G.R. No.

139465

January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis--vis the vast and
overwhelming powers of government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of Rights which shield him in
times of need. The Court is now called to decide whether to uphold a citizen's basic
due process rights, or the government's ironclad duties under a treaty. The bugle
sounds and this Court must once again act as the faithful guardian of the
fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree
No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of
incorporation under the Constitution; the mutual concern for the suppression of
crime both in the state where it was committed and the state where the criminal
may have escaped; the extradition treaty with the Republic of Indonesia and the
intention of the Philippines to enter into similar treaties with other interested
countries; and the need for rules to guide the executive department and the courts
in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition
Treaty Between the Government of the Republic of the Philippines and the
Government of the United States of America" (hereinafter referred to as the RP-US
Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its
concurrence in the ratification of said treaty. It also expressed its concurrence in the
Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility
of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the
Requesting State).
On June 18, 1999, the Department of Justice received from the Department of
Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of
private respondent Mark Jimenez to the United States. Attached to the Note Verbale
were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District
Court, Southern District of Florida, and other supporting documents for said
extradition. Based on the papers submitted, private respondent appears to be
charged in the United States with violation of the following provisions of the United
States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two
[2] counts; Maximum Penalty 5 years on each count);

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B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty
5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum
Penalty 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5
years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts;
Maximum Penalty less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and
authorizing a panel of attorneys to take charge of and to handle the case pursuant
to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with
the "technical evaluation and assessment" of the extradition request and the
documents in support thereof. The panel found that the "official English translation
of some documents in Spanish were not attached to the request and that there are
some other matters that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private respondent,
through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting
copies of the official extradition request from the U.S. Government, as well as all
documents and papers submitted therewith; and that he be given ample time to
comment on the request after he shall have received copies of the requested
papers. Private respondent also requested that the proceedings on the matter be
held in abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a copy of,
or access to, the request of the United States Government, and after receiving a
copy of the Diplomatic Note, a period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter
dated July 13, 1999 (but received by private respondent only on August 4, 1999),
denied the foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation by
this Department of the sufficiency of the extradition documents submitted in
accordance with the provisions of the extradition treaty and our extradition law.
Article 7 of the Extradition Treaty between the Philippines and the United States
enumerates the documentary requirements and establishes the procedures under
which the documents submitted shall be received and admitted as evidence.
Evidentiary requirements under our domestic law are also set forth in Section 4 of
P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary
investigation nor akin to preliminary investigation of criminal cases. We merely
determine whether the procedures and requirements under the relevant law and
treaty have been complied with by the Requesting Government. The constitutionally

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guaranteed rights of the accused in all criminal prosecutions are therefore not
available.
It is only after the filing of the petition for extradition when the person sought to be
extradited will be furnished by the court with copies of the petition, request and
extradition documents and this Department will not pose any objection to a request
for ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury
information and documents obtained through grand jury process covered by strict
secrecy rules under United States law. The United States had to secure orders from
the concerned District Courts authorizing the United States to disclose certain grand
jury information to Philippine government and law enforcement personnel for the
purpose of extradition of Mr. Jimenez. Any further disclosure of the said information
is not authorized by the United States District Courts. In this particular extradition
request the United States Government requested the Philippine Government to
prevent unauthorized disclosure of the subject information. This Department's denial
of your request is consistent with Article 7 of the RP-US Extradition Treaty which
provides that the Philippine Government must represent the interests of the United
States in any proceedings arising out of a request for extradition. The Department of
Justice under P.D. No. 1069 is the counsel of the foreign governments in all
extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in
connection with an extradition request. Article 26 of the Vienna Convention on the
Law of Treaties, to which we are a party provides that "[E]very treaty in force is
binding upon the parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be effective, requests for
extradition or surrender of accused or convicted persons must be processed
expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with
the Regional Trial Court of the National Capital Judicial Region a petition against the
Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National
Bureau of Investigation, for mandamus (to compel herein petitioner to furnish
private respondent the extradition documents, to give him access thereto, and to
afford him an opportunity to comment on, or oppose, the extradition request, and
thereafter to evaluate the request impartially, fairly and objectively); certiorari (to
set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain
petitioner from considering the extradition request and from filing an extradition
petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of
the NBI from performing any act directed to the extradition of private respondent to
the United States), with an application for the issuance of a temporary restraining
order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter
raffled to Branch 25 of said regional trial court stationed in Manila which is presided
over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner,
who appeared in his own behalf, moved that he be given ample time to file a
memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day,
disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of
Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of
Investigation, their agents and/or representatives to maintain the status quo by
refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for the
extradition of the petitioner; from filing the corresponding Petition with a Regional
Trial court; and from performing any act directed to the extradition of the petitioner
to the United States, for a period of twenty (20) days from service on respondents of
this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary injunction, as
agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00
o'clock in the morning. The respondents are, likewise, ordered to file their written
comment and/or opposition to the issuance of a Preliminary Injunction on or before
said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS
COMPLAINED OF,I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO
THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING
PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION
TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OFMANDAMUS IN THE PETITION
FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS
TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES
UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE,
FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.

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PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND

ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

government." The portions of the Decree relevant to the instant case which involves
a charged and not convicted individual, are abstracted as follows:

(pp. 19-20, Rollo.)

The Extradition Request

On August 17, 1999, the Court required private respondent to file his comment. Also
issued, as prayed for, was a temporary restraining order (TRO) providing:

The request is made by the Foreign Diplomat of the Requesting State, addressed to
the Secretary of Foreign Affairs, and shall be accompanied by:

NOW, THEREFORE, effective immediately and continuing until further orders from
this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or
any person or persons acting in your place or stead are hereby ORDERED to CEASE
and DESIST from enforcing the assailed order dated August 9, 1999 issued by public
respondent in Civil Case No. 99-94684.

1. The original or an authentic copy of the criminal charge and the warrant of arrest
issued by the authority of the Requesting State having jurisdiction over the matter,
or some other instruments having equivalent legal force;

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the
Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties,
as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues
are patent. However, a review of these issues as well as the extensive arguments of
both parties, compel us to delineate the focal point raised by the pleadings: During
the evaluation stage of the extradition proceedings, is private respondent entitled to
the two basic due process rights of notice and hearing? An affirmative answer would
necessarily render the proceedings at the trial court, moot and academic (the issues
of which are substantially the same as those before us now), while a negative
resolution would call for the immediate lifting of the TRO issued by this Court dated
August 24, 1999, thus allowing petitioner to fast-track the process leading to the
filing of the extradition petition with the proper regional trial court. Corollarily, in the
event that private respondent is adjudged entitled to basic due process rights at the
evaluation stage of the extradition proceedings, would this entitlement constitute a
breach of the legal commitments and obligations of the Philippine Government
under the RP-US Extradition Treaty? And assuming that the result would indeed be a
breach, is there any conflict between private respondent's basic due process rights
and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly
into the substantive merits of the case, brushing aside peripheral procedural matters
which concern the proceedings in Civil Case No. 99-94684, particularly the propriety
of the filing of the petition therein, and of the issuance of the TRO of August 17,
1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US
Extradition Treaty which was executed only on November 13, 1994, ushered into
force the implementing provisions of Presidential Decree No. 1069, also called as the
Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of
an accused from the Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the requesting state or

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2. A recital of the acts for which extradition is requested, with the fullest particulars
as to the name and identity of the accused, his whereabouts in the Philippines, if
known, the acts or omissions complained of, and the time and place of the
commission of these acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of
Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to
meet the requirements of this law and the relevant treaty or convention, he shall
forward the request together with the related documents to the Secretary of Justice,
who shall immediately designate and authorize an attorney in his office to take
charge of the case.
The above provision shows only too clearly that the executive authority given the
task of evaluating the sufficiency of the request and the supporting documents is the
Secretary of Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the
executive authority must ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the identity
and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the
offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense;
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;

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6. Documents, statements, or other types of information specified in paragraph 3 or

paragraph 4 of said Article, as applicable.

Decree provides that the attorney having charge of the case may, upon application
by the Requesting State, represent the latter throughout the proceedings.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence of
a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is
appealable to the Court of Appeals, whose decision shall be final and immediately
executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal
in criminal cases in the Court of Appeals shall apply in the aforementioned appeal,
except for the required 15-day period to file brief (Section 13, ibid.).

7. Such evidence as, according to the law of the Requested State, would provide
probable cause for his arrest and committal for trial if the offense had been
committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent
authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the
accompanying documents received in support of the request had been certified by
the principal diplomatic or consular officer of the Requested State resident in the
Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No.
951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not
be granted if the executive authority of the Requested State determines that the
request is politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request
and its supporting documents are sufficient and complete in form and substance, he
shall deliver the same to the Secretary of Justice, who shall immediately designate
and authorize an attorney in his office to take charge of the case (Paragraph [1],
Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition
with the proper regional trial court of the province or city, with a prayer that the
court take the extradition request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the prospective
extraditee to appear and to answer the petition on the day and hour fixed in the
order. The judge may issue a warrant of arrest if it appears that the immediate arrest
and temporary detention of the accused will best serve the ends of justice
(Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective
extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1],
Section 9 thereof provides that in the hearing of the extradition petition, the
provisions of the Rules of Court, insofar as practicable and not inconsistent with the
summary nature of the proceedings, shall apply. During the hearing, Section 8 of the

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The trial court determines whether or not the offense mentioned in the petition is
extraditable based on the application of the dual criminality rule and other
conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also
determines whether or not the offense for which extradition is requested is a
political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt
With the foregoing abstract of the extradition proceedings as backdrop, the following
query presents itself: What is the nature of the role of the Department of Justice at
the evaluation stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all the
supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the
latter official who is authorized to evaluate the extradition papers, to assure their
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or
not the request is politically motivated, or that the offense is a military offense which
is not punishable under non-military penal legislation.Ipso facto, as expressly
provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice
has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that
there was failure to abide by the provisions of Presidential Decree No. 1069. For
while it is true that the extradition request was delivered to the Department of
Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the
Department of Justice received the request, apparently without the Department of
Foreign Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at the
Department of Foreign Affairs that his Department, in this regard, is merely acting as
a post office, for which reason he simply forwarded the request to the Department of
Justice, indicates the magnitude of the error of the Department of Foreign Affairs in
taking lightly its responsibilities. Thereafter, the Department of Justice took it upon
itself to determine the completeness of the documents and to evaluate the same to
find out whether they comply with the requirements laid down in the Extradition Law
and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that
although the Department of Justice had no obligation to evaluate the extradition
documents, the Department also had to go over them so as to be able to prepare an
extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this
stage where private respondent insisted on the following; (1) the right to be
furnished the request and the supporting papers; (2) the right to be heard which
consists in having a reasonable period of time to oppose the request, and to present
evidence in support of the opposition; and (3) that the evaluation proceedings be

ALARCON | 4

held in abeyance pending the filing of private respondent's opposition to the

request.
The two Departments seem to have misread the scope of their duties and authority,
one abdicating its powers and the other enlarging its commission. The Department
of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation
that it is adopting the instant petition as its own, indirectly conveying the message
that if it were to evaluate the extradition request, it would not allow private
respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request and
supporting documents and that it arrived at a well-founded judgment that the
request and its annexed documents satisfy the requirements of law. The Secretary of
Justice, eminent as he is in the field of law, could not privately review the papers all
by himself. He had to officially constitute a panel of attorneys. How then could the
DFA Secretary or his undersecretary, in less than one day, make the more
authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a
class by itself. It is sui generis. It is not a criminal investigation, but it is also
erroneous to say that it is purely an exercise of ministerial functions. At such stage,
the executive authority has the power: (a) to make a technical assessment of the
completeness and sufficiency of the extradition papers; (b) to outrightly deny the
request if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether or not the
request is politically motivated, or that the offense is a military one which is not
punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29;
Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said
process may be characterized as an investigative or inquisitorial process in contrast
to a proceeding conducted in the exercise of an administrative body's quasi-judicial
power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation
of evidence; (b) determining facts based upon the evidence presented; and (c)
rendering an order or decision supported by the facts proved (De Leon,
Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United
States, 304 U.S. 1). Inquisitorial power, which is also known as examining or
investigatory power, is one or the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz, Phil.
Administrative Law, 1996 ed., p. 26). This power allows the administrative body to
inspect the records and premises, and investigate the activities, of persons or
entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of
information by means or accounts, records, reports, testimony of witnesses,
production of documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence,
which is a useful aid or tool in an administrative agency's performance of its rulemaking or quasi-judicial functions. Notably, investigation is indispensable to
prosecution.

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In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to
rule on the functions of an investigatory body with the sole power of investigation. It
does not exercise judicial functions and its power is limited to investigating the facts
and making findings in respect thereto. The Court laid down the test of determining
whether an administrative body is exercising judicial functions or merely
investigatory functions: Adjudication signifies the exercise of power and authority to
adjudicate upon the rights and obligations of the parties before it. Hence, if the only
purpose for investigation is to evaluate evidence submitted before it based on the
facts and circumstances presented to it, and if the agency is not authorized to make
a final pronouncement affecting the parties, then there is an absence of judicial
discretion and judgment.
The above description in Ruperto applies to an administrative body authorized to
evaluate extradition documents. The body has no power to adjudicate in regard to
the rights and obligations of both the Requesting State and the prospective
extraditee. Its only power is to determine whether the papers comply with the
requirements of the law and the treaty and, therefore, sufficient to be the basis of an
extradition petition. Such finding is thus merely initial and not final. The body has no
power to determine whether or not the extradition should be effected. That is the
role of the court. The body's power is limited to an initial finding of whether or not
the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation
procedure is characterized by certain peculiarities. Primarily, it sets into motion the
wheels of the extradition process. Ultimately, it may result in the deprivation of
liberty of the prospective extraditee. This deprivation can be effected at two
stages: First, the provisional arrest of the prospective extraditee pending the
submission of the request. This is so because the Treaty provides that in case of
urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition
Treaty), but he shall be automatically discharged after 60 days if no request is
submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period
of 20 days after which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the provisions only
mean that once a request is forwarded to the Requested State, the prospective
extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if
no request is submitted. Practically, the purpose of this detention is to prevent his
possible flight from the Requested State. Second, the temporary arrest of the
prospective extraditee during the pendency of the extradition petition in court
(Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as
during the evaluation stage. It is not only an imagined threat to his liberty, but a
very imminent one.
Because of these possible consequences, we conclude that the evaluation process is
akin to an administrative agency conducting an investigative proceeding, the
consequences of which are essentially criminal since such technical assessment sets
off or commences the procedure for, and ultimately, the deprivation of liberty of a
prospective extraditee. As described by petitioner himself, this is a "tool" for criminal
law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes

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of the nature of a criminal investigation. In a number of cases, we had occasion to

make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions.
Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are
rights formerly available only at the trial stage that had been advanced to an earlier
stage in the proceedings, such as the right to counsel and the right against selfincrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478;
Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the
right against self-incrimination under Section 17, Article III of the 1987 Constitution
which is ordinarily available only in criminal prosecutions, extends to administrative
proceedings which possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality, which could
result in his loss of the privilege to practice medicine if found guilty. The Court, citing
the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the
revocation of one's license as a medical practitioner, is an even greater deprivation
than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth
against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft
Law. Again, we therein ruled that since the investigation may result in forfeiture of
property, the administrative proceedings are deemed criminal or penal, and such
forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda,
Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence,
laid down the test to determine whether a proceeding is civil or criminal: If the
proceeding is under a statute such that if an indictment is presented the forfeiture
can be included in the criminal case, such proceeding is criminal in nature, although
it may be civil in form; and where it must be gathered from the statute that the
action is meant to be criminal in its nature, it cannot be considered as civil. If,
however, the proceeding does not involve the conviction of the wrongdoer for the
offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's
property or property right. No less is this true, but even more so in the case before
us, involving as it does the possible deprivation of liberty, which, based on the
hierarchy of constitutionally protected rights, is placed second only to life itself and
enjoys precedence over property, for while forfeited property can be returned or
replaced, the time spent in incarceration is irretrievable and beyond recompense.

for petitioner's conclusion that his preliminary processing is not akin to a preliminary
investigation. The characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post facto law. It had nothing to do with
the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding
enforced by public authority, whether sanctioned by age or custom, or newly
devised in the discretion of the legislative power, in furtherance of the general public
good, which regards and preserved these principles of liberty and justice, must be
held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance
with due process requirements cannot be deemed non-compliance with treaty
commitments.
The United States and the Philippines share a mutual concern about the suppression
and punishment of crime in their respective jurisdictions. At the same time, both
States accord common due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only
worded in exactly identical language and terminology, but more importantly, they
are alike in what their respective Supreme Courts have expounded as the spirit with
which the provisions are informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which make them capable of
meeting every modern problem, and their having been designed from earliest time
to the present to meet the exigencies of an undefined and expanding future. The
requirements of due process are interpreted in both the United States and the
Philippines as not denying to the law the capacity for progress and improvement.
Toward this effect and in order to avoid the confines of a legal straitjacket, the courts
instead prefer to have the meaning of the due process clause "gradually ascertained
by the process of inclusion and exclusion in the course of the decisions of cases as
they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the
embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel
Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to
certain immutable principles of justice which inhere in the very idea of free
government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components substantive due process which
requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty, or property, and procedural due process which consists of the two
basic rights of notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

By comparison, a favorable action in an extradition request exposes a person to

eventual extradition to a foreign country, thus saliently exhibiting the criminal or
penal aspect of the process. In this sense, the evaluation procedure is akin to a
preliminary investigation since both procedures may have the same result the
arrest and imprisonment of the respondent or the person charged. Similar to the
evaluation stage of extradition proceedings, a preliminary investigation, which may
result in the filing of an information against the respondent, can possibly lead to his
arrest, and to the deprivation of his liberty.

True to the mandate of the due process clause, the basic rights of notice and hearing
pervade not only in criminal and civil proceedings, but in administrative proceedings
as well. Non-observance of these rights will invalidate the proceedings. Individuals
are entitled to be notified of any pending case affecting their interests, and upon
notice, they may claim the right to appear therein and present their side and to
refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed.,
p. 64).

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8,
petitioner's Memorandum) that the extradition treaty is neither a piece of criminal
legislation nor a criminal procedural statute is not well-taken.Wright is not authority

In a preliminary investigation which is an administrative investigatory proceeding,

Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due
process rights, granting him the right to be furnished a copy of the complaint, the

CRIMINAL PROCEDURE | CASES

ALARCON | 6

affidavits, and other supporting documents, and the right to submit counteraffidavits and other supporting documents within ten days from receipt thereof.
Moreover, the respondent shall have the right to examine all other evidence
submitted by the complainant.
These twin rights may, however, be considered dispensable in certain instances,
such as:
1. In proceeding where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the preventive
suspension of a public servant facing administrative charges (Section 63, Local
Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a person sought for
criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the
respondent is not precluded from enjoying the right to notice and hearing at a later
time without prejudice to the person affected, such as the summary distraint and
levy of the property of a delinquent taxpayer, and the replacement of a temporary
appointee; and
3. Where the twin rights have previously been offered but the right to exercise them
had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the
evaluation stage of the extradition proceedings fall under any of the described
situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are
quite noteworthy considering that the subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition or extradition
which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2),
and international extradition proceedings. In interstate rendition or extradition, the
governor of the asylum state has the duty to deliver the fugitive to the demanding
state. The Extradition Clause and the implementing statute are given a liberal
construction to carry out their manifest purpose, which is to effect the return as
swiftly as possible of persons for trial to the state in which they have been charged
with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged
fugitive, the requisition papers or the demand must be in proper form, and all the
elements or jurisdictional facts essential to the extradition must appear on the face
of the papers, such as the allegation that the person demanded was in the
demanding state at the time the offense charged was committed, and that the
person demanded is charged with the commission of the crime or that prosecution
has been begun in the demanding state before some court or magistrate (35 C.J.S.
406-407). The extradition documents are then filed with the governor of the asylum
state, and must contain such papers and documents prescribed by statute, which
essentially include a copy of the instrument charging the person demanded with a
crime, such as an indictment or an affidavit made before a magistrate. Statutory
requirements with respect to said charging instrument or papers are mandatory
since said papers are necessary in order to confer jurisdiction on the government of

CRIMINAL PROCEDURE | CASES

the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision
requiring duplicate copies of the indictment, information, affidavit, or judgment of
conviction or sentence and other instruments accompanying the demand or
requisitions be furnished and delivered to the fugitive or his attorney is
directory. However, the right being such a basic one has been held to be a right
mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158
Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the
presentation to the executive authority of the Requested State of a requisition or
demand for the return of the alleged offender, and the designation of the particular
officer having authority to act in behalf of the demanding nation (31A Am Jur 2d
815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a
letter dated September 13, 1999 from the Criminal Division of the U.S. Department
of Justice, summarizing the U.S. extradition procedures and principles, which are
basically governed by a combination of treaties (with special reference to the RP-US
Extradition Treaty), federal statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel. In
urgent cases, requests for the provincial arrest of an individual may be made directly
by the Philippine Department of Justice to the U.S. Department of Justice, and viceversa. In the event of a provisional arrest, a formal request for extradition is
transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to
the Department of Justice. Before doing so, the Department of State prepares a
declaration confirming that a formal request has been made, that the treaty is in full
force and effect, that under Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the offenses are covered as
extraditable offenses under Article 2 thereof, and that the documents have been
authenticated in accordance with the federal statute that ensures admissibility at
any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to
hold a hearing to consider the evidence offered in support of the extradition request
(Ibid.)
4. At the hearing, the court must determine whether the person arrested is
extraditable to the foreign country. The court must also determine that (a) it has
jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the
defendant is being sought for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe that the defendant is the
person sought and that he committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability
after having received a "complaint made under oath, charging any person found
within his jurisdiction" with having committed any of the crimes provided for by the
governing treaty in the country requesting extradition (Ibid.) [In this regard, it is
noted that a long line of American decisions pronounce that international extradition

ALARCON | 7

proceedings partake of the character of a preliminary examination before a

committing magistrate, rather than a trial of the guilt or innocence of the alleged
fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and
certifies the person's extraditability. The court then forwards this certification of
extraditability to the Department of State for disposition by the Secretary of State.
The ultimate decision whether to surrender an individual rests with the Secretary of
State (18 U.S.C. 3186).
7. The subject of an extradition request may not litigate questions concerning the
motives of the requesting government in seeking his extradition. However, a person
facing extradition may present whatever information he deems relevant to the
Secretary of State, who makes the final determination whether to surrender an
individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition begins
and ends with one entity the Department of State which has the power to
evaluate the request and the extradition documents in the beginning, and, in the
person of the Secretary of State, the power to act or not to act on the court's
determination of extraditability. In the Philippine setting, it is the Department of
Foreign Affairs which should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the
request to the Department of Justice for the preparation and filing of the petition for
extradition. Sadly, however, the Department of Foreign Affairs, in the instant case,
perfunctorily turned over the request to the Department of Justice which has taken
over the task of evaluating the request as well as thereafter, if so warranted,
preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government
should the person sought to be extradited be given due process rights by the
Philippines in the evaluation stage. He emphasizes that petitioner's primary concern
is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends
is a proper state interest worthy of cognizance in constitutional adjudication. But the
Constitution recognizes higher values than speed and efficiency. Indeed, one might
fairly say of the Bill of Rights in general, and the Due Process Clause, in particular,
that they were designed to protect the fragile values of a vulnerable citizenry from
the overbearing concern for efficiency and efficacy that may characterize
praiseworthy government officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government
that no right that of liberty secured not only by the Bills of Rights of the
Philippines Constitution but of the United States as well, is sacrificed at the altar of
expediency.
(pp. 40-41, Private Respondent's Memorandum.)

CRIMINAL PROCEDURE | CASES

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that
there be a valid objective; it is also necessary that the means employed to pursue it
be in keeping with the Constitution. Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the strongest moral conviction or the
most urgent public need, subject only to a few notable exceptions, will excuse the
bypassing of an individual's rights. It is no exaggeration to say that a person
invoking a right guaranteed under Article III of the Constitution is a majority of one
even as against the rest of the nation who would deny him that right (Association of
Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA
343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of
criminal law enforcement. To be effective, requests for extradition or the surrender
of accused or convicted persons must be processed expeditiously. Nevertheless,
accelerated or fast-tracked proceedings and adherence to fair procedures are,
however, not always incompatible. They do not always clash in discord. Summary
does not mean precipitous haste. It does not carry a disregard of the basic principles
inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that
point, there is no extraditee yet in the strict sense of the word. Extradition may or
may not occur. In interstate extradition, the governor of the asylum state may not, in
the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387)
since after a close evaluation of the extradition papers, he may hold that federal and
statutory requirements, which are significantly jurisdictional, have not been met
(31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of
the requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the
Secretary of Foreign Affairs finds that the request fails to meet the requirements of
the law and the treaty, he shall not forward the request to the Department of Justice
for the filing of the extradition petition since non-compliance with the aforesaid
requirements will not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable
efforts in assuring compliance with the requirements of the law and the treaty since
it even informed the U.S. Government of certain problems in the extradition papers
(such as those that are in Spanish and without the official English translation, and
those that are not properly authenticated). In fact, petitioner even admits that
consultation meetings are still supposed to take place between the lawyers in his
Department and those from the U.S. Justice Department. With the meticulous nature
of the evaluation, which cannot just be completed in an abbreviated period of time
due to its intricacies, how then can we say that it is a proceeding that urgently
necessitates immediate and prompt action where notice and hearing can be
dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of
administrative action. Is private respondent precluded from enjoying the right to
notice and hearing at a later time without prejudice to him? Here lies the peculiarity
and deviant characteristic of the evaluation procedure. On one hand there is yet no

ALARCON | 8

extraditee, but ironically on the other, it results in an administrative if adverse to the

person involved, may cause his immediate incarceration. The grant of the request
shall lead to the filing of the extradition petition in court. The "accused" (as Section
2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under the treaty and the
implementing law. The prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot
be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise
invokes Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens of the
Philippines, namely: (1) the right to information on matters of public concern, and (2)
the corollary right of access to official records documents. The general right
guaranteed by said provision is the right to information on matters of public concern.
In its implementation, the right of access to official records is likewise conferred.
These cognate or related rights are "subject to limitations as may be provided by
law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and
rely on the premise that ultimately it is an informed and critical public opinion which
alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request
dated July 1, 1999 do not fall under the guarantee of the foregoing provision since
the matters contained in the documents requested are not of public concern. On the
other hand, private respondent argues that the distinction between matters vested
with public interest and matters which are of purely private interest only becomes
material when a third person, who is not directly affected by the matters requested,
invokes the right to information. However, if the person invoking the right is the one
directly affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly
speaking, every act of a public officer in the conduct of the governmental process is
a matter of public concern (Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives or
simply because such matters arouse the interest of an ordinary citizen (Legaspi v.
Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is
the people and any citizen has "standing".
When the individual himself is involved in official government action because said
action has a direct bearing on his life, and may either cause him some kind of
deprivation or injury, he actually invokes the basic right to be notified under Section
1 of the Bill of Rights and not exactly the right to information on matters of public

CRIMINAL PROCEDURE | CASES

concern. As to an accused in a criminal proceeding, he invokes Section 14,

particularly the right to be informed of the nature and cause of the accusation
against him.
The right to information is implemented by the right of access to information within
the control of the government (Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 337). Such information may be contained in official records,
and in documents and papers pertaining to official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official
government action from the U.S. Government. No official action from our country
has yet been taken. Moreover, the papers have some relation to matters of foreign
relations with the U.S. Government. Consequently, if a third party invokes this
constitutional provision, stating that the extradition papers are matters of public
concern since they may result in the extradition of a Filipino, we are afraid that the
balance must be tilted, at such particular time, in favor of the interests necessary for
the proper functioning of the government. During the evaluation procedure, no
official governmental action of our own government has as yet been done; hence the
invocation of the right is premature. Later, and in contrast, records of the extradition
hearing would already fall under matters of public concern, because our government
by then shall have already made an official decision to grant the extradition request.
The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant
controversy: Would private respondent's entitlement to notice and hearing during
the evaluation stage of the proceedings constitute a breach of the legal duties of the
Philippine Government under the RP-Extradition Treaty? Assuming the answer is in
the affirmative, is there really a conflict between the treaty and the due process
clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass
upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the
Extradition Law implementing the same. We limit ourselves only to the effect of the
grant of the basic rights of notice and hearing to private respondent on foreign
relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of
international law, requires the parties to a treaty to keep their agreement therein in
good faith. The observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which provides that "[t]he
Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land, and adheres to
the policy of peace, equality, justice, freedom, cooperation and amity with nations."
Under the doctrine of incorporation, rules of international law form part of the law of
the and land no further legislative action is needed to make such rules applicable in
the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local
courts) are confronted with situations in which there appears to be a conflict
between a rule of international law and the provisions of the constitution or statute
of the local state. Efforts should first be exerted to harmonize them, so as to give
effect to both since it is to be presumed that municipal law was enacted with proper

ALARCON | 9

regard for the generally accepted principles of international law in observance of the
observance of the Incorporation Clause in the above-cited constitutional provision
(Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of international
law and municipal law, jurisprudence dictates that municipal law should be upheld
by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs.
Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that
such courts are organs of municipal law and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has
been made part of the law of the land does not pertain to or imply the primacy of
international law over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori takes
effect a treaty may repeal a statute and a statute may repeal a treaty. In states
where the constitution is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if they are in conflict with
the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal
or national law? En contrario, these two components of the law of the land are not
pined against each other. There is no occasion to choose which of the two should be
upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the basic due process
rights of a prospective extraditee at the evaluation stage of extradition proceedings.
From the procedures earlier abstracted, after the filing of the extradition petition and
during the judicial determination of the propriety of extradition, the rights of notice
and hearing are clearly granted to the prospective extraditee. However, prior
thereto, the law is silent as to these rights. Reference to the U.S. extradition
procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he
describes the evaluation procedure as an "ex parte technical assessment" of the
sufficiency of the extradition request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An
application of the basic twin due process rights of notice and hearing will not go
against the treaty or the implementing law. Neither the Treaty nor the Extradition
Law precludes these rights from a prospective extraditee. Similarly, American
jurisprudence and procedures on extradition pose no proscription. In fact, in
interstate extradition proceedings as explained above, the prospective extraditee
may even request for copies of the extradition documents from the governor of the
asylum state, and if he does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to
prevent unauthorized disclosure of confidential information. Hence, the secrecy
surrounding the action of the Department of Justice Panel of Attorneys. The
confidentiality argument is, however, overturned by petitioner's revelation that
everything it refuses to make available at this stage would be obtainable during trial.

CRIMINAL PROCEDURE | CASES

The Department of Justice states that the U.S. District Court concerned has
authorized the disclosure of certain grand jury information. If the information is truly
confidential, the veil of secrecy cannot be lifted at any stage of the extradition
proceedings. Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as
American jurisprudence and procedures on extradition, for any prohibition against
the conferment of the two basic due process rights of notice and hearing during the
evaluation stage of the extradition proceedings. We have to consider similar
situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a
preliminary investigation since both procedures may result in the arrest of the
respondent or the prospective extraditee. In the evaluation process, a provisional
arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US
Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's
theory, because there is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is suspended, despite
Section 15, Article III of the Constitution which states that "[t]he privilege of the writ
or habeas corpus shall not be suspended except in cases of invasion or rebellion
when the public safety requires it"? Petitioner's theory would also infer that bail is
not available during the arrest of the prospective extraditee when the extradition
petition has already been filed in court since Presidential Decree No. 1069 does not
provide therefor, notwithstanding Section 13, Article III of the Constitution which
provides that "[a]ll persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. . ." Can petitioner validly argue that since these
contraventions are by virtue of a treaty and hence affecting foreign relations, the
aforestated guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due
process in administrative proceeding is an opportunity to explain one's side or an
opportunity to seek reconsideration of the actions or ruling complained of (Mirano
vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs.
NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas
School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]).
In essence, procedural due process refers to the method or manner by which the law
is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of constitutional guarantees
in the enforcement of a law or treaty. Petitioner's fears that the Requesting State
may have valid objections to the Requested State's non-performance of its
commitments under the Extradition Treaty are insubstantial and should not be given
paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to
the four corners of Presidential Decree No. 1069?

ALARCON | 10

Of analogous application are the rulings in Government Service Insurance System

vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police
Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings
under Presidential Decree No. 807 (Providing for the Organization of the Civil Service
Commission in Accordance with Provisions of the Constitution, Prescribing its Powers
and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing
Legal Assistance for Members of the Integrated National Police who may be charged
for Service-Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for other purposes), as
amended by Presidential Decree No. 1707, although summary dismissals may be
effected without the necessity of a formal investigation, the minimum requirements
of due process still operate. As held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that
an employee may be removed or dismissed even without formal investigation, in
certain instances. It is equally clear to us that an employee must be informed of the
charges preferred against him, and that the normal way by which the employee is so
informed is by furnishing him with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense with and still remain
consistent with the constitutional provision on due process. The second minimum
requirement is that the employee charged with some misfeasance or malfeasance
must have a reasonable opportunity to present his side of the matter, that is to say,
his defenses against the charges levelled against him and to present evidence in
support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld
the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger
of loss of property or employment, but of liberty itself, which may eventually lead to
his forcible banishment to a foreign land. The convergence of petitioner's favorable
action on the extradition request and the deprivation of private respondent's liberty
is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly
described as "justice outside legality," may be availed of only in the absence of, and
never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs.
Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA
677 [1997]). The constitutional issue in the case at bar does not even call for "justice
outside legality," since private respondent's due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees. We
would not be true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of
liberty and government authority, he must ever hold the oar of freedom in the
stronger arm, lest an errant and wayward course be laid.

CRIMINAL PROCEDURE | CASES

WHEREFORE, in view of the foregoing premises, the instant petition is hereby

DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent
copies of the extradition request and its supporting papers, and to grant him a
reasonable period within which to file his comment with supporting evidence. The
incidents in Civil Case No. 99-94684 having been rendered moot and academic by
this decision, the same is hereby ordered dismissed.
SO ORDERED.
Separate Opinions
VITUG, J., separate opinion;
The only real issue before the Court, I would take it, is whether or not private
respondent can validly ask for copies of pertinent documents while the application
for extradition against him is still undergoing process by the Executive Department.
There is, I agree with the majority, a right of access to such extradition documents
conformably with the provisions of Article III, Section 7, of the Philippine
Constitution.1 The constitutional right to free access to information of public concern
is circumscribed only by the fact that the desired information is not among the
species exempted by law from the operation of the constitutional guaranty and that
the exercise of the right conforms with such reasonable conditions as may be
prescribed by law.
There is no hornbook rule to determine whether or not an information is of public
concern. The term "public concern" eludes exactitude, and it can easily embrace a
broad spectrum of matters which the public may want to know either because the
subject thereof can affect their lives or simply because it arouses concern. 2
I am not convinced that there is something so viciously wrong with, as to deny, the
request of private respondent to be furnished with copies of the extradition
documents.
I add. The constitutional right to due process secures to everyone an opportunity to
be heard, presupposing foreknowledge of what he may be up against, and to submit
any evidence that he may wish to proffer in an effort to clear himself. This right is
two-pronged substantive and procedural due process founded, in the first
instance, on Constitutional or statutory provisions, and in the second instance, on
accepted rules of procedure.3Substantive due process looks into the extrinsic and
intrinsic validity of the law that figures to interfere with the right of a person to his
life, liberty and property. Procedural due process the more litigated of the two
focuses on the rules that are established in order to ensure meaningful adjudication
in the enforcement and implementation of the law. Like "public concern," the term
due process does not admit of any restrictive definition. Justice Frankfurter has
viewed this flexible concept, aptly I believe, as being ". . . compounded by history,
reason, the past course of decisions, and stout confidence in the democratic
faith."4 The framers of our own Constitution, it would seem, have deliberately
intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is
dynamic and resilient, adaptable to every situation calling for its application that
makes it appropriate to accept an enlarged concept of the term as and when there is
a possibility that the right of an individual to life, liberty and property might be

ALARCON | 11

diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property
of any person in any proceeding conducted by or under the auspices of the State, his
right to due process of law, when demanded, must not be ignored.
A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of
the Extradition Treaty between the Government of the Republic of the Philippines
and the Government of the United States of America provides that in case of
urgency, a Contracting Party may request the provisional arrest of the person prior
to the presentation of the request for extradition. I see implicit in this provision that
even after the request for extradition is made and before a petition for extradition is
filed with the courts, the possibility of an arrest being made on the basis of a mere
evaluation by the Executive on the request for extradition by the foreign State
cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that the
Executive Department should be impeded in its evaluation of the extradition
request. The right of the extraditee to be furnished, upon request, with a copy of the
relevant documents and to file his comment thereon is not necessarily anathema to
the proceedings duly mandated by the treaty to be made.
I vote to deny the petition.
KAPUNAN, J., separate concurring opinion;
I vote to dismiss the petition, both on technical and substantial grounds.
The petition in the case at bar raises one and only issue, which is the validity of the
Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on
August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said
case to:
. . . maintain the status quo by refraining from committing the acts complained of;
from conducting further proceedings in connection with the request of the United
States Government for the extradition of the petitioner; from filing the corresponding
Petition with the Regional Trial Court; and from performing any act directed to the
extradition of the petitioner to the United States, for a period of twenty days from
the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997
Rules of Court.1 (Emphasis ours.)
The petition itself categorically states that "(t)he issue sought to be presented and
litigated here is solely-the validity of the TRO."2
Notably, there is no allegation in the petition that respondent Judge is without
jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing
the same. Nor is there any other act, ruling, order, or decision, apart from the TRO
already mentioned, of respondent Judge that is being challenged in the petition
before us.
Since, as alleged in the petition, a copy of the TRO was served on respondents below
on August 10, 1999, the TRO ceased to be effective on August 30, 1999;
consequently, the instant petition has become moot and academic. This Court does
not exercise jurisdiction over cases which are moot and academic or those not ripe
for judicial consideration.3

CRIMINAL PROCEDURE | CASES

Assuming that the present case has not become moot and academic, still, it should
be dismissed for lack of merit.
The substantive issues raised in this case are: (a) whether a person whose
extradition is sought by a foreign state has due process rights under Section 2,
Article III of the 1997 Constitution before the Department of Justice as the request
for extradition is being evaluated, or whether due process rights maybe invoked only
upon the filing of a petition for extradition before a regional trial court; and (b)
whether or not private respondent has a right of access to extradition documents
under Section 7, Article III of the 1997 Constitution.
Petitioner contends that due process rights such as the right to be informed of the
basis of the request for extradition and to have an opportunity to controvert are not
provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this
stage of the proceedings. Further, he argues that the documents sought to be
furnished to private respondent only involve private concerns, and not matters
of public concern to which the people have a constitutional right to access.
While the evaluation process conducted by the Department of Justice is not exactly a
preliminary investigation of criminal cases, it is akin to a preliminary investigation
because it involves the basic constitutional rights of the person sought to be
extradited. A person ordered extradited is arrested, forcibly taken from his house,
separated from his family and delivered to a foreign state. His rights of abode, to
privacy, liberty and pursuit of happiness are taken away from him a fate as harsh
and cruel as a conviction of a criminal offense. For this reason, he is entitled to have
access to the evidence against him and the right to controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary
investigation, neither does either prohibit it. The right to due process is a universal
basic right which is deemed written into our laws and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the
extradition request and its accompanying documents is to establish probable cause
and to secure the innocent against hasty, malicious and oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the
extradition request and its accompanying documents by the Department of Justice
cannot be characterized as a mere "ex-parte technical assessment of the
sufficiency" thereof. The function and responsibilities of the Department of Justice in
evaluating the extradition papers involve the exercise of judgment. They involve a
determination whether the request for extradition conforms fully to the requirements
of the extradition treaty and whether the offense is extraditable. These include,
among others, whether the offense for which extradition is requested is a political or
military offense (Article 3); whether the documents and other informations required
under Article 7(2) have been provided (Article 7); and whether the extraditable
offense is punishable under the laws of both contracting parties by deprivation of
liberty for a period of more than one year (Article 2). Consequently, to arrive at a
correct judgment, the parties involved are entitled to be heard if the requirements of
due process and equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to demand
access to the documents relating to the request for extradition, suffice it to say, that

ALARCON | 12

any document used in a proceeding that would jeopardize a person's constitutional

rights is matter of public concern. As Martin Luther King said, "injustice anywhere is
a threat to justice everywhere," so any violation of one's rights guaranteed by the
Bill of Rights is everybody's concern because they, one way or another, directly or
indirectly, affect the rights of life and liberty of all the citizens as a whole.

