its
respective comments on the said petitions. Subsequently, the OSG
filed in CA-G.R. CR No. 23055 a motion for its consolidation with CAG.R. CR No. 23054. The OSG prayed that CA-G.R. CR No. 23055
pending before the 13th Division be transferred and consolidated
with CA-G.R. CR No. 23054 in accordance with the Revised Internal
Rules of the Court of Appeals (RIRCA).
Acting on the motion for consolidation, the CA in CA-G.R. CR No.
23055 issued a Resolution dated October 19, 1999 advising the
OSG to file the motion in CA-G.R. CR No. 23054 as it bore the
lowest number. Respondent Nicdao opposed the consolidation of the
two cases. She likewise filed her reply to the comment of the OSG in
CA-G.R. CR No. 23055.
On November 22, 1999, the CA (13th Division) rendered the assailed
Decision in CA-G.R. CR No. 23055 acquitting respondent Nicdao of
the eleven (11) counts of violation of BP 22 filed against her by
petitioner Ching. The decretal portion of the assailed CA Decision
reads:

WHEREFORE, being meritorious, the petition for review is hereby

GRANTED. Accordingly, the decision dated May 10, 1999, of the
Regional Trial Court, 3rd Judicial Region, Branch 5, Bataan, affirming
the decision dated December 8, 1998, of the First Municipal Circuit
Trial Court of Dinalupihan-Hermosa, Bataan, convicting petitioner
Clarita S. Nicdao in Criminal Cases No. 9433 to 9443 of violation of
B.P. Blg. 22 is REVERSED and SET ASIDE and another judgment
rendered ACQUITTING her in all these cases, with costs de oficio.
SO ORDERED.28
On even date, the CA issued an Entry of Judgment declaring that the
above decision has become final and executory and is recorded in
the Book of Judgments.
In acquitting respondent Nicdao in CA-G.R. CR No. 23055, the CA
made the following factual findings:
Petitioner [respondent herein] Clarita S. Nicdao, a middle-aged
mother and housekeeper who only finished high school, has a
daughter, Janette Boyd, who is married to a wealthy expatriate.
Complainant [petitioner herein] Samson Ching is a Chinese national,
who claimed he is a salesman of La Suerte Cigar and Cigarette
Factory.
Emma Nuguid, complainants live-in partner, is a CPA and formerly
connected with Sycip, Gorres and Velayo. Nuguid used to own a
grocery store now known as the Vignette Superstore. She sold this
grocery store, which was about to be foreclosed, to petitioners
daughter, Janette Boyd. Since then, petitioner began managing said
store. However, since petitioner could not always be at the Vignette
Superstore to keep shop, she entrusted to her salesladies, Melanie
Tolentino and Jocelyn Nicdao, pre-signed checks, which were left
blank as to amount and the payee, to cover for any delivery of
merchandise sold at the store. The blank and personal checks were
placed in a cash box at Vignette Superstore and were filled up by
said salesladies upon instruction of petitioner as to amount, payee
and date.

81

Soon thereafter, Emma Nuguid befriended petitioner and offered to

lend money to the latter which could be used in running her newly
acquired store. Nuguid represented to petitioner that as former
manager of the Vignette Superstore, she knew that petitioner would
be in need of credit to meet the daily expenses of running the
business, particularly in the daily purchases of merchandise to be
sold at the store. After Emma Nuguid succeeded in befriending
petitioner, Nuguid was able to gain access to the Vignette Superstore
where petitioners blank and pre-signed checks were kept. 29
In addition, the CA also made the finding that respondent Nicdao
borrowed money from Nuguid in the total amount of P2,100,000.00
secured by twenty-four (24) checks drawn against respondent
Nicdaos account with HSLB. Upon Nuguids instruction, the checks
given by respondent Nicdao as security for the loans were left blank
as to the payee and the date. The loans consisted of
(a) P950,000.00 covered by ten (10) checks subject of the criminal
complaints filed by petitioner Ching (CA-G.R. CR No. 23055); and
(b) P1,150,000.00 covered by fourteen (14) checks subject of the
criminal complaints filed by Nuguid (CA-G.R. CR No. 23054). The
loans totaledP2,100,000.00 and they were transacted between
respondent Nicdao and Nuguid only. Respondent Nicdao never dealt
with petitioner Ching.
Against the foregoing factual findings, the CA declared that, based
on the evidence, respondent Nicdao had already fully paid the loans.
In particular, the CA referred to the Planters Bank demand draft in
the amount ofP1,200,000.00 which, by his own admission, petitioner
Ching had received. The appellate court debunked petitioner Chings
allegation that the said demand draft was payment for a previous
transaction. According to the CA, petitioner Ching failed to adduce
evidence to prove the existence of a previous transaction between
him and respondent Nicdao.
Apart from the demand draft, the CA also stated that respondent
Nicdao made interest payments on a daily basis to Nuguid as
evidenced by the computations written at the back of the cigarette
wrappers. Based on these computations, as of July 21, 1997,
respondent Nicdao had made a total of P5,780,000.00 payments to
Nuguid for the interests alone. Adding up this amount and that of the