Moreover, considering that the Extradition Treaty between the USA and Philippines
appears mute on the specific issue before us, the Court in the exercise of its
judicial power to find and state what the law is has this rare opportunity of setting
a precedent that enhances respect for human rights and strengthens due process of
law.

Due process rights in a preliminary investigation is now an established principle. The

respondent has a right of access to all of the evidence. He has the right to submit
controverting evidence. The prosecuting official who conducts the preliminary
investigation is required to be neutral, objective, and impartial in resolving the issue
of probable cause. I see no reason why the same rights may not be accorded a
person sought to be extradited at the stage where the Department of Justice
evaluates whether a petition for extradition would be filed before a regional trial
court. If denied such rights, not only denial of due process rights but of equal
protection may be raised.

As both majority and dissenting colleagues in the Court will recognize, American
authorities follow two tracks in extradition proceedings: (1) the interstate practice
where, pursuant to statute, the state Executive upon demand furnishes the would be
extraditee or counsel copies of pertinent documents as well as the request for
extradition; and (2) the international practice where the Executive department need
not initially grant notice and hearing at all. Rules of reciprocity and comity, however,
should not bar us from applying internationally now what appears the more
reasonable and humane procedure, that is, the interstate practice among Americans
themselves. For in this case the American people should be among the most
interested parties.

It is suggested that after a petition for extradition is filed with a regional trial court,
the person sought to be extradited may exercise all due process rights. He may then
have access to all the records on the basis of which the request for extradition has
been made. He may controvert that evidence and raise all defenses he may consider
appropriate. That, it is urged, meets the due process requirement.
But why must he wait until the petition for extradition is filed? As succinctly
expressed, if the right to notice and hearing is to serve its full purpose, then, it is
clear that it must be granted at a time when the deprivation can still be
prevented.4 Like the filing of an information in a criminal case, the mere filing of a
petition for extradition causes immediate impairment of the liberty of the person
sought to be extradited and a substantial curtailment of other rights. His arrest may
be immediately ordered by the regional trial court. He would be compelled to face
an open and public trial. He will be constrained to seek the assistance of counsel and
incur other expenses of litigation. The public eye would be directed at him with all
the concomitant intrusions to his right to privacy. Where the liberty of a person is at
risk, and extradition strikes at the very core of liberty, invocation of due process
rights can never be too early.
QUISUMBING, J., concurring opinion;
As I concur in the result reached by the ponencia of Justice Melo, may I just add my
modest observations.
The human rights of person, whether citizen or alien, and the rights of the accused
guaranteed in our Constitution should take precedence over treaty rights claimed by
a contracting state. Stated otherwise, the constitutionally mandated duties of our
government to the individual deserve preferential consideration when they collide
with its treaty obligations to the government of another state. This is so although we
recognize treaties as a source of binding obligations under generally accepted
principles of international law incorporated in our Constitution as part of the law of
the land.
For this primordial reason, I vote to DENY the petition.

Truly, what private respondent is asking our Executive department (notice, copies of
documents, and the opportunity to protect himself at the earliest time against
probable peril) does not, in my view, violate our Extradition Treaty with the USA. His
request if granted augurs well for transparency in interstate or intergovernmental
relations rather than secrecy which smacks of medieval diplomacy and the
inquisition discredited long ago.
That private respondent is a Filipino citizen is not decisive of the issue here, although
it is obviously pertinent. Even if he were a resident alien (other than American
perhaps), he is, in my view, entitled to our full protection against the hazards of
extradition (or deportation, similarly) from the very start. More so because, looking
at the facts adduced at the hearing and on the record of this case, the charges
against him involve or are co-mingled with, if not rooted in, certain offenses of a
political nature or motivation such as the ones involving alleged financial
contributions to a major American political party. If so, long established is the
principle that extradition could not be utilized for political offenses or politically
motivated charges.
There may, of course, be other charges against private respondent in the USA. But
then they are, in my view, already tainted there with political color due to the highly
charged partisan campaign atmosphere now prevailing. That private respondent's
cases will be exploited as political fodder there is not far-fetched, hence the need
here for cautious but comprehensive deliberation on the matter at bar. For, above
all, it is not only a Treaty provision we are construing; it is about constitutional and
human rights we are most concerned.
YNARES-SANTIAGO, J., concurring opinion;
I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a
citizen's right to be given what is due to him. I join in his exposition of this Court's
constitutional duty to strike the correct balance between overwhelming Government
power and the protection of individual rights where only one person is involved.
However, I am constrained to write this short concurrence if only to pose the
question of why there should be any debate at all on a plea for protection of one's

CRIMINAL PROCEDURE | CASES

ALARCON | 13

liberty which, if granted, will not result in any meaningful impediment of thwarting
any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as controversial
or talked about, should first be exposed to the indignity, expense, and anxiety of a
public denunciation in court before he may be informed of what the contracting
states in an extradition treaty have against him. There is no question that everything
which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez
is only petitioning that, at this stage, he should be informed why he may be
deported from his own country.
I see no ill effects which would arise if the extradition request and supporting
documents are shown to him now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition request and its
supporting documents will merely determine whether or not the Philippines is
complying with its treaty obligations. He adds that, therefore, the constitutional
rights of an accused in all criminal prosecutions are not available to the private
respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying
respondent Jimenez's requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether the
procedures and requirements under the relevant law and treaty have been complied
with by the Requesting Government. The constitutional rights of the accused in all
criminal prosecutions are, therefore, not available.
2. The United States Government has requested the Philippine Government to
prevent unauthorized disclosure of certain grand jury information.
3. The petitioner cannot hold in abeyance proceedings in connection with an
extradition request. For extradition to be an effective tool of criminal law
enforcement, requests for surrender of accused or convicted persons must be
processed expeditiously.
I respectfully submit that any apprehensions in the Court arising from a denial of the
petition "breach of an international obligation, rupture of states relations,
forfeiture of confidence, national embarrassment, and a plethora of other equally
undesirable consequences" are more illusory than real. Our country is not denying
the extradition of a person who must be extradited. Not one provision of the
extradition treaty is violated. I cannot imagine the United States taking issue over
what, to it, would be a minor concession, perhaps a slight delay, accorded in the
name of human rights. On the other hand, the issue is fundamental in the
Philippines. A citizen is invoking the protection, in the context of a treaty obligation,
of rights expressly guaranteed by the Philippine Constitution.
Until proved to be a valid subject for extradition, a person is presumed innocent or
not covered by the sanctions of either criminal law or international treaty. At any
stage where a still prospective extraditee only seeks to know so that he can prepare
and prove that he should not be extradited, there should be no conflict over the
extension to him of constitutional protections guaranteed to aliens and citizens alike.

CRIMINAL PROCEDURE | CASES

Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the
Treaty. Article 7 enumerates the required documents and establishes the procedures
under which the documents shall be submitted and admitted as evidence. There is
no specific provision on how that Secretary of Foreign Affairs should conduct his
evaluation. The Secretary of Justice is not even in the picture at this stage. Under
petitioner's theory, silence in the treaty over a citizen's rights during the evaluation
stage is interpreted as deliberate exclusion by the contracting states of the right to
know. Silence is interpreted as the exclusion of the right to a preliminary
examination or preliminary investigation provided by the laws of either one of the
two states.
The right to be informed of charges which may lead to court proceedings and result
in a deprivation of liberty is ordinarily routine. It is readily available to one against
whom the state's coercive power has already been focused. I fail to see how silence
can be interpreted as exclusion. The treaty is silent because at this stage, the
preliminary procedure is still an internal matter. And when a law or treaty is silent, it
means a right or privilege may be granted. It is not the other way around.
The second reason alleging the need for secrecy and confidentiality is even less
convincing. The explanation of petitioner is self-contradictory. On one hand,
petitioner asserts that the United States Government requested the Philippine
Government to prevent unauthorized disclosure of certain information. On the other
hand, petitioner declares that the United States has already secured orders from
concerned District Courts authorizing the disclosure of the same grand jury
information to the Philippine Government and its law enforcement personnel.
Official permission has been given. The United States has no cause to complain
about the disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential
if they are going to be introduced as evidence in adversely proceedings before a trial
court? The only issue is whether or not Mr. Jimenez should be extradited. His
innocence or guilt of any crime will be determined in an American court. It is there
where prosecution strategies will be essential. If the Contracting States believed in a
total non-divulging of information prior to court hearings, they would have so
provided in the extradition treaty. A positive provision making certain rights
unavailable cannot be implied from silence.
I cannot believe that the United States and the Philippines with identical
constitutional provisions on due process and basic rights should sustain such a
myopic view in a situation where the grant of a right would not result in any serious
setbacks to criminal law enforcement.
It is obvious that any prospective extraditee wants to know if his identity as the
person indicated has been established. Considering the penchant of Asians to adopt
American names when in America, the issue of whether or not the prospective
extraditee truly is the person charged in the United States becomes a valid question.
It is not only identity of the person which is involved. The crimes must also be
unmistakably identified and their essential elements clearly stated.

ALARCON | 14

There are other preliminary matters in which respondent is interested. I see nothing
in our laws or in the Treaty which prohibits the prospective extraditee from knowing
until after the start of trial whether or not the extradition treaty applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241
(1941); and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a
preliminary evaluation is to secure an innocent person against hasty, faulty and,
therefore, oppressive proceedings; to protect him from an open and extensively
publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a
public trial; and also to protect the state from useless and expensive trails. Even if
the purpose is only to determine whether or not the respondent is a proper subject
for extradition, he is nonetheless entitled to the guarantees of fairness and freedom
accorded to those charged with ordinary crimes in the Philippines.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an
accused to due process, I would have co-signed the ponencia of our esteemed
colleague, Mr. Justice Jose A.R. Melo, without taking half a pause.But the case at bar
does not involve the guilt or innocence of an accused but the interpretation of an
extradition treaty where at stake is our government's international obligation to
surrender to a foreign state a citizen of its own so he can be tried for an alleged
offense committed within that jurisdiction. The issues are of first impression and the
majority opinion dangerously takes us to unknown shoals in constitutional and
international laws, hence this dissenting opinion.

In the first place, any assistance which the evaluating official may get from the
participation of respondent may well point out deficiencies and insufficiencies in the
extradition documents. It would incur greater delays if these are discovered only
during court trial. On the other hand, if, from respondent's participation, the
evaluating official discovers a case of mistaken identity, insufficient pleadings,
inadequate complaints, or any ruinous shortcoming, there would be no delays during
trial. An unnecessary trial with all its complications would be avoided.

Extradition is a well-defined concept and is more a problem in international law. It is

the "process by which persons charged with or convicted of crime against the law of
a State and found in a foreign State are returned by the latter to the former for trial
or punishment. It applies to those who are merely charged with an offense but have
not been brought to trial; to those who have been tried and convicted and have
subsequently escaped from custody; and those who have been convicted in
absentia. It does not apply to persons merely suspected of having committed an
offense but against who no charge has been laid or to a person whose presence is
desired as a witness or for obtaining or enforcing a civil judgment." 1 The definition
covers the private respondent who is charged with two (2) counts of conspiracy to
commit offense or to defraud the United States, four (4) counts of attempt to evade
or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of
false statements or entries and thirty-three (33) counts of election contributions in
the name of another. There is an outstanding warrant of arrest against the private
respondent issued by the US District Court, Southern District of Florida.

The right to be informed is related to the constitutional right to a speedy trial. The
constitutional guarantee extends to the speedy disposition of cases before all quasijudicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition,
however, does not mean the deliberate exclusion of the defendant or respondent
from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247
(1970), "the right to a speedy trial, means one free from vexatious, capricious and
oppressive delays, its salutary objective being to assure that an innocent person
may be free from the anxiety and expense of a court litigation or, if otherwise, of
having his guilt (in this case, his being extradited) determined within the shortest
possible time compatible with the presentation and consideration of whatsoever
legitimate defense he may interpose."

A brief review of the history of extradition law will illumine our labor. Possibly the
most authoritative commentator on extradition today, M. Cherif Bassiouni, divides
the history of extradition into four (4) periods: "(1) ancient times to seventeenth
century a period revealing almost exclusive concern for political and religious
offenders; (2) the eighteenth century and half of the nineteenth century a period
of treaty-making chiefly concerned with military offenders characterizing the
condition of Europe during that period; (3) from 1833 to 1948 a period of
collective concern in suppressing common criminality; and (4) post-1948
developments which ushered in a greater concern for protecting the human rights of
persons and revealed an awareness of the need to have international due process of
law regulate international relations." 2

The right to be informed and the right to a preliminary hearing are not merely for
respondent. They also serve the interests of the State.1wphi1.nt

It is also rewarding to have a good grip on the changing slopes in the landscape of
extradition during these different periods. Extradition was first practiced by the
Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing
extradition was unclear. Sometimes, it was granted due to pacts; at other times, due
to plain good will. 3 The classical commentators on international law thus focused
their early views on the nature of the duty to surrender an extraditee whether the
duty is legal or moral in character. Grotius and de Vattel led the school of thought
that international law imposed a legal duty called civitas maxima to extradite
criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the
so-called duty was but an "imperfect obligation which could become enforceable
only by a contract or agreement between states.5

The third reason given by petitioner is the avoidance of delay. Petitioner views the
request to be informed as part of undesirable delaying tactics. This is most
unfortunate. Any request for extradition must be viewed objectively and impartially
without any predisposition to granting it and, therefore, hastening the extradition
process.

In closing, I maintain that the paramount consideration of guaranteeing the

constitutional rights of individual respondent override the concerns of petitioner.
There should be no hurried or indifferent effort to routinely comply with all requests
for extradition. I understand that this is truer in the United States than in other
countries. Proposed extraditees are given every legal protection available from the
American justice system before they are extradited. We serve under a government
of limited powers and inalienable rights. Hence, this concurrence.

CRIMINAL PROCEDURE | CASES

ALARCON | 15

Modern nations tilted towards the view of Puffendorf and Billot that under
international law there is no duty to extradite in the absence of treaty, whether
bilateral or multilateral. Thus, the US Supreme Court in US v.Rauscher,6 held: ". . . . it
is only in modern times that the nations of the earth have imposed upon themselves
the obligation of delivering up these fugitives from justice to the states where their
crimes were committed, for trial and punishment. This has been done generally by
treaties . . . Prior to these treaties, and apart from them there was no well-defined
obligation on one country to deliver up such fugitives to another; and though such
delivery was often made it was upon the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject of
international law. The 20th century saw the dramatic rise and fall of different types
and hues of authoritarianism the fascism of Italy's Mussolini and Germany's Hitler,
the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The
sinking of these isms led to the elevation of the rights of the individual against the
state. Indeed, some species of human rights have already been accorded universal
recognition.7 Today, the drive to internationalize rights of women and children is also
on high gear.8 The higher rating given to human rights in the hierarchy of values
necessarily led to the re-examination of rightful place of the individual in
international law. Given the harshest eye is the moss-covered doctrine
that international law deals only with States and that individuals are not its subject.
For its undesirable corrally is the sub-doctrine that an individual's right in
international law is a near cipher. Translated in extradition law, the view that once
commanded a consensus is that since a fugitive is a mere object and not a
subject of international law, he is bereft of rights. An extraditee, so it was held, is a
mere "object transported from one state to the other as an exercise of the sovereign
will of the two states involved." 9 The re-examination consigned this pernicious
doctrine to the museum of ideas. 10 The new thinkers of international law then gave a
significant shape to the role and rights of the individual in state-concluded treaties
and other international agreements. So it was declared by then US Ambassador
Philip C. Jessup in audible italics: "A very large part of international affairs and, thus,
of the process of international accommodation, concerns the relations between legal
persons known as states. This is necessarily so. But it is no longer novel for the
particular interest of the human being to break through the mass of interstate
relationship."11 The clarion call to re-engineer a new world order whose dominant
interest would transcend the parochial confines of national states was not unheeded.
Among the world class scholars who joined the search for the elusive ideological
underpinnings of a new world order were Yale Professor Myres McDougal and Mr.
Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public
Order, they suggested that the object of the new world should be "to obtain in
particular situations and in the aggregate flow of situations the outcome of a higher
degree of conformity with the security goals of preservation, deterrence, restoration,
rehabilitation and reconstruction of all societies comprising the world
community."12 Needless to stress, all these prescient theses accelerated the move to
recognize certain rights of the individual in international law.
We have yet to see the final and irrevocable place of individual rights, especially the
rights of an extraditee, in the realm of international law. In careful language,
Bassiouni observes that today, "institutionalized conflicts between states are
still rationalized in terms of sovereignty, national interest, and national security,
while human interests continue to have limited, though growing impact on the

CRIMINAL PROCEDURE | CASES

decision-making processes which translate national values and goals into specific
national and international policy."13
I belabor the international law aspect of extradition as the majority opinion hardly
gives it a sideglance. It is my humble submission that the first consideration that
should guide us in the case at bar is that a bilateral treaty the RP-US Extradition
Treaty is the subject matter of the litigation. In our constitutional scheme, the
making of a treaty belongs to the executive and legislative departments of our
government. Between these two departments, the executive has a greater say in
the making of a treaty. Under Section 21, Article VII of our Constitution,
the President has the sole power to negotiate treaties and international agreements
although to be effective, they must be concurred in by at least two thirds of all the
members of the Senate. Section 20 of the same Article empowers the President to
contract or guarantee foreign loans with the prior concurrence of the Monetary
Board. Section 16 of the same Article gives the President the power to appoint
ambassadors, other public ministers and consuls subject to confirmation by the
Commission on Appointments. In addition, the President has the power to deport
undesirable aliens. The concentration of these powers in the person of the President
is not without a compelling consideration. The conduct of foreign relations is full of
complexities and consequences, sometimes with life and death significance to the
nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can
decide with decisiveness. Beyond debate, the President is the single most powerful
official in our land for Section 1 of Article VII provides that "the executive power shall
be vested in the President of the Philippines," whereas Section 1 of Article VI states
that "the legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives . . . except to the extent
reserved to the people by the provision on initiative and referendum," while Section
1 of Article VIII provides that "judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law." Thus, we can see that
executive power is vested in the President alone whereas legislative and judicial
powers are shared and scattered. It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful events all over
the world. He has also unlimited access to ultra-sensitive military intelligence
data.14 In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs .
The regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a
plethora of other problems with equally undesirable consequences.
These are some of the dominant policy considerations in international law that the
Court must balance against the claim of the private respondent that he has a right
to be given the extradition documents against him and to comment thereon even
while they are still at the evaluation stage by the petitioner Secretary of Justice, an
alter ego of the President. The delicate questions of what constitutional rights and to
what degree they can be claimed by an extraditee do not admit of easy answers and
have resulted in discrete approaches the world over.15 On one end of the pole is the
more liberal European approach. The European Court of Human Rights embraces the
view that an extraditee is entitled to the benefit of all relevant provisions of the

ALARCON | 16

European Convention for the Protection of Human Rights and Fundamental

Freedoms. It has held that ". . . in so far as a measure of the extradition has
consequences adversely affecting the enjoyment of a convention right, it may,
assuming that the consequences are not too remote, attract the obligations of a
Contracting State under the relevant convention guarantee." 16 At the other end of
the pole is the more cautious approach of the various Courts of Appeal in the United
States. These courts have been more conservative in light of the principle of
separation of powers and their faith in the presumptive validity of executive
decisions. By and large, they adhere to the rule of non-inquiryunder which
the extraditing court refuses to examine the requesting country's criminal justice
system or consider allegations that the extraditee will be mistreated or denied a fair
trial in that country.17
The case at bar, I respectfully submit, does not involve an irreconcilable
conflict between the RP-US Extradition Treaty and our Constitution where we have to
choose one over the other. Rather, it calls for a harmonizationbetween said treaty
and our Constitution. To achieve this desirable objective, the Court should consider
whether the constitutional rights invoked by the private respondent have truly been
violated and even assuming so,whether he will be denied fundamental fairness. It is
only when their violation will destroy the respondent's right to fundamental fairness
that his constitutional claims should be given primacy.
Given this balancing approach, it is my humble submission that considering all the
facts and facets of the case,the private respondent has not proved entitlement to
the right he is claiming. The majority holds that the Constitution, the RP-US
extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should
be allowed. This is too simplistic an approach. Rights do not necessarily arise from a
vacuum. Silence of the law can even mean an implied denial of a right. Also,
constitutional litigations do not always involve a clear cut choice between right and
wrong. Sometimes, they involve a difficult choice between right against right. In
these situations, there is need to balance the contending rights and primacy is given
to the right that will serve the interest of the nation at that particular time. In such
instances, the less compelling right is subjected to soft restraint but without
smothering its essence. Proceeding from this premise of relativism of rights, I
venture the view that even assuming arguendo respondent's weak claim, still, the
degree of denial of private respondent's rights to due process and to information is
too slight to warrant the interposition of judicial power. As admitted in
the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to
determine what it is. What is certainis that it is not a criminal proceeding where
there is an accused who claim the entire array of rights guaranteed by the Bill of
Rights. Let it be stressed that in an extradition proceeding, there is no accused and
the guilt or innocence of the extraditee will not be passed upon by our executive
officials nor by the extradition judge. Hence, constitutional rights that are only
relevant do determine the guilt or innocence of an accused cannot be invoked by an
extraditee. Indeed, an extradition proceeding is summary in nature which is untrue
of criminal proceedings.18Even the rules of evidence are different in an extradition
proceeding. Admission of evidence is less stringent, again because the guilt of the
extraditee is not under litigation.19 It is not only the quality but even the quantum of
evidence in extradition proceeding is different. In a criminal case, an accused can
only be convicted by proof beyond reasonable doubt.20 In an extradition proceeding,
an extraditee can be ordered extradited "upon showing of the existed of a prima

CRIMINAL PROCEDURE | CASES

facie case."21 If more need be said, the nature of an extradition decision is different
from a judicial decision whose finality cannot be changed by executive fiat. Our
courts22 may hold an individual extraditable but the ultimate decision to extradite
the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US
Extradition Treaty specifically provides that "extradition shall not be granted if the
executive authority of the Requested State determined that the request was
politically motivated, or that the offense is a military offense which is not punishable
under non-military penal legislation." In the United States, the Secretary of State
exercises this ultimate power and is conceded considerable discretion. He balances
the equities of the case and the demands of the nation's foreign relations. 23 In sum,
he is not straitjacketed by strict legal considerations like an ordinary court.
The type of issue litigated in extradition proceedings which does not touch on the
guilt or innocence of the extraditee, the limited nature of the extradition proceeding,
the availability of adequate remedies in favor of the extraditee, and the traditional
leeway given to the Executive in the conduct of foreign affairs have compelled
courts to put a high threshold before considering claims of individuals that
enforcement of an extradition treaty will violate their constitutional rights.
Exemplifying such approach is the Supreme Court of Canada which has adopted
a highly deferential standard that emphasizes international comity and the
executive's experience in international matters.24 It continues to deny Canada's
charter protection to extraditees unless the violation can be considered shocking to
the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much
significance the threat to liberty of the private respondent to prop us its thesis that
his constitutional rights to due process and access to information must immediately
be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest,
hence, the need for him to be immediately furnished copies of documents
accompanying the request for his extradition.Respondent's fear of provisional arrest
is not real. It is a self-imagined fear for the realities on the ground show that the
United States authorities have not manifested any desire to request for his arrest.
On the contrary, they filed the extradition request through the regular channel and,
even with the pendency of the case at bar, they have not moved for respondent's
arrest on the ground of probable delay in the proceedings. To be sure, the issue of
whether respondent Jimenez will be provisionally arrested is now moot. Under
Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of
PD No. 1069, the general principle is enunciated that a request for provisional arrest
must be made pending receipt of the request for extradition. By filing the request for
extradition, the US authorities have implicitly decided not to move for respondent's
provisional arrest. But more important, a request for respondent's arrest does not
mean he will be the victim of an arbitrary arrest. He will be given due process before
he can be arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the
person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United States Department of
Justice.

ALARCON | 17

2. The application for provisional arrest shall contain:

a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statements of the facts of the case, including, if possible, the time and
location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt
or judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its
application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the
executive authority of the Requested State has not received the formal request for
extradition and the supporting documents required in Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:
Sec. 20. Provisional Arrest. (a) In case of urgency, the requesting state may,
pursuant to the relevant treaty or convention and while the same remains in force,
request for the provisional arrest of the accused, pending receipt of the request for
extradition made in accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National
Bureau of Investigation, Manila, either through the diplomatic channels or direct by
post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his
behalf shall upon receipt of the request immediately secure a warrant for the
provisional arrest of the accused from the presiding judge of the Court of First
Instance of the province or city having jurisdiction of the place, who shall issue the
warrant for the provisional arrest of the accused. The Director of the National Bureau
of Investigation through the Secretary of Foreign Affairs shall inform the requesting
state of the result of its request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign
Affairs has not received the request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from custody.
The due process protection of the private-respondent against arbitrary arrest is
written in cyrillic letters in these two (2) related provisions. It is self-evident under
these provisions that a request for provisional arrest does not mean it will be
granted ipso facto. The request must comply with certain requirements. It must be
based on an "urgent" factor. This is subject to verification and evaluation by our
executive authorities. The request can be denied if not based on a real exigency of if
the supporting documents are insufficient. The protection of the respondent against

CRIMINAL PROCEDURE | CASES

arbitrary provisional arrest does not stop on the administrative level. For even if the
Director of the National Bureau of Investigation agrees with the request for the
provisional arrest of the respondent, still he has to apply for a judicial warrant from
the "presiding judge of the Court of First Instance (now RTC) of the province of city
having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the
provisional arrest of the respondent. The judge has comply with Section 2, Article III
of the Constitution which provides that "no . . . warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the . . . persons or things to be seized." The message that
leaps to the eye is that compliance with this requirements precludes any arbitrary
arrest.
In light of all these considerations, I respectfully submit that denying respondent's
constitutional claim to be furnished all documents relating to the request for his
extradition by the US authorities during their evaluation stage will not subvert his
right to fundamental fairness. It should be stressed that this is not a case where the
respondent will not be given an opportunity to know the basis of the request for his
extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069
fixes the specific time when he will be given the papers constituting the basis for his
extradition. The time is when he is summoned by the extradition court and required
to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as
soon as practicable, summon the accused to appear and to answer the petition on
the day and hour fixed in the order. He may issue a warrant for the immediate arrest
of the accused which may be served anywhere within the Philippines if it appears to
the presiding judge that the immediate arrest and temporary detention of the
accused will best serve the ends of justice. Upon receipt of the answer within the
time fixed, the presiding judge shall hear the case or set another date for the
hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.
Upon receipt of the summons and the petition, respondent is free to foist all defense
available to him. Such an opportunity does not deny him fairness which is the
essence of due process of law.
Thus, with due respect, I submit that the ponencia failed to accord due importance
to the international law aspect of an extradition treaty as it unduly stressed its
constitutional law dimension. This goes against the familiar learning that in
balancing the clashing interests involved in extradition treaty, national interest is
more equal than the others. While lately, humanitarian considerations are being
factored in the equation, still the concept of extradition as a national act is the
guiding idea. Requesting and granting extradition remains a power and prerogative
of the national government of a State. The process still involves relations between
international personalities.25 Needless to state, a more deferential treatment should
be given to national interest than to individual interest. Our national interest in
extraditing persons who have committed crimes in a foreign country are succinctly
expressed in the whereas clauses of P.D. No. 1069, viz:

ALARCON | 18

WHEREAS, the Constitution of the Philippines adopts the generally accepted

principles of international law as part of law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped,
because it saps the foundation of social life and is an outrage upon humanity at
large, and it is in the interest of civilized communities that crimes should not go
unpunished. . . . .
The increasing incidence of international and transnational crimes, the development
of new technologies of death,and the speed and scale of improvement of
communication are factors which have virtually annihilated time and distance. They
make more compelling the vindication of national interest to insure that the
punishment of criminals should not be frustrated by the frontiers of territorial
sovereignty. This overriding national interest must be upheld as against
respondent's weak constitutional claims which in no way amount to denial of
fundamental fairness.
At bottom, this case involves the respect that courts should accord to the Executive
that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs . As
early as 1800, the legendary John Marshall, then a congressman, has opined that the
power to extradite pursuant to a treaty rests in the executive branch as part of its
power to conduct foreign affairs.26 Courts have validated this forward-looking opinion
in a catena of unbroken cases. They defer to the judgment of the Executive on the
necessities of our foreign affairs and on its view of the requirements of international
comity. The deferential attitude is dictated by the robust reality that of the three
great branches of our government, it is the Executive that is most qualified to guide
the ship of the state on the known and unknown continents of foreign relations. It is
also compelled by considerations of the principle ofseparation of powers for the
Constitution has clearly allocated the power to conduct our foreign affairs to the
Executive. I respectfully submit that the majority decision has weakened the
Executive by allowing nothing less than an unconstitutional headbutt on the power
of the Executive to conduct our foreign affairs. The majority should be cautions in
involving this Court in the conduct of the nation's foreign relations where the
inviolable rule dictated by necessity is that the nation should speak with one
voice. We should not overlook the reality that courts by their nature, are ill-equipped
to fully comprehend the foreign policy dimension of a treaty, some of which are
hidden in shadows and silhouettes.
I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.
The main issue before us is whether Private Respondent Mark B. Jimenez is entitled
to the due process rights of notice and hearing during the preliminary or evaluation
stage of the extradition proceeding against him.

There are essentially two stages in extradition proceedings: (1) the preliminary or
evaluation stage, whereby the executive authority of the requested state ascertains
whether the extradition request is supported by the documents and information
required under the Extradition Treaty; and (2) the extradition hearing, whereby the
petition for extradition is heard before a court of justice, which determines whether
the accused should be extradited.
The instant petition refers only to the first stage. Private respondent claims that he
has a right to be notified and to be heard at this early stage. However, even
the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the
Philippine Extradition Law) expressly requires the Philippine government, upon
receipt of the request for extradition, to give copies thereof and its supporting
documents to the prospective extraditee, much less to give him an opportunity to be
heard prior to the filing of the petition in court.
Notably, international extradition proceedings in the United States do not include the
grant by the executive authority of notice and hearing to the prospective extraditee
at this initial stage. It is the judge or magistrate who is authorized to issue a warrant
of arrest and to hold a hearing to consider the evidence submitted in support of the
extradition request. In contrast, in interstate rendition, the governor must, upon
demand, furnish the fugitive or his attorney copies of the request and its
accompanying documents, pursuant to statutory provisions. 1 In the Philippines, there
is no similar statutory provision.
Evaluation Stage Essentially Ministerial
The evaluation stage simply involves the ascertainment by the foreign affairs
secretary of whether the extradition request is accompanied by the documents
stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the
probable location of the fugitive; the facts of the offense and the procedural history
of the case; provisions of the law describing the essential elements of the offense
charged and the punishment therefor; its prescriptive period; such evidence as
would provide probable cause for the arrest and the committal for trial of the
fugitive; and copies of the warrant or order of arrest and charging document. The
foreign affairs secretary also sees to it that these accompanying documents have
been certified by the principal diplomatic or consular officer of the Philippines in the
United States, and that they are in English language or have English translations.
Pursuant to Article 3 of the Treaty, he also determines whether the request is
politically motivated, and whether the offense charged is a military offense not
punishable under non-military penal legislation.2
Upon a finding of the secretary of foreign affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall
deliver the same to the justice secretary, who shall immediately designate and
authorize an attorney in his office to take charge of the case. The lawyer designated
shall then file a written petition with the proper regional trial court, with a prayer
that the court take the extradition request under consideration.3
When the Right to Notice and Hearing Becomes Available

Two Staged in Extradition

CRIMINAL PROCEDURE | CASES

ALARCON | 19

According to private Respondent Jimenez, his right to due process during the
preliminary stage emanates from our Constitution, particularly Section 1, Article III
thereof, which provides:
No person shall be deprived of life, liberty or property without due process of law.
He claims that this right arises immediately, because of the possibility that he may
be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:
In case of urgency, a Contracting Party may request the provisional arrest of the
person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United States Department of
Justice.
xxx

xxx

xxx

Justice Melo's ponencia supports private respondent's contention. It states that there
are two occasions wherein the prospective extraditee may be deprived of liberty: (1)
in case of a provisional arrest pending the submission of the extradition request and
(2) his temporary arrest during the pendency of the extradition petition in
court.4 The second instance is not in issue here, because no petition has yet been
filed in court.
However, the above-quoted Article 9 on provisional arrest is not automatically
operative at all times, and in enforcement does not depend solely on the discretion
of the requested state. From the wordings of the provision itself, there are at least
three requisites: (1) there must be an urgency, and (2) there is a corresponding
request (3) which must be made prior to the presentation of the request for
extradition.
In the instant case, there appears to be no urgency characterizing the nature of the
extradition of private respondent. Petitioner does not claim any such urgency. There
is no request from the United States for the provisional arrest of Mark Jimenez either.
And the secretary of justice states during the Oral Argument that he had no
intention of applying for the provisional arrest of private respondent. 5 Finally, the
formal request for extradition has already been made; therefore, provisional arrest is
not likely, as it should really come before the extradition request.6
Mark Jimenez Not in Jeopardy of Arrest
Under the outlined facts of this case, there is no open door for the application of
Article 9, contrary to the apprehension of private respondent. In other words, there
is no actual danger that Jimenez will be provisionally arrested or deprived of his
liberty. There is as yet no threat that his rights would be trampled upon, pending the
filing in court of the petition for his extradition. Hence, there is no substantial gain to
be achieved in requiring the foreign affairs (or justice) secretary to notify and hear
him during the preliminary stage, which basically involves only the exercise of the
ministerial power of checking the sufficiency of the documents attached to the
extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs
secretary's determination of whether the offense charged is extraditable or

CRIMINAL PROCEDURE | CASES

politically motivated is merely preliminary. The same issue will be resolved by the
trial court.7 Moreover, it is also the power and the duty of the court, not the
executive authority, to determine whether there is sufficient evidence to establish
probable cause that the extraditee committed the crimes charged. 8 The sufficiency
of the evidence of criminality is to be determined based on the laws of the requested
state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity
before the court, in case an extradition petition will indeed be filed, to be heard on
all issues including the sufficiency of the documents supporting the extradition
request.10
Private respondent insists that the United States may still request his provisional
arrest at any time. That is purely speculative. It is elementary that this Court does
not declare judgments or grant reliefs based on speculations, surmises or
conjectures.
In any event, even granting that the arrest of Jimenez is sought at any time despite
the assurance of the justice secretary that no such measure will be undertaken, our
local laws and rules of procedure respecting the issuance of a warrant of arrest will
govern, there being no specific provision under the Extradition Treaty by which such
warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by
the Constitution and the laws to any person whose arrest is being
sought.1wphi1.nt
The right of one state to demand from another the return of an alleged fugitive from
justice and the correlative duty to surrender the fugitive to the demanding country
exist only when created by a treaty between the two countries. International law
does not require the voluntary surrender of a fugitive to a foreign government,
absent any treaty stipulation requiring it. 11 When such a treaty does exist, as
between the Philippines and the United States, it must be presumed that the
contracting states perform their obligations under it with uberrimae fidei, treaty
obligations being essentially characterized internationally by comity and mutual
respect.
The Need for Respondent Jimenez to Face Charges in the US
One final point. Private respondent also claims that from the time the secretary of
foreign affairs gave due course to the request for his extradition, incalculable
prejudice has been brought upon him. And because of the moral injury caused, he
should be given the opportunity at the earliest possible time to stop his extradition. I
believe that any moral injury suffered by private respondent had not been caused by
the mere processing of the extradition request. And it will not cease merely by
granting him the opportunity to be heard by the executive authority. The concrete
charges that he has allegedly committed certain offenses already exist. These
charges have been filed in the United States and are part of public and official
records there. Assuming the existence of moral injury, the only means by which he
can restore his good reputation is to prove before the proper judicial authorities in
the US that the charges against him are unfounded. Such restoration cannot be
accomplished by simply contending that the documents supporting the request for
his extradition are insufficient.
Conclusion

ALARCON | 20

In the context of the factual milieu of private respondent, there is really no threat of
any deprivation of his liberty at the present stage of the extradition process. Hence,
the constitutional right to due process particularly the right to be heard finds no
application. To grant private respondent's request for copies of the extradition
documents and for an opportunity to comment thereon will constitute "over-due
process" and unnecessarily delay the proceedings.
WHEREFORE, I vote to grant the Petition.

the time the criminal information was filed, paragraph 2(d) of Article 315 of the
Revised Penal Code had already been amended and the penalty imposable upon a
person accused thereunder increased, which penalty was beyond the City Court's
authority to impose. Accordingly, the court dismissed the information without
prejudice to its being refiled in the proper court.
Hence this Petition for Review brought by the People, arguing that the City Court of
Roxas City had jurisdiction over Criminal Case No. 7362 and that it had erred in
issuing its Order dismissing the case. Because the Petition for Review was signed by
the City Fiscal and Assistant City Fiscal of Roxas City as counsel for the People, the
Court referred the petition to the Office of the Solicitor General for comment.
Responding to the Court's resolution, the then acting Solicitor General Vicente
Mendoza stated that the Office of the Solicitor General, having been previously
consulted by the Assistant City Fiscal of Roxas City, agreed with the position taken
by the latter that the City Court had jurisdiction over the criminal case involved, and
asked that the petition be given due course.
After deliberation on the instant Petition for Review, the Court considers that
petitioner has failed to show that the City Court had committed reversible error in
dismissing the criminal information in Criminal Case No. 7362 without prejudice to
its refiling in the proper court.

G.R. No. 45815 May 18, 1990

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
LIBERTAD LAGON and HON. JUDGE ISIDRO O. BARRIOS, AS PRESIDING
JUDGE OF THE CITY COURT OF ROXAS CITY, respondents.

FELICIANO, J.:
On 7 July 1976, a criminal information was filed with the City Court of Roxas City and
docketed as Criminal Case No. 7362, charging private respondent Libertad Lagon
with the crime of estafa under paragraph 2(d) of Article 315 of the Revised Penal
Code. The information charged that the accused had allegedly issued a check in the
amount of P4,232.80 as payment for goods or merchandise purchased, knowing that
she did not have sufficient funds to cover the check, which check therefore
subsequently bounced.
The case proceeded to trial and the prosecution commenced the presentation of its
evidence. However, in an Order dated 2 December 1976, the City Court dismissed
the information upon the ground that the penalty prescribed by law for the offense
charged was beyond the court's authority to impose. The judge held that the
jurisdiction of a court to try a criminal action is determined by the law in force at the
time of the institution of the action, and not by the law in force at the time of the
commission of the crime. At the time of the alleged commission of the crime in April
1975, jurisdiction over the offense was vested by law in the City Court. However, by

CRIMINAL PROCEDURE | CASES

Under the penultimate paragraph of Section 87 of the Judiciary Act of 1948, as

amended, the law governing the subject matter jurisdiction of municipal and city
courts in criminal cases in 1975 and 1976, "[municipal judges in the capitals of
provinces and sub-provinces and judges of city courts shall have like jurisdiction as
the Court of First Instance to try parties charged with an offense within their
respective jurisdictions, in which the penalty provided by law does not exceed
prision correccional or imprisonment for not more than six (6) years or fine not
exceeding P6,000.00 or both . . . ." It appears that at the time of the commission of
the offense charged on 5 April 1975, the penalty imposable for the offense charged
under paragraph 2(d) in relation to the third sub-paragraph of the first paragraph,
Article 315 of the Revised Penal Code, was arresto mayor in its maximum period to
prision correccional in its minimum period; at that time therefore, the offense clearly
fell within the jurisdiction of the City Court of Roxas City.
At the time of the institution of the criminal prosecution on 7 July 1976, the penalty
imposable for the offense charged in Criminal Case No. 7362 had been increased by
P.D. No. 818 (effective 22 October 1975) to prision mayor in its medium period.
It is firmly settled doctrine that the subject matter jurisdiction of a court in criminal
law matters is properly measured by the law in effect at the time of the
commencement of a criminal action, rather than by the law in effect at the time of
the commission of the offense charged. 1 Thus, in accordance with the above rule,
jurisdiction over the instant case pertained to the then Court of First Instance of
Roxas City considering that P.D. No. 818 had increased the imposable penalty for the
offense charged in Criminal Case No. 7362 to a level-in excess of the minimum
penalty which a city court could impose.
The real question raised by the petitioner is: would application of the above-settled
doctrine to the instant case not result in also applying Presidential Decree No. 818 to
the present case, in disregard of the rule against retroactivity of penal laws? Article

ALARCON | 21

22 of the Revised Penal Code permits penal laws to have retroactive effect only
"insofar as they favor the person guilty of a felony, who is not a habitual
criminal, . . . " We do not believe so.
In the first place, subject-matter jurisdiction in criminal cases is determined by the
authority of the court to impose the penalty imposable under the applicable statute
given the allegations of a criminal information. In People v.Purisima, 2 the Court
stressed that:
xxx xxx xxx
. . . The issue here is one of jurisdiction, of a court's legal competence to try a
case ab origine. In criminal prosecutions, it is settled that the jurisdiction of the
court is not determined by what may be meted out to the offender after trial, or
even by the result of the evidence that would be presented at the trial, but by the
extent of the penalty which the law imposes for the misdemeanor, crime or violation
charged in the complaint. If the facts recited in the complaint and the punishment
provided for by law are sufficient to show that the court in which the complaint is
presented has jurisdiction, that court must assume jurisdiction. 3 (Citations omitted;
Emphasis supplied.)
The same rule was set forth and amplified in People v. Buissan,
terms:

in the following

xxx xxx xxx

. . . in criminal prosecutions, jurisdiction of the court is not determined by what may
be meted out to the offender after trial (People v. Cuello, 1 SCRA 814) or even by the
result of the evidence that would be presented during the trial (People v. Co Hick 62
Phil. 503) but by the extent of the penalty which the law imposes, together with
other legal obligations, on the basis of the facts as recited in the complaint or
information (People v. Purisima, 69 SCRA 347) constitutive of the offense
charged, for once jurisdiction is acquired by the court in which the information is
filed, it is retained regardless whether the evidence proves a lesser offense than
that charged in the information (People v. Mision, 48 O.G. 1330) 5 (Emphasis
supplied.)

reason already adverted to, be held to fall under the jurisdiction of the Court of First
Instance, not a city or municipal court. 7 (Emphasis supplied.)
In the case at bar, the increased penalty provided for the offense charged in Criminal
Case No. 7362 by P.D. No. 818 (prison mayor in its medium period) is obviously
heavier than the penalty provided for the same offense originally imposed by
paragraph 2(d) of Article 315 of the Revised Penal Code (up to prision correccional in
its minimum period).
Should the criminal information be refiled in the proper court, that is, the proper
Regional Trial Court, that court may not impose that more onerous penalty upon
private respondent Libertad Lagon (assuming the evidence shows that the offense
was committed before 22 October 1975). But the Regional Trial Court would remain
vested with subject-matter jurisdiction to try and decide the (refiled) case even
though the penalty properly imposable, given the date of the commission of the
offense charged, should be the lower penalty originally provided for in paragraph
2(d) of Article 315 of the Revised Penal Code which is otherwise within the exclusive
jurisdiction of the City Court of Roxas City. In other words, the circumstance that P.D.
No. 818 would be inapplicable to the refiled case would not result in the Regional
Trial Court losing subject-matter jurisdiction, nor in the case falling back into the City
Court's exclusive jurisdiction.
WHEREFORE, the Court Resolved to DENY the Petition for Review for lack of merit.
The Order dated 2 December 1976 of the public respondent Presiding Judge of the
City Court of Roxas City is hereby AFFIRMED. No costs.
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

Thus, it may be that after trial, a penalty lesser than the maximum imposable under
the statute is proper under the specific facts and circumstances proven at the trial.
In such a case, that lesser penalty may be imposed by the trial court (provided it
had subject-matter jurisdiction under the rule above referred to) even if the reduced
penalty otherwise falls within the exclusive jurisdiction of an inferior court.
In People v. Buissan,

the Court also said:

xxx xxx xxx

. . . It is unquestionable that the Court of First Instance, taking cognizance of a
criminal case coming under its jurisdiction, may, after trial, impose a penalty that is
proper for a crime within the exclusive competence of a municipal or city court as
the evidence would warrant. It may not be said, therefore, that the Court of First
Instance would be acting without jurisdiction if in a simple seduction case, it would
impose penalty of not more than six months of imprisonment, if said case, for the

CRIMINAL PROCEDURE | CASES

ALARCON | 22

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V. Sempio-Diy

and Solicitor Amado D. Aquino for appellee.

CONCEPCION JR., J.:

Appeal from the decision of the Court of First Instance of Leyte, Branch V, Ormoc
City, in Criminal Case No. 562-0, convicting the accused Ricardo Beriales Benedicto
Custodio and Pablito Custodio of the crime of murder, sentencing each one of them
to the penalty of reclusion perpetua, and to jointly and severally pay the heirs of
Saturnina Gonzales Porcadilla the sum of P12,000.00 and to pay the costs. 1
It appears that in Criminal Case No. 562-0 the herein appellants were charged with
the crime of murder in an information filed by the City Fiscal of Ormoc City on
November 22, 1974, allegedly committed as follows:
That on or about the 13th of September, 1974, at around 9:00 o'clock in the morning
at Barrio Mahayahay, this city, and within the jurisdiction of this Honorable Court,
the above-named accused, RICARDO BERIALES BENEDICTO CUSTODIO and PABLITO
CUSTODIO, conspiring together, confederating with and mutually helping and aiding
one another, with treachery and evident premeditation and with intent to kill, did
then and there wilfully, unlawfully and feloniously attack, assault, strike and stab the
person of SATURNINA PORCADILLA, without giving the latter sufficient time to defend
herself, thereby inflicting upon the latter mortal wounds which caused her death. ... 2
At the hearing of November 26, 1974, appellants' counsel moved for a
reinvestigation of said ease, along with two other related cases 3 which the court a
quo granted, in its Order reading as follows:
On motion of Atty. Abas counsel for the accused and without objection on the part of
Fiscal Ramon So Jr., let the reinvestigation of this case immediately take place at the
Office of the City Fiscal and let the arraignment and trial be postponed
until December 5 and 6, 1974 at 7:30 a.m. of each day, if and when the Fiscal shall
recommend that the case shall proceed after it shall have been reinvestigated, with
notice to Attys. Abas and Cornejos as well as Fiscal Solis in open court. 4
On December 3, 1974, the trial court postponed the hearing of the case to
December 17 and 18, 1974. 5 in view of the City Fiscal's motion "for a deferment of
the hearing or trial set for December 5 and 6, 1974 until such time the
REINVESTIGATION shall have been terminated for which the result of said
reinvestigation will be submitted to this Honorable Court for its resolution in the
premises." 6
G.R. No. L-39962 April 7, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO
CUSTODIO, accused-appellants.
Francisco D. Abas for appellants.

CRIMINAL PROCEDURE | CASES

On December 6, 1974, however, the trial court, motu proprio cancelled the aforesaid
hearings on December 17, and 18, 1974, and, instead, reset the arraignment and
trial of the case to December 10 and 11, 1974. 7
At the hearing of December 10, 1974, appellants counsel manifested to the court
that pursuant to its approval of his motion for reinvestigation, the City Fiscal had set
the reinvestigation for December 12, 1974 and had already issued the corresponding
subpoena to secure the attendance of the witnesses. 8 Nevertheless, the court a
quo,issued an order setting the hearing of the case to the next day, December 11,

ALARCON | 23

1974, 9 at which hearing, appellants' counsel reiterated his manifestation that since
the City Fiscal had already ordered the reinvestigation on December 12, 1974, the
said reinvestigation should first be finished and the corresponding resolution
rendered thereon and submitted to the court before any trial of the case should take
place. 10
The trial court, however, relying on the mandate of the New Constitution that "All
persons shall have the right to a speedy disposition of their cases before all judicial,
quasi-judicial, or administrative bodies" 11 re-scheduled the hearing to December 13,
1974. 12 Immediately thereafter, Special Counsel Rosario R. Polines, in
representation of the City Fiscal, manifested that the private prosecutor, Atty.
Procadilla, be authorized to conduct the case for the prosecution.
When the case was called for hearing on December 13, 1974, counsel for the
appellant asked the court to wait for the City Fiscal to appear, since the
reinvestigation of the case had already been terminated and the Fiscal, if given a
chance, might be able to report on said reinvestigation. 14 The trial court, however,
insisted in arraigning the appellants. 15 When arraigned, the three appellants
declined to plead, saying: "I am not going to answer the question because the Fiscal
is not yet around." 16 Thereupon, the trial court entered a plea of "Not Guilty" for
each of them. 17
Thereafter, appellants' counsel again manifested that the City Fiscal was absent and
that they could not go to trial without the fiscal and his report on the reinvestigation
conducted by him. 18 Nonetheless, the trial court, ordered the presentation of
evidence by the private prosecutor since he had been previously authorized by the
City Fiscal to handle the case. 19
After the direct examination of the witnesses presented by the private prosecutor,
the trial court asked the counsel for the defense if he desired to cross-examine the
witnesses. Appellants' counsel, however, reiterated his manifestation that they
would not go to trial until the City Fiscal shall have submitted the result of the
reinvestigation to the court, and the court each time ruled that it considered such
manifestation as a waiver on the part of the appellants to cross-examine the
witnesses. 20
Thereafter, the private prosecutor rested the case for the prosecution and the court
called for the evidence of the defense. Again, appellants' counsel manifested that
the appellants were not agreeing to the trial of the case unless they first received
the result of the reinvestigation conducted by the City Fiscal. 21 Whereupon, the
court considered the case submitted for decision and announced the promulgation
of the decision on December 17, 1974. 22
When the case was called on December 17, 1974, appellants' counsel manifested
that the accused were not in conformity with the promulgation of the decision on the
ground that they did not agree to the trial of the case. 23Nonetheless, the trial court
promulgated its judgment on the same day. 24
Hence, the appellants interpose this appeal, upon the principal ground that they
were denied due process of law.25 The Solicitor General agrees with such contention
and recommends that the judgment under review be set aside and the case
remanded to the lower court for another arraignment and trial. 26

CRIMINAL PROCEDURE | CASES

We sustain the appellants. After the trial court granted the appellants' motion for
reinvestigation, it became incumbent upon the court to hold in abeyance the
arraignment and trial of the case until the City Fiscal shall have conducted and made
his report on the result of such reinvestigation. That was a matter of duty on its part,
not only to be consistent with its own order but also to do justice aid at the same
time to avoid a possible miscarriage of justice. It should be borne in mind, that the
appellants herein were charged with the serious crime of murder, and considering
that their motion for reinvestigation is based upon the ground that it was Felipe
Porcadilla (husband and father, respectively, of the two deceased, Saturnina
Porcadilla and Quirino Porcadilla) who was the aggressor for having attacked and
seriously wounded appellant Pablito Custodio 27 it was entirely possible for the City
Fiscal to modify or change his conclusion after conducting the reinvestigation. When
the trial court, therefore, ignored the appellants' manifestations objecting to the
arraignment and the trial of the case, until after the City Fiscal shall have rendered a
resolution on his reinvestigation, but instead considered such manifestations on their
part as a plea of riot guilty and proceeded to try the case, received the evidence for
the prosecution, and then rendered judgment against them on the basis thereof, it
committed a serious irregularity which nullifies the proceedings below because such
a procedure is repugnant to the due process clause of the Constitution. 28
Besides, as correctly pointed out by the Solicitor General, "what is more deplorable
and which renders patently irregular all the proceedings taken in this case, was the
total absence of the City Fiscal and/or any of his assistants or special counsel on
December 13, 1974, when the appellants were arraigned and when the private
prosecutor presented evidence and rested the case supposedly for the People.
Under the Rules of Court, "All criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control of the fiscal." 29 In
the trial of criminal cases, it is the duty of the public prosecutor to appeal for the
government. 30 As stated by this Court, "once a public prosecutor has been
entrusted with the investigation of a case and has acted thereon by filing the
necessary information in court he is b law in duty bound to take charge thereof until
its finally termination, for under the law he assumes full responsibility for his failure
or success since he is the one more adequately prepared to pursue it to its
termination." 31 While there is nothing in the rule of practice and procedure in
criminal cases which denies the right of the fiscal, in the exercise of a sound
discretion, to turn over the active conduct of the trial to a private
prosecutor, 32 nevertheless, his duty to direct and control the prosecution of criminal
cases requires that he must be present during the proceedings. Thus, in the case
of People vs. Munar 33 this Court upheld the right of the private prosecutor therein to
conduct the examination of the witnesses because the government prosecutors
were present at the hearing; hence, the prosecution of the case remained under
their direct supervision and control.
In the present case, although the private prosecutor had previously been authorized
by the special counsel Rosario R. Polines to present the evidence for the prosecution,
nevertheless, in view of the absence of the City Fiscal at the hearing on December
13, 1974, it cannot be said that the prosecution of the case was under the control of
the City Fiscal. It follows that the evidence presented by the private prosecutor at
said hearing could not be considered as evidence for the plaintiff, the People of the

ALARCON | 24

Philippines. There was, therefore, no evidence at all to speak of which could have
been the basis of the decision of the trial court.
Moreover, as aptly observed by the Solicitor General, "to permit such prosecution of
a criminal case by the private prosecutor with the fiscal in absentia can set an
obnoxious precedent that can be taken advantage of by some indolent members of
the prosecuting arm of the government as well as those who are oblivious of their
bounden duty to see to it not only that the guilty should be convicted, but that the
innocent should be acquitted a duty that can only be effectively and sincerely
performed if they actively participate in the conduct of the case, especially in the
examination of the witnesses and the presentation of documentary evidence for
both parties." 34
WHEREFORE, the decision appealed from is hereby set aside and the case remanded
to the trial court for another arraignment and trial. Costs de oficio.
SO ORDERED.

G.R. No. L-38634 June 20, 1988

REPUBLIC OF THE PHILIPPINES, (PEOPLE OF THE PHILIPPINES), petitioner,
vs.
HON. DELFIN VIR. SUNGA, as Presiding Judge, CFI Branch I, Camarines Sur,
ARISTON ANADILLA, RAFAEL ANADILLA and JOSE ANADILLA, respondents.

PADILLA, J.:
This is a petition for review on certiorari of the order * of the Court of First Instance
of Camarines Sur, 10th Judicial District, Branch I, dated 20 March 1974,
dismissing motu proprio Criminal Case No. L-244, entitled "People of the Philippines,
Complainant versus Ariston Anadilla, Rafael Anadilla and Jose Anadilla, Accused," as
well as of the order dated 22 April 1974 of the same court denying the motion for
reconsideration of said earlier order.
The facts are not disputed.
On 10 August 1964, an information for Attempted Homicide was filed by the
Provincial Fiscal of Camarines Sur against accused-private respondents Rafael
Anadilla, Ariston Anadilla and Jose Anadilla. Trial of the case was set on 11 and 12
March 1974. The hearing set on 11 March 1974 was, however, postponed in view of
the absence of one of the accused, respondent Rafael Anadilla who had not yet been
arrested by the police authorities. On the same date, the court a quo issued an order
for the arrest of said accused, and at the same time set the trial of the case for 29
and 30 July 1974.
On 20 March 1974, the court a quo issued the now assailed order which reads:
Considering that the offended party, Jose Dadis is no longer interested in the further
prosecution of this case and there being no objection on the part of the accused
Ariston Anadilla, Rafael Anadilla and Jose Anadilla, this case is hereby DISMISSED
with costs de oficio.
Consequently, the order of arrest issued by this Court against the accused Rafael
Anadilla dated March 11, 1974, is hereby ordered lifted and has no force and effect.
The bail bond posted for the provisional liberty of the accused is hereby ordered
cancelled.

CRIMINAL PROCEDURE | CASES

ALARCON | 25

In the case of Ariston Anadilla and Jose Anadilla, the Provincial Warden is hereby
ordered to release said accused from their detention immediately upon receipt of
this order.
SO ORDERED.

The affidavit of desistance, relied upon by the aforequoted order, was executed by
the offended party on 20 March 1974 and subscribed and sworn to before the branch
Clerk of Court Atty. R.B. Torrecampo. It alleged, among others, that:
That he was the complainant in Criminal Case No. L-244, entitled, People vs. Ariston
Anadilla, et al., for Attempted Homicide, which case is pending before the first
branch of this Court; that he is no longer interested in the further prosecution of this
case and that he has already forgiven the accused for their acts; that his material
witnesses could no longer be contacted and that without their testimonies, the guilt
of the accused cannot be proven beyond reasonable doubt, and that in view of these
circumstances, he requests the Prosecuting Fiscal for the dismissal of the said case. 2
The Provincial Fiscal moved to reconsider the order of dismissal. This was denied by
the court a quo in an order dated 22 April 1974. 3 This petition was thereupon filed
before this Court.
The issue in this petition is whether the courta a quo may dismiss a criminal case on
the basis of an affidavit of desistance executed by the offended party, but without a
motion to dismiss filed by the prosecuting fiscal.
The issue presented is not novel. In Crespo v. Mogul, 4 promulgated on 30 June 1987,
the Court had occasion to state the rule in regard to the respective powers of the
prosecuting fiscal and the court, after the complaint or information has been filed in
court. In said case, the issue raised was whether the trial court, acting on a motion
to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the
Secretary of Justice to whom the case was elevated for review, may refuse to grant
the motion and insist on the arraignment and trial of the case on the merits.
In the Crespo case, an information for Estafa had already been filed by the Assistant
Fiscal before the Circuit Criminal Court of Lucena City. Arraignment of the accused
and trial of the case were, however, deferred because of a pending appeal by the
accused/respondent to the Secretary of Justice. Reversing the resolution of the Office
of the Provincial Fiscal, the Undersecretary of Justice directed the fiscal to move for
immediate dismissal of the information filed against the accused. Upon such
instructions, the Provincial Fiscal filed a motion to dismiss for insufficiency of
evidence. The Judge denied the motion and set the arraignment. On a certiorari
recourse to the Court of Appeals, the petition was dismissed. Review of the Court of
Appeals decision was then sought by the accused with this Court, raising the issue
previously stated herein, Resolving, the Court held:
xxx xxx xxx
The filing of a complaint or information in Court initiates a criminal action. The Court
thereby acquires jurisdiction over the case, which is the authority to hear and
determine the case. When after the filing of the complaint or information a warrant
for the arrest of the accused is issued by the trial court and the accused either

CRIMINAL PROCEDURE | CASES

voluntarily submitted himself to the Court or was duly arrested, the Court thereby
acquired jurisdiction over the person of the accused.
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted
to the Court for appropriate action. While it is true that the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be filed in
court or not [sic], once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter should be
addressed for the consideration of the Court. The only qualification is that the action
of the Court must not impair the substantial rights of the accused or the right of the
People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed
in Court any disposition of the case as its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the
best and sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the option to grant
or deny the same. It does not matter if this is done before or after the arraignment
of the accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the
investigation." (Emphasis supplied). 5
In the case at bar, the Court has taken note that before the case was set for trial,
almost ten (10) years had elapsed from the date of filing of the information. It was
not, therefore, unusual that the complainant-offended party, in his affidavit of
desistance manifested that his material witnesses could no longer be contacted, but,
without their testimony, the guilt of the accused could not be proved beyond
reasonable doubt.
The prosecuting fiscal in his motion for reconsideration of the order dismissing the
case, obviously believed that despite such manifestation of the complainant, he
(fiscal) could prove the prosecution's case.
To avoid similar situations, the Court takes the view that, while the Crespo doctrine
has settled that the trial court is the sole judge on whether a criminal case should be
dismissed (after the complaint or information has been filed in court), still, any move
on the part of the complainant or offended party to dismiss the criminal case, even if
without objection of the accused, should first be referred to the prosecuting fiscal for
his own view on the matter. He is, after all, in control of the prosecution of the case
and he may have his own reasons why the case should not be dismissed. It is only

ALARCON | 26

after hearing the prosecuting fiscal's view that the Court should exercise its
exclusive authority to continue or dismiss the case.
WHEREFORE, the petition is hereby DISMISSED. Without costs.
SO ORDERED.

G.R. No. 78492 May 29, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DICK OCAPAN accused-appellant.

GUTIERREZ, JR., J.:

Accused-appellant Dick Ocapan and Joselyn Ocapan, the woman who lived with him
in an ostensible marital relationship, were charged on March 11, 1985 before the
Regional Trial Court of Lanao del Norte at Iligan City with the complex crime of rape
with serious illegal detention.
The case against Joselyn Ocapan was dismissed while Dick Ocapan was convicted
and sentenced accordingly for the crime of serious illegal detention. The decision of
the trial court was appealed to the Court of Appeals which elevated its decision to
this Court for final determination in accordance with Section 13 of Rule 124 of the
Rules of Court which provides:
Whenever a Criminal Cases Division should be of the opinion that the penalty of
death or life imprisonment should be imposed in a case, the said Division after
discussion of the evidence and the law involved, shall render judgment imposing the
penalty of either death or reclusion perpetua as the circumstances warrant, refrain
from entering judgment and forthwith certify the case and elevate the entire record
thereof to the Supreme Court for review.
and with the ruling in People v. Daniel (86 SCRA 511).

CRIMINAL PROCEDURE | CASES

ALARCON | 27

The decision of the Court of Appeals penned by Associate Justice Vicente Mendoza
and concurred in by Associate Justices Josue N. Bellosillo and Hector C. Fule reads as
follows:
The accused-appellant, Dick Ocapan and his common-law wife, Joselyn Ocapan were
accused of rape with serious illegal detention in the Regional Trial Court of Lanao Del
Norte. The information, dated March 11, 1985, alleged:
That on or about January 17, 1985, in the City of Iligan, Philippines, and within the
jurisdiction of this Honorable Court, accused Dick Ocapan conspiring and
confederating with his common-law wife, Joselyn O. Ocapan did then and there
willfully, unlawfully and feloniously and by means of force and intimidation have
carnal knowledge with one Arlene Yupo, a minor and who was working as house
helper, of the said accused; that thereafter, in order to prevent the said Arlene Yupo
from reporting to the proper authorities, detained and deprived her of her liberty for
more than five (5) days.
Later, on motion of the City Fiscal, the trial court dismissed the case against Joselyn
Ocapan on May 23, 1985 on the ground that there was no prima facie case against
her. The case proceeded with respect to Dick Ocapan who pleaded not guilty to the
charge. Trial was thereafter held. The prosecution versions is as follows:
The offended party, Arlene Yupo, was house helper of the accused-appellant, Dick
Ocapan and the latter's common-law wife, Joselyn Ocapan In the evening of January
17, 1985, Joselyn Ocapan made Arlene drink half a glass of Tanduay Rhum, as a
result of which she felt drowsy. She therefore went to bed, but as she was about to
fall asleep, somebody knocked on the door. When she opened it, she saw the
accused-appellant Dick Ocapan. Dick Ocapan had a knife and threatened to kill her if
she shouted. He pushed her to the floor, placed himself on top of her, tore her
blouse and fondled her breasts. He then pulled up her skirt, kissed her, and pulled
down her underwear and inserted his finger into her vagina. Arlene said she lost
consciousness and when she came to, she felt some pain and found her blanket
stained with blood. The accused, who was still in the room, gave her money and
warned her not to tell anybody about the incident, or he would kill her.
The next day, Arlene told Joselyn about the incident. Joselyn told her not to tell
anybody and asked her to stay, but as she insisted on going home, Joselyn slapped
her. Joselyn locked her inside a room whose only window was closed. According to
Arlene, the ground below was muddy and there were many broken glasses, making
it dangerous for her to jump to the ground. Besides, the accused and Joselyn
guarded her. Arlene said she was not allowed to go out, except to go to the toilet.
However, as she refused to eat, she became weak and so, on January 23, 1985, after
five days of detention, the accused-appellant finally released her. According to
Arlene, she stayed at the Cristan Commercial until January 29, 1985, when she saw
her aunt, Saturnina Dagting, passing by and called her to tell her what had
happened to her. At 7:00 in the evening of that day, she was taken by her mother
and her aunt to the police station where she reported the incident. Later she was
examined by Dr. Carmina Barte who found that the hymen had healed lacerations at
1.4 and 6 o'clock positions, and that such lacerations could have been caused from
one week to one year before.

CRIMINAL PROCEDURE | CASES

On the other hand, the defense presented evidence to show that Arlene Yupo and
the accused-appellant were lovers and that Arlene complained to the police only
because her relationship with the accused-appellant had been discovered by the
latter's common-law wife, Joselyn Ocapan and that it is not true that Arlene Yupo had
been detained. According to the accused-appellant, Arlene and he became lovers in
September, 1984 and that they first had sexual intercourse on September 20, 1984,
after which he said he found that Arlene was no longer a virgin. The accusedappellant said he wanted to go to bed with Arlene on January 17, 1986 but it was
Arlene's menstrual period. According to him, in the evening of January 19, 1985, as
they were about to have sex, his common-law wife, Joselyn suddenly came home
from the Molave Disco House, where she was an entertainer and noticed that Dick
was perspiring. This prompted her to go to the room of Arlene, where she found her
completely naked under the blanket.
Arlene denied having an affair with the accused-appellant but the latter admitted
that he and Arlene were lovers. On January 20, 1985, Joselyn drove the accusedappellant out of the house, but kept Arlene because she needed her to look after
their children. Joselyn finally dismissed Arlene on January 23, 1985.
The defense also presented Juliet Pasco, who said that twice, on January 19, 1985
and January 20, 1985, she and Arlene and a certain Caloy went to a place called
Abuno to gather young coconuts and, on January 21, they went to the Big Dipper
Restaurant where they had beer, with Arlene paying the bill. Obviously, the purpose
of her testimony was to show that Arlene was under no restraint at a time when she
claimed she was detained. This witness said that on January 22, 1985 she
accompanied Arlene to Kanaway to see a herb doctor who found her to be pregnant
and prescribed a drink ('camias') which made Arlene menstruate. On January 23,
1985 she said, Arlene transferred to the Cristan Commercial.
On October 7, 1985 the trial court rendered judgment dismissing the rape charge on
the ground that the offended party had not filed a complaint, but finding the
accused-appellant guilty of serious illegal detention. The dispositive portion of the
trial court's decision states:
In view of the foregoing, considering that the prosecution failed to present a signed
complaint of the offended party the case of rape against the accused is hereby
dismissed. However, with regards to the crime of serious illegal detention, the
accused is hereby sentenced after considering the indetermine sentence law and
there being no mitigating nor aggravating circumstance, to suffer a penalty of from
12 years and 1 day of reclusion temporal as minimum to reclusion perpetua as
maximum and to indemnify the offended party the sum of P 20,000.00 in moral and
exemplary damages.
Hence, this appeal. The accused-appellant Contends:
(1) That the information against him was filed by the City Fiscal without giving him
the right to be heard in a preliminary investigation and that his motion for
reinvestigation was summarily denied by the trial court.
(2) That the evidence does not support the finding that he detained the offended
party Arlene Yupo from January 17 to January 23, 1985,

ALARCON | 28

(3) That since the information was for the complex crime of rape with serious illegal
detention, it was error for the trial court to split the crime into two separate offenses
of rape and serious illegal detention.

A Five days.

We shall deal with these contentions in their order.

Witness is on the brink of tears.

First. The record shows that on March 6, 1985 the accused appellant, with the
assistance of counsel, filed a written waiver of the "right to the Second Stage of
Preliminary Investigation" with the Municipal Trial Court. Accordingly, the case was
remanded to the Fiscal's Office for the filing of the corresponding information in the
Regional Trial Court. Rec. pp. 11-12) Nonetheless, a reinvestigation was conducted
by the City Fiscal which on April 25, 1985 recommended the dismissal of the case
with respect to Joselyn Ocapan. On the basis of this recommendation, the trial court
ordered the case against Joselyn Ocapan ,dismissed There is, therefore, no basis for
the accused-appellant's claim that he was denied the right to a preliminary
investigation.

COURT

Moreover, it appears that on May 24, 1985, the accused-appellant pleaded to the
charge and took no further step to raise the question of denial of the right to
preliminary investigation either to this Court or to the Supreme Court. Instead, he
entered into trial. He thus waived whatever right he might have to preliminary
investigation. (People v. Lambino, 103 Phil. 504 (1958); People v. Magpalo, 70 Phil.
176 (1940); People v. Oliveria, 67 Phil. 427 (1939).
Second. The accused-appellant cites the testimony of the offended party, Arlene
Yupo, to the effect that "(she) was detained by her (Joselyn Ocapan inside the room"
(TSN, p. 10, Aug. 15, 1985). The accused- appellant argues that, therefore, it was not
he who detained Arlene. The accused-appellant also cites the testimony of Arlene
that "He (the accused- appellant) usually went out during the evening" (Id. p. 13) to
show that he could not have kept watch over her during her detention.
The testimony of Arlene Yupo is taken out of context. What Arlene said was this:
COURT
When you insisted that you will go home, what was the reply of Joselyn Ocapan?
A She refused.
COURT
What did she do to you, if any ?
A She slapped me.
COURT
After slapping you, what else did she do to you ?
A I was detained by her inside the room.
COURT
How many days were you locked inside the room?

CRIMINAL PROCEDURE | CASES

RECORD:

From Jan. 18 when you were locked inside the room, did you notice the accused Dick
Ocapan?
A He was there.
COURT
What was Dick Ocapan doing, if any?
A They were watching outside.
(TSN, p. 10, Aug. 15, 1985)
On the other hand, when Arlene said that Dick Ocapan the accused- appellant,
"usually went out during the evening," she was answering the question of the trial
court as to the work of the accused-appellant. She was not referring to the period of
her detention. (TSN, p. 13, Aug. 15, 1985)
The accused-appellant also contends: 'Since the accused was no longer at his
residence where Arlene Yupo claimed to have been detained, how could he be held
liable for illegal detention?' That the accused-appellant was allegedly driven out of
his house on January 20, 1985 was his own testimony (TSN, p. 6, September 19,
1985) and that of his wife, Joselyn (TSN, p. 21), Aug. 16, 1985). As far as the
prosecution is concerned, Dick Ocapan was not driven out of their house. On the
contrary, the offended party testified that she could not leave the house of the
accused- appellant because the latter and his wife were guarding her.
Nor is there merit in the claim of the accused-appellant that the trial court relied on
the weakness and supposed inconsistencies of the defense evidence rather than the
strength of the prosecution evidence. In finding the accused-appellant guilty, the
trial court stated:
The prosecution presented sufficient proof showing that Arlene Yupo was raped by
the accused Dick Ocapan on January 17, 1985 and detained up to January 23, 1985
but had to allow her to leave the house because by then Arlene Yupo was not eating
anymore and was becoming weak presumably because of shock suffered by her. The
accused denied having raped Arlene Yupo and claimed that he did not even have
sexual intercourse with her on January 17, 1985 because Arlene Yupo was
menstruating and had sexual intercourse only on January 19, 1985 and that was the
date when they were discovered by his common law wife. He also claims that Arlene
Yupo had been his sweetheart since September 15, 1984 and they had sexual
intercourse for several times. However, the court finds that the testimonies of the
witnesses for the accused to be incredible and contradictory. The accused claims
that he did not have sexual intercourse with Arlene Yupo on January 17, 1985
because the latter was menstruating but the witness for the accused Juliet Pasco

ALARCON | 29

testified that on January 22, 1985 they went to see a quack doctor because of the
delayed menstruation of Arlene Yupo and it was only after Arlene Yupo drank
'camias' on January 22, 1985 that her menstruation came. According to Joselyn
Ocapan the common-law wife of Dick Ocapan she discovered Arlene Yupo and the
accused had sexual intercourse on January 19, 1985 when she went home from her
work as a hostess in the Molave Disco House and she confronted Arlene Yupo at 9:00
o'clock in the morning and that she did not dismiss Arlene Yupo until January 23,
1985 because there was no one who could take care of her children in the house if
she would drive her away. Yet the witness Juliet Pasco testified that on January 19,
1985 they went on an excursion to Abuno to eat young coconuts, going back there
again on January 20 to get coconuts which were eaten by Dick Ocapan that on
January 21, 1985 they went drinking beer at the Big Dipper at 7:00 o'clock in the
evening and stayed for two hours; that on January 22, 1985 they went to Kanaway to
consult a quack doctor about the condition of Arlene Yupo. Certainly this is in conflict
with the testimony of Joselyn Ocapan who claimed that she confronted Arlene Yupo
regarding her relationship with Dick Ocapan on January 20, 1985 and would not
dismiss Arlene Yupo because she needed her to watch her children. If it is true that
Arlene Yupo was confronted regarding her illicit relationship with Dick Ocapan on
January 19, 1985 she would not have gone gallivanting to Abuno with the witness
Juliet Pasco going back there again on January 20, 1985 and then on January 21,
going out to drink. If the claim of Joselyn Ocapan that she did not dismiss
immediately Arlene Yupo because she needed her to watch her children were true,
then Arlene Yupo could not have gone to Abuno on January 19 and 20 and go out
again in the evening of January 21 and 22 with Juliet Pasco as she would be watching
the children. Not only did the testimonies of Juliet Pasco and Joselyn Ocapan
contradict each other but their testimonies were so full of inconsistencies that it
could not merit credence. Juliet Pasco even admitted that she had made several
mistakes during the questioning by the court, mistakes that could not have been
made by a truthful witness. The same thing can be said of Joselyn Ocapan She
stated that she testified because she loves Dick Ocapan (p. 19, TSN August 16,
1985) but later she also testified that she does not love him anymore (p. 21, TSN,
August 16, 1985).
The accused himself also admitted that there was no motive at all for Arlene Yupo to
charge him for rape because according to him he never had any quarrel with Arlene
Yupo at the time he last saw her up to the firing of this case against him is so flimsy
that it could not merit credence. According to him Arlene Yupo filed this case against
him in order to save her honor and in order that she would not be put to shame and
embarassment because their relationship was already known. A woman would not
file a case for rape in order to just save her honor if she was not really raped
because by doing so she would be further exposed to public ridicule.
Third. The accused-appellant argues that the crime charged in the information is the
complex crime of rape with serious illegal detention and that since the offended
party did not file a complaint for this crime, the trial court did not acquire
jurisdiction. He further claims that, in holding that the information charged two
separate offenses, the trial court violated his constitutional right to be informed of
the nature and cause of the accusation against him.
On the other hand, the prosecution argues that the trial court erred in dismissing the
charge for rape because the requirement in Art. 344 of the Revised Penal Code that

CRIMINAL PROCEDURE | CASES

the crime of rape must be prosecuted by complaint of the offended party is not a
jurisdictional requirement as held inValdepanas v. People, 16 SCRA 871 (1966).
Neither contention, we believe, is correct. While the information is indeed entitled
"For Rape with Serious Illegal Detention," it clearly charges two separate offenses,
namely, rape and serious illegal detention. The accused-appellant could have
objected on the ground of duplicity (Rule 110, sec. 13), but since he did not file a
motion to quash on this ground in accordance with Rule 11 7, sec. 3(e), he must be
deemed to have waived the objection. (People v. Policher, 60 Phil. 770 [1934])
On the other hand, we do not think that the Supreme Court intended to reverse a
uniform course of decisions holding that, with respect to crimes against chastity, the
filing of a complaint by the offended party is jurisdictional. Valdepenas v. People,
supra, which the prosecution cites in support of its contention that such complaint is
not jurisdictional simply holds that if the offended party files a com plaint for forcible
abduction, the accused can be found guilty under such complaint of abduction with
consent. The fact is that, in that case, both the offended party and her mother gave
their assent to the complaint. Indeed, as the prosecution acknowledges, in People v.
Zurbano, 37 SCRA 565 (1971), decided after Valdepenas v. People, the Court
reiterated the rule that 'The filing of a complaint for rape or for any other offense
enumerated in Art. 344 of the Revised Penal Code by the person or persons
mentioned therein is jurisdictional.
We hold that the trial court correctly dismissed the rape charge for lack of complaint
by the offended party. (3 Aquino, The Revised Penal Code 1771 [1976])
Fourth. The trial court sentenced the accused-appellant to an indeterminate
sentence of 12 years and 1 day of reclusion temporal, as minimum, to reclusion
perpetua, as maximum. Because of this and contending that the evidence against
him is insufficient, the accused-appellant petitions to be released on bail.
The Solicitor General opposes the bail petition and points out that this case falls
under Art. 267, par. 4, of the Revised Penal Code, which prescribes the penalty
of reclusion perpetua to death. "If the person kidnapped or detained shall be a
minor, female, or a public officer." Accordingly, the Indeterminate Sentence Law
does not apply. In accordance with Art. 63, par. 2, as there are neither mitigating nor
aggravating circumstances, the penalty to be imposed must be reclusion
perpetua as the lesser penalty.
This contention is well taken. Since there is no question that Arlene Yupo was at the
time of her illegal detention 18 years old and the guilt of the accused-appellant has
been established beyond reasonable doubt, the accused-appellant is not entitled to
bail.
WHEREFORE, the decision appealed from is MODIFIED by sentencing the accusedappellant toreclusion perpetua. In all other respects the decision is AFFIRMED. Costs
against the accused-appellant.
The petition for bail of the accused-appellant is DENIED.
In accordance with the ruling in People v. Daniel 86 SCRA 511 (1979), let this case
be forthwith elevated to the Supreme Court for final determination. (Rollo, pp. 7078).