Planters Bank demand draft, the CA placed the payments made by

respondent Nicdao to Nuguid as already amounting
to P6,980,000.00 for the principal loan amount of
only P2,100,000.00.
The CA negated petitioner Chings contention that the payments as
reflected at the back of the cigarette wrappers could be applied only
to the interests due. Since the transactions were not evidenced by
any document or writing, the CA ratiocinated that no interests could
be collected because, under Article 1956 of the Civil Code, "no
interest shall be due unless it has been expressly stipulated in
writing."
The CA gave credence to the testimony of respondent Nicdao that
when she had fully paid her loans to Nuguid, she tried to retrieve her
checks. Nuguid, however, refused to return the checks to respondent
Nicdao. Instead, Nuguid and petitioner Ching filled up the said
checks to make it appear that: (a) petitioner Ching was the payee in
five checks; (b) the six checks were payable to cash; (c) Nuguid was
the payee in fourteen (14) checks. Petitioner Ching and Nuguid then
put the date October 6, 1997 on all these checks and deposited them
the following day. On October 8, 1997, through a joint demand letter,
they informed respondent Nicdao that her checks were dishonored
by HSLB and gave her three days to settle her indebtedness or else
face prosecution for violation of BP 22.
With the finding that respondent Nicdao had fully paid her loan
obligations to Nuguid, the CA declared that she could no longer be
held liable for violation of BP 22. It was explained that to be held
liable under BP 22, it must be established, inter alia, that the check
was made or drawn and issued to apply on account or for value.
According to the CA, the word "account" refers to a pre-existing
obligation, while "for value" means an obligation incurred
simultaneously with the issuance of the check. In the case of
respondent Nicdaos checks, the pre-existing obligations secured by
them were already extinguished after full payment had been made
by respondent Nicdao to Nuguid. Obligations are extinguished by,
among others, payment.30 The CA believed that when petitioner
Ching and Nuguid refused to return respondent Nicdaos checks
despite her total payment of P6,980,000.00 for the loans secured by

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the checks, petitioner Ching and Nuguid were using BP 22 to coerce

respondent Nicdao to pay a debt which she no longer owed them.
With respect to the P20,000,000.00 check, the CA was not
convinced by petitioner Chings claim that he deliveredP1,000,000.00
every month to respondent Nicdao until the amount
reached P20,000,000.00 and, when she refused to pay the same, he
filled up the check, which she earlier delivered to him as security for
the loans, by writing thereon the said amount. In disbelieving
petitioner Ching, the CA pointed out that, contrary to his assertion, he
was never employed by the La Suerte Cigar and Cigarette
Manufacturing per the letter of Susan Resurreccion, Vice-President
and Legal Counsel of the said company. Moreover, as admitted by
petitioner Ching, he did not own the house where he and Nuguid
lived.
Moreover, the CA characterized as incredible and contrary to human
experience that petitioner Ching would, as he claimed, deliver a total
sum of P20,000,000.00 to respondent Nicdao without any
documentary proof thereof, e.g., written acknowledgment that she
received the same. On the other hand, it found plausible respondent
Nicdaos version of the story that the P20,000,000.00 check was the
same one that was missing way back in 1995. The CA opined that
this missing check surfaced in the hands of petitioner Ching who, in
cahoots with Nuguid, wrote the amount P20,000,000.00 thereon and
deposited it in his account. To the mind of the CA, the inference that
the check was stolen was anchored on competent circumstantial
evidence. Specifically, Nuguid, as previous manager/owner of the
grocery store, had access thereto. Likewise applicable, according to
the CA, was the presumption that the person in possession of the
stolen article was presumed to be guilty of taking the stolen article. 31
The CA emphasized that the P20,000,000.00 check was never
delivered by respondent Nicdao to petitioner Ching. As such, the said
check without the details as to the date, amount and payee, was an
incomplete and undelivered instrument when it was stolen and
ended up in petitioner Chings hands. On this point, the CA applied
Sections 15 and 16 of the Negotiable Instruments Law:

SEC. 15. Incomplete instrument not delivered. Where an

incomplete instrument has not been delivered, it will not, if completed
and negotiated without authority, be a valid contract in the hands of
any holder, as against any person whose signature was placed
thereon before delivery.
SEC. 16. Delivery; when effectual; when presumed. Every contract
on a negotiable instrument is incomplete and revocable until delivery
of the instrument for the purpose of giving effect thereto. As between
immediate parties and as regards a remote party other than a holder
in due course, the delivery, in order to be effectual, must be made
either by or under the authority of the party making, drawing,
accepting or indorsing, as the case may be; and, in such case, the
delivery may be shown to have been conditional, or for a special
purpose only, and not for the purpose of transferring the property. But
where the instrument is in the hands of a holder in due course, a
valid delivery thereof by all parties prior to him so as to make them
liable to him is conclusively presumed. And where the instrument is
no longer in the possession of a party whose signature appears
thereon, a valid and intentional delivery by him is presumed until the
contrary is proved.
The CA held that the P20,000,000.00 check was filled up by
petitioner Ching without respondent Nicdaos authority. Further, it
was incomplete and undelivered. Hence, petitioner Ching did not
acquire any right or interest therein and could not assert any cause
of action founded on the
stolen checks.32 Under these circumstances, the CA concluded that
respondent could not be held liable for violation of BP 22.
The Petitioners Case
As mentioned earlier, the instant petition pertains and is limited solely
to the civil aspect of the case as petitioner Ching argues that
notwithstanding respondent Nicdaos acquittal of the eleven (11)
counts of violation of BP 22, she should be held liable to pay
petitioner Ching the amounts of the dishonored checks in the
aggregate sum ofP20,950,000.00.

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He urges the Court to review the findings of facts made by the CA as

they are allegedly based on a misapprehension of facts and
manifestly erroneous and contradicted by the evidence. Further, the
CAs factual findings are in conflict with those of the RTC and MCTC.
Petitioner Ching vigorously argues that notwithstanding respondent
Nicdaos acquittal by the CA, the Supreme Court has the jurisdiction
and authority to resolve and rule on her civil liability. He invokes
Section 1, Rule 111 of the Revised Rules of Court which, prior to its
amendment, provided, in part:
SEC. 1. Institution of criminal and civil actions. When a criminal
action is instituted, the civil action for the recovery of civil liability is
impliedly instituted with the criminal action, unless the offended party
waives the civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.
Such civil action includes the recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines arising from the same act or
omission of the accused. x x x
Supreme Court Circular No. 57-9733 dated September 16, 1997 is
also cited as it provides in part:
1. The criminal action for violation of Batas Pambansa Blg. 22 shall
be deemed to necessarily include the corresponding civil action, and
no reservation to file such civil action separately shall be allowed or
recognized. x x x
Petitioner Ching theorizes that, under Section 1, Rule 111 of the
Revised Rules of Court, the civil action for the recovery of damages
under Articles 32, 33, 34, and 2176 arising from the same act or
omission of the accused is impliedly instituted with the criminal
action. Moreover, under the above-quoted Circular, the criminal
action for violation of BP 22 necessarily includes the corresponding
civil action, which is the recovery of the amount of the dishonored
check representing the civil obligation of the drawer to the payee.

In seeking to enforce the alleged civil liability of respondent Nicdao,

petitioner Ching maintains that she had loan obligations to him
totaling P20,950,000.00. The existence of the same is allegedly
established by his testimony before the MCTC. Also, he asks the
Court to take judicial notice that for a monetary loan secured by a
check, the check itself is the evidence of indebtedness.
He insists that, contrary to her protestation, respondent Nicdao also
transacted with him, not only with Nuguid. Petitioner Ching pointed
out that during respondent Nicdaos testimony, she referred to her
creditors in plural form, e.g. "[I] told them, most checks that I issued I
will inform them if I have money." Even respondent Nicdaos
employees allegedly knew him; they testified that Nuguid instructed
them at times to leave as blank the payee on the checks as they
would be paid to someone else, who turned out to be petitioner
Ching.
It was allegedly erroneous for the CA to hold that he had no capacity
to lend P20,950,000.00 to respondent Nicdao. Petitioner Ching
clarified that what he meant when he testified before the MCTC was
that he was engaged in dealership with La Suerte Cigar and
Cigarette Manufacturing, and not merely its sales agent. He stresses
that he owns a warehouse and is also in the business of lending
money. Further, the CAs reasoning that he could not possibly have
lent P20,950,000.00 to respondent Nicdao since petitioner Ching and
Nuguid did not own the house where they live, is allegedly non
sequitur.
Petitioner Ching maintains that, contrary to the CAs finding, the
Planters Bank demand draft for P1,200,000.00 was in payment for
respondent Nicdaos previous loan transaction with him. Apart from
the P20,000,000.00 check, the other ten (10) checks
(totaling P950,000.00) were allegedly issued by respondent Nicdao
to petitioner Ching as security for the loans that she obtained from
him from 1995 to 1997. The existence of another loan obligation prior
to the said period was allegedly established by the testimony of
respondent Nicdaos own witness, Jocelyn Nicdao, who testified that
when she started working in Vignette Superstore in 1994, she
noticed that respondent Nicdao was already indebted to Nuguid.

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Petitioner Ching also takes exception to the CAs ruling that the
payments made by respondent Nicdao as reflected on the
computations at the back of the cigarette wrappers were for both the
principal loan and interests. He insists that they were for the interests
alone. Even respondent Nicdaos testimony allegedly showed that
they were daily interest payments. Petitioner Ching further avers that
the interest payments totaling P5,780,000.00 can only mean that,
contrary to respondent Nicdaos claim, her loan obligations
amounted to much more thanP2,100,000.00. Further, she is
allegedly estopped from questioning the interests because she
willingly paid the same.
Petitioner Ching also harps on respondent Nicdaos silence when
she received his and Nuguids demand letter to her. Through the said
letter, they notified her that the twenty-five (25) checks valued
at P22,100,000.00 were dishonored by the HSLB, and that she had
three days to settle her ndebtedness with them, otherwise, face
prosecution. Respondent Nicdaos silence, i.e., her failure to deny or
protest the same by way of reply, vis--vis the demand letter,
allegedly constitutes an admission of the statements contained
therein.
On the other hand, the MCTCs decision, as affirmed by the RTC, is
allegedly based on the evidence on record; it has been established
that the checks were respondent Nicdaos personal checks, that the
signatures thereon were hers and that she had issued them to
petitioner Ching. With respect to the P20,000,000.00 check,
petitioner Ching assails the CAs ruling that it was stolen and was
never delivered or issued by respondent Nicdao to him. The issue of
the said check being stolen was allegedly not raised during trial.
Further, her failure to report the alleged theft to the bank to stop
payment of the said lost or missing check is allegedly contrary to
human experience. Petitioner Ching describes respondent Nicdaos
defense of stolen or lost check as incredible and, therefore, false.
Aside from the foregoing substantive issues that he raised, petitioner
Ching also faults the CA for not acting and ordering the consolidation
of CA-G.R. CR No. 23055 with CA-G.R. CR No. 23054. He informs
the Court that latter case is still pending with the CA.