ALARCON | 30

A careful review of the original records of this case and of the briefs and various
pleadings submitted on appeal shows that the findings of facts and conclusions of
law of the Court of Appeals are correct. We adopt its decision as our own.
Considering the foregoing, the accused-appellant is sentenced to reclusion perpetua.
The decision of the trial court is affirmed in all other respects with costs against the
accused-appellant.
SO ORDERED.

COMPLAINT
The undersigned accuses ATTY. AVELINO JAVELLANA, a resident of CPU Compound,
Jaro, Iloilo City, and Cecile Santibaez. a resident of Candido Subdivision, Iloilo City,
for the crime of adultery ...
xxx xxx xxx

G.R. No. L-58595 October 10, 1983

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. RICARDO M. ILARDE, in his capacity as Presiding Judge, CFI of Iloilo,
Br. V, CECILE SANTIBANEZ and AVELINO T. JAVELLANA, respondents.
The Solicitor General for petitioner.
Panfilo B. Enojas for respondents.

ESCOLIN, J.:
Petition for review on certiorari of the order of the then Court of First Instance (now
Regional Trial Court) of Iloilo, Branch V, presided by the respondent Judge Ricardo M.
Ilarde, granting the motion to quash the information in Criminal Case No. 13086,
entitled, "People of the Philippines, plaintiff versus Cecile Santibaez and Avelino T.
Javellana accused."
The information in Criminal Case No. 13086 was filed on March 4, 1981 by City Fiscal
Ricardo P. Galvez. It reads:
The undersigned City Fiscal upon sworn complaint originally filed by the offended
party Efraim Santibaez, copies of which are thereto attached as Annexes "A" and
"B" hereby accused CECILE SANTIBAEZ and AVELINO T. JAVELLANA of the crime of
adultery, committed as follows:
That on or about the 3rd day of November, 1980, in the City of Iloilo, Philippines, and
within the jurisdiction of this Court, said accused Cecile Santibaez being lawfully
married to Efraim Santibaez, which marriage at that time has not been legally
dissolved, with deliberate intent, did then and there wilfully, maliciously and
criminally have sexual intercourse with her coaccused Avelino T. Javellana, a man
not his husband and who in turn knowing fully well that his co-accused was then
lawfully married to Efraim Santibaez, did then and there wilfully, maliciously and
criminally have sexual intercourse with her.
CONTRARY TO LAW.

on November 4, 1980, which complaint was immediately forwarded to the Office of

the City Fiscal for preliminary investigation. Said complaint reads:

Annex "A" referred to in the information is the sworn complaint for adultery filed by
Efraim Santibaez against herein private respondents, Cecile Santibanez and Avelino
T. Javellana, with the Integrated National Police, Iloilo Metro Police District, Iloilo City,

CRIMINAL PROCEDURE | CASES

(Sgd.) EFRAIM SANTIBAEZ

(Signature of complainant)
SUBSCRIBED AND SWORN to before me this 4th day of November, 1980 in the City
of Iloilo:
(Sgd.)
City Fiscal

RICARDO

P.

GALVEZ

Annex "B" of the information is the affidavit-complaint dated November 6, 1980

executed by Efraim Santibaez, sworn to and filed before City Fiscal Galvez on
November 7, 1980, wherein Santibaez recounted in detail the antecedents which
brought about the apprehension in flagrante of privaterespondents. The same is
quoted as follows:
I, EFRAIM SANTIBAEZ, of age, married, and a resident of Fundidor Molo, Iloilo City,
after having been duly sworn to according to law depose and say:
That I am legally married to Cecile Soriano in a Civil Marriage solemnized by Judge
Vicente Santos, City Court of Pasay City on March 22, 1974 but subsequently
remarried in a religious ceremony before Rev. Panfilo T. Brasil at the Parish Church of
La Paz, iloilo City on July 18, 1974, xerox copies of the aforesaid marriage contracts
are hereto attached as Annexes "A" and "B", forming integral parts of this affidavit;
After our marriage, I built a house for our permanent residence and as our conjugal
home in Fundidor, Molo, Iloilo City and furnished it with all the comforts well within
my means;
At the start of our marriage, I was led to believe by my wife of her total concern,
love and devotion to me valid in turn I lavished her with all the material comfort at
my command and even tried to build up her social status by sending her as a
delegate to the Zonta World Conference at Washington, D.C. last July, 1980 without
any company. As a token of my love and unfailing trust we went sightseeing and on
second honeymoon to Hongkong only last month.
Sometime during the last week of October, 1980, while I went on my normal work
routine to Passi Sugar Millsite in Passi Iloilo, my son Edmund took me aside in
confidence and told me that he has some very delicate matters to take up with
which may be misinterpreted by me or may be taken by her in a wrong light;
however, he said hat the his valid dignity of the family is at mistake and I have to
know it whatever be the consequence. After I gave him the go signal, he narrated to
her that my wife Cecile Sorianosos has been unfaithful to me and has been. having

ALARCON | 31

illicit relationship with another man. Of curse, I was taken aback and stunned so I
asked him for the source of his information. He informed me that our maid Elsa
Barios and our driver Loreto Reales had beeen aware of the relationship and the man
usually went to my house and even slept there whenever I was in Manila. I got angry
and blamed our maid and the driver for not telling me but Edmund told me that they
were afraid to tell because they were threatened. After I have calmed down, I
commended that if I confront my wife about her illicit relationship, she will surely
deny it. So I thought that the best way was to catch her red-handed in the act of
infidelity so that she could not deny it. anymore. I suggested to Edmund to think of a
plan so we can catch his wife red-handed.
After several days of planning we agreed to put our plan of action in operation on
November 3, 1980 since I will be leaving for Manila in the morning of that day. Our
problem was how to catch my wife in the very act of having sexual intercourse with
her lover considering the fact that our master's room was air-conditioned with all
windows framed by glass jalousies closed and covered by curtains. At first we
thought of breaking down the main door with a sledge hammer so we could take
them by surprise, later we abandoned the Idea because of legal complications,
Finally, I thought of removing a glass of the jalousy so the inside of the bedroom can
be seen from the outside once the curtain can be brushed aside by means of a thin
wire and the persons on bed could be seen clearly since the bed is on the same level
as the opening of the window. After several experiments whenever my wife was out,
I found out that my wife cannot notice the removal of the glass jalousy since our
windows are screened from the inside of our room.

that he was sick of cancer and decided to leave for the United States for medical
treatment. Before his departure, he executed a holographic Will, dated January 10,
1981, a portion of which provided:
I do hereby disinherit my second wife Cecilia Sorianosos of any and all inheritance
she is entitled under the law as my wife on the ground that she had given cause for
legal separation by committing acts of adultery with Atty. Bob Javellana in the
evening of November 3, 1980 in my conjugal abode at Candido Subdivision and as a
result of which I charged her and Atty. Bob Javellana for adultery with the Fiscal's
Office and I filed a case of legal separation against her in Civil Case No. SP- 11-309
of the Juvenile and Domestic Relations Court in Iloilo City for which act of infidelity, I
can never forgive her. 2
On January 15, 1981, after several requests for postponement, private respondents
submitted their memorandum to the Fiscal's Office; and on February 19, 1981, Fiscal
Galvez issued a resolution finding the existence of a prima facie case for adultery
against private respondents.
On February 26, 1981, Fiscal Galvez was informed by relatives of Efraim Santibaez
that the latter had died in the United States on February 16, 1981. This
notwithstanding, he prepared the information in question on March 3, 1981, and on
the following and filed the same with the Court of First Instance of Iloilo.

As pre-arranged, I removed one jalousy glass of the window of our master room so
that the people inside our room could be seen actually from the outside and the
moment my wife and her lover is seen in the act of sexual intercourse.

Private respondents filed a motion to quash the information on the ground that the
court did not acquire jurisdiction over the offense charged, as the offended party
had not filed the required complaint pursuant to the provisions of Article 344 of the
Revised Penal Code and Section 4, Rule 110 of the Rules of Court to the effect that
"the crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed and the offended spouse,"

Having completed all the plans to effect our plan of operation, I told my wife that I
Qfor Manila on that day. I instructed my son Edmund to inform me immediately of
the result of the plan of action as soon as possible.

Finding merit in the position taken by private respondents, respondent judge granted
the motion and dismissed the case. The city fiscal moved for a reconsideration, but
the same was denied. Hence, the present recourse.

Almost midnight of November 3, 1980, I was informed by my daughter-in-law

Rebecca that the operation was successful and resulted in the arrest of my wife and
Atty. Bob Javellana inside our bedroom.

The sole issue to be resolved is whether or not there has been compliance with the
requirement of Article 344 of the Revised Penal Code, reiterated in Section 4, Rule
110 of the Rules of Court, that "the crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended party "

I know Atty. Bob Javellana for quite a time and we have been close friends. As a
friend he has come to our house at Molo Iloilo City oftentimes to discuss matters
about the court case between the Iloilo City Government and St. Therese Memorial
Chapel which is a business which I have given to my wife Cecile. Atty. Javellana knew
that Cecile Sorianosos is my legally married wife.
When I returned to Iloilo City from Manila on November 4, 1980, I was shown the
photographs taken inside our master bedroom and I am attaching hereto the
photographs which are marked as Annexes "C", "D", "E", "F", "G", "H", "I" and "J".
That I am formally charging my wife, Cecile Sorianosos and Atty. Bob Javellana of
Qcomplaint against them (pp. 4-5, Original Records).
Sometime in January 1981, i.e., before the conclusion of the preliminary
investigation then being conducted by the Fiscal's Office, Efraim Santibaez learned

CRIMINAL PROCEDURE | CASES

We rule in the affirmative,

We are aware that in a long line of decisions, 3 this Court has maintained strict
adherence to the requirement imposed by Article 344 of the Revised Penal Code.
It must be borne in mind, however, that this legal requirement was imposed "out of
consideration for the aggrieved party who might prefer to suffer the outrage in
silence rather than go through the scandal of a public trial." 4 Thus, the law leaves it
to the option of the aggrieved spouse to seek judicial redress for the affront
committed by the erring spouse. And this, to Our mind, should be the overriding
consideration in determining the issue of whether or not the condition precedent
prescribed by said Article 344 has been complied with. For needless to state, this
Court should be guided by the spirit, rather than the letter, of the law.

ALARCON | 32

In the case at bar, the desire of the offended party, Efraim Santibaez, to bring his
wife and her alleged paramour to justice is only too evident. Such determination of
purpose on his part is amply demonstrated in the dispatch by which he filed his
complaint with the police [annex "A", supra]; the strong and unequivocal statement
contained in the affidavit filed with the Fiscal's Office that "I am formally charging
my wife Cecile Sorianosos and Atty. Bob Javellana of the crime of adultery and would
request that this affidavit be considered as a formal complaint against them" [Annex
"B", supra]; his filing of a complaint for legal separation against Cecile Santibaez
with the local Juvenile and Domestic Relations Court; and finally, in disinheriting his
wife in his Last Will and Testament dated January 10, 1981.
In quashing the information, respondent judge relied upon Our decision in People vs.
Santos 5 to the effect that a "salaysay" or sworn statement of the offended party,
which prompted the fiscal to conduct a preliminary investigation and then to file an
information in court, was not the complaint required by Article 344 of the Revised
Penal Code.
The ruling in Santos is not applicable to the case at bar. In that case, the "salaysay"
executed by complainant Bansuelo was not considered the complaint contemplated
by Article 344 of the Revised Penal Code because it was a mere narration of how the
crime of rape was committed against her. However, in the affidavit-complainant
submitted by Efraim Santibaez, the latter not only narrated the facts and
circumstances constituting the crime of adultery, but he also explicitly and
categorically charged private respondents with the said offense. Thus
That I am formally charging my wife Cecile Sorianosos and Atty. Bob Javellana of the
crime of adultery and would request that this affidavit be considered as a formal
complaint against them.

... in a case where the Fiscal filed an Information charging the accused with "telling
some people ill the neighborhood that said Fausta Bravo (a married woman) was a
paramour of one Sangalang, a man not her husband", and Fausta Bravo did not
subscribe to the complaint this Court held that the trial court had no jurisdiction over
the case. It ruled that since the accused imputed to Fausta Bravo the commission of
adultery, a crime which cannot be prosecuted cle oficio, the Information filed by the
Fiscal cannot confer jurisdiction upon the court of origin.
lt must be noted, however, that this error could be corrected without sustaining the
motion to quash and dismissing the case. Pursuant to section I of paragraph (a) of
Presidential Decree No. 77, under which the Assistant City Fiscal conducted the
preliminary investigation the statement of the complainant was sworn to before the
aforesaid Investigating Fiscal. Assuming that the recitals in said worn statement
contain all those required of a complaint under the rules i copy of said verified statement of the complainant should be filed With respondent Court in order to
comply with the requirements of Article 360 of the Revised Penal Code; otherwise,
the respondent Fiscal should file with said court a verified complaint of the offended
party
Upon these premises, We cannot but conclude that the adultery charge against
private respondents is being prosecuted "upon complaint filed by the offended
party."
WHEREFORE, the petition is hereby granted. The orders of the Court of First Instance
of Iloilo, Branch V, in Criminal Case No. 13086, dated May 21 and September 14,
1981, are hereby set aside, and respondent judge is directed to proceed with the
trial of the case on the merits. No costs.
SO ORDERED.

Moreover, in Santos, this Court noted that the information filed by Rizal Provincial
Fiscal Nicanor P. Nicolas "commenced with the statement "the undersigned fiscal
accuses Engracio Santos with the crime of rape," the offended party not having been
mentioned at all as one of the accusers." In the instant case, however, the
information filed by the city fiscal of Iloilo reads as follows:
The undersigned city fiscal upon sworn statement originally filed by the offended
party Efraim Santibaez, xerox copies of which are hereto attached as Annexes "A"
and "B" ...
Undoubtedly, the complaint-affidavit filed by Santibaez contains all the elements of
a valid complaint, as "it states the names of the defendants, the designation of the
offense by the statute, the acts or omission complained of as constituting the
offense; the name of the offended party, the approximate time of the commission of
the offense, and the place wherein the offense was committed. 6
What is more, said complaint-affidavit was attached to the information as an integral
part thereof, and duly filed with the court. As held in Fernandez vs. Lantin, 7 the filing
in court of which affidavit or sworn statement of the offended party, if it contains all
the allegations required of a criminal complaint under Section 5, Rule 110 of the
Rules of Court, constitutes sufficient compliance of the law. Thus:

CRIMINAL PROCEDURE | CASES

ALARCON | 33

seriously wounding Agustin Reloj and Cipriano's daughter, Merlinda. The dispositive
portion of the decision states:
WHEREFORE, the Court hereby finds the guilt of accused Ricarte Madali and Annie
Mortel Madali beyond reasonable doubt of the following offenses and sentences each
of them as follows:
(1) For the frustrated murder of Agustin Reloj, each accused is meted an
indeterminate penalty of SIX (6) YEARS of prision correccional, as minimum to
TWELVE (12) YEARS and ONE (1) DAY ofreclusion temporal, as maximum. (E)ach of
them is also sentenced to suffer all the accessory penalties provided for by law, and
each is ordered to pay in solidum the offended party, Agustin Reloj, the sum of
P200.00 as reimbursement of medical and hospitalization expenses.
(2) For the murder of Felix Gasang, each accused is sentenced the penalty
of reclusion perpetuaand each of them is likewise sentenced to suffer the accessory
penalties provided for by law, and each is also ordered to pay in solidum to the heirs
of Felix Gasang, the sum of P12,000, as death indemnity.
(3) For the murder of Cipriano Gasang and the mortal (sic) wounding of Merlinda
Gasang (which has been converted into a complex crime of murder with frustrated
murder) each accused is sentenced to the penalty of reclusion perpetua together
with the accessory penalties provided for by law and to indemnify in solidum the
heirs of Cipriano Gasang the sum of P12,000.00 and each is also ordered to pay in
solidum, Merlinda Gasang the sum of P6,000 for reimbursement of medical and
hospitalization expenses.
Each of the accused is likewise ordered to pay in solidum the heirs of deceased,
Cipriano Gasang and Felix Gasang, the sum of P50,000.00, which amount represents
the value of the loss (sic) earning capacity of deceased Cipriano and Felix, both
surnamed Gasang, and the sum of P30,000.00 as moral damages, and the sum of
P10,000.00 as exemplary damages.
The sentences of reclusion perpetua and the indeterminate penalty imposed upon
each accused should be served successively, with proportionate costs.
G.R. Nos. L-67803-04 July 30, 1990

IT IS SO ORDERED. 2

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
Pat. RICARTE MADALI and ANNIE MORTEL MADALI, defendants-appellants.

According to the prosecution, said crimes stemmed from an altercation between the
son of the Madali spouses, Ramon, and the group of Felix Gasang, who was twenty
years old when he was killed. 3 It appears that on October 26, 1979, Felix figured in a
fist-fight with someone who was a friend of Ramon. The latter interceded and
mauled Felix with a "chako" 4 One of Felix's companions then was Agustin Reloj. 5

The Solicitor General for plaintiff-appellee.

Juan B. Soliven for defendants-appellants.

FERNAN, C.J.:
Husband and wife Patrolman Ricarte Madali and Annie Mortel Madali appeal from a
decision of the Regional Trial Court of Romblon, Branch LXXXI 1 finding them guilty
beyond reasonable doubt of killing father and son Cipriano and Felix Gasang, and

CRIMINAL PROCEDURE | CASES

The following day, the police summoned Felix to the municipal building. Felix's
mother, Desamparada Gasang, went with him. 6 At the police station, Ricarte Madali,
a police officer, angrily scolded Felix and his cousin, Arnaldo Fadriquilan, and told
them that because they were "very brave", he would put them in jail for twelve
hours. Madali added after asking about Felix's age that he would "sow bullets" in the
body of Felix. 7 According to witness policeman Aristeo Fetalino, Madali also uttered,
"Kailangan sa imo lubongan bala" which means, what you need is a bullet embedded
in you. 8Madali's father-in-law, Agustin Mortel, who arrived at the police station,
agreed with Madali that Felix and his group must be "sown with bullets" to eradicate

ALARCON | 34

them. 9 Another group mate of Felix was detained at the municipal jail but Felix was
sent home with his mother. 10
At around 9:00 o'clock in the evening of October 31, 1979, Felix and his cousin,
Agustin Reloj, went home together from the town plaza. Their houses were located
near each other in sitio Marawi, barangay Cagbo-aya, San Agustin, Romblon.
Felix and Agustin parted ways at the Marawi bridge. Felix dropped by the store of
Coroy Mangao to buy cigarettes while Agustin proceeded home. Around fifteen
meters from the house of Ricarte Madali, the latter accosted, him, held him by his
arm and said, "So you are here, you devil, now you are finished. I have been waiting
for you. I have been watching for you for three nights already. 11 Then Madali
dragged Agustin towards the gate of his (Madali's) house. When Agustin asked
Madali why he was dragging him, Madali said that the reason was because Agustin
helped in fighting his son.
As one of Agustin's feet stepped over the knee-high fence at the gate of the Madali
residence, he was clubbed by Annie Madali with a piece of wood. Annie struck him
first on the left shoulder and would have given him another blow had not Agustin
freed himself from Madali's hold. Annie landed that blow on Madali instead. 12
Agustin was looking back as he ran away when Madali shot him. He was hit below
his right hip. He fell to the ground and did not get up fearing that Madali might shoot
him again. Agustin was still lying down on the ground with his eyes focused on
Madali when Felix Gasang arrived. He saw Annie beamed her flashlight at Felix and
she said, "Here comes another." 13
Agustin saw Felix raising his hands as Annie focused her flashlight on Felix. Felix told
Madali that he would not fight with him but then Madali shot Felix twice. Felix fell to
the ground. Madali was still near the gate of his house when Cipriano Gasang
arrived. Annie beamed her flashlight at Cipriano and she said, "Here comes, here
comes another, fire upon him. 14 Madali shot Cipriano who fell to the ground.
Merlinda Gasang, who was with her father Cipriano, clung to the fence nearby and
shouted that she was also hit. Then Desamparada Gasang arrived and shouted for
help. One Romeo Manes came and carried away Merlinda. Agustin slowly stood up
and as he walked towards his house, he saw Roman Galicia (Galicha) and the Madali
spouses who were then entering their gate. 15
Merlinda Gasang * was at home when she heard an explosion. Her father, Cipriano,
was also at home then but after the second shot, he went out of the house towards
the direction of the source of the gunfire. There was a minute interval between the
first and the second shots but only a second elapsed between the second and the
third shots. The fourth shot came about two minutes later. 16
Cipriano was "beyond the gate" of the Madali residence when he was shot by Madali.
Merlinda was around three meters from her father. 17 She saw Annie focused her
flashlight at Cipriano and she heard Annie say, "Yara pa, yara, pa, barila" meaning
"Here comes another one, here comes another one, shoot." 18 That was when the
fourth explosion occurred and Merlinda heard her father exclaim that he was hit.
Merlinda felt that she was also hit. 19 She did not fall to the ground because she was
able to take hold of the wooden fence. 20 She saw both her brother Felix and Agustin
lying flat on the ground with the latter's head turned to one side. 21

CRIMINAL PROCEDURE | CASES

Merlinda shouted for help. Romeo Manes came and brought her to the Tablas Island
Emergency Hospital. 22 She did not notice anymore where Ricarte Madali was at that
time because she was looking towards the direction of their house. She saw her
mother running to her. 23
Desamparada Gasang was washing the dishes after supper when she heard the first
shot. After the fourth shot, she became apprehensive because a policeman was mad
at her family. 24 She proceeded to where she heard the gunbursts and she met her
daughter Merlinda who informed her that she was shot by Madali and that she saw
Annie focused a flashlight on her. Then Desamparada saw her husband crawling on
the ground. She asked him to stand up but he could not do so. Cipriano told her,
"Ging iwagan ako ni Annie Madali cag ging baril ako ni Ricarte Madali" (Annie
focused a light on me and Ricarte Madali shot me.) She then went back to her
daughter and shouted for help.
The bodies of Cipriano and Felix Gasang were not removed from the road until
around midnight. They were brought to the Gasang residence for autopsy. 25 The
rural health physician who conducted the postmortem examinations on both
Cipriano and Felix found that Cipriano sustained a gunshot wound at the right lower
quadrant of the abdomen along the mammary line. From that point of entry, the
bullet followed an obliquely downward course penetrating the small and large
intestines and the urinary bladder, and exited at the middle of the left buttock.
Cipriano's death was caused by hemorrhage due to the gunshot wound. 26
Felix also died of hemorrhage resulting from the gunshot wound at the right second
intercostal space within the mid-clavicular line of the chest. The bullet veered
backwards towards the left hitting the right lung, its blood vessels and the fourth
cervical vertebra. The second gunshot wound was at the right side of the abdomen
at about the level of the navel and within the right anterior axillary line. The bullet
hit the subcutaneous tissues and exited at the posterior axillary line. 27
Merlyn (Merlinda) Gasang sustained a gunshot wound at the anterior upper third
portion of her right leg with no exit wound and which would incapacitate her for ten
to fifteen days 28 However, she stayed for treatment at the emergency hospital in
San Agustin for 39 days. Later, she was brought to the hospital in Romblon for
extraction of the slug lodged in her leg. For the treatment of her wound, Merlinda
spent P6,200.00. She could not go to school for three months. 29
Agustin Reloj suffered a gunshot wound at the glutael region of the right thigh. The
bullet entered the lateral aspect of the upper third of the right thigh and exited at
the posterior aspect of the gluteus maximus muscle. The attending physician
certified that Agustin's injury would incapacitate him for seven to nine
days, 30 Agustin, who was then a laborer, stayed one week at the hospital and spent
P200 for the treatment of his wound. For his pain and anxiety he stated, that he
should be compensated in the amount of P500.00. 31
Madali voluntarily surrendered to the San Agustin police. 32 He handed his .38 caliber
service revolver to the policemen who arrived at the scene of the crime and they
noted that there were only two remaining bullets in the revolver. 33He was placed
under technical arrest by the provincial commander of the Philippine Constabulary. 34

ALARCON | 35

After the investigation, on February 1, 1980, two informations were filed against
Patrolman Madali and his wife, Annie Mortel Madali. In Criminal Case No. 981, said
spouses were charged with multiple murder for the killing of Felix and Cipriano
Gasang. The information alleged that they conspired, confederated and mutually
helped each other in killing Felix and Cipriano treacherously, with evident
premeditation and with the use of a .38 caliber revolver. 35

When she heard Madali opening the door to the stairs, Annie got up and went to
their balcony to peep. She saw her husband going around their house in a clockwise
direction. When he was near their kitchen, Annie saw him grappling with someone
over the possession of a club. Her husband and his protagonist fell into a canal,
trampling the gabi plants. She heard the man say, "Hay, naga tanga pa kamo dira!"
meaning "What are you still waiting for!"

In the separate information for multiple frustrated murder in Criminal Case No. 982,
conspiracy, treachery and evident premeditation were also alleged as having
attended the felonious assault with the use of a .38 caliber revolver on Merlinda
Gasang and Agustin Reloj which could have resulted in the crime of murder had not
timely and able medical assistance intervened. 36

Annie then saw two persons rushing inside their premises. One person was holding a
club while the other one had something which he appeared to thrust forward. Losing
her composure, Annie warned her husband by calling out his name, "Carte, Carte!"
Then she heard a gunshot and the person holding a club who grappled with her
husband ran out of the premises.

At the trial, both Madali and his wife, who had pleaded not guilty to the crimes
charged, testified in their own defense. According to Madali, at around 9:00 o'clock
in the evening of October 31, 1979, he and his family were about to sleep when a
stone was hurled at their house. His wife said that it could have been a stray stone.
But then, three other stones landed on the GI sidings, and the lawanit and bamboo
walls of their house. Madali went to their porch where he noticed a person crouching
near their gabi plants. He could not identify the person because of the fog so he
went inside their room and dressed up in his fatigue trousers and jacket. He went
down the house and noticed that there was no one in the gabi plants anymore.

Annie heard her husband say, "Pulis ini, ayaw maglapit" meaning "This is a
policeman do not come near." After that, she heard three more gunshots. The two
who came rushing inside their premises scampered away and out of their fence. She
could not recognize the three intruders. Madali then walked towards her and asked
her to call the police. Annie went inside their sala and told her daughter Agnes to
summon the police. 38

Madali was behind their kitchen and about to go back to his house when someone
hit his left shoulder. The person struck him again but he was able to catch the club
aimed at him and strike the person with his nightstick. Madali was about to give him
another blow with his nightstick but the person caught it. They tried to get each
other's club.
They were in that position when Madali's foot stepped into a low canal, causing him
to fall down flat on his back. The intruder fell with him and landed on Madali's
stomach. The person shouted at someone in the vicinity what the latter was tarrying
about. As Madali tried to get up, he heard his wife call, "Carte, Carte." Just then he
kicked the intruder on the stomach and the latter fell to the ground.
Madali hurriedly stood up, pulled his gun and fired at the intruder. He noticed two
other persons approaching him. One person had a club and the other had what
looked like a knife. He warned them, "This is a policeman. Do not come near." One of
the persons proceeded to strike him and Madali was hit on his forehead by the man
with the club. Madali in turn dealt him with a blow by swinging back his left forearm.
The man with a club fell down.
When the man with the knife was about to stab him, Madali fired his gun at him. As
that man was still closing in on him, Madali shot him again. The man with the knife
retreated to the gate and fell just outside of it.
After firing two shots, Madali turned sideward and saw the man with the club about
to strike him. So, Madali shot him. The man walked away. Madali later identified the
man crouching amidst their gabi plants as Agustin Reloj. 37
Annie Mortel Madali corroborated her husband's testimony from the stoning of their
house until he dressed up, got his gun and nightstick, and went out of the house.

CRIMINAL PROCEDURE | CASES

Policeman Numeriano Galang who heard the gun reports, met Agnes on his way to
sitio Marawi. When he arrived at the Madali residence, he found Madali with his face
and jacket smeared with mud and with a swollen forehead. 39 Galang asked Madali
what happened but he did not put his investigation in writing. 40 At the yard, he
found stones, two slippers and a nightstick. 41 He did not find bloodstains in the yard
because it was drizzling. 42 Neither did he find bloodstains outside the yard because
he inspected only the areas surrounding the Madali house. 43
Policeman Antonio Morales arrived at the scene of the crime with two other
policemen. He found Felix Gasang lying flat on his belly about one foot from the
gate. 44 To identify him, they turned Felix's body face up and found that his right
hand was holding a knife. 45 Later, that knife was turned over to police investigator
Pfc. Ernesto Solano. 46 The other victim (Cipriano) was found about five to six meters
from the body of Felix. 47 Like Galang, Morales saw pieces of stones which were
different from the stones found in Madali's yard which were mere corals or "boga,"
two pairs of slippers and the gabi plants which appeared to have been trampled
upon. 48
To prove aggression on the part of his victims, Madali presented a medical certificate
stating that on November 1, 1979, he was examined at the Tablas Island Emergency
Hospital for a vertical contusion (hematoma) on his left forehead and another
contusion on the left deltoid region. 49
The lower court gave full faith and credit to the evidence of the prosecution,
especially the testimonies of eyewitnesses-victims Agustin Reloj and Merlinda
Gasang. It found that the concerted acts of Madali and his wife while committing the
crimes proved conspiracy between them thereby making their criminal responsibility
collective. While finding that the prosecution failed to prove evident premeditation,
the lower court positively appreciated treachery to qualify as murder the killing of
both Cipriano and Felix Gasang. It noted, however, that the prosecution erred in
charging as the separate crimes of murder and frustrated murder the killing of
Cipriano and the wounding of Merlinda. Observing that only one bullet hit Cipriano

ALARCON | 36

and his daughter, Merlinda, the lower court concluded that the Madali spouses
should have been charged with the complex crime of murder and frustrated murder.
Accordingly, it imposed the penalties set out above for the crimes of frustrated
murder, murder and the complex crime of murder and frustrated murder.
In this appeal, the Madali spouses pray for their acquittal arguing that the lower
court erred in: [a] finding Annie Mortel Madali guilty as principal by direct
participation; [b] not finding that the Gasangs and their kins were motivated by
revenge; [c] not finding that Ricarte Madali acted in self-defense; and [d] in giving
credence and/or adopting the theory of the prosecution instead of that of the
defense.
The prosecution of these cases was highlighted by notable developments. Firstly,
before the defense could present its evidence, on September 6, 1980, the capitol
building of Romblon was razed to the ground. All court records were lost. The records
of Criminal Cases Nos. 981 and 982 were, however, reconstituted and the accused
arraigned anew. 50 Secondly, prosecution eyewitness, Roman Galicia recanted his
testimony and appeared for the defense claiming that he did not see the
gunwielder. 51 He alleged that he testified for the prosecution for fear that the
special prosecutor would revive the rape case against him. 52 The lower court
thereafter disregarded his entire testimony inasmuch as only the transcript of his
cross-examination as prosecution witness could be reproduced. 53 Thirdly, only the
testimony of Ricarte Madali was heard by the ponente below as the previous
presiding judge was transferred to another sala. 54
In view of the disqualification of Roman Galicia as a witness, the issue of the
credibility of the eyewitnesses has gained importance in this case. Significantly, it is
the word of the accused Madali spouses as against that of the surviving victims,
Agustin Reloj and Merlinda Gasang. Both prosecution and defense failed to present
corroborative witnesses to buttress their testimonies.
Matters of credibility are ordinarily addressed to the discretion and discernment of
the trial court which is presumed to have observed the demeanor of the witnesses at
the stand. While the ponente of the decision below was able to hear only the
testimony of accused Ricarte Madali, the Court sees no reason for not giving
sufficient weight to his factual findings considering that he took pains in thoroughly
studying the case even to the extent of conducting an ocular inspection of the scene
of the crimes and hearing part of the cross-examination of Madali thereat. 55
The defense is anchored on the justifying circumstance of self-defense. In order that
such plea can prosper, it must be positively shown that there was a previous
unlawful and unprovoked attack that placed the defendant's life in danger and
forced him to inflict more or less severe wounds upon his assailant, employing
thereforreasonable means to resist the said attack. 56
The defense miserably failed to pass said test. Its allegation that the Madali
residence was hurled with stones before Madali confronted the Gasang group, was
not credibly established. No one was able to positively identify the stone-throwers.
Not even Madali and his wife, Annie. There is no proof that the stones found in the
Madali yard were indeed the stones thrown at their house. It is interesting to note
that even defense witness Antonio Morales, a fellow policeman of Madali, testified
that he did not have personal knowledge on where the stones were discovered

CRIMINAL PROCEDURE | CASES

because he was only informed by Galang (another policeman) "who in turn was only
told by Ricarte that the latter was stoned. 57
Indeed, the defense story is riddled with contradictions and loopholes which the
appellants failed to rectify. At the trial, Agustin Reloj sketched a map of the
neighborhood and placed Felix Gasang's body on a spot across the road from the
Madali gate. 58 The defense tried to discredit Reloj's sketch and his testimony
thereon by presenting policemen Morales and Galang who testified that Felix's body
was found close to the gate of the Madali residence. However, the testimonies of
said policemen clashed with each other. Morales testified that both the two dead
bodies were found close to the gate while Galang swore that while one body was
near the gate, the other body was five meters away from the Madali fence. 59 It
should be noted that ten days after the alleged commission of the crime, police
investigator Fetalino found blood stains in the middle of the street indicating that a
blood-drenched
body
had
been
dragged
across
the
street. 60
If it were really true that both Agustin and Cipriano were armed with clubs, at least
Cipriano's club would have been found as he died on the spot. The nightstick found
by the police could not have been the one used by any of the victims. According to
defense witness policeman Galang, the nightstick was similar to that of a
policeman. 61Hence, it could have been the same nightstick which Madali admittedly
used in striking one of the intruders. 62
Granting that Agustin Reloj and Felix and Cipriano Gasang were armed with clubs
and a knife, Madali's means of resisting them was unreasonable under the
circumstance. Having known that an interloper was inside his yard, Madali, being a
policeman, should have first fired a warning shot to deter said intruder from
executing whatever vicious plans he had. As it were, he fired directly at his victims
and all four shots hit their targets.
Moreover, if Agustin, Felix and Cipriano were the intruders, then they should be
credited for their extraordinary bravery in entering the Madali yard. They were
neighbors and they must have known that as a policeman, Madali possessed a
service revolver. The lower court, which saw for itself the Madali yard considered it
"rather inconceivable" for people like the victims to ever dare go inside the premises
armed only with a knife and clubs. 63
The lower court is correct in characterizing the felonious assault on Agustin Reloj as
frustrated murder. While Agustin Reloj was hit only below his right hip, Madali's act
of shooting was plainly attended by an intent to kill. This is evidenced by the
revealing statements of Madali while accosting Agustin Reloj some fifteen (15)
meters from Madali's house, thus: "So you are here, you devil, now you are finished.
I have been waiting for you. I have been waiting for you for three nights
already. 64 The statements "now you are finished" and "I have been waiting for you
for three nights already" sufficiently show that Madali not only intended to do away
with Agustin Reloj but also that the crime had been premeditated. They satisfactorily
prove that Madali had formed a determination to commit the crime prior to the
moment of its execution; that he had clung to his determination and that there was
sufficient interval of time between the determination and the execution of the crime
to allow him to reflect upon the consequences of his act. 65

ALARCON | 37

Moreover, after uttering those damaging statements, Madali dragged Reloj towards
his gate. Annie then clubbed Reloj who, however, succeeded in freeing himself from
Madali's hold. Reloj was running away when Madali shot him, hitting him below the
right hip. 66
Indeed, firing at his fleeing victim and subsequently shooting to death two (2) other
persons on the same occasion, to our mind, evince quite clearly the intent to kill
being then entertained by Madali.
There is likewise no doubt that Madali committed murder when he shot Felix Gasang
twice in the body. Treachery qualified the killing to murder punishable under Article
248 of the Revised Penal Code. There was treachery because of the suddenness of
the attack. Felix was raising his hands, 67 and saying that he would not fight back
when Madali feloniously fired at him twice. Annie Madali's uttering "Here comes
another" before Madali shot Felix may not be considered sufficient warning so as to
rule out suddenness of the attack. 68 However, no generic aggravating circumstance
has been sufficiency proven.
We agree with the trial court that with respect to the killing of Cipriano Gasang and
the wounding of Merlinda Gasang, the crime committed was the complex crime of
murder with frustrated murder inasmuch as a single shot hit them both. 69 It is
immaterial that Merlinda Gasang was wounded on the leg and not on a vital part of
her body. What is of primordial consideration is the fact that the criminal act which
killed Cipriano also caused Merlinda's injury. 70 As in the kiling of Felix, treachery
qualified the killing of Cipriano to murder because of the suddenness of the attack.
Annie Mortel Madali's defense strategy is to deny participation in the commission of
the crimes and to interpose an alibi. She insists that like any other wife, her natural
reaction to situations which involve risk is "to stay away, meditate and to shout and
warn her husband of the intruders rushing towards him. 71 She bewails the fact that
the prosecution has pictured her as "a brave, pugnacious and aggressive wife like
the heroine of the pre-war movie "Annie of the Indies". 72 Indeed, Annie's role in the
commission of the crimes may appear to be straight out of an action picture were it
not for the fact that her denials and uncorroborated alibi cannot stand against the
categorical declarations of prosecution eyewitnesses Agustin Reloj and Merlinda
Gasang on her participation therein. 73 She should have presented witnesses to
support her story. As she herself admitted, she and her husband were not alone in
their house when they were allegedly stoned. Six of their children were home
then. 74 Some of them must have been within the age of discernment inasmuch as
their eldest child was 21 years old and therefore, any one of them could have
corroborated her story.
Nevertheless, the Court finds that proof beyond reasonable doubt has not been
established as to the existence of conspiracy between the Madali spouses. While
direct proof is not essential to prove conspiracy as it may be shown by acts and
circumstances from which may logically be inferred the existence of a common
design among the accused to commit the offense(s) charged, the evidence to prove
the same must be positive and convincing considering that conspiracy is a facile
devise by which an accused may be ensnared and kept within the penal fold. 75 With
this and the principle that in criminal prosecution, doubts must be resolved in favor
of the accused, as guides, the Court rules that the liability of Annie Mortel Madali
with respect to the crimes committed herein, is only that of an accomplice.itc-asl

CRIMINAL PROCEDURE | CASES

Annie's participation in the shooting of the victims consisted of beaming her

flashlight at them and warning her husband of the presence of other persons in the
vicinity. By beaming her flashlight at a victim, Annie assisted her husband in taking a
good aim. However, such assistance merely facilitated the commission of the
felonious acts of shooting. Considering that, according to both of the Madali spouses,
"it was not so dark nor too bright 76 that night or that "brightness and darkness were
equally of the same intensity. 77 Ricarte Madali could have nevertheless
accomplished his criminal acts without Annie's cooperation and assistance.
Neither may Annie's shouts of "here comes, here comes another, shoot" be
considered as having incited Ricarte to fire at the victims to make Annie a principal
by inducement. There is no proof that those inciting words had great dominance and
influence over Madali as to become the determining cause of the crimes. 78 The
rapidity with which Madali admittedly fired the shots 79 eliminated the necessity of
encouraging words such as those uttered by Annie.
The fact that Annie dealt a blow on Agustin while he was being dragged by Madali to
their yard does not make her a principal by direct participation. Annie's act, being
previous to Madali's act of shooting Agustin, was actually not indispensable to the
crime committed against Agustin. 80
Proof of motive is unnecessary where there is a clear identification of the
accused. 81 More so in this case where the principal accused does not deny having
fired the fatal shots. But the Madali spouses must have harbored a deep resentment
against the Gasang family to put into action Madali's threat of "sowing bullets" on
them. What makes Madali's crimes even more reprehensible is the fact that he
claims to have committed them in the pursuit of his task as a peace officer. He even
went to the extent of wearing his fatigue jacket and trousers to create a facade of
performance of an official function. Sadly, he misused his authority and his wife,
harboring an improper sense of connubial cooperation, did not even try to dissuade
him.
Under Article 48 of the Revised Penal Code, the penalty for a complex crime shall be
the maximum period of the penalty for the most serious crime. The death penalty
being the maximum period of the penalty for murder ofreclusion temporal maximum
to death under Article 248 of the same Code, the death penalty should be imposed
for the complex crime of murder with frustrated murder considering that under
Article 63, an indivisible penalty cannot be affected by the presence of any
mitigating or aggravating circumstance. It should be noted that under the ruling
in People v. Muoz, L-38968-70, February 9, 1989, Article III, Section 19(1) of the
1987 Constitution does not change the period of the penalty for murder except only
insofar as it prohibits the imposition of the death penalty and reduces it to reclusion
perpetua. Hence, the lower court correctly imposed the penalty of reclusion
perpetua on Ricarte Madali for said complex crime.
The mitigating circumstance of voluntary surrender which was proven but not
appreciated in favor of Ricarte Madali by the trial court, should be considered in
imposing on him the penalty for the murder of Felix Gasang. The presence of this
mitigating circumstance without any aggravating circumstance to offset the same
justified the imposition of the minimum period of the penalty for murder pursuant to
Article 64(2) of the Revised Penal Code. Accordingly, the proper penalty should be
the indeterminate sentence of not less than ten (10) years and one (1) day of prision

ALARCON | 38

mayor as minimum and not more than twenty (20) years of reclusion temporal as
maximum. 82
The same mitigating circumstance should be considered in the imposition of the
penalty on Ricarte Madali for the crime of frustrated murder committed against
Agustin Reloj. The penalty for frustrated murder in accordance with Article 50 in
relation to Article 248 is prision mayor in its maximum period to reclusion
temporal in its medium period. Taking into consideration the mitigating circumstance
of voluntary surrender and applying the Indeterminate Sentence Law, the penalty
imposed on Ricarte Madali is four (4) years, two (2) months and one (1) day
of prision correccional as minimum to 12 years of prision mayor as maximum.
As an accomplice, Annie Mortel Madali should be imposed the penalty next lower in
degree than that prescribed by law for the consummated felonies. 83 For the complex
crime of murder and frustrated murder, like her husband, she shall be imposed the
penalty of reclusion perpetua, 84 considering that the penalty prescribed by law for
Ricarte Madali is the death penalty. For the murder of Felix Gasang, the penalty
imposable on her is prision mayor maximum to reclusion temporal medium, 85 and
there being no aggravating nor mitigating circumstances, the penalty should
be reclusion temporalminimum. 86 Applying the Indeterminate Sentence Law, Annie
Mortel Madali should therefore be meted the penalty of six (6) years and one (1) day
of prision mayor as minimum to fourteen (14) years and eight (8) months
of reclusion temporal as maximum. For the crime of frustrated murder committed
against Agustin Reloj, Annie Mortel Madali shall be sentenced to an indeterminate
penalty of from six (6) months and one (1) day of prision correccional as minimum to
six (6) years and one (1) day of prision mayor as maximum.
Ricarte Madali and Annie Mortel Madali shall also be liable to the heirs of Cipriano
and Felix Gasang for indemnity in the total amount of sixty thousand pesos
(P60,000) in the proportion of 2:1 (2 shares for Ricarte Madali as principal and 1
share for Annie Mortel Madali as accomplice), with each accused-appellant being
subsidiarily liable for the other in case of insolvency. The Court sees no reason to
disturb the lower court's findings on the reimbursement of hospitalization and
medical expenses in favor of Merlinda Gasang and Agustin Reloj as well as the award
of damages, except to clarify that payment thereof shall likewise be in the
proportion of 2:1 as above stated and with each accused being subsidiarily liable for
the other in case of insolvency.
WHEREFORE, except as hereinabove modified, the decision of the lower court is
hereby affirmed. Costs against the appellants.
SO ORDERED.