In fine, it is petitioner Chings view that the CA gravely erred in

disregarding the findings of the MCTC, as affirmed by the RTC, and
submits that there is more than sufficient preponderant evidence to
hold respondent Nicdao civilly liable to him in the amount
of P20,950,000.00. He thus prays that the Court direct respondent
Nicdao to pay him the said amount plus 12% interest per annum
computed from the date of written demand until the total amount is
fully paid.
The Respondents Counter-Arguments
Respondent Nicdao urges the Court to deny the petition. She posits
preliminarily that it is barred under Section 2(b), Rule 111 of the
Revised Rules of Court which states:
SEC. 2. Institution of separate of civil action. - Except in the cases
provided for in Section 3 hereof, after the criminal action has been
commenced, the civil action which has been reserved cannot be
instituted until final judgment in the criminal action.
xxxx
(b) Extinction of the penal action does not carry with it extinction of
the civil, unless the extinction proceeds from a declaration in a final
judgment that the fact from which the civil might arise did not exist.
According to respondent Nicdao, the assailed CA decision has
already made a finding to the effect that the fact upon which her civil
liability might arise did not exist. She refers to the ruling of the CA
that the P20,000,000.00 check was stolen; hence, petitioner Ching
did not acquire any right or interest over the said check and could not
assert any cause of action founded on the said check. Consequently,
the CA held that respondent Nicdao had no obligation to make good
the stolen check and cannot be held liable for violation of BP 22. She
also refers to the CAs pronouncement relative to the ten (10) other
checks that they were not issued to apply on account or for value,
considering that the loan obligations secured by these checks had
already been extinguished by her full payment thereof.

85

To respondent Nicdaos mind, these pronouncements are equivalent

to a finding that the facts upon which her civil liability may arise do
not exist. The instant petition, which seeks to enforce her civil liability
based on the eleven (11) checks, is thus allegedly already barred by
the final and executory decision acquitting her.
In any case, respondent Nicdao contends that the CA did not commit
serious misapprehension of facts when it found that
the P20,000,000.00 check was a stolen check and that she never
made any transaction with petitioner Ching. Moreover, the other ten
(10) checks were not issued to apply on account or for value. These
findings are allegedly supported by the evidence on record which
consisted of the respective testimonies of the defense witnesses to
the effect that: respondent Nicdao had the practice of leaving presigned checks placed inside an unsecured cash box in the Vignette
Superstore; the salesladies were given the authority to fill up the said
checks as to the amount, payee and date; Nuguid beguiled
respondent Nicdao to obtain loans from her; as security for the loans,
respondent Nicdao issued checks to Nuguid; when the salesladies
gave the checks to Nuguid, she instructed them to leave blank the
payee and date; Nuguid had access to the grocery store; in 1995,
one of the salesladies reported that a check was missing; in 1997,
when she had fully paid her loans to Nuguid, respondent Nicdao tried
to retrieve her checks but Nuguid and petitioner Ching falsely told
her that she still owed them money; they then maliciously filled up
the checks making it appear that petitioner Ching was the payee in
the five checks and the six others were payable to "cash"; and
knowing fully well that these checks were not funded because
respondent Nicdao already fully paid her loans, petitioner Ching and
Nuguid deposited the checks and caused them to be dishonored by
HSLB.
It is pointed out by respondent Nicdao that her testimony (that
the P20,000,000.00 check was the same one that she lost sometime
in 1995) was corroborated by the respective testimonies of her
employees. Another indication that it was stolen was the fact that
among all the checks which ended up in the hands of petitioner
Ching and Nuguid, only the P20,000,000.00 check was fully
typewritten; the rest were invariably handwritten as to the amounts,
payee and date.

Respondent Nicdao defends the CAs conclusion that

the P20,000,000.00 check was stolen on the ground that an appeal
in a criminal case throws open the whole case to the appellate
courts scrutiny. In any event, she maintains that she had been
consistent in her theory of defense and merely relied on the
disputable presumption that the person in possession of a stolen
article is presumed to be the author of the theft.
Considering that it was stolen, respondent Nicdao argues,
the P20,000,000.00 check was an incomplete and undelivered
instrument in the hands of petitioner Ching and he did not acquire
any right or interest therein. Further, he cannot assert any cause of
action founded on the said stolen check. Accordingly, petitioner
Chings attempt to collect payment on the said check through the
instant petition must fail.
Respondent Nicdao describes as downright incredible petitioner
Chings testimony that she owed him a total sum of P20,950,000.00
without any documentary proof of the loan transactions. She submits
that it is contrary to human experience for loan transactions involving
such huge amounts of money to be devoid of any documentary
proof. In relation thereto, respondent Nicdao underscores that
petitioner Ching lied about being employed as a salesman of La
Suerte Cigar and Cigarette Manufacturing. It is underscored that he
has not adequately shown that he possessed the financial capacity
to lend such a huge amount to respondent Nicdao as he so claimed.
Neither could she be held liable for the ten (10) other checks (in the
total amount of P950,000,000.00) because as respondent Nicdao
asseverates, she merely issued them to Nuguid as security for her
loans obtained from the latter beginning October 1995 up to 1997. As
evidenced by the Planters Bank demand draft in the amount
ofP1,200,000.00, she already made payment in 1996. The said
demand draft was negotiated to petitioner Chings account and he
admitted receipt thereof. Respondent Nicdao belies his claim that the
demand draft was payment for a prior existing obligation. She
asserts that petitioner Ching was unable to present evidence of such
a previous transaction.

86

In addition to the Planters Bank demand draft, respondent Nicdao

insists that petitioner Ching received, through Nuguid, cash
payments as evidenced by the computations written at the back of
the cigarette wrappers. Nuguid went to the Vignette Superstore
everyday to collect these payments. The other defense witnesses
corroborated this fact. Petitioner Ching allegedly never disputed the
accuracy of the accounts appearing on these cigarette wrappers; nor
did he dispute their authenticity and accuracy.
Based on the foregoing evidence, the CA allegedly correctly held
that, computing the amount of the Planters Bank demand draft
(P1,200,000.00) and those reflected at the back of the cigarette
wrappers (P5,780,000.00), respondent Nicdao had already paid
petitioner Ching and Nuguid a total sum of P6,980,000.00 for her
loan obligations totaling only P950,000.00, as secured by the ten
(10) HSLB checks excluding the stolenP20,000,000.00 check.
Respondent Nicdao rebuts petitioner Chings argument (that the
daily payments were applied to the interests), and claims that this is
illegal. Petitioner Ching cannot insist that the daily payments she
made applied only to the interests on the loan obligations,
considering that there is admittedly no document evidencing these
loans, hence, no written stipulation for the payment of interests
thereon. On this point, she invokes Article 1956 of the Civil Code,
which proscribes the collection of interest payments unless expressly
stipulated in writing.
Respondent Nicdao emphasizes that the ten (10) other checks that
she issued to Nuguid as security for her loans had already been
discharged upon her full payment thereof. It is her belief that these
checks can no longer be used to coerce her to pay a debt that she
does not owe.
On the CAs failure to consolidate CA-G.R. CR No. 23055 and CAG.R. CR No. 23054, respondent Nicdao proffers the explanation that
under the RIRCA, consolidation of the cases is not mandatory. In
fine, respondent Nicdao urges the Court to deny the petition as it
failed to discharge the burden of proving her civil liability with the
required preponderance of evidence. Moreover, the CAs acquittal of

respondent Nicdao is premised on the finding that, apart from the

stolen check, the ten (10) other checks were not made to apply to a
valid, due and demandable obligation. This, in effect, is a categorical
ruling that the fact from which the civil liability of respondent Nicdao
may arise does not exist.
The Courts Rulings
The petition is denied for lack of merit.
Notwithstanding respondent Nicdaos acquittal, petitioner Ching is
entitled to appeal the civil aspect of the case within the reglementary
period
It is axiomatic that "every person criminally liable for a felony is also
civilly liable."34 Under the pertinent provision of the Revised Rules of
Court, the civil action is generally impliedly instituted with the criminal
action. At the time of petitioner Chings filing of the Informations
against respondent Nicdao, Section 1,35 Rule 111 of the Revised
Rules of Court, quoted earlier, provided in part:
SEC. 1. Institution of criminal and civil actions. When a criminal
action is instituted, the civil action for the recovery of civil liability is
impliedly instituted with the criminal action, unless the offended party
waives the civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.
Such civil action includes the recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines arising from the same act or
omission of the accused.
xxxx
As a corollary to the above rule, an acquittal does not necessarily
carry with it the extinguishment of the civil liability of the accused.
Section 2(b)36 of the same Rule, also quoted earlier, provided in part:

87

(b) Extinction of the penal action does not carry with it extinction of
the civil, unless the extinction proceeds from a declaration in a final
judgment that the fact from which the civil might arise did not exist.
It is also relevant to mention that judgments of acquittal are required
to state "whether the evidence of the prosecution absolutely failed to
prove the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might
arise did not exist."37
In Sapiera v. Court of Appeals,38 the Court enunciated that the civil
liability is not extinguished by acquittal: (a) where the acquittal is
based on reasonable doubt; (b) where the court expressly declares
that the liability of the accused is not criminal but only civil in nature;
and (c) where the civil liability is not derived from or based on the
criminal act of which the accused is acquitted. Thus, under Article 29
of the Civil Code
ART. 29. When the accused in a criminal prosecution is acquitted on
the ground that his guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission may
be instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may require the
plaintiff to file a bond to answer for damages in case the complaint
should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon
reasonable doubt, the court shall so declare. In the absence of any
declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground.
The Court likewise expounded in Salazar v. People39 the
consequences of an acquittal on the civil aspect in this wise:
The acquittal of the accused does not prevent a judgment against
him on the civil aspect of the criminal case where: (a) the acquittal is
based on reasonable doubt as only preponderance of evidence is
required; (b) the court declared that the liability of the accused is only