G.R. No. L-53373 June 30, 1987

MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT
OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES,
represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET
AL., respondents.

GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a motion to dismiss
a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of

CRIMINAL PROCEDURE | CASES

ALARCON | 39

Justice to whom the case was elevated for review, may refuse to grant the motion
and insist on the arraignment and trial on the merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the
Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit
Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52
(Quezon) '77.1 When the case was set for arraigment the accused filed a motion to
defer arraignment on the ground that there was a pending petition for review filed
with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for
the filing of the information. In an order of August 1, 1977, the presiding judge, His
Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the
order was denied in the order of August 5, 1977 but the arraignment was deferred to
August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate
court. 3
A petition for certiorari and prohibition with prayer for a preliminary writ of injunction
was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP
No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge
Mogul from proceeding with the arraignment of the accused until further orders of
the Court. 5 In a comment that was filed by the Solicitor General he recommended
that the petition be given due course. 6 On May 15, 1978 a decision was rendered by
the Court of Appeals granting the writ and perpetually restraining the judge from
enforcing his threat to compel the arraignment of the accused in the case until the
Department of Justice shall have finally resolved the petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr.,
resolving the petition for review reversed the resolution of the Office of the Provincial
Fiscal and directed the fiscal to move for immediate dismissal of the information filed
against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by
the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a
copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the
private prosecutor was given time to file an opposition thereto. 10 On November 24,
1978 the Judge denied the motion and set the arraigniment stating:
ORDER
For resolution is a motion to dismiss this rase filed by the procuting fiscal premised
on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident
from Annex "A" of the motion wherein, among other things, the Fiscal is urged to
move for dismissal for the reason that the check involved having been issued for the
payment of a pre-existing obligation the Hability of the drawer can only be civil and
not criminal.
The motion's thrust being to induce this Court to resolve the innocence of the
accused on evidence not before it but on that adduced before the Undersecretary of
Justice, a matter that not only disregards the requirements of due process but also
erodes the Court's independence and integrity, the motion is considered as without
merit and therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at
9:00 o'clock in the moming.

CRIMINAL PROCEDURE | CASES

SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and mandamus with
petition for the issuance of preliminary writ of prohibition and/or temporary
restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP08777. 12 On January 23, 1979 a restraining order was issued by the Court of
Appeals against the threatened act of arraignment of the accused until further
orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals
dismissed the petition and lifted the restraining order of January 23, 1979. 14 A
motion for reconsideration of said decision filed by the accused was denied in a
resolution of February 19, 1980. 15
Hence this petition for review of said decision was filed by accused whereby
petitioner prays that said decision be reversed and set aside, respondent judge be
perpetually enjoined from enforcing his threat to proceed with the arraignment and
trial of petitioner in said criminal case, declaring the information filed not valid and
of no legal force and effect, ordering respondent Judge to dismiss the said case, and
declaring the obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without giving due
course to the petition required the respondents to comment to the petition, not to
file a motiod to dismiss, within ten (10) days from notice. In the comment filed by
the Solicitor General he recommends that the petition be given due course, it being
meritorious. Private respondent through counsel filed his reply to the comment and a
separate conunent to the petition asking that the petition be dismissed. In the
resolution of February 5, 1981, the Second Division of this Court resolved to transfer
this case to the Court En Banc. In the resolution of February 26, 1981, the Court En
Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the Solicitor
General filed a Manifestation in lieu of brief reiterating that the decision of the
respondent Court of Appeals be reversed and that respondent Judge be ordered to
dismiss the information.
It is a cardinal principle that an criminal actions either commenced by complaint or
by information shall be prosecuted under the direction and control of the
fiscal. 17 The institution of a criminal action depends upon the sound discretion of
the fiscal. He may or may not file the complaint or information, follow or not fonow
that presented by the offended party, according to whether the evidence in his
opinion, is sufficient or not to establish the guilt of the accused beyond reasonable
doubt. 18 The reason for placing the criminal prosecution under the direction and
control of the fiscal is to prevent malicious or unfounded prosecution by private
persons. 19 It cannot be controlled by the complainant. 20Prosecuting officers under
the power vested in them by law, not only have the authority but also the duty of
prosecuting persons who, according to the evidence received from the complainant,
are shown to be guilty of a crime committed within the jurisdiction of their
office. 21 They have equally the legal duty not to prosecute when after an
investigation they become convinced that the evidence adduced is not sufficient to
establish a prima facie case. 22
It is through the conduct of a preliminary investigation 23 that the fiscal determines
the existence of a puma facie case that would warrant the prosecution of a case. The

ALARCON | 40

Courts cannot interfere with the fiscal's discretion and control of the criminal
prosecution. It is not prudent or even permissible for a Court to compel the fiscal to
prosecute a proceeding originally initiated by him on an information, if he finds that
the evidence relied upon by him is insufficient for conviction. 24Neither has the Court
any power to order the fiscal to prosecute or file an information within a certain
period of time, since this would interfere with the fiscal's discretion and control of
criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for
insufficiency of evidence has authority to do so, and Courts that grant the same
commit no error.26 The fiscal may re-investigate a case and subsequently move for
the dismissal should the re-investigation show either that the defendant is innocent
or that his guilt may not be established beyond reasonable doubt. 27 In a clash of
views between the judge who did not investigate and the fiscal who did, or between
the fiscal and the offended party or the defendant, those of the Fiscal's should
normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor
a writ of prohibition may be issued by the courts to restrain a criminal
prosecution 29 except in the extreme case where it is necessary for the Courts to do
so for the orderly administration of justice or to prevent the use of the strong arm of
the law in an op pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any limitation or
control. The same is subject to the approval of the provincial or city fiscal or the
chief state prosecutor as the case maybe and it maybe elevated for review to the
Secretary of Justice who has the power to affirm, modify or reverse the action or
opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion
to dismiss the rase be filed in Court or otherwise, that an information be filed in
Court. 31
The filing of a complaint or information in Court initiates a criminal action. The Court
thereby acquires jurisdiction over the case, which is the authority to hear and
determine the case. 32 When after the filing of the complaint or information a
warrant for the arrest of the accused is issued by the trial court and the accused
either voluntarily submited himself to the Court or was duly arrested, the Court
thereby acquired jurisdiction over the person of the accused. 33
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted
to the Court for appropriate action. 34 While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be filed in
court or not, once the case had already been brought to Court whatever disposition
the fiscal may feel should be proper in the rase thereafter should be addressed for
the consideration of the Court, 35 The only qualification is that the action of the Court
must not impair the substantial rights of the accused. 36or the right of the People to
due process of law. 36a

grant the motion or deny it and require that the trial on the merits proceed for the
proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed
by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum
in the prosecution? A state prosecutor to handle the case cannot possibly be
designated by the Secretary of Justice who does not believe that there is a basis for
prosecution nor can the fiscal be expected to handle the prosecution of the case
thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see
that justice is done and not necessarily to secure the conviction of the person
accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty
of the fiscal to proceed with the presentation of evidence of the prosecution to the
Court to enable the Court to arrive at its own independent judgment as to whether
the accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such
circumstances much less should he abandon the prosecution of the case leaving it to
the hands of a private prosecutor for then the entire proceedings will be null and
void. 37 The least that the fiscal should do is to continue to appear for the
prosecution although he may turn over the presentation of the evidence to the
private prosecutor but still under his direction and control. 38
The rule therefore in this jurisdiction is that once a complaint or information is filed
in Court any disposition of the case as its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the
best and sole judge on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the option to grant
or deny the same. It does not matter if this is done before or after the arraignment
of the accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the investigation.
In order therefor to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should be left entirely for the
determination of the Court.
WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as
to costs.
SO ORDERED.

Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion
to dismiss was submitted to the Court, the Court in the exercise of its discretion may

CRIMINAL PROCEDURE | CASES

ALARCON | 41

The Department of Justice 349 Committee acted with grave abuse of discretion
when it refused to review the City Prosecutors Joint Resolution and dismissed
petitioners appeal therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it upheld the subject
order directing the issuance of the warrants of arrest without assessing for itself
whether based on such records there is probable cause against petitioners.
IV
[G.R. No. 113930. March 5, 1996]
PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS
LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR.,
ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE
COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as
the Presiding Judge of the Regional Trial Court, Quezon City, Branch 104,
HON. APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON, and HON.
PHILIP A. AGUINALDO, in their capacities as Members of the Department of
Judge 349 Committee, and the CITY PROSECUTOR OF QUEZON
CITY, respondents.
ROBERTO DELGADO, petitioner-intervenor.
DECISION
DAVIDE, JR., J.:
We are urged in this petition to set aside (a) the decision of the Court of Appeals of
28 September 1993 in CA-G.R. SP No. 31226,[1] which dismissed the petition therein
on the ground that it has been mooted with the release by the Department of Justice
of its decision x x x dismissing petitioners petition for review; (b) the resolution of
the said court of 9 February 1994 [2]denying the petitioners motion to reconsider the
decision; (c) the order of 17 May 1993 [3] of respondent Judge Maximiano C. Asuncion
of Branch 104 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No.
Q-93-43198 denying petitioners motion to suspend proceedings and to hold in
abeyance the issuance of the warrants of arrest and the public prosecutors motion
to defer arraignment; and (d) the resolution of 23 July 1993 and 3 February 1994 [4] of
the Department of Justice, (DOJ) dismissing petitioners petition for the review of the
Joint Resolution of the Assistant City Prosecutor of Quezon City and denying the
motion to reconsider the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed for in
this petition:
I
Respondent Judge acted with grave abuse of discretion when he ordered the arrest
of the petitioners without examining the record of the preliminary investigation and
in determining for himself on the basis thereof the existence of probable cause.

The facts on record do not establish prima facie probable cause and Criminal Case
No. Q-93-43198 should have been dismissed.[5]
The antecedents of this petition are not disputed.
Several thousand holders[6] of 349 Pepsi crowns in connection with the Pepsi Cola
Products Phils., Inc.s (PEPSIs) Number Fever Promotion [7] filed with the Office of the
City Prosecutor of Quezon City complaints against the petitioners in their respective
capacities as Presidents or Chief Executive Officers, Chairman of the Board, ViceChairman of the Board, and Directors of PEPSI, and also against other officials of
PEPSI. The complaints respectively accuse the petitioners and the other PEPSI
officials of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise
known as the Consumer Act of the Philippines; (c) violation of E.O. No. 913; [8] and (d)
violation of Act No. 2333, entitled An Act Relative to Untrue, Deceptive and
Misleading Advertisements, as amended by Act No. 3740.[9]
After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona,
released on 23 March 1993 a Joint Resolution [10] where he recommended the filing of
an information against the petitioners and others for the violation of Article 3 18 of
the Revised Penal Code and the dismissal of the complaints for the violation of
Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as
amended by Act No. 3740; and E.O. No. 913. The dispositive portion thereof reads as
follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo
C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto
Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for
estafa under Article 318, Revised Penal Code, while the complaint for violation of
Article 315, 2(d), Revised Penal Code against same respondents Juanito R. Ignacio, R.
Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal,
Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico, Winefreda 0.
Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio, Alex 0.
Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de Borja,
Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San Juan, Joaquin Franco,
Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren, James
Ditkoff and Timothy Lane be dismissed;

II

CRIMINAL PROCEDURE | CASES

ALARCON | 42

2. The complaints against all respondents for violation of R.A. 7394 otherwise known
as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act
3740 and E 0. 913 be also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and
117, 425, 703 and 373, respectively, alleged to be likewise winning ones be further
investigated to afford respondents a chance to submit their counter-evidence. [11]
On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation
with the modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be
excluded from the charge on the ground of insufficiency of evidence.[12]
The information for estafa attached to the Joint Resolution was approved (on 7 April
1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the
City Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April
1993. It was docketed as Criminal Case No. Q-93-43198. [13] The information reads as
follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR.
RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J. ROBERTO
DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B.
PACANNUAYAN, JR. and WONG FONG FUI, of the crime of ESTAFA, committed as
follows:
That in the month of February, 1992, in Quezon City, Philippines and for sometime
prior and subsequent thereto, the above-named accused Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of Directors
Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board
J. Roberto Delgado ) being then Members of the Board
Amaury R. Gutierrez )
Bayani N. Fabic )
Jose Yulo, Jr. )
Esteban B. Pacannuayan, Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one another,
with intent of gain, by means of deceit, fraudulent acts or false pretenses, executed
prior to or simultaneously with the commission of the fraud, did then and there
willfully, unlawfully and feloniously defraud the private complainants whose names
with their prizes claimed appear in the attached lists marked as Annexes A to A-46;
B to -33; C to C-281; D to D-238; E to E-3O and F to F-244 in the following manner:
on the date and in the place aforementioned, said accused pursuant to their

CRIMINAL PROCEDURE | CASES

conspiracy, launched the Pepsi Cola Products Philippines, Inc. Number Fever
Promotion from February 17 to May 8, 1992 later extended to May 11-June 12, 1992
and announced and advertised in the media that all holders of crowns and/or caps of
Pepsi, Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit number will
win the full amount of the prize printed on the crowns/caps which are marked with a
seven-digit security code as a measure against tampering or faking of crowns and
each and every number has its own unique matching security code, enticing the
public to buy Pepsi softdrinks with aforestated alluring and attractive advertisements
to become millionaires, and by virtue of such representations made by the accused,
the said complainants bought Pepsi softdrinks, but, the said accused after their TV
announcement on May 25, 1992 that the winning number for the next day was 349,
in violation of their aforecited mechanics, refused as they still refuse to redeem/pay
the said Pepsi crowns and/or caps presented to them by the complainants, who,
among others, were able to buy Pepsi softdrinks with crowns/caps bearing number
349 with security codes L-2560-FQ and L-3560-FQ, despite repeated demands made
by the complainants, to their damage and prejudice to the extent of the amount of
the prizes respectively due them from their winning 349 crowns/caps, together with
such other amounts they spent ingoing to and from the Office of Pepsi to claim their
prizes and such other amounts used in buying Pepsi softdrinks which the
complainants normally would not have done were it not for the false, fraudulent and
deceitful posters of Pepsi Cola Products, Inc.
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion
for the reconsideration of the Joint Resolution [14] alleging therein that (a) there was
neither fraud in the Number Fever Promotion nor deviation from or modification of
the promotional rules approved by the Department of Trade and industry (DTI), for
from the start of the promotion, it had always been clearly explained to the public
that for one to be entitled to the cash prize his crown must bear both the winning
number and the correct security code as they appear in the DTI list; (b) the
complainants failed to allege, much less prove with prima facie evidence, the
specific overt criminal acts or ommissions purportedly committed by each of the
petitioners; (c) the compromise agreement entered into by PEPSI is not an admission
of guilt; and (d) the evidence establishes that the promo was carried out with utmost
good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for Review [15] wherein,
for the same grounds adduced in the aforementioned motion for reconsideration,
they prayed that the Joint Resolution be reversed and the complaints dismissed.
They further stated that the approval of the Joint Resolution by the City prosecutor
was not the result of a careful scrutiny and independent evaluation of the relevant
facts and the applicable law but of the grave threats, intimidation, and actual
violence which the complainants had inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to
Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the
ground that they had filed the aforesaid Petition for Review. [16]
On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L.
De Guia issued a 1st Indorsement,[17] directing the City Prosecutor of Quezon City to
inform the DOJ whether the petitioners have already been arraigned, and if not, to

ALARCON | 43

move in court for the deferment of further proceedings in the case and to elevate to
the DOJ the entire records of the case, for the case is being treated as an exception
pursuant to Section 4 of Department Circular No. 7 dated 25 January 1990.

1. The resolution constituting [sic] force and duress;

On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch 104 of the
RTC of Quezon City.[18]

3. No criminal overt acts by respondents were proved;

In the morning of 27 April 1993, private prosecutor Julio Contreras filed an ExParte Motion for Issuance of Warrants of Arrest.[19]
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental
Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and to Suspend
Proceedings.[20]He stressed that the DOJ had taken cognizance of the Petition for
Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and
its related cases and asserted that the petition for review was an essential part of
the petitioners right to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC
of Quezon City, issued an order advising the parties that his court would be guided
by the doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151
SCRA 462 and not by the resolution of the Department of Justice on the petition for
review undertaken by the accused.[21]
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a
Motion to Defer Arraignment wherein he also prayed that further proceedings be
held in abeyance pending final disposition by the Department of Justice. [22]
On 4 May 1993, Gavero filed an Amended Information, [23] accompanied by a
corresponding motion[24] to admit it. The amendments merely consist in the
statement that the complainants therein were only among others who were
defrauded by the accused and that the damage or prejudice caused amounted to
several billions of pesos, representing the amounts due them from their winning 349
crowns/caps. The trial court admitted the amended information on the same date. [25]
Later, the attorneys for the different private complainants filed, respectively, an
Opposition to Motion to Defer Arraignment, [26] and Objection and Opposition to
Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of
Arrest.[27]
On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to
Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of
Arrest.[28]
On 17 May 1993, respondent Judge Asuncion issued the challenged order (1)
denying the petitioners Motion to Suspend Proceedings and to Hold In Abeyance
Issuance of Warrants of Arrest and the public prosecutors Motion to Defer
Arraignment and (2) directing the issuance of the warrants of arrest after 21 June
1993 and setting the arraignment on 28 June 1993.[29]Pertinent portions of the order
read as follows:
In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a
petition for review seeking the reversal of the resolution of the City Prosecutor of
Quezon City approving the filing of the case against the accused, claiming that:

CRIMINAL PROCEDURE | CASES

2. There was no fraud or deceit therefore there can be no estafa;

4. Pepsi nor the accused herein made no admission of guilt before the Department
of Trade and Industry;
5. The evidence presented clearly showed no malicious intent on the part of the
accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that
there is a pending petition for review with the Department of Justice filed by the
accused and the Office of the City Prosecutor was directed, among other things, to
cause for the deferment of further proceedings pending final disposition of said
petition by the Department of Justice.
The motions filed by the accused and the Trial Prosecutor are hereby DENIED.
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated
as follows:
In order therefor to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should be left entirely for the
determination of the Court.
WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment be
set on June 28, 1993, at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action
for certiorari and prohibition with application for a temporary restraining order,
[30]
which was docketed as CA-G.R. SP No. 31226. They contended therein that
respondent Judge Asuncion had acted without or in excess of jurisdiction or with
grave abuse of discretion in issuing the aforementioned order of 17 May
1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF
INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS.

PRELIMINARY

II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY LIABLE FOR

ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT THE
SECRETARY OF JUSTICES RESOLUTION OF PETITIONERS APPEAL, AND

ALARCON | 44

IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY
COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining order to
maintain the status quo.[31] In view thereof, respondent Judge Asuncion issued an
order on 28 June 1993[32] postponing indefinitely the arraignment of the petitioners
which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners application for a writ of
preliminary injunction, granted the motion for leave to intervene filed by J. Roberto
Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City to elevate
the original records of Criminal Case No. Q-93-43198[33]
Upon receipt of the original records of the criminal case, the Court of Appeals found
that a copy of the Joint Resolution had in fact been forwarded to, and received by,
the trial court on 22 April 1993, which fact belied the petitioners claim that the
respondent Judge had not the slightest basis at all for determining probable cause
when he ordered the issuance of warrants of arrest. It ruled that the Joint Resolution
was sufficient in itself to have been relied upon by respondent Judge in convincing
himself that probable cause indeed exists for the purpose of issuing the
corresponding warrants of arrest; and that the mere silence of the records or the
absence of any express declaration in the questioned order as to the basis of such
finding does not give rise to an adverse inference, for the respondent Judge enjoys in
his favor the presumption of regularity in the performance of his official duty. The
Court of Appeals then issued a resolution[34] denying the application for a writ of
preliminary injunction.

within its exclusive jurisdiction and competence. The rule is that x x x once a
complaint or information is filed in Court, any disposition of the case as to dismissal
or the conviction or acquittal of the accused rests in the sound discretion of the
Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court, he cannot impose his opinion
on the trial court. The court is the best and sole judge on what to do with the case
before it. x x x (Crespo vs. Mogul, 151 SCRA 462).[40]
On 28 September 1993, the Court of Appeals promulgated a decision [41] dismissing
the petition because it had been mooted with the release by the Department of
Justice of its decision x x x dismissing petitioners petition for review by inerrantly
upholding the criminal courts exclusive and unsupplantable authority to control the
entire course of the case brought against petitioners, reiterating with approval the
dictum laid down in the Crespo case.
The petitioners filed a motion to reconsider the DOJs dismissal of the petition citing
therein its resolutions in other similar cases which were favorable to the petitioners
and adverse to other 349 Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its 349 Committee, denied the
motion and stated: The instant petition is different from the other petitions resolved
by this Department in similar cases from the provinces. In the latter petitions, the
complaints against herein respondents [sic] [42] were dismissed inasmuch as the
informations have not yet been filed or even if already filed in court, the proceedings
have been suspended by the courts to await the outcome of the appeal with this
Department.[43]

On 8 June 1993, the petitioners filed a motion to reconsider [35] the aforesaid
resolution. The Court of Appeals required the respondents therein to comment on
the said motion.[36]

The petitioners likewise filed a motion to reconsider [44] the aforesaid Court of Appeals
decision, which the said court denied in its resolution [45] of 9 February 1994. Hence,
the instant petition.

On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No.
31226 a Manifestation[37] informing the court that the petitioners petition for review
filed with the DOJ was dismissed in a resolution dated 23 July 1993. A copy[38] of the
resolution was attached to the Manifestation.

The First Division of this Court denied due course to this petition in its resolution
of 19 September 1994.[46]

On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a

motion to dismiss the petition [39] on the ground that it has become moot and
academic in view of the dismissal by the DOJ of the petitioners petition to review the
Joint Resolution. The dismissal by the DOJ is founded on the following exposition:
You questioned the said order of the RTC before the Court of Appeals and prayed for
the issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing
any warrant of arrest and from proceeding with the arraignment of the accused. The
appellate court in a resolution dated July 1, 1993, denied your petition.
In view of the said developments, it would be an exercise in futility to continue
reviewing the instant cases for any further action on the part of the Department
would depend on the sound discretion of the Trial Court. The denial by the said court
of the motion to defer arraignment filed at our instance was clearly an exercise of its
discretion. With the issuance of the order dated May 17, 1993, the Trial Court was in
effect sending a signal to this Department that the determination of the case is

CRIMINAL PROCEDURE | CASES

On 7 October 1994, the petitioners filed a motion for the reconsideration [47] of the
aforesaid resolution. Acting thereon, the First Division required the respondents to
comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration [48] and a
motion to refer this case to the Court en banc.[49] In its resolution of 14 November
1994,[50] the First Division granted the latter motion and required the respondents to
comment on the supplemental motion for reconsideration
In the resolution of 24 November 1994, the Court en banc accepted the referral.
On 10 October 1995, after deliberating on the motion for reconsideration and the
subsequent pleadings in relation thereto, the Court en banc granted the motion for
reconsideration; reconsidered and set aside the resolution of 19 September 1994;
and reinstated the petition. It then considered the case submitted for decision, since
the parties have exhaustively discussed the issues in their pleadings, the original
records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been
elevated to this Court, and both the petitioners and the Office of the Solicitor

ALARCON | 45

General pray, in effect, that this Court resolve the issue of probable cause On the
basis thereof.
The pleadings of the parties suggest for this Courts resolution the following key
issues:
1. Whether public respondent Judge Asuncion committed grave abuse of discretion
in denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings
and hold in abeyance the issuance of warrants of arrest and to defer arraignment
until after the petition for review filed with the DOJ shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave abuse of discretion
in ordering the issuance of warrants of arrest without examining the records of the
preliminary investigation.
3. Whether the DOJ, through its 349 Committee, gravely abused its discretion in
dismissing the petition for review on the following bases: (a) the resolution of public
respondent Court of Appeals denying the application for a writ of preliminary
injunction and (b) of public respondent Asuncions denial of the abovementioned
motions.
4. Whether public respondent Court of Appeals committed grave abuse of discretion
(a) in denying the motion for a writ of preliminary injunction solely on the ground
that public respondent Asuncion had already before him the Joint Resolution of the
investigating prosecutor when he ordered the issuance of the warrants of arrest, and
(b) in ultimately dismissing the petition on the ground of mootness since the DOJ has
dismissed the petition for review.
5. Whether this Court may determine in this proceedings the existence of probable
cause either for the issuance of warrants of arrest against the petitioners or for their
prosecution for the crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the negative.
I.
There is nothing in Crespo vs. Mogul[51] which bars the DOJ from taking cognizance of
an appeal, by way of a petition for review, by an accused in a criminal case from an
unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, as
far as practicable, refrain from entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has already been filed in
Court. More specifically, it stated:

Nothing in the said ruling forecloses the power or authority of the Secretary of
Justice to review resolutions of his subordinates in criminal cases. The Secretary of
Justice is only enjoined to refrain as far as practicable from entertaining a petition for
review or appeal from the action of the prosecutor once a complaint or information is
filed in court. In any case, the grant of a motion to dismiss, which the prosecution
may file after the Secretary of Justice reverses an appealed resolution, is subject to
the discretion of the court.
Crespo could not have intended otherwise without doing violence to, or repealing,
the last paragraph of Section 4, Rule 112 of the Rules of Court [54] which recognizes
the authority of the Secretary of Justice to reverse the resolution of the provincial or
city prosecutor or chief state prosecutor upon petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the rules on
appeals from resolutions in preliminary investigation. At the time the petitioners filed
their petition for the review of the Joint Resolution of the investigating prosecutor,
the governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof
provided that only resolutions dismissing a criminal complaint may be appealed to
the Secretary of Justice. Its Section 4, [55] however, provided an exception, thus
allowing, upon a showing of manifest error or grave abuse of discretion, appeals
from resolutions finding probable cause, provided that the accused has not been
arraigned.
The DOJ gave due course to the petitioners petition for review as an exception
pursuant to Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No.
223[56] which superseded Circular No. 7. This Order, however, retained the provisions
of Section 1 of the Circular on appealable cases and Section 4 on the non-appealable
cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall of the
previous action of the DOJ giving due course to the petitioners petition for review.
But whether the DOJ would affirm or reverse the challenged Joint Resolution is still a
matter of guesswork. Accordingly, it was premature for respondent Judge Asuncion
to deny the motions to suspend proceedings and to defer arraignment on the
following grounds:
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.

In order therefore to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court,
the Secretary of Justice should, as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should be left entirely for the
determination of the Court.[52]

The real and ultimate test of the independence and integrity of this court is not the
filing of the aforementioned motions at that stage of the proceedings but the filing of
a motion to dismiss or to withdraw the information on the basis of a resolution of the
petition for review reversing the Joint Resolution of the investigating prosecutor.
Before that time, the following pronouncement in Crespo did not yet truly become
relevant or applicable:

In Marcelo vs. Court of Appeals,[53] this Court explicitly declared:

The rule therefore in this jurisdiction is that once a complaint or information is filed
in Court any disposition of the case as its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the court. Although the fiscal retains the

CRIMINAL PROCEDURE | CASES

ALARCON | 46

direction and control of the prosecution of criminal cases even while the case is
already in court he cannot impose his opinion on the trial court. The court is the best
and sole judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the case filed
by the fiscal should be addressed to the Court who has the option to grant or deny
the same. It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon instructions of
the Secretary of Justice who reviewed the records of the investigation. [57]
However, once a motion to dismiss or withdraw the information is filed the trial
judge may grant or deny it, not out of subservience to the Secretary of Justice, but in
faithful exercise of judicial prerogative. This Court pertinently stated so
in Martinez vs. Court of Appeals:[58]
Whether to approve or disapprove the stand taken by the prosecution is not the
exercise of discretion required in cases like this. The trial judge must himself be
convinced that there was indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the evidence in the
possession of the prosecution. What was imperatively required was the trial judges
own assessment of such evidence, it not being sufficient for the valid and proper
exercise of judicial discretion merely to accept the prosecutions word for its
supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing to make an
independent finding of the merits of the case and merely anchoring the dismissal on
the revised position of the prosecution, the trial judge relinquished the discretion he
was duty bound to exercise. In effect, it was the prosecution, through the
Department of Justice which decided what to do and not the court which was
reduced to a mere rubber stamp in violation of the ruling in Crespo vs. Mogul.
II.
Section 2, Article III of the present Constitution provides that no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial
Courts (MeTCs) except those in the National Capital Region, Municipal Trial Courts
(MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their
exclusive original jurisdiction;[59] in cases covered by the rule on summary procedure
where the accused fails to appear when required; [60] and in cases filed with them
which are cognizable by the Regional Trial Courts (RTCs); [61] and (2) by the
Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in
cases filed with them after appropriate preliminary investigations conducted by
officers authorized to do so other than judges of MeTCs, MTCs and MCTCs. [62]
As to the first, a warrant can issue only if the judge is satisfied after an examination
in writing and under oath of the complainant and the witnesses, in the form of
searching questions and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice.

CRIMINAL PROCEDURE | CASES

As to the second, this Court held in Soliven vs. Makasiar[63] that the judge is not
required to personally examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the
report and supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the fiscals report and
require the submission of supporting affidavits of witnesses to aid him in arriving at
a conclusion as to the existence of probable cause.[64]
Sound policy supports this procedure, otherwise judges would be unduly laden with
the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts. It must be
emphasized that judges must not rely solely on the report or resolution of the fiscal
(now prosecutor); they must evaluate the report and the supporting documents. In
this sense, the aforementioned requirement has modified paragraph 4(a) of Circular
No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance
of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which
provided in part as follows:
4. In satisfying himself of the existence of a probable cause for the issuance of a
warrant of arrest, the judge, following established doctrine and procedure, may
either:
(a) Rely upon the fiscals certification of the existence of probable cause whether or
not the case is cognizable only by the Regional Trial Court and on the basis thereof,
issue a warrant of arrest. x x x
This requirement of evaluation not only of the report or certification of the fiscal but
also of the supporting documents was further explained in People vs. Inting,
[65]
where this Court specified what the documents may consist of, viz., the affidavits,
the transcripts of stenographic notes (if any), and all other supporting documents
behind the Prosecutors certification which are material in assisting the Judge to
make his determination of probable cause. Thus:
We emphasize the important features of the constitutional mandate that x x x no
search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge x x x (Article III, Section 2, Constitution).
First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the
Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It
merely assists him to make the determination of probable cause. The Judge does not
have to follow what the Prosecutor presents to him. By itself, the Prosecutors
certification of probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutors certification which are material in assisting the Judge to make his
determination.
In adverting to a statement in People vs. Delgado[66] that the judge may rely on the
resolution of the Commission on Elections (COMELEC) to file the information by the

ALARCON | 47

same token that it may rely on the certification made by the prosecutor who
conducted the preliminary investigation in the issuance of the warrant of arrest, this
Court stressed in Lim vs. Felix[67] that
Reliance on the COMELEC resolution or the Prosecutors certification presupposes
that the records of either the COMELEC or the Prosecutor have been submitted to
the Judge and he relies on the certification or resolution because the records of the
investigation sustain the recommendation. The warrant issues not on the strength of
the certification standing alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and practice under
the 1935 and 1973 Constitutions, this Court found it necessary to restate the rule in
greater detail and hopefully clearer terms. It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to
personally examine the complainant and his witnesses. The Prosecutor can perform
the same functions as a commissioner for the taking of the evidence. However,
there should be a report and necessary documents supporting the Fiscals bare
certification. All of these should be before the Judge.
The extent of the Judges personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judges examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is vested in the Judge by
the Constitution. It can be as brief as or detailed as the circumstances of each case
require. To be sure, the Judge must go beyond the Prosecutors certification and
investigation report whenever, necessary. He should call for the complainant and
witnesses themselves to answer the courts probing questions when the
circumstances of the case so require.
This Court then set aside for being null and void the challenged order of respondent
Judge Felix directing the issuance of the warrants of arrest against petitioners
Lim, et al., solely on the basis of the prosecutors certification in the informations that
there existed probable cause without having before him any other basis for his
personal determination of the existence of a probable cause.
In Allado vs. Diokno,[68] this Court also ruled that before issuing a warrant of arrest,
the judge must satisfy himself that based on the evidence submitted there is
sufficient proof that a crime has been committed and that the person to be arrested
is probably guilty thereof.
In the recent case of Webb vs. De Leon,[69] this Court rejected the thesis of the
petitioners of absence probable cause and sustained the investigating panels and
the respondent Judges findings of probable cause. After quoting extensively
from Soliven vs. Makasiar,[70] this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law repudiate the
submission of petitioners that respondent judges should have conducted searching
examination of witnesses before issuing warrants of arrest against them. They also
reject petitioners contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order
of Arrest prior to a warrant of arrest.