civil; (c) the civil liability of the accused does not arise from or is not
based upon the crime of which the accused is acquitted. Moreover,
the civil action based on the delict is extinguished if there is a finding
in the final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist or where the
accused did not commit the act or omission imputed to him.
If the accused is acquitted on reasonable doubt but the court renders
judgment on the civil aspect of the criminal case, the prosecution
cannot appeal from the judgment of acquittal as it would place the
accused in double jeopardy. However, the aggrieved party, the
offended party or the accused or both may appeal from the judgment
on the civil aspect of the case within the period therefor.
From the foregoing, petitioner Ching correctly argued that he, as the
offended party, may appeal the civil aspect of the case
notwithstanding respondent Nicdaos acquittal by the CA. The civil
action was impliedly instituted with the criminal action since he did
not reserve his right to institute it separately nor did he institute the
civil action prior to the criminal action.
Following the long recognized rule that "the appeal period accorded
to the accused should also be available to the offended party who
seeks redress of the civil aspect of the decision," the period to
appeal granted to petitioner Ching is the same as that granted to the
accused.40 With petitioner Chings timely filing of the instant petition
for review of the civil aspect of the CAs decision, the Court thus has
the jurisdiction and authority to determine the civil liability of
respondent Nicdao notwithstanding her acquittal.
In order for the petition to prosper, however, it must establish that the
judgment of the CA acquitting respondent Nicdao falls under any of
the three categories enumerated in Salazar and Sapiera, to wit:
(a) where the acquittal is based on reasonable doubt as only
preponderance of evidence is required;
(b) where the court declared that the liability of the accused
is only civil; and

88

(c) where the civil liability of the accused does not arise from
or is not based upon the crime of which the accused is
acquitted.
Salazar also enunciated that the civil action based on the delict is
extinguished if there is a finding in the final judgment in the criminal
action that the act or omission from which the civil liability may arise
did not exist or where the accused did not commit the act or
omission imputed to him.
For reasons that will be discussed shortly, the Court holds that
respondent Nicdao cannot be held civilly liable to petitioner Ching.
The acquittal of respondent Nicdao likewise effectively extinguished
her civil liability
A painstaking review of the case leads to the conclusion that
respondent Nicdaos acquittal likewise carried with it the extinction of
the action to enforce her civil liability. There is simply no basis to hold
respondent Nicdao civilly liable to petitioner Ching.
First, the CAs acquittal of respondent Nicdao is not merely based on
reasonable doubt. Rather, it is based on the finding that she did not
commit the act penalized under BP 22. In particular, the CA found
that the P20,000,000.00 check was a stolen check which was never
issued nor delivered by respondent Nicdao to petitioner Ching. As
such, according to the CA, petitioner Ching "did not acquire any right
or interest over Check No. 002524 and cannot assert any cause of
action founded on said check,"41 and that respondent Nicdao "has no
obligation to make good the stolen check and cannot, therefore, be
held liable for violation of B.P. Blg. 22."42
With respect to the ten (10) other checks, the CA established that the
loans secured by these checks had already been extinguished after
full payment had been made by respondent Nicdao. In this
connection, the second element for the crime under BP 22, i.e., "that
the check is made or drawn and issued to apply on account or for
value," is not present.

Second, in acquitting respondent Nicdao, the CA did not adjudge her

to be civilly liable to petitioner Ching. In fact, the CA explicitly stated
that she had already fully paid her obligations. The CA computed the
payments made by respondent Nicdao vis--vis her loan obligations
in this manner:
Clearly, adding the payments recorded at the back of the cigarette
cartons by Emma Nuguid in her own handwriting
totaling P5,780,000.00 and the P1,200,000.00 demand draft
received by Emma Nuguid, it would appear that petitioner
[respondent herein] had already made payments in the total amount
of P6,980,000.00 for her loan obligation of only P2,100,000.00
(P950,000.00 in the case at bar and P1,150,000.00 in CA-G.R. CR
No. 23054).43
On the other hand, its finding relative to the P20,000,000.00 check
that it was a stolen check necessarily absolved respondent Nicdao of
any civil liability thereon as well.
Third, while petitioner Ching attempts to show that respondent
Nicdaos liability did not arise from or was not based upon the
criminal act of which she was acquitted (ex delicto) but from her loan
obligations to him (ex contractu), however, petitioner Ching miserably
failed to prove by preponderant evidence the existence of these
unpaid loan obligations. Significantly, it can be inferred from the
following findings of the CA in its decision acquitting respondent
Nicdao that the act or omission from which her civil liability may arise
did not exist. On theP20,000,000.00 check, the CA found as follows:
True, indeed, the missing pre-signed and undated check no. 002524
surfaced in the possession of complainant Ching who, in cahoots
with his paramour Emma Nuguid, filled up the blank check with his
name as payee and in the fantastic amount of P20,000,000.00,
dated it October 6, 1997, and presented it to the bank on October 7,
1997, along with the other checks, for payment. Therefore, the
inference that the check was stolen is anchored on competent
circumstantial evidence. The fact already established is that Emma
Nuguid , previous owner of the store, had access to said store.
Moreover, the possession of a thing that was stolen , absent a

89

credible reason, as in this case, gives rise to the presumption that

the person in possession of the stolen article is presumed to be guilty
of taking the stolen article (People v. Zafra, 237 SCRA 664).
As previously shown, at the time check no. 002524 was stolen, the
said check was blank in its material aspect (as to the name of payee,
the amount of the check, and the date of the check), but was already
pre-signed by petitioner. In fact, complainant Ching himself admitted
that check no. 002524 in his possession was a blank check (TSN,
Jan. 7, 1998, pp. 24-27, Annex J, Petition).
Moreover, since it has been established that check no. 002524 had
been missing since 1995 (TSN, Sept. 9, 1998, pp. 14-15, Annex DD,
Petition; TSN, Sept. 10, 1998, pp. 43-46, Annex EE, Petition), it is
abundantly clear that said check was never delivered to complainant
Ching. Check no. 002524 was an incomplete and undelivered
instrument when it was stolen and ended up in the hands of
complainant Ching. Sections 15 and 16 of the Negotiable
Instruments Law provide:

Evidence sufficiently shows that the loans secured by the ten (10)
checks involved in the cases subject of this petition had already been
paid. It is not controverted that petitioner gave Emma Nuguid a
demand draft valued atP1,200,000 to pay for the loans guaranteed
by said checks and other checks issued to her. Samson Ching
admitted having received the demand draft which he deposited in his
bank account. However, complainant Samson Ching claimed that the
said demand draft represents payment for a previous obligation
incurred by petitioner. However, complainant Ching failed to adduce
any evidence to prove the existence of the alleged obligation of the
petitioner prior to those secured by the subject checks.

xxxx

Apart from the payment to Emma Nuguid through said demand draft,
it is also not disputed that petitioner made cash payments to Emma
Nuguid who collected the payments almost daily at the Vignette
Superstore. As of July 21, 1997, Emma Nuguid collected cash
payments amounting to approximately P5,780,000.00. All of these
cash payments were recorded at the back of cigarette cartons by
Emma Nuguid in her own handwriting, the authenticity and accuracy
of which were never denied by either complainant Ching or Emma
Nuguid.

In the case of check no. 002524, it is admitted by complainant Ching

that said check in his possession was a blank check and was
subsequently completed by him alone without authority from
petitioner. Inasmuch as check no. 002524 was incomplete and
undelivered in the hands of complainant Ching, he did not acquire
any right or interest therein and cannot, therefore, assert any cause
of action founded on said stolen check (Development Bank of the
Philippines v. Sima We, 219 SCRA 736, 740).

Clearly, adding the payments recorded at the back of the cigarette

cartons by Emma Nuguid in her own handwriting
totaling P5,780,000.00 and the P1,200,000.00 demand draft
received by Emma Nuguid, it would appear that petitioner had
already made payments in the total amount of P6,980,000.00 for her
loan in the total amount of P6,980,000.00 for her loan obligation of
only P2,100,000.00 (P950,000.00 in the case at bar and
P1,150,000.00 in CA-G.R. CR No. 23054).45

It goes without saying that since complainant Ching did not acquire
any right or interest over check no. 002524 and cannot assert any
cause of action founded on said check, petitioner has no obligation
to make good the stolen check and cannot, therefore, be held liable
for violation of B.P. Blg. 22.44

Generally checks may constitute evidence of

indebtedness.46 However, in view of the CAs findings relating to the
eleven (11) checks - that the P20,000,000.00 was a stolen check and
the obligations secured by the other ten (10) checks had already
been fully paid by respondent Nicdao they can no longer be given
credence to establish respondent Nicdaos civil liability to petitioner
Ching. Such civil liability, therefore, must be established by
preponderant evidence other than the discredited checks.

Anent the other ten (10) checks, the CA made the following findings:

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After a careful examination of the records of the case, 47 the Court

holds that the existence of respondent Nicdaos civil liability to
petitioner Ching in the amount of P20,950,000.00 representing her
unpaid obligations to the latter has not been sufficiently established
by preponderant evidence. Petitioner Ching mainly relies on his
testimony before the MCTC to establish the existence of these
unpaid obligations. In gist, he testified that from October 1995 up to
1997, respondent Nicdao obtained loans from him in the total
amount of P20,950,000.00. As security for her obligations, she
issued eleven (11) checks which were invariably blank as to the date,
amounts and payee. When respondent Nicdao allegedly refused to
pay her obligations despite his due demand, petitioner filled up the
checks in his possession with the corresponding amounts and date
and deposited them in his account. They were subsequently
dishonored by the HSLB for being "DAIF" and petitioner Ching
accordingly filed the criminal complaints against respondent Nicdao
for violation of BP 22.
It is a basic rule in evidence that the burden of proof lies on the party
who makes the allegations Et incumbit probatio, qui dicit, non qui
negat; cum per rerum naturam factum negantis probatio nulla sit
(The proof lies upon him who affirms, not upon him who denies;
since, by the nature of things, he who denies a fact cannot produce
any proof).48 In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence. Preponderance
of evidence is the weight, credit, and value of the aggregate
evidence on either side and is usually considered to be synonymous
with the term "greater weight of evidence" or "greater weight of the
credible evidence." Preponderance of evidence is a phrase which, in
the last analysis, means probability of the truth. It is evidence which
is more convincing to the court as worthy of belief than that which is
offered in opposition thereto.49 Section 1, Rule 133 of the Revised
Rules of Court offers the guidelines in determining preponderance of
evidence:
SEC. 1. Preponderance of evidence, how determined. In civil
cases, the party having the burden of proof must establish his case
by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved
lies, the court may consider all the facts and circumstances of the