CRIMINAL PROCEDURE | CASES

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the
two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and
Lolita Birrer as well as the counter- affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties evidence made in the DOJ Panel
Report satisfied both judges that there is probable cause to issue warrants of arrest
against petitioners. Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of the guilt of an
accused. In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial determination of
the prosecutor finding a probable cause to see if it is supported by substantial
evidence. The sufficiency of the review process cannot be measured by merely
counting minutes and hours. The fact that it took the respondent judges a few hours
to review and affirm the Probable cause determination of the DOJ Panel does not
mean they made no personal evaluation of the evidence attached to the records of
the case. (italics supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition
that the investigating prosecutors certification in an information or his resolution
which is made the basis for the filing of the information, or both, would suffice in the
judicial determination of probable cause for the issuance of a warrant of arrest. In
Webb, this Court assumed that since the respondent Judges had before them not
only the 26-page resolution of the investigating panel but also the affidavits of the
prosecution witnesses and even the counter-affidavits of the respondents, they
(judges) made personal evaluation of the evidence attached to the records of the
case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
information upon its filing on 12 April 1993 with the trial court. As found by the Court
of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was
forwarded to, and received by, the trial court only on 22 April 1993. And as revealed
by the certification[71] of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the
witnesses, transcripts of stenographic notes of the proceedings during the
preliminary investigation, or other documents submitted in the course thereof were
found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly,
when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing,
among other things, the issuance of warrants of arrest, he had only the information,
amended information, and Joint Resolution as bases thereof. He did not have the
records or evidence supporting the prosecutors finding of probable cause. And
strangely enough, he made no specific finding of probable cause; he merely directed
the issuance of warrants of arrest after June 21, 1993. It may, however, be argued
that the directive presupposes a finding of probable cause. But then compliance with
a constitutional requirement for the protection of individual liberty cannot be left to
presupposition, conjecture, or even convincing logic.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course
to the petitioners petition for review pursuant to the exception provided for in
Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of Quezon
City to forward to the Department the records of the cases and to file in court a
motion for the deferment of the proceedings. At the time it issued the indorsement,
the DOJ already knew that the information had been filed in court, for which reason it

ALARCON | 48

directed the City Prosecutor to inform the Department whether the accused have
already been arraigned and if not yet arraigned, to move to defer further
proceedings. It must have been fully aware that, pursuant to Crespo vs. Mogul, a
motion to dismiss a case filed by the prosecution either as a consequence of a
reinvestigation or upon instructions of the Secretary of Justice after a review of the
records of the investigation is addressed to the trial court, which has the option to
grant or to deny it. Also, it must have been still fresh in its mind that a few months
back it had dismissed for lack of probable cause other similar complaints of holders
of 349 Pepsi crowns.[72] Thus, its decision to give due course to the petition must
have been prompted by nothing less than an honest conviction that a review of the
Joint Resolution was necessary in the highest interest of justice in the light of the
special circumstances of the case. That decision was permissible within the as far as
practicable criterion in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on 23 July
1993 a unilateral volte-face, which was even unprovoked by a formal pleading to
accomplish the same end, by dismissing the petition for review. It dismissed the
petition simply because it thought that a review of the Joint Resolution would be an
exercise in futility in that any further action on the part of the Department would
depend on the sound discretion of the trial court, and that the latters denial of the
motion to defer arraignment filed at the instance of the DOJ was clearly an exercise
of that discretion or was, in effect, a signal to the Department that the determination
of the case is within the courts exclusive jurisdiction and competence. This infirmity
becomes more pronounced because the reason adduced by the respondent Judge
for his denial of the motions to suspend proceedings and hold in abeyance issuance
of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the petitioners
Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of
Arrest and the public prosecutors Motion to Defer Arraignment, which were both
based on the pendency before the DOJ of the petition for the review of the Joint
Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by
the DOJ of the petition for review might have been correct. However, the petition
likewise involved the issue of whether respondent Judge Asuncion gravely abused
his discretion in ordering the issuance of warrants of arrest despite want of basis.
The DOJs dismissal of the petition for review did not render moot and academic the
latter issue.
In denying in its resolution of 1 July 1993 the petitioners application for a writ of
preliminary injunction to restrain respondent Judge Asuncion from issuing warrants
of arrest, the Court of Appeals ,justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon by respondent
Judge in convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest. The mere silence of the records or the
absence of any express declaration in the questioned Order of May 17, 1993 as to
where the respondent Judge based his finding of probable cause does not give rise
to any adverse inference on his part. The fact remains that the Joint Resolution was
at respondent Judges disposal at the time he issued the Order for the issuance of the
warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of

CRIMINAL PROCEDURE | CASES

regularity in the performance of official actuations. And this presumption prevails

until it is overcome by clear and convincing evidence to the contrary. Every
reasonable intendment will be made in support of the presumption, and in case of
doubt as to an officersact being lawful or unlawful it should be construed to be
lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA
482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36 Phil.
338).
We are unable to agree with this disquisition, for it merely assumes at least two
things: (1) that respondent Judge Asuncion had read and relied on the Joint
Resolution and (2) he was convinced that probable cause exists for the issuance of
the warrants of arrest against the petitioners. Nothing in the records provides
reasonable basis for these assumptions. In his assailed order, the respondent Judge
made no mention of the Joint Resolution, which was attached to the records of
Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found
probable cause for the issuance of warrants of arrest. And, for an undivinable
reason, he directed the issuance of warrants of arrest only after June 21, 1993. If he
did read the Joint Resolution and, in so reading, found probable cause, there was
absolutely no reason at all to delay for more than one month the issuance of
warrants of arrest. The most probable explanation for such delay could be that the
respondent Judge had actually wanted to wait for a little while for the DOJ to resolve
the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno
that whatever doubts may have lingered on the issue of probable cause was
dissolved when no less than the Court of Appeals sustained the finding of probable
cause made by the respondent Judge after an evaluation of the Joint Resolution. We
are not persuaded with that opinion. It is anchored on erroneous premises. In its 1
July 1993 resolution, the Court of Appeals does not at all state that it either
sustained respondent Judge Asuncions finding of probable cause, or found by itself
probable cause. As discussed above, it merely presumed that Judge Asuncion might
have read the Joint Resolution and found probable cause from a reading thereof.
Then too, that statement in the dissenting opinion erroneously assumes that the
Joint Resolution can validly serve as sufficient basis for determining probable cause.
As stated above, it is not.
V.
In criminal prosecutions, the determination of probable cause may either be an
executive or a judicial prerogative. In People vs. Inting,[73] this Court aptly stated:
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from a
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper - whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of trial- is the
function of the Prosecutor.

ALARCON | 49

We reiterate that preliminary investigation should be distinguished as to whether it

is an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecutions job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge x x x.

7. Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1,
1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty
in an appropriate case is confined to the issue of whether the executive or judicial
determination, as the case may be, of probable cause was done without or in excess
of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction.
This is consistent with the general rule that criminal prosecutions may not be
restrained or stayed by injunction, preliminary or final. There are, however,
exceptions to this rule. Among the exceptions are enumerated in Brocka vs.
Enrile[74] as follows:

There can be no doubt that, in light of the several thousand private complainants in
Criminal Case No. Q-93-43198 and several thousands more in different parts of the
country who are similarly situated as the former for being holders of 349 Pepsi
crowns, any affirmative holding of probable cause in the said case may cause or
provoke, as justly feared by the petitioners, the filing of several thousand cases in
various courts throughout the country. Inevitably, the petitioners would be exposed
to the harassments of warrants of arrest issued by such courts and to huge
expenditures for premiums on bailbonds and for travels from one court to another
throughout the length and breadth of the archipelago for their arraignments and
trials in such cases. Worse, the filing of these staggering number of cases would
necessarily affect the trial calendar of our overburdened judges and take much of
their attention, time, and energy, which they could devote to other equally, if not
more, important cases. Such a frightful scenario would seriously affect the orderly
administration of justice, or cause oppression or multiplicity of actions - a situation
already long conceded by this Court to be an exception to the general rule that
criminal prosecutions may not be restrained or stayed by injunction. [76]

a. To afford adequate protection to the constitutional rights of the accused

(Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304;
Hernandez vs. Albano, supra; Fortun vs.Labang, et al., L-38383, May 27, 1981, 104
SCRA 607);
c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70
Phil. 202);
d. When the acts of the officer are without or in excess of authority (Planas vs. Gil,
67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation
(Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109
Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CAG.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance
(Recto vs. Castelo, 18 L.J., [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R,
October 8, 1962; Cf. Guingona,et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); and
j. When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February
18, 1985, 134 SCRA 438).

CRIMINAL PROCEDURE | CASES

In these exceptional cases, this Court may ultimately resolve the existence or nonexistence of probable cause by examining the records of the preliminary
investigation, as it did in Salonga vs. Pao,[75] Allado, and Webb.

We shall not, however, reevaluate the evidence to determine if indeed there is

probable cause for the issuance of warrants of arrest in Criminal Case No. Q-9343298. For, as earlier stated, the respondent Judge did not, in fact, find that probable
cause exists, and if he did he did not have the basis therefor as mandated
by Soliven, Inting, Lim, Allado, and even Webb.Moreover, the records of the
preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court.
They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ
in compliance with the latters 1st Indorsement of 21 April 1993. The trial court and
the DOJ must be required to perform their duty.
WHEREFORE, the instant petition is granted and the following are hereby SET
ASIDE:(a) Decision of 28 September 1993 and Resolution of 9 February 1994 of
respondent Court of Appeals in CA-G.R. SP No. 31226;(b) The Resolution of the 349
Committee of the Department of Justice of 23 July 1993 dismissing the petitioners
petition for review and of 3 February 1994 denying the motion to reconsider the
dismissal; and(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May
1993 in Criminal Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the merits, within sixty (60)
days from notice of this decision, the petitioners petition for the review of the Joint
Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file the
appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent
Judge Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar,
People vs. Inting, Lim vs. Felix, Allado vs. Diokno, and Webb vs. De Leon.

ALARCON | 50

In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from
further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance of
warrants of arrest against the petitioners.
No pronouncement as to costs.
SO ORDERED.
[G.R. Nos. 140961-63. January 14, 2003]
PEOPLE
OF
THE
GALIGAO, accused-appellant.

PHILIPPINES, plaintiff-appellee, vs. BOBBY

DECISION
YNARES-SANTIAGO, J.:
A womans cherished chastity is hers alone to surrender of her own free will, and
whoever violates that will descends to the level of an odious beast. The act becomes
twice repulsive when the outrage is perpetrated on ones own flesh and blood for the
culprit is reduced to a level lower than an animal, which yields only to biological
impulses, unfettered by social inhibitions when it mates with its own kin. On the
other hand, the man who rapes his daughter violates not only her purity and her
trust but also the mores of society which he has scornfully defied. By inflicting his
bestial instincts on her in a disgusting coercion of incestuous lust, he forfeits all
respect as a human being and is justly spurned, not the least by the fruit of his own
loins whose progeny he has forever stained with his shameful and shameless
lechery.[1]
In the case at bar, the sexual depravity of the accused-appellant plumbs into
hitherto unreached depths of the revolting for he satiated his lust not on one
but three of his daughters. This case is their sordid story.
For ravishing his three daughters, AAA, aged ten, BBB, aged eight, and CCC, aged
thirteen, Bobby Galigao was charged with Rape in three Informations,[2] similarly
worded except for names and ages of the victims and the dates of commission of
the crimes, filed before the Regional Trial Court of xxx, as Criminal Cases Nos. C4974, C-4975 and C-4976. The indictments similarly aver
That on or about and sometime during the month of February 1996, in the evening,
in xxx, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, motivated by lust and lewd desire, and by means of force and
intimidation, willfully, unlawfully and feloniously did lie, and succeeded in having
carnal knowledge of his own daughter AAA, an eight-year old girl against the latters
will and consent, and in full view of the victims brother and sisters.
Contrary to law.
BBB was allegedly raped on March 17, 1996; while CCC was allegedly raped on
March 19, 1996.
Upon arraignment on July 24, 1996, accused-appellant pleaded not guilty to the
charges.[3] Thereafter, the three cases were jointly tried on the merits.

CRIMINAL PROCEDURE | CASES

On October 13, 1999, the court a quo found accused guilty beyond reasonable doubt
of Rape on three counts and was sentenced as follows:
ACCORDINGLY, finding herein accused Bobby Galigao y Marcelino guilty beyond
reasonable doubt, as principal, of the crimes of Rape (3 counts) with the qualifying
circumstance that in all these cases, the victims were all under 18 years of age, and
that the offender is the parent of the victims, the Court hereby sentences said
accused to suffer THREE (3) DEATH PENALTIES together with all the accessory
penalties imposed by law and to indemnify the victims: AAA in Criminal Case No. C4974, the amount of P75,000.00 as civil indemnity; P50,000.00 as moral damages
and P50,000.00 as exemplary damages; BBB in Criminal Case No. C-4975, the
amount of P75,000.00, as civil indemnity, P50,000.00 as moral damages and
P50,000.00 as exemplary damages; and CCC in Criminal Case No. C-4976, the
amount of P75,000.00 as civil indemnity, P50,000.00 as moral damages and
P50,000.00 as exemplary damages, without subsidiary imprisonment in case of
insolvency and to pay the costs.
SO ORDERED.[4]
Before us on automatic review, pursuant to Article 47 of the Revised Penal Code, as
amended, accused-appellant argues that the trial court erred
I
IN BASING ITS DECISION ON THE UNCORROBORATED TESTIMONIES OF THE ALLEGED
VICTIMS WITHOUT CONSIDERING THAT THE SAME WERE MERELY FORCED ON THEM
BY THEIR MOTHER WITH THE EVIL INTENTION TO DECAPITATE (sic) THE DEFENDANTAPPELLANT WHO IS A HINDRANCE TO HER ILLICIT RELATIONSHIP WITH HER
PARAMOUR.
II
IN NOT BELIEVING THE TESTIMONY OF THE ACCUSED-APPELLANT.
III
IN FAILING TO CONSIDER THAT ACCUSED-APPELLANT IS UNLETTERED AND LACKS
EVEN THE INSTINCTIVE DECENCY AND UPRIGHT MANNER TANTAMOUNT TO INSANITY
SUFFICIENT TO EXEMPT HIM FROM ANY CRIMINAL LIABILITY.
IV
IN SENTENCING THE ACCUSED-APPELLANT WITH DEATH PENALTY EACH (sic) FOR
THE THREE (3) RAPES WHEN IN FACT RAPE AS A HEINOUS CRIME WAS NOT YET
PUNISHABLE BY DEATH WHEN THE SAME WERE COMMITTED BY HIM SOMETIME IN
FEBRUARY 1996, ON 17 MARCH 1996 AND ON 19 MARCH 1996 AGAINST DIFFERENT
VICTIMS.[5]
The details of their ravishment is graphically narrated by the victims themselves.
AAA, who was twelve years old when she took the witness stand, testified that
sometime in the night of February 1996, her sisters BBB and CCC, together with
their brother DDD, were sleeping in their house at xxx. They slept in the living room

ALARCON | 51

because it was hot. Their mother, EEE, had left for Manila. AAA was roused from her
sleep when she felt someone taking off her panties. She woke up and saw that it was
her father, accused-appellant Bobby Galigao. Accused-appellant took off his briefs
and lay on top of her. He inserted his penis into AAAs vagina. She felt pain but could
not do anything because accused-appellant threatened her with bodily harm if she
reported the incident to anybody.[6]
After satisfying his lust, accused-appellant went to the bathroom to wash
himself. Then, he put on his briefs and told AAA to wash herself, which she did. She
put on her panties and went back to sleep.Meanwhile, accused-appellant went to his
room. AAA revealed that prior to the incident, her father had raped her several times
beginning when she was nine years old.[7]
AAA also narrated how BBB and CCC were ravished by her father. At one time, she
saw accused-appellant crawling towards BBB and lay under the blanket beside
her. AAA, who was only one meter away, noticed that there was movement
underneath the covers. AAA further testified that she saw her father rape CCC, her
eldest sister. However, she did not do anything for fear that accused-appellant will
kill her.As in BBBs case, AAA was only a meter away when she witnessed CCCs
sexual abuse in the hands of their father.[8]
BBB was ten years old when she took the witness stand. She corroborated AAAs
testimony that accused-appellant raped AAA and CCC several times at night in the
living room of their house.[9] More importantly, she testified that in the evening of
March 17, 1996, while she was sleeping with her siblings in the living room of their
house, accused-appellant removed her panties and his briefs, inserted his penis into
her private parts, and made thrusting motions. After a while, he went to the comfort
room to wash. BBB also washed herself.[10]
In his defense, accused-appellant admitted having raped CCC, but claimed he did so
to get back at her mother who left him for a man with whom she already had a
child. He denied having raped AAA and BBB and argued that the charges against
him were filed at the instigation of his wife. When asked why he did not file the
appropriate charges against his wife for her alleged infidelity, accused-appellant
claimed that nobody was willing to help him because she had a brother who was a
policeman.[11]
On cross-examination, accused-appellant admitted that he raped his three
daughters because he suspected that his wife was carrying an illicit affair with
another man:
COURT:
Q Do you still confirm your testimony during your direct examination that the reason
you raped CCC was because it was a revenge against your wife who according to
you went away with her paramour?
A Yes, Your Honor.
Q So that is the only reason why you committed the crime of rape against your
daughter?

A Yes. But I have already asked for forgiveness for the acts that I have
committed and I have already repented for what I have done, Your Honor.
Q How about the charges against you by BBB and AAA, what can you say about
that?
A They are the only ones who can tell the truth of the matter, Your Honor.
Q Is it not a fact that it is sad to say that you might have done what you did to CCC
with respect to BBB and AAA because of your revenge with your wife who according
to you went away with her paramour?
A No, Your Honor.
Q So it is clear now that you are admitting the rape charges to CCC and so with BBB
and AAA?
A Yes, Your Honor.[12]
CCC was presented as a defense witness however, she only made matters worse for
accused-appellant because, while she admitted to her ravishment and her plans to
forgive him, she later turned hostile upon learning that she was raped out of
revenge:
DIRECT EXAMINATION
ATTY. GARING:
With the kind permission of this Honorable Court.
Q Your father admitted the rape charges against your person, what can you say
about that?
A What he said is true that he raped me, sir.
Q When you take the witness stand, what is your purpose?
A A while ago when my father sat down on the witness stand my sister and I were
planning to forgive him. But when I heard that the reason he raped me was because
he wanted to take revenge because my mother left us with her paramour, I would
like to say that my mother did not leave us because she left with her paramour, but
she left us in order to work.
Q It was our understanding. Actually I advised your sister before the hearing of this
case that you will pardon your father for the crime of rape, but is seems that your
testimony is going to [be] different now and that you are now pursuing with the case
against your father. Was there anybody who coerced to tell the contrary in this case?
A Nobody threatened me, sir. I only changed my mind because of what he
testified this morning, I also witnessed what he did to my sister. If he only
admitted to me what he did to my sister, I can forgive him, but he did not
admit it to me, sir.
Q Why did you tell it to me this morning?

CRIMINAL PROCEDURE | CASES

ALARCON | 52

PROS. SEOREN:
Objection, Your Honor.
COURT:

Q And so you confirmed the testimony given by your two sisters BBB and
AAA that they were really abused by your father?
A Yes, Your Honor.

ATTY. GARING:

Q During the presentation of the evidence for the prosecution, why did you not
testify with respect to these cases when according to you you were present and a
witness when your sisters AAA and BBB were abused by your father and also with
respect to the rape case filed by you against your father?

Q Considering that he is your father, can you not possibly reconsider your statement
that you are continuing with the prosecution of this case?

A Because my uncle told me not to testify anymore because I am already grown up,
Your Honor.

A What you mean is you want me to forgive him?

COURT (to Atty. Garing)

Q What I want to emphasize is to forgive your father and let the law take its course.

So you are asking to defer the testimony of this witness?

PROS. SEOREN:

ATTY. GARING:

To prevent any complications later, may we suggest that the line of questioning be
changed, Your Honor.

The total withdrawal of the testimony of this witness, Your Honor.

Dont ask leading questions.

COURT:

COURT:

Reform. Do not ask leading questions.

She has already testified and the Court will not allow that anymore. Any more
questions Fiscal?

ATTY. GARING:

PROS. SEOREN:

We believe we are withdrawing this witness, Your Honor.

On the basis of the testimony during the direct examination and also on the basis of
the follow-up questions, we have no cross-examination.[13]

COURT:
You are not yet through with your direct examination.
ATTY. GARING:
We are withdrawing the witness from further testifying, Your Honor.
COURT:
Q You stated that you and your other sisters BBB and AAA came to an agreement
that you will already pardon your father for what he had done to all of you. But upon
hearing the testimony of your father during the cross examination that the reason
why your father abused you is because your mother went away with her paramour
and that your father made that as a revenge against your mother. Did you say that?
A Yes, Your Honor.
Q And you stated also during the direct examination that you were present and a
witness during the time that you[r] father was abusing your two sisters AAA and
BBB, is that correct?
A Yes, Your Honor.

CRIMINAL PROCEDURE | CASES

Suffice it to state that the testimonies of the victims bear the hallmarks of
truth. They are consistent in their material points. When a victims testimony is
straightforward, candid, unshaken by rigid cross-examination and unflawed by
inconsistencies or contradictions in its material points, the same must be given full
faith and credit.[14]
Established is the rule that testimonies of rape victims, especially child victims, are
given full weight and credit.[15] In the case at bar, the victims were barely eight, ten
and thirteen years old when they were raped. In a litany of cases, we have ruled that
when a woman, more so if she is a minor, says she has been raped, she says, in
effect, all that is necessary to prove that rape was committed.[16] Youth and
immaturity are generally badges of truth.[17] Courts usually give greater weight to
the testimony of a girl who is a victim of sexual assault, especially a minor,
particularly in cases of incestuous rape, because no woman would be willing to
undergo a public trial and put up with the shame, humiliation and dishonor of
exposing her own degradation were it not to condemn an injustice and to have the
offender apprehended and punished.[18]
The embarrassment and stigma of allowing an examination of their private parts and
testifying in open court on the painfully intimate details of their ravishment
effectively rule out the possibility of false accusations of rape[19] by the private
complainants. Indeed, it would be most unnatural for young and immature girls to
fabricate a story of rape by their father; allow a medical examination of their

ALARCON | 53

genitalia, subject themselves to a public trial and expose themselves to public

ridicule at the instigation of their mother in order that the mother can carry on an
alleged illicit relation with a paramour.[20] Verily

Nevertheless, while accused-appellants guilt was proved beyond reasonable doubt,

we find the imposition of the three death penalties against him excessive and
unwarranted.

Ill motive is never an essential element of a crime. It becomes inconsequential

where there are affirmative, nay, categorical declarations towards the accusedappellants accountability for the felony.[21]

In imposing upon accused-appellant the supreme penalty of death, the trial court
erroneously cited Article 266-A (formerly Article 335), as well as Article 266-B, (1),
[33] of the Revised Penal Code, as amended by Republic Act No. 8353. Considering
that the crimes were committed prior to the effectivity of R.A. No. 8353 on October
22, 1997,[34] the provisions of R.A. No. 7659,[35][35] which was the law in effect at
the time the rapes were committed should have been applied.

In stark contrast to the clear and categorical declarations of the private

complainants, accused-appellant interposes the defense of mental incapacity and
argues that at the time of the commission of the offenses, he was bordering on
insanity.
While this issue is being raised for the first time in this appeal, the same will be
addressed consistent with the dictum that an appeal in a criminal case throws the
whole case open for review and the reviewing tribunal may correct such errors it
may find in the appealed judgment even if they have not been specifically
assigned [22] if their consideration, as in this case, is necessary in arriving at a just
resolution thereof.[23]
The defense of insanity is in the nature of confession and avoidance. Like the
justifying circumstance of self-defense, the burden is on the defense to prove
beyond reasonable doubt that accused-appellant was insane immediately before the
commission of the crime or at the very moment of its execution.[24] In other words,
a defendant in a criminal case who interposes the defense of mental incapacity has
the burden of establishing the fact that he was insane at the very moment when the
crime committed.[25] There must be complete deprivation of reason in the
commission of the act, or that the accused acted without discernment,[26] which
must be proven by clear and positive evidence.[27] The mere abnormality of his
mental faculties does not preclude imputability.[28] Indeed, a man may act crazy but
it does not necessarily and conclusively prove that he is legally so.[29] The nonmedical opinion of defense counsel that accused-appellant was bordering on insanity
hardly measures up to the foregoing yardsticks. In the light of the positive testimony
of the victim proving accused-appellants criminal accountability, this bare and
unsubstantiated defense must perforce fail.
The evaluation of the credibility of witnesses and their testimonies is a matter that is
best undertaken by the trial court because of its unique opportunity to observe the
witnesses and their demeanor, conduct and attitude, especially under crossexamination. Appellate courts are bound by the findings of the trial court in this
respect, unless it is shown that it has overlooked, misunderstood or misappreciated
certain facts and circumstances which if considered would have altered the outcome
of the case.[30] We find no reason to disturb the factual findings of the trial court in
this case.
Indeed, the revelation of young innocent girls, aged barely eight, ten and thirteen,
deserves full credit. The willingness of complainants to face police investigation and
to undergo the trouble and humiliation of a public trial is eloquent testimony of the
truth of their complaints.[31] In short, it is most improbable for innocent and
guileless girls such as complainants to brazenly impute a crime so serious as rape to
any man, let alone their father, if it were not true.[32]

CRIMINAL PROCEDURE | CASES

The pertinent provisions of Article 335 of the Revised Penal Code, as amended by
Section 11 of R.A. No. 7659, read as follows:
ART. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
xxxxxxxxx
The death penalty shall also be imposed if the crime is committed with any of the
following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim. x x x.
However, the fact that rape was committed with the foregoing attendant
circumstance does not automatically merit the imposition of the death penalty. As
held in People v. Echegaray:[36]
xxx. The elements that call for the imposition of the supreme penalty of death in
these crimes would only be relevant when the trial court, given the prerogative to
impose reclusion perpetua, instead actually imposes the death penalty because it
has, in appreciating the evidence proffered before it, found the attendance of certain
circumstances in the manner by which the crime was committed, or in the person of
the accused on his own or in relation to the victim, or in any other matter of
significance to the commission of the crime or its effects on the victim or in society,
which circumstances characterize the criminal act as grievous, odious or hateful or
inherently or manifestly wicked, vicious, atrocious or perverse as to be repugnant
and outrageous to the common standards and norms of decency and morality in a
just and civilized and ordered society.
We pointed out in the Echegaray case that the imposition of the death penalty in
those cases where the law provides for a penalty ranging from reclusion perpetua to
death does not give the trial court an unfettered but, rather, a guided discretion in
the imposition of capital punishment. Particularly enlightening on how such
discretion is to be exercised is the recent case of People v. Antonio Roque,[37] where
the accused was likewise sentenced by the trial court to death for raping his two
daughters aged nine and eleven. In the said case, we reduced the penalties from
death to reclusion perpetua, to wit:
The death penalty could thus be decreed; nevertheless, Section 22 of Republic Act
No. 7659, amending Article 47 of the Revised Penal Code, recognizes that in death

ALARCON | 54

penalty cases the High Tribunal puts to a vote not only the issue of guilt of an
appellant but also the question on the imposition of the death penalty itself. The law
provides thusly:
Sec. 22. Article 47 of the same Code is hereby amended to read as follows:
ART. 47. In what cases the death penalty shall not be imposed; Automatic review of
Death Penalty Cases. The death penalty shall be imposed in all cases in which it
must be imposed under existing laws, except when the guilty person is below
eighteen (18) years of age at the time of the commission of the crime or is more
than seventy years of age or when upon appeal or automatic review of the case by
the Supreme Court, the required majority vote is not obtained for the imposition of
the death penalty, in which cases, the penalty shall be reclusion perpetua.
The Court heretofore acknowledged that circumstances could exist to warrant an
exercise of such forbearance. In People v. Santos,[38] the Court considered the acts
of the deceased victim, a former municipal mayor, in clearing and working on the
land claimed by the Ilongots which could have been seen by the accused as an act
of oppression and abuse of authority which he felt morally bound to forestall, as well
as the limited schooling of the accused, as justification to reduce the penalty of
death to reclusion perpetua. In People v. De la Cruz,[39] the Court took into account
in lowering the penalty to reclusion perpetua on the accused most of whom were
already death row convicts, the deplorable sub-human conditions of the National
Penitentiary where the crime was committed. In People v. Marcos,[40] the failure of
appellant to realize the gravity of his offense was held to justify the reduction of the
penalty to reclusion perpetua. (italics ours)

circumstances attendant to this case, there is sufficient justification in imposing on

accused-appellant the reduced penalty of reclusion perpetua for each count of rape.
In view of the foregoing considerations, the indemnity ex delicto awarded is hereby
reduced to P50,000.00 consistent with controlling jurisprudence on the matter.
[44] The amount of moral damages will not be disturbed as they are in accord with
case law thereon.[45] However, the award of exemplary damages must be reduced
to P25,000.00.[46]
WHEREFORE, the judgment of the Regional Trial Court of xxx, in Criminal Cases
Nos. C-4974 and C-4975, finding accused-appellant guilty beyond reasonable doubt
of the crime of rape, is AFFIRMED with the following MODIFICATIONS: accusedappellant is sentenced to suffer the penalty of Reclusion Perpetua for each count of
rape; he is ordered to pay each of the offended parties the amount of P50,000.00 as
indemnity ex delicto; P50,000.00 as moral damages and P25,000.00 as exemplary
damages.
Accused-appellant is ACQUITTED in Criminal Case No. C-4976.
SO ORDERED.

Where, as in the above-mentioned Santos case, accused-appellants limited

schooling was taken into consideration to reduce his penalty to reclusion
perpetua, we can do no less herein considering that accused-appellant is an
unlettered fisherman.[41]
Finally, the conviction of accused-appellant in Criminal Case No. 4976, as to the
alleged rape of CCC should be struck down. Although the Information in Criminal
Case No. 4976 speaks of a criminal complaint, none was ever presented.[42] Indeed,
SPO4 Calderon, uncle of CCC, testified that CCC herself insisted in not pursuing the
case against accused-appellant as she was already grown up and did not want to be
the subject of gossip in the school where she was enrolled.[43]
Apparently, the trial court convicted accused-appellant of three counts of rape on
the belief that he was being tried under the provisions of R.A. No. 8353. However,
the crimes for which he was convicted were committed in 1996, before R.A. No.
8353 took effect in 1997. The said statute can not be made to apply retroactively for
reasons earlier stated. Prior to its amendment by R.A. No. 8535, Article 335 of the
Revised Penal Code required a criminal complaint before an Information is
filed. There being no such complaint in Criminal Case No. C-4976, it was palpable
error for the lower court to convict accused-appellant for the crime of rape on
CCC. Moreover, as earlier stated, no trial was ever conducted in the said case.
All told, we are convinced of the guilt beyond reasonable doubt of accused-appellant
for two counts of rape committed against his daughters, AAA and BBB. But given the

CRIMINAL PROCEDURE | CASES

ALARCON | 55

G.R. No. L-65017 November 13, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
STALIN GUEVARRA y PAPASIN accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Pedro A. Venida for accused-appellant.

SARMIENTO, J.:
Stalin Guevarra was convicted of murder by the Court of First Instance (now Regional
Trial Court) of Oriental Mindoro. 1 On appeal, the then Intermediate Appellate Court
(now Court of Appeals) rendered judgment on August 17, 1983, increasing the
indeterminate penalty from "TEN (10) YEARS and ONE (1) DAY, of prision mayor, as
minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS, of reclusion temporal,
as maximum, to indemnify the heirs of the deceased in the amount of P12,000.00,
without subsidiary imprisonment in case of insolvency and to pay the costs,"
imposed by the trial court, to reclusion perpetua, and affirmed in all other respects
the appealed decision. 2 However, considering that this case involves a capital
offense, the appellate court could not enter judgment. Conformably, therefore,
to Daniel, 3 Ramos, 4 Galang, 5 and similar cases the entire records were certified
and elevated to us for review.
The facts are as follows:
On November 29, 1980, Joselito de los Reyes, twenty-three years of age, assistant
chief security guard at "Baklad" Naujan Oriental Mindoro, together with Teofilo
Martinez, a thirty-two year-old fisherman of Bancurro Naujan attended a dance
sponsored by the San Agustin Barangay High School. Teofilo saw Eduardo Romero
(still at large) and Stalin Guevarra together at the dance hall. The affair was
interrupted abruptly when someone stoned the school. At about midnight, Joselito
and Teofilo went home to Bancurro. Together with them were Rosabel , Magno and
Babylyn Martinez, both students, seventeen and seventeen and eighteen years of
age, respectively. Along the way, Teofilo held a flashlight to illuminate the rocky path
whereon Joselito, Rosabel, and Babylyn walked. Suddenly, they were waylaid by
Stalin and Eduardo. Stalin, 27 years old, went immediately behind Joselito, and
embraced him with both hands. 6 Joselito struggled from the clutches of Stalin but in
vain; the firm embrace locked the whole body and both arms of Joselito. Facing the
hapless Joselito, Eduardo got his knife from his pocket, opened it, 7 and thrust the
shiny and pointed end of the weapon at the right side of Joselito's body just below
his navel. 8 "May tama ako," were the words uttered by Joselito just before he fell to
the ground. 9 Teofilo, Babylyn, and Rosabel froze where they stood. The abruptness
of the incident petrified them. But after the stabbing the assailants fled in the
direction of San Agustin and disappeared in the dark. The beam of light from the
flashlight Teofilo carried, however, was sufficient to enable him and his two female
companions to witness clearly the stabbing of Joselito and to recognize the appellant
and Eduardo Romero, both known to them (Teofilo, Babylyn, and Rosabel), as the
perpetrators of the crime.

CRIMINAL PROCEDURE | CASES

ALARCON | 56

Bathed in blood, the victim was pedalled in a tricycle to the Naujan Police Station.
Unfortunately, Private First Class (Pfc) Henry Aceremo, the officer-in-charge, was not
able to get an ante mortem statement because the victim could hardly talk. 10 He
was hovering between life and death when he was rushed to the clinic of Dr. Nicolas
B. Balbin.
As a result of the mortal wound inflicted by Eduardo Romero, Joselito died.
Dr. Nicolas B. Balbin who conducted a post mortem examination, certified that the
cause of death was hemorrhage within the adbominal cavity, and that the wound
might have been caused by a sharp-bladed instrument, probably a "balisong." 11
As a consequence, Pfcs Bautista and Aceremo accompanied by Rosabel and Babylyn,
went to the house of the appellant where he was found drunk. As to Eduardo, he
vanished from the barrio without a trace.
Subsequently, an information was filed stating:
That on or about the 29th day of November, 1980 at around 12:00 o'clock in the
evening, in Barangay San Agustin II, Municipality of
Naujan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this
Honorable Court, the above named accused, with deliberate intent to kill, by means
of treachery and evident premeditation, conspiring and confabulating with Eduardo
Romero, who is still at large and therefore no preliminary investigation has yet been
conducted against him, did then and there wilfully, unlawfully and feloniously attack,
assault and stab with a sharp- pointed instrument one Joselito delos Reyes, who was
then unaware and helpless, inflicting upon the latter a fatal stab wound, as a result
of which caused his udden and unexpected death.
That in the commission of the offense, the qualifying circumstances of treachery and
evident premeditation, in addition to the aggravating circumstances of superior
strength and nocturnity, were present.
Contrary to Article 248 of the Revised Penal Code.

12

After trial, the trial court found Stalin Guevarra guilty and imposed the penalty
adverted to at the outset.
The appellant vehemently denies killing Joselito de los Reyes. He argues that if
indeed he had embraced the victim from behind to facilitate the commission of the
crime without posing any danger to his supposed co-conspirator or ,without fear of
reprisal from the victim, then he could have fled the scene out of a sense of guilt,
out of fear, or to avoid arrest and ultimate imprisonment. He did not leave his barrio,
however, instead, a few hours after the alleged commission of the crime, he was
found by the policemen boiling and eating bananas with the Hernandez girls. He
quotes: "It has been truly said, since long ago that the wicked teeth, even when no
man pursueth whereas the righteous are brave as the lion." 13
We can not accept the appellant's submission. As a review of the records shows,
after the stabbing incident, both the appellant and Eduardo Romero hastily fled into
the night. This flight from the stabbing scene is a strong indication of a guilty
mind. 14 In small localities where people generally know one another and are

CRIMINAL PROCEDURE | CASES

inclined, nay, expected, to show great concern for neighbors and even nodding
acquaintances who fall victim to cruel and inhuman acts, it would have been natural
for the appellant, if indeed he was innocent of the crime charged, to have gone to
the succor of the fallen Joselito; he would have taken him to the nearest hospital. Or,
at the very least, he could have reported the incident to the local police authorities.
But he did neither of these Good Samaritan acts. By his account, he went home,
obviously confident that he was not Identified as it was nighttime. While it may be
true that Romero escaped and remains at large, the appellant, appearing like a
brave lion, stayed home, Yet it now appears that he did so not because he was
innocent but because he believed he could not be Identified. But he was wrong. He
was clearly and positively Identified by the prosecution eyewitnesses. Teofilo
Martinez recognized Stalin as the person who embraced the victim to ensure the
killing15 of Joselito. Rosabel Magno, one of the student companions of Joselito,
pointed an accusing finger at Stalin as one of the culprits. 16 Babylyn Martinez,
likewise, Identified the appellant as the one who immobilized the hands of the victim
to render him vulnerable to the assault of Eduardo. 17
In his attempt to absolve himself of guilt, the appellant contends that there is an
absolute variance between the allegations in the information and the proofs
presented by the prosecution witnesses. But Rosabel Magno's testimony on crossexamination showed her unwavering Identification of Stalin Guevarra as a coperpetrator of the killing of Joselito.
xxx xxx xxx
Q. Now, you stated that a stabbing incident transpired while you and your
companions were walking towards the direction of your respective houses. Please
tell the Court what happened?
A. We were walking side by side, sir. While we were walking side by side on our way
there was a sudden appearance of two persons one of whom was Stalin Guevarra,
one of those persons who appeared went immediately behind Joselito de los Reyes
and embraced the latter and immediately thereafter Eduardo Romero stabbed Jose
de los Reyes. 18
Q. Please tell the court?
A. I told the police investigators that Eduardo Romero stabbed Joselito while Stalin
Guevarra embraced Joselito. 19
xxx xxx xxx
The defense deposits that the prosecution witnesses uttered contradictory
statements, in effect trying to raise doubts as to their veracity.
First, the appellant points out that Teofilo Martinez contradicted his own testimony:
xxx xxx xxx
Q. When you arrived there at the dance at ten o'clock of November 29, 1980, in the
evening, did you see Eduardo Romero and Stalin Guevarra at the dance.
A. Yes, sir.

ALARCON | 57

Yet, 12 pages later, he did not see them:

Q. Let us go now to the incident in the dance floor. You stated that you did not see
the accused Stalin Guevarra and Romero dancing. In what part of the dance floor or
in the dance hall were they before the incident in question?
A. It was already on our way home when we saw them.
Q. So, while you were witnessing the dance you did not see them in the dance hall
that evening?
A. That is right, sir.