case, the witnesses manner of testifying, their intelligence, their

means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the probability
or improbability of their testimony, their interest or want of interest,
and also their personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the
greater number.
Unfortunately, petitioner Chings testimony alone does not constitute
preponderant evidence to establish respondent Nicdaos civil liability
to him amounting to P20,950,000.00. Apart from the discredited
checks, he failed to adduce any other documentary evidence to
prove that respondent Nicdao still has unpaid obligations to him in
the said amount. Bare allegations, unsubstantiated by evidence, are
not equivalent to proof under our Rules.50
In contrast, respondent Nicdaos defense consisted in, among
others, her allegation that she had already paid her obligations to
petitioner Ching through Nuguid. In support thereof, she presented
the Planters Bank demand draft for P1,200,000.00. The said demand
draft was negotiated to petitioner Chings account and he admitted
receipt of the value thereof. Petitioner Ching tried to controvert this
by claiming that it was payment for a previous transaction between
him and respondent Nicdao. However, other than his self-serving
claim, petitioner Ching did not proffer any documentary evidence to
prove the existence of the said previous transaction. Considering
that the Planters Bank demand draft was dated August 13, 1996, it is
logical to conclude that, absent any evidence to the contrary, it
formed part of respondent Nicdaos payment to petitioner Ching on
account of the loan obligations that she obtained from him since
October 1995.
Additionally, respondent Nicdao submitted as evidence the cigarette
wrappers at the back of which were written the computations of the
daily payments that she had made to Nuguid. The fact of the daily
payments was corroborated by the other witnesses for the defense,
namely, Jocelyn Nicdao and Tolentino. As found by the CA, based on
these computations, respondent Nicdao had made a total payment
of P5,780,000.00 to Nuguid as of July 21, 1997. 51 Again, the

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payments made, as reflected at the back of these cigarette

wrappers, were not disputed by petitioner Ching. Hence, these
payments as well as the amount of the Planters Bank demand draft
establish that respondent Nicdao already paid the total amount
of P6,980,000.00 to Nuguid and petitioner Ching.
The Court agrees with the CA that the daily payments made by
respondent Nicdao amounting to P5,780,000.00 cannot be
considered as interest payments only. Even respondent Nicdao
testified that the daily payments that she made to Nuguid were for
the interests due. However, as correctly ruled by the CA, no interests
could be properly collected in the loan transactions between
petitioner Ching and respondent Nicdao because there was no
stipulation therefor in writing. To reiterate, under Article 1956 of the
Civil Code, "no interest shall be due unless it has been expressly
stipulated in writing."

The CA committed no reversible error in not consolidating CA-G.R.

CR No. 23055 and CA-G.R. CR No. 23054
During the pendency of CA-G.R. CR No. 23055 and CA-G.R. CR No.
23054 in the CA, the pertinent provision of the RIRCA on
consolidation of cases provided:
SEC. 7. Consolidation of Cases. Whenever two or more allied
cases are assigned to different Justices, they may be consolidated
for study and report to a single Justice.
(a) At the instance of any party or Justice to whom the case is
assigned for study and report, and with the conformity of all the
Justices concerned, the consolidation may be allowed when the
cases to be consolidated involve the same parties and/or related
questions of fact and/or law.53

Neither could respondent Nicdao be considered to be estopped from

denying the validity of these interests. Estoppel cannot give validity
to an act that is prohibited by law or one that is against public
policy.52 Clearly, the collection of interests without any stipulation
therefor in writing is prohibited by law. Consequently, the daily
payments made by respondent Nicdao amounting to P5,780,000.00
were properly considered by the CA as applying to the principal
amount of her loan obligations.

The use of the word "may" denotes the permissive, not mandatory,
nature of the above provision, Thus, no grave error could be imputed
to the CA when it proceeded to render its decision in CA-G.R. CR
No. 23055, without consolidating it with CA-G.R. CR No. 23054.

With respect to the P20,000,000.00 check, the defense of

respondent Nicdao that it was stolen and that she never issued or
delivered the same to petitioner Ching was corroborated by the other
defense witnesses, namely, Tolentino and Jocelyn Nicdao.

SO ORDERED.

WHEREFORE, premises considered, the Petition is DENIED for lack

of merit.

All told, as between petitioner Ching and respondent Nicdao, the

requisite quantum of evidence - preponderance of evidence indubitably lies with respondent Nicdao. As earlier intimated, she
cannot be held civilly liable to petitioner Ching for her acquittal; under
the circumstances which have just been discussed lengthily, such
acquittal carried with it the extinction of her civil liability as well.

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