20

xxx xxx xxx

The alleged contradictions are minor inconsistencies. Whether or not Teofilo saw
Stalin at the dance is immaterial. That has nothing to do with the stabbing of the
victim. At any rate, Teofilo's narration of the incident was replete with details, clear
and straight-forward, which is a convincing indication that he had actually witnessed
the killing of Joselito. Hence, the trivial and unimportant details that the appellant
emphasizes do not detract from the veracity of the testimony of the prosecution
witnesses.
Secondly, Stalin contends that he could not have embraced Joselito to give Eduardo
Romero the chance to stab the former as he was not at the scene of the crime in the
evening of November 29, 1980 at about 12:00 o'clock midnight.
This defense of alibi was not established at all.
Alibi is one of the weakest of all defenses. lt can be easily concocted. To sustain the
defense of alibi, the accused must not only prove satisfactorily that he was at some
other place at the time the crime happened, but more so, that it was physically
impossible for him to have been at the place where the crime was committed. 21
The very evidence for the defense convinces us that it was physically possible for
the appellant to be where the prosecution witnesses testified he was, at the scene of
the crime, and then rush away to his house after the fatal incident. The place where
the stabbing took place is only about seventy meters from the appellant's house.
xxx xxx xxx
He Stalin Guevarra) however, admitted that he and his companions were walking
towards the direction of his house on the same evening of November 29, 1980,
where they were about seventy (70) meters away from the place of the incident. The
testimony of the accused was corroborated by defense witnesses Myra Hernandez
and Julio Guevarra when they took the witness stand. 22
xxx xxx xxx
We have stated, time and again, the almost inflexible rule that alibi cannot prevail
over the positive testimony of prosecution witnesses and their clear Identification of
the accused as the perpetrator of the crime. 23 In the instant case, prosecution
witness Teofilo Martinez, who carried a flashlight, positively and clearly pinpointed
the appellant as one of the assailants. Likewise, Babylyn Martinez and Rosabel

CRIMINAL PROCEDURE | CASES

Magno, the female companions of the deceased, sufficiently corroborated Teofilo

Martinez's Identification of Stalin.
Thirdly, the appellant disputes the finding that he had conspired and confabulated
with Eduardo to attack, assault, and stab Joselito. Thus, he denies conspiracy. We do
not agree.
Conspiracy, it is true, is "always predominantly 'mental in composition' because it
consists primarily of a meeting of minds and an intent." 24 Hence, direct proof is not
essential to establish it. By its nature, conspiracy is planned in utmost secrecy, it can
rarely be proved by direct evidence. 25
Although here there is no well founded evidence that the appellant and Romero had
conferred and agreed to kill Joselito, their complicity can be justified by
circumstantial evidence, that is, their community of purpose and their unity of
design in the contemporaneous or simultaneous performance of the act of
assaulting the deceased. 26
The appellant cooperated with Romero in the commission of the offense
by another act without which it would not have been accomplished. Therefore, the
appellant is guilty as a principal by indispensable cooperation under Article 17,
paragraph 3 of the Revised Penal Code. The requisites for criminal liability under this
provision are: 1) participation in the criminal resolution, i.e., there is either anterior
conspiracy or unity of criminal purpose and intention immediately before or
simultaneously with the commission of the crime charged; and 2) cooperation in the
commission of the offense by performing another act without which it would not
have been accomplished. 27
At the locus criminis was the appellant. His presence did not merely give aid or
support, but emboldened the attacker as the victim was immobilized by the
appellant.
There can be no question that the appellant's act in holding the victim from behind
immediately before the latter was stabbed by Eduardo constitutes a positive and an
overt act towards the realization of a common criminal intent, although the intent
may be classified as instantaneous. 28 The act was impulsively done on the spur of
the moment. It sprang from the turn of events, thereby uniting with the criminal
design of the slayer immediately before the commission of the offense. That is
termed as implied conspiracy. 29 The appellant's voluntary and indispensable
cooperation was a concurrence of the criminal act to be executed. Consequently, he
is a co-conspirator by indispensable cooperation, although the common desire or
purpose was never bottled up by a previous undertaking.
It can be safely inferred that the appellant was animated to cooperate in the taking
of the 'life of the deceased. Had it not been of the appellant's embrace of the victim
from behind, the latter could have fought back, parried the thrust, or could have
even run away.
If, indeed, the appellant intended to save the deceased from the attack, he could
have wrestled for the "balisong" from Eduardo's hands and prevented the assault.
Or, he could have placed himself between the assailant and the victim, instead of

ALARCON | 58

grabbing him from behind and holding both his arms. The appellant's actuations
thus belie his claimed innocence.
True, the appellant did not inflict any wound or injury materially contributing to the
death of the victim. But, as already stated, his act of immobilizing Joselito's arms
establishes the indispensable cooperation required by law to make him equally
guilty with Romero who alone stabbed and wounded the former.
Curiously, appellant Stalin Guevarra filed in the Court a motion to withdraw his
appeal, dated July 22, 1985. He expressed that he was no longer interested in his
appeal and manifested his willingness to serve his sentence and subsequently apply
for executive clemency or parole. Considering that the appellant in his motion was
un-assisted by counsel, the Court denied the motion.
The Court of Appeals ruled that the crime committed by the appellant is "murder as
the killing is qualified by evident premeditation." We do no agree. Not one of the
three basic elements of evident premeditation was proven, to wit: First, the time
when the offender determined to commit the crime itself, second, an act manifestly
indicating that the culprit had tenaciously clung to his obsession to commit the
crime; and third, a sufficient lapse of time between the determination and the
execution to allow him to reflect upon the consequence of his act. On the other
hand, what the evidence on record shows is that both the appellant and Romero,
assaulted the victim spontaneously and cooperated fully. This circumstance, we rule,
precludes evident premidatation.
Be that as it may, the crime committed is still murder, the killing being qualified by
treachery. The evidence shows beyond reasonable doubt that the attack by Romero,
with the indispensable cooperation of the appellant, was so sudden and unexpected
as to deprive the victim of any opportunity to defend himself or to inflict retaliation.
WHEREFORE, the appealed judgment is AFFIRMED WITH MODIFICATION as to the
civil indemnity which is hereby increased to P30,000.00.
Costs against the appelant.
SO ORDERED.

G.R. No. L-42050-66 November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF
MANILA, BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L.
GARCIA, SIMEON BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO,
ROMEO L. SUGAY, FEDERICO T. DIZON, GEORGE M. ALBINO, MARIANO
COTIA, JR., ARMANDO L. DIZON, ROGELIO B. PARENO, RODRIGO V.
ESTRADA, ALFREDO A. REYES, JOSE A. BACARRA, REYNALDO BOGTONG,
and EDGARDO M. MENDOZA, respondents.
G.R. No. L-46229-32 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA,
BRANCH XVIII, and REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR
EUGENIO Y ROQUE and ALFREDO VERSOZA, respondents.
G.R. No. L-46313-16 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA,
BRANCH XVIII, and JUANITO DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL,
TIRSO ISAGAN Y FRANCISCO and BEN CASTILLO Y UBALDO, respondents.
G.R. No. L-46997 November 20, 1978

CRIMINAL PROCEDURE | CASES

ALARCON | 59

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance
of Samar, and PANCHITO REFUNCION, respondents.

THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y DURAN,

accused.

Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of Fiscal of
Manila and the Office of Provincial Fiscal of Samar for petitioners.

VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081

Norberto Parto for respondents Candelosas, Baes and Garcia.

Amado C. de la Marced for respondents Simeon Bundalian Jr., et al.
Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16.
Norberto L. Apostol for respondent Panchito Refuncion.
Hon. Amante P. Purisima for and in his own behalf.

Crim. Case No. 19639

INFORMATION
The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of
paragraph 3, Presidential Decree No. 9 of Proclamation 1081, committed as follows:
That on or about the 14 th day of December, 1974, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully, feloniously and knowingly
have in his possession and under his custody and control one (1) carving knife with a
blade of 6- inches and a wooden handle of 5-1/4 inches, or an overall length of 11 inches, which the said accused carried outside of his residence, the said weapon
not being used as a tool or implement necessary to earn his livelihood nor being
used in connection therewith.

MUOZ PALMA, J.:

Contrary to law. (p. 32, rollo of L-42050-66)

These twenty-six (26) Petitions for Review filed by the People of the Philippines
represented, respectively, by the Office of the City Fiscal of Manila, the Office of the
Provincial Fiscal of Samar, and joined by the Solicitor General, are consolidated in
this one Decision as they involve one basic question of law.

The other Informations are similarly worded except for the name of the accused, the
date and place of the commission of the crime, and the kind of weapon involved.

These Petitions or appeals involve three Courts of First Instance, namely: the Court
of First Instance of Manila, Branch VII, presided by Hon. Amante P. Purisima (17
Petitions), the Court of First Instance of Manila, Branch XVIII, presided by Hon.
Maximo A. Maceren (8 Petitions) and, the Court of First Instance of Samar, with Hon.
Wenceslao M. Polo, presiding, (1 Petition).

2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by
Judge Maceren follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y AQUINO,
accused.
CRIM. CASE NO. 29677

Before those courts, Informations were filed charging the respective accused with
"illegal possession of deadly weapon" in violation of Presidential Decree No. 9. On a
motion to quash filed by the accused, the three Judges mentioned above issued in
the respective cases filed before them the details of which will be recounted
below an Order quashing or dismissing the Informations, on a common ground,
viz, that the Information did not allege facts which constitute the offense penalized
by Presidential Decree No. 9 because it failed to state one essential element of the
crime.

VIOL. OF PAR. 3,

Thus, are the Informations filed by the People sufficient in form and substance to
constitute the offense of "illegal possession of deadly weapon" penalized under
Presidential Decree (PD for short) No. 9? This is the central issue which we shall
resolve and dispose of, all other corollary matters not being indispensable for the
moment.

The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF

PARAGRAPH 3, PRESIDENTIAL DECREE NO. 9 in relation to Letter of Instruction No.
266 of the Chief Executive dated April 1, 1975, committed as follows:

A The Information filed by the People

1. In L-42050-66, one typical Information filed with the Court presided by Judge
Purisima follows:

PD 9 IN REL. TO LOI
No. 266 of the Chief
Executive dated April 1, 1975
INFORMATION

That on or about the 28 th day of January, 1977, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully and knowingly carry outside
of his residence a bladed and pointed weapon, to wit: an ice pick with an overall
length of about 8 inches, the same not being used as a necessary tool or
implement to earn his livelihood nor being used in connection therewith.
Contrary to law. (p. 14, rollo of L-46229-32)

CRIMINAL PROCEDURE | CASES

ALARCON | 60

The other Informations are likewise similarly worded except for the name of the
accused, the date and place of the commission of the crime, and the kind of weapon
involved.
3. In L-46997, the Information before the Court of First Instance of Samar is quoted
hereunder:
PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION, accused.
CRIM. CASE NO. 933
For:
ILLEGAL POSSESSION OF
DEADLY WEAPON
(VIOLATION OF PD NO. 9)
INFORMATION
The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO
REFUNCION of the crime of ILLEGAL POSSESSION OF DEADLY WEAPON or VIOLATION
OF PD NO. 9 issued by the President of the Philippines on Oct. 2, 1972, pursuant to
Proclamation No. 1081 dated Sept. 21 and 23, 1972, committed as follows:
That on or about the 6th day of October, 1976, in the evening at Barangay Barruz,
Municipality of Matuginao, Province of Samar Philippines, and within the jurisdiction
of this Honorabe Court, the abovenamed accused, knowingly, wilfully, unlawfully and
feloniously carried with him outside of his residence a deadly weapon called
socyatan, an instrument which from its very nature is no such as could be used as a
necessary tool or instrument to earn a livelihood, which act committed by the
accused is a Violation of Presidential Decree No. 9.

allege sufficient facts to constitute the offense contemplated in P.D. No. 9. The
information in these cases under consideration suffer from this defect.
xxx xxx xxx
And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of
bladed weapons under P.D. No. 9, that more than ever before, policemen - of course
not all can be so heartless now have in their hands P.D. No. 9 as a most
convenient tool for extortion, what with the terrifying risk of being sentenced to
imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors,
which only God knows where it came from. Whereas before martial law an extortionminded peace officer had to have a stock of the cheapest paltik, and even that
could only convey the coercive message of one year in jail, now anything that has
the semblance of a sharp edge or pointed object, available even in trash cans, may
already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik.
For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its
necessity can never be assailed. But it seems it is back-firing, because it is too hot in
the hands of policemen who are inclined to backsliding.
The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the Fiscal
and the conscience of the Court, and hence this resolution, let alone technical legal
basis, is prompted by the desire of this Court to apply said checkvalves. (pp. 55-57,
rollo of L-42050-66)
2. Judge Maceren in turn gave his grounds for dismissing the charges as follows:
xxx xxx xxx

In dismissing or quashing the Informations the trial courts concurred with the
submittal of the defense that one essential element of the offense charged is
missing from the Information, viz: that the carrying outside of the accused's
residence of a bladed, pointed or blunt weapon is in furtherance or on the occasion
of, connected with or related to subversion, insurrection, or rebellion, organized
lawlessness or public disorder.

As earlier noted the "desired result" sought to be attained by Proclamation No. 1081
is the maintenance of law and order throughout the Philippines and the prevention
and suppression of all forms of lawless violence as well as any act of insurrection or
rebellion. It is therefore reasonable to conclude from the foregoing premises that
the carrying of bladed, pointed or blunt weapons outside of one's residence which is
made unlawful and punishable by said par. 3 of P.D. No. 9 is one
thatabets subversion, insurrection or rebellion, lawless violence, criminality, chaos
and public disorder or is intended to bring about these conditions. This conclusion is
further strengthened by the fact that all previously existing laws that also made the
carrying of similar weapons punishable have not been repealed, whether expressly
or impliedly. It is noteworthy that Presidential Decree No. 9 does not contain any
repealing clause or provisions.

1. Judge Purisima reasoned out, inter alia, in this manner:

xxx xxx xxx

... the Court is of the opinion that in order that possession of bladed weapon or the
like outside residence may be prosecuted and tried under P.D. No. 9, the information
must specifically allege that the possession of bladed weapon charged was for the
purpose of abetting, or in furtherance of the conditions of rampant criminality,
organized lawlessness, public disorder, etc. as are contemplated and recited in
Proclamation No. 1081, as justification therefor. Devoid of this specific allegation,
not necessarily in the same words, the information is not complete, as it does not

The mere carrying outside of one's residence of these deadly weapons if not
concealed in one's person and if not carried in any of the aforesaid specified places,
would appear to be not unlawful and punishable by law.

CONTRARY TO LAW. (p. 8, rollo of L-46997)

B. The Orders of dismissal

CRIMINAL PROCEDURE | CASES

With the promulgation of Presidential Decree No. 9, however, the prosecution,

through Assistant Fiscal Hilario H. Laqui, contends in his opposition to the motion to
quash, that this act is now made unlawful and punishable, particularly by paragraph

ALARCON | 61

3 thereof, regardless of the intention of the person carrying such weapon because
the law makes it "mala prohibita". If the contention of the prosecution is correct,
then if a person happens to be caught while on his way home by law enforcement
officers carrying a kitchen knife that said person had just bought from a store in
order that the same may be used by one's cook for preparing the meals in one's
home, such person will be liable for punishment with such a severe penalty as
imprisonment from five to ten years under the decree. Such person cannot claim
that said knife is going to be used by him to earn a livelihood because he intended it
merely for use by his cook in preparing his meals.
This possibility cannot be discounted if Presidential Decree No. 9 were to be
interpreted and applied in the manner that that the prosecution wants it to be done.
The good intentions of the President in promulgating this decree may thus be
perverted by some unscrupulous law enforcement officers. It may be used as a tool
of oppression and tyranny or of extortion.
xxx xxx xxx
It is therefore the considered and humble view of this Court that the act which the
President intended to make unlawful and punishable by Presidential Decree No. 9,
particularly by paragraph 3 thereof, is one that abets or is intended to abet
subversion, rebellion, insurrection, lawless violence, criminality, chaos and public
disorder. (pp. 28-30, rollo of L-46229-32)
3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing
the Information filed before him, thus:
... We believe that to constitute an offense under the aforcited Presidential decree,
the same should be or there should be an allegation that a felony was committed in
connection or in furtherance of subversion, rebellion, insurrection, lawless violence
and public disorder. Precisely Proclamation No. 1081 declaring a state of martial law
throughout the country was issued because of wanton destruction to lives and
properties widespread lawlessness and anarchy. And in order to restore the
tranquility and stability of the country and to secure the people from violence anti
loss of lives in the quickest possible manner and time, carrying firearms, explosives
and deadly weapons without a permit unless the same would fall under the
exception is prohibited. This conclusion becomes more compelling when we consider
the penalty imposable, which is from five years to ten years. A strict enforcement of
the provision of the said law would mean the imposition of the Draconian penalty
upon the accused.
xxx xxx xxx
It is public knowledge that in rural areas, even before and during martial law, as a
matter of status symbol, carrying deadly weapons is very common, not necessarily
for committing a crime nor as their farm implement but for self-preservation or selfdefense if necessity would arise specially in going to and from their farm. (pp. 18-19,
rollo of L-46997)
In most if not all of the cases, the orders of dismissal were given before arraignment
of the accused. In the criminal case before the Court of (First Instance of Samar the
accused was arraigned but at the same time moved to quash the Information. In all

CRIMINAL PROCEDURE | CASES

the cases where the accused were under arrest, the three Judges ordered their
immediate release unless held on other charges.
C. The law under which the Informations in question were filed by the People.
As seen from the Informations quoted above, the accused are charged with illegal
possession of deadly weapon in violation of Presidential Decree No. 9, Paragraph 3.
We quote in full Presidential Decree No. 9, to wit:
PRESIDENTIAL DECREE NO. 9
DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED SEPTEMBER
22, 1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE UNLAWFUL AND
PROVIDING PENALTIES THEREFORE.
WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the
Philippines has been placed under a state of martial law;
WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated
September 22, 1972 and General Order No. 7 dated September 23, 1972, have been
promulgated by me;
WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos
and public disorder mentioned in the aforesaid Proclamation No. 1081 are
committed and abetted by the use of firearms, explosives and other deadly
weapons;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed
Forces of the Philippines, in older to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and
decree that:
1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the
violator shall, upon conviction suffer:
(a) The mandatory penalty of death by a firing squad or electrocution as a Military,
Court/Tribunal/Commission may direct, it the firearm involved in the violation is
unlicensed and is attended by assault upon, or resistance to persons in authority or
their agents in the performance of their official functions resulting in death to said
persons in authority or their agent; or if such unlicensed firearm is used in the
commission of crimes against persons, property or chastity causing the death of the
victim used in violation of any other General Orders and/or Letters of Instructions
promulgated under said Proclamation No. 1081:
(b) The penalty of imprisonment ranging from twenty years to life imprisonment as a
Military Court/Tribunal/commission may direct, when the violation is not attended by
any of the circumstances enumerated under the preceding paragraph;
(c) The penalty provided for in the preceding paragraphs shall be imposed upon the
owner, president, manager, members of the board of directors or other responsible
officers of any public or private firms, companies, corporations or entities who shall
willfully or knowingly allow any of the firearms owned by such firm, company,

ALARCON | 62

corporation or entity concerned to be used in violation of said General Orders Nos. 6

and 7.

the information nor from the specification of the provision of law alleged to have
been violated but by the actual recital of facts in the complaint or information. 2

2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades

and other explosives, including, but not limited to, "pill box bombs," "molotov
cocktail bombs," "fire bombs," or other incendiary device consisting of any chemical,
chemical compound, or detonating agents containing combustible units or other
ingredients in such proportion, quantity, packing, or bottling that ignites by fire, by
friction, by concussion, by percussion, or by detonation of all or part of the
compound or mixture which may cause such a sudden generation of highly heated
gases that the resultant gaseous pressures are capable of producing destructive
effects on continguous objects or of causing injury or death of a person; and any
person convicted thereof shall be punished by imprisonment ranging from ten to
fifteen years as a Military Court/Tribunal/Commission may direct.

E. Our Ruling on the matter

3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon

such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong," "kris," or club,
except where such articles are being used as necessary tools or implements to earn
a livelihood and while being used in connection therewith; and any person found
guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years
as a Military Court/Tribunal/Commission may direct.
4. When the violation penalized in the preceding paragraphs 2 and 3 is committed
during the commission of or for the purpose of committing, any other crime, the
penalty shall be imposed upon the offender in its maximum extent, in addition to
the penalty provided for the particular offenses committed or intended to be
committed.
Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen
hundred and seventy-two.
(SGD) FERDINAND E. MARCOS
President
Republic of the Philippines
D. The arguments of the People
In the Comment filed in these cases by the Solicitor General who as stated earlier
joins the City Fiscal of Manila and the Provincial Fiscal of Samar in seeking the
setting aside of the questioned orders of dismissal, the main argument advanced on
the issue now under consideration is that a perusal of paragraph 3 of P.D. 9 'shows
that the prohibited acts need not be related to subversive activities; that the act
proscribed is essentially a malum prohibitum penalized for reasons of public policy. 1
The City Fiscal of Manila in his brief adds further that in statutory offenses the
intention of the accused who commits the act is immaterial; that it is enough if the
prohibited act is voluntarily perpetuated; that P.D. 9 provides and condemns not
only the carrying of said weapon in connection with the commission of the crime of
subversion or the like, but also that of criminality in general, that is, to eradicate
lawless violence which characterized pre-martial law days. It is also argued that the
real nature of the criminal charge is determined not from the caption or preamble of

CRIMINAL PROCEDURE | CASES

1. It is a constitutional right of any person who stands charged in a criminal

prosecution to be informed of the nature and cause of the accusation against him. 3
Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires
that for a complaint or information to be sufficient it must, inter alia state the
designation of the offense by the statute, and the acts or omissions complained of
as constituting the offense. This is essential to avoid surprise on the accused and to
afford him the opportunity to prepare his defense accordingly. 4
To comply with these fundamental requirements of the Constitution and the Rules
on Criminal Procedure, it is imperative for the specific statute violated to be
designated or mentioned 4 in the charge. In fact, another compelling reason exists
why a specification of the statute violated is essential in these cases. As stated in
the order of respondent Judge Maceren the carrying of so-called "deadly weapons" is
the subject of another penal statute and a Manila city ordinance. Thus, Section 26 of
Act No. 1780 provides:
Section 26. It should be unlawful for any person to carry concealed about his person
any bowie knife, dirk dagger, kris, or other deadly weapon: ... Any person violating
the provisions of this section shall, upon conviction in a court of competent
jurisdiction, be punished by a fine not exceeding five hundred pesos, or by
imprisonment for a period not exceeding six months, or both such fine and
imprisonment, in the discretion of the court.
Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which
took effect on December 4, 1957, in turn penalizes with a fine of not more than
P200.00 or imprisonment for not more than one months, or both, at the discretion of
the court, anyone who shall carry concealed in his person in any manner that would
disguise its deadly character any kind of firearm, bowie knife, or other deadly
weapon ... in any public place.Consequently, it is necessary that the particular law
violated be specified as there exists a substantial difference between the statute
and city ordinance on the one hand and P.D. 9 (3) on the other regarding the
circumstances of the commission of the crime and the penalty imposed for the
offense.
We do not agree with petitioner that the above-mentioned statute and the city
ordinance are deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any
repealing clause or provision, and repeal by implication is not favored. 6 This
principle holds true with greater force with regards to penal statutes which as a rule
are to be construed strictly against the state and liberally in favor of the
accused. 7 In fact, Article 7 of the New Civil Code provides that laws are repealed
only by subsequent ones and their violation or non- observance shall not be excused
by disuse, or custom or practice to the contrary.
Thus we are faced with the situation where a particular act may be made to fall, at
the discretion of a police officer or a prosecuting fiscal, under the statute, or the city
ordinance, or the presidential decree. That being the case, the right becomes more

ALARCON | 63

compelling for an accused to be confronted with the facts constituting the essential
elements of the offense charged against him, if he is not to become an easy pawn of
oppression and harassment, or of negligent or misguided official action a fear
understandably shared by respondent Judges who by the nature of their judicial
functions are daily exposed to such dangers.
2. In all the Informations filed by petitioner the accused are charged in the caption
as well as in the body of the Information with a violation of paragraph 3, P.D. 9. What
then are the elements of the offense treated in the presidential decree in question?
We hold that the offense carries two elements: first, the carrying outside one's
residence of any bladed, blunt, or pointed weapon, etc. not used as a necessary tool
or implement for a livelihood; and second, that the act of carrying the weapon was
either in furtherance of, or to abet, or in connection with subversion, rebellion,
insurrection, lawless violence, criminality, chaos, or public disorder.
It is the second element which removes the act of carrying a deadly weapon, if
concealed, outside of the scope of the statute or the city ordinance mentioned
above. In other words, a simple act of carrying any of the weapons described in the
presidential decree is not a criminal offense in itself. What makes the act criminal or
punishable under the decree is the motivation behind it. Without that motivation,
the act falls within the purview of the city ordinance or some statute when the
circumstances so warrant.
Respondent Judges correctly ruled that this can be the only reasonably, logical, and
valid construction given to P.D. 9(3).
3. The position taken by petitioner that P.D. 9(3) covers one and all situations where
a person carries outside his residence any of the weapons mentioned or described in
the decree irrespective of motivation, intent, or purpose, converts these cases into
one of "statutory construction." That there is ambiguity in the presidential decree is
manifest from the conflicting views which arise from its implementation. When
ambiguity exists, it becomes a judicial task to construe and interpret the true
meaning and scope of the measure, guided by the basic principle that penal
statutes are to be construed and applied liberally in favor of the accused and strictly
against the state.
4. In the construction or interpretation of a legislative measure a presidential
decree in these cases the primary rule is to search for and determine the intent
and spirit of the law. Legislative intent is the controlling factor, for in the words of
this Court in Hidalgo v. Hidalgo, per Mr. Justice Claudio Teehankee, whatever is
within the spirit of a statute is within the statute, and this has to be so if strict
adherence to the letter would result in absurdity, injustice and contradictions. 8
There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3).
First, the presence of events which led to or precipitated the enactment of P.D. 9.
These events are clearly spelled out in the "Whereas" clauses of the presidential
decree, thus: (1) the state of martial law in the country pursuant to Proclamation
1081 dated September 21, 1972; (2) the desired result of Proclamation 1081 as well
as General Orders Nos. 6 and 7 which are particularly mentioned in P.D. 9; and (3)
the alleged fact that subversion, rebellion, insurrection, lawless violence, criminality,

CRIMINAL PROCEDURE | CASES

chaos, aid public disorder mentioned in Proclamation 1081 are committed and
abetted by the use of firearms and explosives and other deadly weapons.
The Solicitor General however contends that a preamble of a statute usually
introduced by the word "whereas", is not an essential part of an act and cannot
enlarge or confer powers, or cure inherent defects in the statute (p. 120, rollo of L42050-66); that the explanatory note or enacting clause of the decree, if it indeed
limits the violation of the decree, cannot prevail over the text itself inasmuch as
such explanatory note merely states or explains the reason which prompted the
issuance of the decree. (pp. 114-115, rollo of 46997)
We disagree with these contentions. Because of the problem of determining what
acts fall within the purview of P.D. 9, it becomes necessary to inquire into the intent
and spirit of the decree and this can be found among others in the preamble or,
whereas" clauses which enumerate the facts or events which justify the
promulgation of the decree and the stiff sanctions stated therein.
A "preamble" is the key of the statute, to open the minds of the makers as to
the mischiefs which are to be remedied, and objects which are to be accomplished,
by the provisions of the statute." (West Norman Timber v. State, 224 P. 2d 635, 639,
cited in Words and Phrases, "Preamble"; emphasis supplied)
While the preamble of a statute is not strictly a part thereof, it may, when the
statute is in itself ambiguous and difficult of interpretation, be resorted to, but not to
create a doubt or uncertainty which otherwise does not exist." (James v. Du Bois, 16
N.J.L. (1 Har.) 285, 294, cited in Words and Phrases, "Preamble")
In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had
occasion to state that '(L)egislative intent must be ascertained from a consideration
of the statute as a whole, and not of an isolated part or a particular provision alone.
This is a cardinal rule of statutory construction. For taken in the abstract, a word or
phrase might easily convey a meaning quite different from the one actually
intended and evident when the word or phrase is considered with those with which it
is associated. Thus, an apparently general provision may have a limited application
if read together with other provisions. 9
Second, the result or effects of the presidential decree must be within its reason or
intent.
In the paragraph immediately following the last "Whereas" clause, the presidential
decree states:
NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the Armed
Forces of the Philippines, in order to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and
decree that:
xxx xxx xxx
From the above it is clear that the acts penalized in P.D. 9 are those related to
the desired result of Proclamation 1081 and General Orders Nos. 6 and 7. General
Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3)

ALARCON | 64

which refers to blunt or bladed weapons. With respect to Proclamation 1081 some of
the underlying reasons for its issuance are quoted hereunder:
WHEREAS, these lawless elements having taken up arms against our duly
constituted government and against our people, and having committed and are still
committing acts of armed insurrection and rebellion consisting of armed raids,
forays, sorties, ambushes, wanton acts of murders, spoilage, plunder, looting,
arsons, destruction of public and private buildings, and attacks against innocent and
defenseless civilian lives and property, all of which activities have seriously
endangered and continue to endanger public order and safety and the security of
the nation, ...
xxx xxx xxx
WHEREAS, it is evident that there is throughout the land a state of anarchy and
lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent
to an actual war between the forces of our duly constituted government and the
New People's Army and their satellite organizations because of the unmitigated
forays, raids, ambuscades, assaults, violence, murders, assassinations, acts of
terror, deceits, coercions, threats, intimidations, treachery, machinations, arsons,
plunders and depredations committed and being committed by the aforesaid lawless
elements who have pledged to the whole nation that they will not stop their
dastardly effort and scheme until and unless they have fully attained their primary
and ultimate purpose of forcibly seizing political and state power in this country by
overthrowing our present duly constituted government, ... (See Book I, Vital
Documents on the Declaration of Martial Law in the Philippines by the Supreme
Court of the Philippines, pp. 13-39)
It follows that it is only that act of carrying a blunt or bladed weapon with a
motivation connected with or related to the afore-quoted desired result of
Proclamation 1081 that is within the intent of P.D. 9(3), and nothing else.
Statutes are to be construed in the light of purposes to be achieved and the evils
sought to be remedied. (U.S. v. American Tracking Association, 310 U.S. 534, cited in
LVN Pictures v. Philippine Musicians Guild, 110 Phil. 725, 731; emphasis supplied)
When construing a statute, the reason for its enactment should be kept in mind, and
the statute should be construed with reference to its intended scope and purpose.
(Statutory Construction by E.T. Crawford, pp. 604-605, cited in Commissioner of
Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055, 1060; emphasis
supplied)
5. In the construction of P.D. 9(3) it becomes relevant to inquire into the
consequences of the measure if a strict adherence to the letter of the paragraph is
followed.
It is a salutary principle in statutory construction that there exists a valid
presumption that undesirable consequences were never intended by a legislative
measure, and that a construction of which the statute is fairly susceptible is favored,
which will avoid all objectionable, mischievous, indefensible, wrongful, evil, and
injurious consequences. 9-a

CRIMINAL PROCEDURE | CASES

It is to be presumed that when P.D. 9 was promulgated by the President of the

Republic there was no intent to work a hardship or an oppressive result, a possible
abuse of authority or act of oppression, arming one person with a weapon to impose
hardship on another, and so on. 10
At this instance We quote from the order of Judge Purisima the following:
And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of
bladed weapons under P.D. No. 9, that more than ever before, policemen - of course
not all can be so heartless now have in their hands P.D. No. 9 as a most
convenient tool for extortion, what with the terrifying risk of being sentenced to
imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors,
which only God knows where it came from. Whereas before martial law an extortionminded peace officer had to have a stock of the cheapest paltik, and even that
could only convey the coercive message of one year in jail, now anything that has
the semblance of a sharp edge or pointed object, available even in trash cans, may
already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik. (pp. 72-73, rollo L-42050-66)
And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3)
results in absurdity at times. To his example We may add a situation where a lawabiding citizen, a lawyer by profession, after gardening in his house remembers to
return the bolo used by him to his neighbor who lives about 30 meters or so away
and while crossing the street meets a policeman. The latter upon seeing the bolo
being carried by that citizen places him under arrest and books him for a violation of
P.D. 9(3). Could the presidential decree have been conceived to produce such
absurd, unreasonable, and insensible results?
6. Penal statutes are to be construed strictly against the state and liberally in favor
of an accused.
American jurisprudence sets down the reason for this rule to be "the tenderness of
the law of the rights of individuals; the object is to establish a certain rule by
conformity to which mankind would be safe, and the discretion of the court
limited." 11 The purpose is not to enable a guilty person to escape punishment
through a technicality but to provide a precise definition of forbidden acts. 12
Our own decisions have set down the same guidelines in this manner, viz:
Criminal statutes are to be construed strictly. No person should be brought within
their terms who is not clearly within them, nor should any act be pronounced
criminal which is not made clearly so by the statute. (U.S. v. Abad Santos, 36 Phil.
243, 246)
The rule that penal statutes are given a strict construction is not the only factor
controlling the interpretation of such laws, instead, the rule merely serves as an
additional, single factor to be considered as an aid in determining the meaning of
penal laws. (People v. Manantan, 5 SCRA 684, 692)
F. The Informations filed by petitioner are fatally defective.

ALARCON | 65

The two elements of the offense covered by P.D. 9(3) must be alleged in the
Information in order that the latter may constitute a sufficiently valid charged. The
sufficiency of an Information is determined solely by the facts alleged
therein. 13 Where the facts are incomplete and do not convey the elements of the
crime, the quashing of the accusation is in order.
Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move
to quash the complaint or information when the facts charged do not constitute an
offense.
In U.S.U. Gacutan, 1914, it was held that where an accused is charged with
knowingly rendering an unjust judgment under Article 204 of the Revised Penal
Code, failure to allege in the Information that the judgment was rendered knowing it
to be unjust, is fatal. 14
In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later
became Chief Justice of the Court affirmed an order of the trial court which quashed
an Information wherein the facts recited did not constitute a public offense as
defined in Section 1, Republic Act 145. 15
G. The filing of these Petitions was unnecessary because the People could have
availed itself of other available remedies below.
Pertinent provisions of the Rules of Court follow:
Rule 117, Section 7. Effect of sustaining the motion to quash. If the motion to
quash is sustained the court may order that another information be filed. If such
order is made the defendant, if in custody, shall remain so unless he shall be
admitted to bail. If such order is not made or if having been made another
information is not filed withuntime to be specified in the order, or within such further
time as the court may allow for good cause shown, the defendant, if in custody, shall
be discharged therefrom, unless he is in custody on some other charge.
Rule 110, Section 13. Amendment. The information or complaint may be
amended, in substance or form, without leave of court, at any time before the
defendant pleads; and thereafter and during the trial as to all matters of form, by
leave and at the discretion of the court, when the same can be done without
prejudice to the rights of the defendant.
xxx xxx xxx
Two courses of action were open to Petitioner upon the quashing of the Informations
in these cases, viz:
First, if the evidence on hand so warranted, the People could have filed an amended
Information to include the second element of the offense as defined in the disputed
orders of respondent Judges. We have ruled that if the facts alleged in the
Information do not constitute a punishable offense, the case should not be
dismissed but the prosecution should be given an opportunity to amend the
Information. 16
Second, if the facts so justified, the People could have filed a complaint either under
Section 26 of Act No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as

CRIMINAL PROCEDURE | CASES

amended by Ordinance No. 3928, especially since in most if not all of the cases, the
dismissal was made prior to arraignment of the accused and on a motion to quash.
Section 8. Rule 117 states that:
An order sustaining the motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds specified in section 2,
subsections (f) and (h) of this rule.
Under the foregoing, the filing of another complaint or Information is
barred only when the criminal action or liability had been extinguished (Section 2[f])
or when the motion to quash was granted for reasons of double jeopardy. (ibid., [h])
As to whether or not a plea of double jeopardy may be successfully invoked by the
accused in all these cases should new complaints be filed against them, is a matter
We need not resolve for the present.
H. We conclude with high expectations that police authorities and the prosecuting
arm of the government true to the oath of office they have taken will exercise
utmost circumspection and good faith in evaluating the particular circumstances of
a case so as to reach a fair and just conclusion if a situation falls within the purview
of P.D. 9(3) and the prosecution under said decree is warranted and justified. This
obligation becomes a sacred duty in the face of the severe penalty imposed for the
offense.
On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his
letter to the City Fiscal of Manila on October 15, 1975, written for the Secretary, now
Minister of Justice, where he stated the following:
In any case, please study well each and every case of this nature so that persons
accused of carrying bladed weapons, specially those whose purpose is not to
subvert the duly constituted authorities, may not be unduly indicted for the serious
offenses falling under P.D. No. 9. 17
Yes, while it is not within the power of courts of justice to inquire into the wisdom of
a law, it is however a judicial task and prerogative to determine if official action is
within the spirit and letter of the law and if basic fundamental rights of an individual
guaranteed by the Constitution are not violated in the process of its implementation.
We have to face the fact that it is an unwise and unjust application of a law,
necessary and justified under prevailing circumstances, which renders the measure
an instrument of oppression and evil and leads the citizenry to lose their faith in
their government.
WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of
respondent Judges dismissing or quashing the Information concerned, subject
however to Our observations made in the preceding pages 23 to 25 of this Decision
regarding the right of the State or Petitioner herein to file either an amended
Information under Presidential Decree No. 9, paragraph 3, or a new one under other
existing statute or city ordinance as the facts may warrant.
Without costs.
SO ORDERED.

ALARCON | 66

PEOPLE OF THE PHILIPPINES, appellee, vs. PAULINO BUAYABAN, LARRY

BETACHE, MARCIANO TOACAO (at large), YOYONG BUAYABAN (at large) and
PEDRO TUMULAK, accused.
PEDRO TUMULAK, appellant.
D E C I S I ON
CORONA, J.:
This is an appeal from the decision[1] of the Regional Trial Court of Cataingan,
Masbate, Branch 49, in Criminal Case No. 471, finding the appellant Pedro Tumulak,
together with his co-accused, Paulino Buayaban and Larry Betache, guilty beyond
reasonable doubt of the crime of robbery with homicide and sentencing the
appellant Pedro Tumulak and his co-accused Paulino Buayaban to suffer the penalty
of reclusion perpetua and their co-accused, Larry Betache,[2] the indeterminate
penalty of 6 years and 1 day of prision mayor, as minimum, to 12 years and 1 day
of reclusion temporal, as maximum.
The information, dated May 7, 1990, charged the appellant Pedro Tumulak and his
co-accused Paulino Buayaban, Larry Betache, Marciano Toacao and Yoyong
Buayaban, of the crime of "robbery in band with homicide," as follows:
That on or about January 2, 1990, in the evening thereof, at Barangay Maihao,
Municipality of Cawayan, Province of Masbate, Philippines, within the jurisdiction of
this Court, the said accused confederating together, conspiring and helping one
another, with intent of gain and by means of violence and intimidation upon
persons, and to ensure the commission of the crime of robbery, with intent to kill did
then and there willfully, unlawfully and feloniously attack, assault and shot with a
gun Dioscoro Abonales, on the neck thereby inflicting wound which directly caused
his death, willfully, unlawfully and feloniously take, steal, rob and carry away cash
amount of P30,000.00 from Dioscoro Abonales wife, Josefa Abonales and P10,000.00
cash from Rolando Verdida to the damage and prejudice of said Josefa Abonales and
Rolando Verdida in the amount of P30,000.00 and P10,000.00 respectively.
CONTRARY TO LAW.[3]
Upon arraignment on January 17, 1991, accused Pedro Tumulak, Paulino Buayaban
and Larry Betache pleaded not guilty to the offense charged. [4] Their co-accused,
Marciano Toacao and Yoyong Buayaban, remain at large.
After arraignment, trial on the merits ensued. On August 11, 1993, the trial court
rendered its decision, the dispositive portion of which states:

[G.R. No. 112459. March 28, 2003]

CRIMINAL PROCEDURE | CASES

ACCORDINGLY, the court finds the accused guilty beyond reasonable doubt of the
crime of robbery with homicide, and hereby sentences Paulino Buayaban and Pedro
Tumulak each to suffer imprisonment of reclusion perpetua and Larry Betache to
suffer an indeterminate penalty of 6 yrs. and 1 day of prision mayor, as minimum, to
12 yrs and 1 day of reclusion temporal, as maximum, shall return the sum
ofP30,000.00 to the legal heirs of Dioscoro Abonales and P10,000.00 to Rolando
Verdida and shall indemnify the said legal heirs the sum of P50,000.00 for the death
of Dioscoro Abonales, P20,000.00 as moral damages and P20,000 as exemplary
damages.

ALARCON | 67

With costs de oficio.

SO ORDERED.[5]
Aggrieved, Pedro Tumulak, Paulino Buayaban and Larry Betache appealed the
decision to us. Pedro Tumulak and Paulino Buayaban jointly filed their Appellant's
Brief dated May 19, 1994.[6] Larry Betache adopted in toto their Appellant's Brief on
November 2, 1994[7] but thereafter filed an Urgent Motion to Withdraw Appeal on
November 29, 1996.[8] On September 20, 2002, Paulino Buayaban also filed an
Urgent Motion to Withdraw Appeal.[9] Hence, the instant appeal leaves only Pedro
Tumulak as the lone appellant.
The facts of the case, as culled from the testimonies of eyewitnesses, follow.
At about 7:00 p.m. on January 2, 1990, at Barangay Maihao, Cawayan, Masbate,
accused Paulino Buayaban, Larry Betache, Marciano Toacao, Yoyong Buayaban and
Pedro Tumulak, all armed, entered the house of Dioscoro Abonales. Pedro Tumulak
and Paulino Buayaban immediately poked their guns at Rolando Verdida who was
sitting near the balcony with his fiancee Elizabeth Abonales, the daughter of
Dioscoro. They were ordered to lie flat on the floor. Marciano Toacao and Yoyong
Buayaban then proceeded to the room where Dioscoro was sleeping. Yoyong kicked
Dioscoro in the face and when the latter stood up, Marciano shot him in the neck.
Dioscoro died instantly.[10]
Meanwhile, Larry Betache went outside the house and stood guard at the door
holding a knife. Pedro then went to the kitchen, grabbed the right arm of Josefa
Abonales, wife of Dioscoro, and asked her where the money was. Frightened, Josefa
quickly went to the room, followed by Marciano while Pedro returned to where
Elizabeth and Rolando were lying down in order to watch over them. Marciano
threatened Josefa with death if she refused to surrender the money. Josefa took the
money amounting to P30,000 from the wooden chest, placed it inside a pillow
case and she handed it to Marciano. The money was the familys capital in the
business of buying and selling pigs.[11]
In the meantime, somebody forcibly took the wallet of Rolando while he was lying
face down on the floor. The wallet contained P10,000 to be used for Rolandos
wedding to Elizabeth and which Rolando brought to Elizabeths house that night
because they were preparing for the wedding. [12]
After the perpetrators forcibly took the money from Josefa Abonales and Rolando
Verdida, they hurriedly went down the house. While escaping, however, and not far
from the scene of the crime, the malefactors bumped into Artemio Abonales, the
father of the victim, Dioscoro Abonales. Artemio was on his way to Dioscoros house
to investigate the gunshots he heard. He recognized the malefactors as they
stopped momentarily. Paulino pointed the gun at Artemio and pulled the trigger but
the gun did not fire. The malefactors then continued to run away. Not long
thereafter, Artemio arrived at Dioscoros house. [13] Neighbors started converging
there. Without losing time, Rolando, together with his fiancee, reported the incident
to the barangay captain who, together with three councilmen, responded and
arrived at the scene of the crime at about 8:30 p.m. [14]

CRIMINAL PROCEDURE | CASES

Appellant Pedro Tumulak put up the defense of alibi and denial. He testified that, on
January 2, 1990, at around 7:00 p.m., he was talking with Barangay Captain Silverio
Cortes in the latters house in Barangay Pen-as, Cawayan, Masbate. At 9:30 p.m., he
went to sleep in the house of Cortes. He was staying in the house of Cortes because
the latter hired him to work in his fishpond. He worked for Cortes from November 4,
1989 up to January 4, 1990 when he was arrested by Alfredo Colambot in the house
of Cortes. Prior to his arrest, he already knew that there was a robbery at the house
of Dioscoro Abonales and that the latter was killed. He denied any involvement in
the crime. He knew his co-accused Paulino Buayaban, Larry Betache, Marciano
Toacao and Yoyong Buayaban as well as the victim Artemio Abonales and his family
(Rolando Verdida, Josefa Abonales and Elizabeth Verdida) but he did not see any of
them on January 2, 1990 at around 7:00 p.m.[15]
On cross-examination, he testified that the house of Cortes where he was allegedly
staying was about six kilometers from the house of the victim, Dioscoro
Abonales. His own house was about one kilometer from the house of the victim. In
1987, he was allegedly mauled by Rolando Verdida, the victim's perspective son-inlaw, in Barangay Maihao but he did not ask why he was mauled nor did he report the
incident to the police.[16]
The trial court, however, found the evidence of the prosecution more convincing and
rejected the defense of alibi set up by appellant and his co-accused. Appellant Pedro
Tumulak and his companions were positively identified as the perpetrators of the
crime by eyewitnesses Rolando Verdida, Josefa Abonales and Artemio Abonales.
Alibi, the trial court ruled, is a weak defense and is easy to fabricate. It cannot
prevail over the positive identification of eyewitnesses unless clear and satisfactory
evidence to the contrary exists. The crime committed was robbery with homicide
inasmuch as there was a direct relation between the robbery and the killing, that is,
the victim, Dioscoro Abonales, was killed by the malefactors for the purpose of
consummating the robbery. Conspiracy existed as there was unity of purpose and
design in the commission of the crime. Appellant Pedro Tumulak and his co-accused
Paulino Buayaban and Larry Betache, being principals by direct participation in the
killing of Artemio Abonales and in robbing his family, were accordingly convicted by
the trial court of the crime of robbery with homicide. [17]
Appellant Pedro Tumulak assigns the following errors for our consideration:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDIT TO THE
TESTIMONIES OF THE PROSECUTION WITNESSES AND TOTALLY DISREGARDING THAT
OF THE DEFENSE.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE. [18]
The appeal has no merit.
The main argument of the appellant is that Judge Henry B. Basilla, the judge who
wrote the decision, was not the judge who observed firsthand the testimonies of the
witnesses.[19]Thus, Judge Basilla, not having had the opportunity to observe the

ALARCON | 68

witnesses demeanor and deportment on the witness stand, could not have discerned
and gauged if said witnesses were telling the truth. [20]
The contention of the appellant has no merit. The fact that the judge who penned
the decision was not the judge who heard the testimonies of the witnesses was not
enough reason to overturn the findings of fact of the trial court on the credibility of
the witnesses. Though ideally a judge should hear all the testimonies personally, at
times the reality is that a different judge might pen the decision because the
predecessor judge has retired, died or has been reassigned. In this situation, it
cannot be assumed that the findings of fact of the judge who took over the case are
not reliable and do not deserve the respect of the appellate courts. The judge who
did not hear the testimonies personally can always rely on the transcripts of
stenographic notes taken during the trial.[21] Such dependence does not violate
substantive and procedural due process.[22] Indeed, the correctness of a decision is
not impaired by the fact alone that the writer only took over from a colleague who
had earlier presided at trial, unless there is a showing of grave abuse of discretion in
the appreciation of factual findings reached by him. [23] The only reason for
disregarding the findings of fact of the trial court (which are ordinarily given great
respect by the appellate courts) is when there is a manifest indication that the trial
court overlooked, misunderstood or misapplied some facts or circumstances of
weight and substance which could have altered the conviction of the accused. [24] In
this case, no such reason exists for us to set aside the trial courts findings of fact.
The testimonies of the prosecution witnesses prove clearly and in no uncertain
terms, how the appellant and his companions carried out the execution of the crime.
Paulino Buayaban, Pedro Tumulak, Marciano Toacao, Yoyong Buayaban and Larry
Betache, all armed, entered the house of Dioscoro Abonales, killed the latter by
shooting him in the neck then forcibly took the sum of P30,000 from the victims
wife. They also got the wallet of Rolando Verdida, the future son-in-law of the victim,
containing P10,000 which was the money prepared by Rolando for his wedding to
the victims daughter. After the robbery, they all fled. But, while escaping, they
encountered Artemio Abonales, the father of the victim, who was responding to
investigate the gunshots he heard. They all stopped momentarily and Paulino in fact
tried but failed to shoot Artemio. Thereafter, all the accused continued their escape.
The appellant argues that, between the testimonies of Artemio Abonales and Larry
Betache, the trial court erred in giving weight to the testimony of Artemio for the
reason that he was not a credible witness. Artemios eyesight was allegedly defective
due to old age and his testimony was inconsistent. Appellant claims that Larry
Betache, on the other hand, was a credible witness because, according to the report
of the Department of Social Welfare and Development (DSWD), Larry Betache was a
good boy.[25]
We cannot accept the contention of the appellant. There is no reason to belittle the
testimony of Artemio Abonales just because defense witness Larry Betache gave a
different version.It must be noted that the positive identification of the appellant and
his companions was made not only by Artemio Abonales but also by Rolando Verdida
and Josefa Abonales whose testimonies were straightforward and categorical.
Artemio Abonales told Judge Manuel C. Genova [26] that he could still see clearly and
that he knew all the accused since their childhood.Thus he had no difficulty
recognizing them when he bumped into them on his way to the house of the victim.
He also clarified to Judge Genova that the distance between him and the malefactors

CRIMINAL PROCEDURE | CASES

when he met them was only about two meters. [27] In fact, his testimony shows that
the malefactors halted briefly at which juncture Paulino Buayaban even tried to shot
him but the gun did not fire. Thereafter, the five accused continued to run away. [28]
Appellant pointed out that it was absurd for Artemio Abonales to find Rolando
Verdida and Elizabeth Abonales still lying face down on the floor inside the victims
house, since he testified that his wife and daughter, who went before him to
investigate the gunshots, were already at the scene of the crime when he arrived.
[29]
Surely, the presence of his (Artemio's) wife and daughter at the place of the
crime would have alerted the victims that the robbery was over and that they could
already stand up. This inconsistency, however, is a minor one and does not in any
way affect the credibility of Artemio Abonales. Minor inconsistencies in the
testimonies of witnesses do not detract from their credibility; on the contrary, they
serve to strengthen their credibility and are taken as badges of truth rather than
as indicia of falsehood as they erase the suspicion of rehearsed testimony.[30]
The argument of the appellant that Larry Betache was a credible witness because he
was a good boy, according to the DSWD report, is totally devoid of merit. It does not
follow that just because the DSWD said that Larry Betache was a good boy, his
testimony was credible. His testimony should be taken with caution as he was a
defense witness and a youthful offender (co-accused of appellant Pedro Tumulak in
the present case) entitled to suspended sentence. He had nothing to lose by freeing
appellant from criminal responsibility. His uncorroborated testimony that appellant
Pedro Tumulak and Paulino Buayaban were not part of the group that robbed and
killed Dioscoro Abonales wilts under the positive identification of Rolando Verdida,
Josefa Abonales and Artemio Abonales.
In an effort to destroy the testimonies of Rolando Verdida and Josefa Abonales, the
appellant argues that: (1) Rolando Verdida could not have identified him and his
companions, and could not have seen what was going on during the incident
because he was lying face down on the floor, and (2) Josefa Abonales did not really
know him and his companions because she admitted she only got to know them
when her father-in-law told her their names.[31]
The argument of the appellant does not hold water. Even if eyewitness Rolando
Verdida was made to lie face down on the floor by the malefactors, he was not
prevented from getting a glimpse of the malefactors as they moved inside the
house. It must be noted that the house was a small nipa hut where one could see
without obstruction what was going on in another part of the house. [32] In addition,
the house was well-illuminated because there were three lamps, one in the balcony,
another at the door of the bedroom and a third in the kitchen. [33] The testimony of
Rolando Verdida, showing that he knew what was going on during the incident even
if he was lying face down on the floor, was:
Q: Now you testified during the direct examination that you saw Marciano Toacao but
in the cross examination you said you were ordering (sic) to lay flat on the floor,
when did you see him, after your father was shot or before?
A: Before the shooting.
Q: How were you able to see this shooting?

ALARCON | 69

A: I was near with my (sic) my father-in-law (witness is pointing from where he is

seated to the place where the lawyers seated (sic) which is about around 2 meters).

she got to know the names of the malefactors. Her direct testimony which the
defense erroneously interpreted as an admission went as follows:

Q: What was the condition of the place where the fatal shooting was made?

Q: So what did you do when you discovered that your husband was already dead?

A: No obstruction. He was sleeping at the door.

A: I cried.

Q: What about the place where you are situated to the kitchen where your mother is
preparing the table?

Q: You cried and what happened after that?

A: No obstruction from my place to the kitchen.

Q: Did you see them get the money?
A: Yes, sir.
Q: How was it taken?

A: My father-in-law arrived.
Q: When your father-in-law arrived what happened?
A: He told us he met five (5) persons.
Q: Did your father-in-law tell you who were those five (5) persons he met?
A: Yes, sir.

A: Yoyong Buayaban and Marciano Toacao get (sic) the money inside the wooden
chest.

Q: What did your father-in-law tell you about these five (5) persons?

Q: From the wooden chest were (sic) was it placed?

A: He met Paulino Buayaban, Larry Betache, Pedro Tumulak, Marciano Toacao and
Yoyong Buayaban.

A: I did not see.

Q: So you see the bundele (sic) of money being handed to the robbers?
A: It was placed inside the pillow.

Q: So who else arrived after your father-in-law arrived if there were any?
A: Our neighbors. [36]

Q: It was placed in the pillow when it was get (sic) by the robber?

In fact, it was clear from Josefas direct testimony that she knew the accused. Her
testimony was:

A: Yes, sir.

Q: What did they do inside your house?

xxx xxx xxx

A: They went up our house and shot my husband.

Q: These robbers did not use any mask when they went there?

Q: Who shot your husband?

A: No, sir.

A: Marciano Toacao.

Q: That is why you were able to identify them because you were from that place?

Q: Were you able to know these five (5) persons who went inside your house?

A: Yes, sir. [34]

A: Yes, sir.

Moreover, before Rolando was ordered to lie flat on the floor, he had a good look at
the accused when they entered the house as he was seated near the balcony. In
fact, two of the accused, herein appellant Pedro Tumulak and Paulino Buayaban,
pointed their guns at him the moment they entered the house. [35]

Q: Why were you able to identify these five (5) persons?

We find as baseless the argument of the appellant that the testimony of Josefa
Abonales was not credible because she allegedly admitted that she only obtained
the names of the malefactors from her father-in-law, Artemio Abonales. There is no
such admission in her testimony. What she said in direct examination was that her
father-in-law met five persons: Paulino Buayaban, Pedro Tumulak, Larry Betache,
Yoyong Buayaban and Marciano Toacao. She never said that it was only then that

CRIMINAL PROCEDURE | CASES

A: Because we have a light inside our house.[37]

And on cross-examination, she categorically stated that she really knew the accused
because they lived in the same place and they were neighbors. [38]
Against the positive identification of the prosecution witnesses, appellant Pedro
Tumulak set up the defense of alibi. Appellant claimed that, at the time the crime
occurred, he was talking with Barangay Captain Silverio Cortes in the latters house
in Barangay Pen-as, Cawayan, Masbate. At 9:30 p.m., he went to sleep in the house
of Cortes. He claimed he was staying there because Barangay Captain Cortes hired

ALARCON | 70

him to work in his fishpond. The barangay captain, however, did not testify despite
several subpoenas sent to him. [39] The defense instead presented Laurencio Villegas
who claimed to be the co-worker of appellant in Cortes fishpond. Laurencio Villegas
testified that he and appellant Pedro Tumulak ate together on the date and at the
time of the crime and that they slept in one mat. He said Pedro went to sleep ahead
of him.[40]
To properly appreciate the defense of alibi, the requirements of place and time must
be strictly met.[41] The accused must prove not only that he was somewhere else
when the crime was committed but also that it was physically impossible for him to
be at the scene of the crime at the time of its commission. [42] Here, we find no
physical impossibility for the appellant to have been at the place of the commission
of the crime and to have actually participated in it.
The alleged place where the appellant claimed he was at the time of the crime
(house of Barangay Captain Silverio Cortes) was not that far from the scene of the
crime as it is situated only in an adjacent barangay. Appellant could reach the house
of the victim after only an hours walk.
We rule that there was conspiracy between the appellant and his co-accused.
Conspiracy can be inferred from the acts of the perpetrators before, during and after
the crime, which indicate a common design, concerted action and concurrence of
sentiments.[43] From the testimonies of eyewitnesses, the acts of the appellant and
his co-accused showed unity of purpose and design in the execution of the offense.
The malefactors, all armed, entered the house of Dioscoro Abonales. Paulino
Buayaban and Pedro Tumulak stood guard over Rolando Verdida and Elizabeth
Abonales as they lay flat on the floor. Meanwhile, Yoyong Buayaban and Marciano
Toacao woke up the victim by kicking him in the face and when the victim tried to
get up, Marciano shot him in the neck, killing him instantly. Larry Betache, on the
other hand, stayed at the door to act as a look-out. After the perpetrators forcibly
seized the money from the wife of the victim and from Rolando Verdida, they all ran
away from the place of the crime.
The five accused clearly conspired in committing the crime; the unity of purpose and
design was evident. When conspiracy is shown, the act of one is the act of all.
[44]
Thus, appellant Pedro Tumulak, though he was not personally the one who killed
the victim and forcibly took the money from the victim's wife, is liable as principal by
direct participation for Dioscoros death as an incident to or as a result of the robbery.
In the information, the People erroneously charged the accused with "robbery in
band with homicide." There is no such crime in the Revised Penal Code. The felony is
properly called robbery with homicide. In the landmark case of People vs. Apduhan,
Jr.,[45] we ruled that if robbery with homicide is committed by a band, the indictable
offense would still be denominated as robbery with homicide under Article 294(1) of
the Revised Penal Code, but the circumstance that it was committed by a band
would be appreciated as an ordinary aggravating circumstance.
However, in the present case, we cannot treat the ordinary aggravating
circumstance of band because it was not alleged in the body of the information.
Though it is an ordinary aggravating circumstance, the 2000 Rules on Criminal
Procedure[46] require that even generic aggravating circumstances must be alleged in
the Information.[47] Thus, Sections 8 and 9, Rule 110, of the said Rules provide:

CRIMINAL PROCEDURE | CASES

Section 8. Designation of the offense.- The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to
the section or subsection of the statute punishing it.
Sec. 9. Cause of the accusation.- The acts or omissions complained of as constituting
the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment. (Emphasis
ours)
Section 8 simply provides that the information or complaint must state the
designation of the offense given by the statute and specify its qualifying and generic
aggravating circumstances. With regard to Section 9, we held in People vs. Nerio
Suela [48] that the use of the word must in said section 9 indicates that the
requirement is mandatory and therefore, the failure to comply with Sec. 9, Rule 110,
means that generic aggravating circumstances, although proven at the trial, cannot
be appreciated against the accused if such circumstances are not stated in the
information. It is a cardinal rule that rules of criminal procedure are given retroactive
application insofar as they benefit the accused.[49]
In this case, we cannot properly appreciate the ordinary aggravating circumstance of
band in the commission of the crime since there was no allegation in the information
that more than three armed malefactors acted together in the commission of the
crime.[50]
All things considered, we find Pedro Tumulak guilty beyond reasonable doubt of the
crime of robbery with homicide as defined and penalized under Article 294 of the
Revised Penal Code by reclusion perpetua to death. But since there was no
appreciable aggravating circumstance, the penalty of reclusion perpetua should be
the proper penalty.
As to the civil liability of the appellant, we affirm the award of damages by the trial
court except the grant of exemplary damages in the amount of P20,000 which we
hereby delete and the amount of moral damages which we hereby increase
from P20,000 to P50,000.
The award of exemplary damages is deleted because the crime was not committed
with any aggravating circumstance. Under Article 2230 of the Civil Code, exemplary
damages can only be awarded in criminal actions if the crime was committed with
aggravating circumstances.
As to the award of moral damages which the trial court properly awarded to the wife
and family of Dioscoro Abonales for the pain and anguish they suffered, [51] we
increase it toP50,000 in conformity with existing jurisprudence. [52]
The trial court did not award actual damages for the funeral and burial of the victim
because no receipts were presented by the prosecution. This is correct. However, we
recently ruled in the case People vs. Abrazaldo, G.R. No. 124392, February 4, 2003,

ALARCON | 71

that temperate damages in the amount of P25,000 shall be awarded where no

documentary evidence of actual damages (e.g. receipts of funeral and burial
expenses) were presented in the trial court because it is reasonable to presume that,
when death occurs, the family of the victim necessarily incurred expenses for his
wake and funeral. Accordingly, in the present case, in addition to the damages
already awarded by the trial court, we add temperate damages in the amount
ofP25,000.
WHEREFORE, the decision of the Regional Trial Court of Cataingan, Masbate,
Branch 49, in Criminal Case No. 471, convicting appellant Pedro Tumulak of the
crime of robbery with homicide and sentencing him to suffer the penalty of reclusion
perpetua is AFFIRMED with MODIFICATION in the award of damages. Moral damages
in favor of the heirs of the victim, Dioscoro Abonales, are hereby increased
from P20,000 to P50,000; exemplary damages in the amount of P20,000 are hereby
deleted for lack of basis while temperate damages in the amount of P25,000 are
hereby awarded in conformity with current jurisprudence.
The award of civil indemnity in favor of the heirs of the victim in the amount
of P50,000 and the restitution of the sum of money forcibly taken by the appellant
and his co-accused from the victim and his family in the total amount of P40,000
(P30,000 to be returned to the heirs of the Dioscoro Abonales and P10,000 to
Rolando Verdida) is hereby affirmed.
No costs.
SO ORDERED.

[G.R. No. 142773. January 28, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM, LEON
DELIM, MANUEL DELIM alias BONG (At Large), ROBERT DELIM (At Large),
and RONALD DELIM alias BONG, accused-appellants.
DECISION
CALLEJO, SR., J.:

CRIMINAL PROCEDURE | CASES

ALARCON | 72

Before the Court on automatic review is the Decision, [1] dated January 14, 2000, of
the Regional Trial Court, Branch 46, Urdaneta City, finding accused-appellants
Marlon Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of the
crime of murder and sentencing them to suffer the supreme penalty of death. The
court also ordered accused-appellants to pay, jointly and severally, the heirs of the
victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary
damages.
Accused-appellants Marlon, Ronald and Leon, together with Manuel alias Bong and
Robert, all surnamed Delim, were indicted for murder under an Information dated
May 4, 1999 which reads:
That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan,
and within the jurisdiction of this Honorable Court, the above-named accused, armed
with short firearms barged-in and entered the house of Modesto Delim and once
inside with intent to kill, treachery, evident premedidation (sic), conspiring with
one another, did then and there, wilfully, unlawfully and feloniously grab, hold,
hogtie, gag with a piece of cloth, brought out and abduct Modesto Delim, accused
Leon Delim and Manuel Delim stayed in the house guarded and prevented the wife
and son of Modesto Delim from helping the latter, thereafter with abuse of superior
strength stabbed and killed said Modesto Delim, to the damage and prejudice of his
heirs.
CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No.
7659.[2]
Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim,
were apprehended. Accused Robert and Manuel remain at-large.
At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel,
pleaded not guilty to the charge.
At the trial, the prosecution established the following relevant facts [3]
Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim
and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a
carpenter. He took the surname Delim after he was adopted by the father of Marlon,
Manuel and Robert. However, Modestos wife, Rita, an illiterate, and their 16-year old
son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and
Randy considered Marlon, Robert, Ronald, Manuel and Leon as their
relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and
Ronald used to visit Modesto and his family. Modesto and his family and the Delim
kins resided in Barangay Bila, Sison, Pangasinan.
On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were
preparing to have their supper in their home. Joining them were Modesto and Ritas
two young grandchildren, aged 5 and 7 years old. They were about to eat their
dinner when Marlon, Robert and Ronald suddenly barged into the house and closed
the door. Each of the three intruders was armed with a short handgun. Marlon poked
his gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied
the victim. A piece of cloth was placed in the mouth of Modesto. [4] Marlon, Robert
and Ronald herded Modesto out of the house on their way towards the direction of

CRIMINAL PROCEDURE | CASES

Paldit, Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave
the house. Leon and Manuel, who were also armed with short handguns, stayed put
by the door to the house of Modesto and ordered Rita and Randy to stay where they
were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the
following day, January 24, 1999.
As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin
Nio, at Sitio Labayog, informed the latter of the incident the night before and sought
his help for the retrieval of Modesto. Randy was advised to report the matter to the
police authorities. However, Randy opted to first look for his father. He and his other
relatives scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit,
Sison, Pangasinan, around 200 meters away from Modestos house, to locate
Modesto but failed to find him there. On January 25, 1999, Randy and his relatives
returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but
again failed to find him there. On January 26, 1999, Randy reported the incident to
the police authorities.
At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his
relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the
housing project in Paldit, Sison, Pangasinan and this time they found Modesto under
thick bushes in a grassy area. He was already dead. The cadaver was bloated and in
the state of decomposition. It exuded a bad odor. Tiny white worms swarmed over
and feasted on the cadaver. Randy and his relatives immediately rushed to the
police station to report the incident and to seek assistance.
When informed of the discovery of Modestos cadaver, the local chief of police and
SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw the
cadaver under the thick bushes. Pictures were taken of the cadaver. [5] Rita and
Randy divulged to the police investigators the names and addresses of Marlon,
Ronald, Robert, Leon and Manuel, whom they claimed were responsible for the death
of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto
and killed him. Rita and Randy gave their respective sworn statements to the police
investigators.[6] Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel
and Leon but failed to find them in their respective houses. The police officers
scoured the mountainous parts of Barangays Immalog and Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy
report, which reads:
SIGNIFICANT EXTERNAL FINDINGS:
- Body - both upper extremities are flexed
- both lower extremities are flexed
- (+) body decomposition
- (+) worms coming out from injuries
- 10 x 10 ml. GSW, pre-auricular area, right
- 20 x 20 ml. GSW, mandibular areas, right

ALARCON | 73

- 10 x 10 ml. GSW, maxillary area, right

- 10 x 10 ml. GSW, below middle nose, directed upward (POE)
- 30 x 40 ml. GSW, mid parieto occipital area (POEx)
- 2 x 1 cms. lacerated wound, right cheek
- 1 x 1 cm. stabbed wound, axillary area, left
- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm
- #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3 rd, left
forearm
- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
-

10 x 6 cms. Inflamed scrotum

penis inflamed

Leon for his part averred that on January 23, 1999, he was in the house of his sister,
Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been
living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had
been working for Sally Asuncion at a hollow-block factory in that city where he was a
stay-in worker.
Sally Asuncion corroborated Leons alibi. She testified that Leon Delim never went
home to his hometown in Pangasinan during his employment. His sister, Hermelita
Estabillo, likewise averred that on January 23, 1999, his brother was at her house to
give her his laundry. She claimed that the distance between Laoag City and Bila,
Sison, Pangasinan can be traversed in six hours by bus. Leon presented a Barangay
Certificate to prove that he was a resident of Laoag City from January 1998 up to
February 1999.[11]
Marlon asserted that he was on vacation in Dumaguete City from December 26,
1998 up to January 29, 1999. During his stay there, he lived with his sister, Francisca
Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to
Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after
his sojourn in Dumaguete City.
The trial court rendered judgment finding accused-appellants guilty of murder. The
dispositive portion of the trial courts decision reads:

GUN SHOT WOUND, HEAD.[7]

WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby

rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission
of Aggravated Murder, an offense defined and penalized under Article 248 of the
Revised Penal Code, as amended by R.A. 7659 and the Court sentences Marlon
Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be
implemented in the manner as provided for by law; the Court likewise orders the
accused, jointly and solidarily, to indemnify the heirs of Modesto Delim the sum of
P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary
damages.

The stab wounds sustained by Modesto on his left arm and forearm were defensive
wounds. The police investigators were able to confirm that Marlon, Ronald, Robert,
Leon and Manuel had no licenses for their firearms. [8]

The Branch Clerk of Court is hereby ordered to transmit the entire records of this
case to the Honorable Supreme Court, and to prepare the mittimus fifteen (15) days
from date of promulgation.

Records of the PNP Criminal Investigation and Detection Group in Baguio City show
that Marlon had pending cases for robbery in the Regional Trial Court of Baguio City
in Criminal Case No. 16193-R, and for robbery in band in Criminal Cases Nos. 9801
and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan. [9]

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail,
Urdaneta City is hereby ordered to transmit the persons of Marlon, Ronald and Leon,
all surnamed Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from
receipt of this decision.

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. [10]

SO ORDERED.[12]

Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his
brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two
kilometers away from Modestos house.

The trial court appreciated treachery as a qualifying circumstance and of taking

advantage of superior strength, nighttime and use of unlicensed firearms as
separate of aggravating circumstances in the commission of the crime. Marlon,
Ronald and Leon, in their appeal brief, assail the decision alleging that:

SIGNIFICANT INTERNAL FINDINGS:

- no significant internal findings
CAUSE OF DEATH:

He denied having been in the house of Modesto on January 23, 1999 and of
abducting and killing him. He theorized that Rita and Randy falsely implicated him
upon the coaching of Melchor Javier who allegedly had a quarrel with him concerning
politics.

CRIMINAL PROCEDURE | CASES

I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

ALARCON | 74

II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE
CASE AT BAR.
III
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO
ACCUSED-APPELLANTS DEFENSE OF ALIBI.[13]
Before resolving the merits of the case at bar, we first resolve the matter of whether
the crime charged in the Information is murder or kidnapping. During the
deliberation, some distinguished members of the Court opined that under the
Information, Marlon, Ronald and Leon are charged with kidnapping under Article 267
of the Revised Penal Code and not with murder in its aggravated form in light of the
allegation therein that the accused willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed)
Modesto Delim (while) Leon Delim and Manuel Delim stayed in the house (and)
guarded and prevented the wife and son of Modesto Delim from helping the
latter. They submit that the foregoing allegation constitutes the act of deprivation of
liberty of the victim, the gravamen in the crime of kidnapping. They contend that the
fact that the Information went further to charge accused with the killing of the victim
should be of no moment, the real nature of the criminal charge being determined
not from the caption or the preamble of the Information nor from the specification of
the law alleged to have been violated these being conclusions of law but by the
actual recital of facts in the complaint or information. They further submit that since
the prosecution failed to prove motive on the part of Marlon, Ronald and Leon to kill
Modesto, they are not criminally liable for the death of the victim but only for
kidnapping the victim.
It bears stressing that in determining what crime is charged in an information, the
material inculpatory facts recited therein describing the crime charged in relation to
the penal law violated are controlling. Where the specific intent of the
malefactor is determinative of the crime charged such specific intent must
be alleged in the information and proved by the prosecution. A decade ago,
this Court held in People v. Isabelo Puno, et al.,[14] that for kidnapping to exist, there
must be indubitable proof that the actual specific intent of the malefactor is to
deprive the offended party of his liberty and not where such restraint of his freedom
of action is merely an incident in the commission of another offense primarily
intended by the malefactor. This Court further held:
x x x. Hence, as early as United States vs. Ancheta, and consistently reiterated
thereafter, it has been held that the detention and/or forcible taking away of the
victims by the accused, even for an appreciable period of time but for the primary
and ultimate purpose of killing them, holds the offenders liable for taking their lives
or such other offenses they committed in relation thereto, but the incidental
deprivation of the victims liberty does not constitute kidnapping or serious illegal
detention.[15]
If the primary and ultimate purpose of the accused is to kill the victim, the incidental
deprivation of the victims liberty does not constitute the felony of kidnapping but is

CRIMINAL PROCEDURE | CASES

merely a preparatory act to the killing, and hence, is merged into, or absorbed by,
the killing of the victim.[16] The crime committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as
disclosed in the information or criminal complaint that is determinative of
what crime the accused is charged with--that of murder or kidnapping.
Philippine and American penal laws have a common thread on the concept of
specific intent as an essential element of specific intent crimes. Specific intent is
used to describe a state of mind which exists where circumstances indicate that an
offender actively desired certain criminal consequences or objectively desired a
specific result to follow his act or failure to act. [17]Specific intent involves a state of
the mind. It is the particular purpose or specific intention in doing the prohibited
act. Specific intent must be alleged in the Information and proved by the state in a
prosecution for a crime requiring specific intent. [18] Kidnapping and murder are
specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial evidence. It
may be inferred from the circumstances of the actions of the accused as established
by the evidence on record.[19]
Specific intent is not synonymous with motive. Motive generally is referred to as the
reason which prompts the accused to engage in a particular criminal activity. Motive
is not an essential element of a crime and hence the prosecution need not prove the
same. As a general rule, proof of motive for the commission of the offense charged
does not show guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder. [20] The history of crimes
shows that murders are generally committed from motives comparatively trivial.
[21]
Crime is rarely rational. In murder, the specific intent is to kill the victim. In
kidnapping, the specific intent is to deprive the victim of his/her liberty. If there is no
motive for the crime, the accused cannot be convicted for kidnapping. [22] In
kidnapping for ransom, the motive is ransom. Where accused kills the victim to
avenge the death of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific intent of the
malefactors in barging into the house of Modesto was to kill him and that he was
seized precisely to kill him with the attendant modifying circumstances. The act of
the malefactors of abducting Modesto was merely incidental to their primary
purpose of killing him. Moreover, there is no specific allegation in the
information that the primary intent of the malefactors was to deprive
Modesto of his freedom or liberty and that killing him was merely
incidental to kidnapping.[23] Irrefragably then, the crime charged in the
Information is Murder under Article 248 of the Revised Penal Code and not
Kidnapping under Article 268 thereof.
The threshold issue that now comes to fore is whether or not the prosecution
mustered the requisite quantum of evidence to prove that Marlon, Ronald and Leon
are guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt of the
accused beyond cavil of doubt. The prosecution must rely on the strength of its own
evidence and not on the weakness of the evidence of the accused. The proof against

ALARCON | 75

the accused must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment.[24]
In the case at bar, the prosecution was burdened to prove the corpus delicti which
consists of two things: first, the criminal act and second, defendants agency in the
commission of the act.[25] Wharton says that corpus delicti includes two things: first,
the objective; second, the subjective element of crimes. [26] In homicide (by dolo) and
in murder cases, the prosecution is burdened to prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause or suicide;
and (c) that defendant committed the criminal act or was in some way criminally
responsible for the act which produced the death. [27] To prove the felony of homicide
or murder, there must be incontrovertible evidence, direct or circumstantial, that the
victim was deliberately killed (with malice); in other words, that there was intent to
kill. Such evidence may consist inter alia in the use of weapons by the malefactors,
the nature, location and number of wounds sustained by the victim and the words
uttered by the malefactors before, at the time or immediately after the killing of the
victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is
conclusively presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either
by direct evidence or by circumstantial or presumptive evidence. [28]
In the case at bar, the prosecution adduced the requisite quantum of proof of corpus
delicti. Modesto sustained five (5) gunshot wounds. He also sustained seven (7) stab
wounds,[29]defensive in nature. The use by the malefactors of deadly weapons, more
specifically handguns and knives, in the killing of the victim as well as the nature,
number and location of the wounds sustained by said victim are evidence of the
intent by the malefactors to kill the victim with all the consequences flowing
therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps v. State:[31]

x x x if (a) there is more than one circumstance; (b) the facts from which the
inferences are derived have been established; and (c) the combination of all the
circumstances is such as to warrant a finding of guilt beyond reasonable doubt. [33]
The prosecution is burdened to prove the essential events which constitute a
compact mass of circumstantial evidence, and the proof of each being confirmed by
the proof of the other, and all without exception leading by mutual support to but
one conclusion: the guilt of accused for the offense charged. [34] For circumstantial
evidence to be sufficient to support a conviction, all the circumstances must be
consistent with each other, consistent with the hypothesis that accused is guilty and
at the same time inconsistent with the hypothesis that he is innocent, and with
every other rational hypothesis except that of guilt. [35] If the prosecution adduced the
requisite circumstantial evidence to prove the guilt of accused beyond reasonable
doubt, the burden of evidence shifts to the accused to controvert the evidence of the
prosecution.
In the present case, the prosecution mustered the requisite quantum of
circumstantial evidence to prove that accused-appellants, in confabulation with their
co-accused, conspired to kill and did kill Modesto:
1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto,
each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied
Modesto.They then seized Modesto and herded him out of his house:
FISCAL TOMBOC: What were you doing then at that time in your house?
A We were eating, sir.
Q You said we, who were your companions eating then at that time?
A My father, my mother and the two children and myself, sir.

This rule, that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men
generally act deliberately and by the determination of their own will, and not from
the impulse of blind passion, the law presumes that every man always thus acts,
until the contrary appears. Therefore, when one man is found to have killed another,
if the circumstances of the homicide do not of themselves show that it was not
intended, but was accidental, it is presumed that the death of the deceased was
designed by the slayer; and the burden of proof is on him to show that it was
otherwise.

Q While taking your supper that time, do you recall if there was anything unusual
that happened at that time?

The prosecution did not present direct evidence to prove the authors of the killing of
Modesto. It relied on circumstantial evidence to discharge its burden of proving the
guilt of accused-appellants of murder. Circumstantial evidence consists of proof of
collateral facts and circumstances from which the existence of the main fact may be
inferred according to reason and common experience.[32] What was once a rule of
account respectability is now entombed in Section 4, Rule 133 of the Revised Rules
of Evidence which states that circumstantial evidence, sometimes referred to as
indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction
if the following requisites concur:

A Marlon Delim, Robert Delim and Ronald Delim.

A When we were about to start to eat three armed men entered our house.
Q Do you know these three armed men who entered your house?
A Yes, sir.
Q Who are they, name them one by one?

Q Are these three persons inside the courtroom now?

A Two of them, sir.
Q Who are these two who are inside the courtroom?
A Marlon and Ronald, sir.
Q Will you please stand up and point to them?

CRIMINAL PROCEDURE | CASES

ALARCON | 76

A (Witness is pointing to a person seated on the bench inside the courtroom, who,
when his name was asked answered Marlon Delim. Likewise, witness is pointing unto
a person seated on the bench inside the courtroom, who, when his name was asked
he answered Ronald Delim).

A Ronald and Robert were the ones who pulled my father out, sir. [36]
Randys account of the incident was corroborated by his mother, Rita, who testified:

Q You said that these two armed persons entered your house, what kind of arm were
they carrying at that time?

PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at
around 6:30 in the evening while preparing for your supper three (3) armed men
entered inside your house, who were these three (3) men who entered your house?

A Short handgun, sir.

A I know, Marlon, Bongbong and Robert, sir.

Q When these three armed persons whom you have mentioned, armed with short
firearms, what did they do then when they entered your house?

ATTY. FLORENDO: We just make of record that the witness is taking her time to
answer, Your Honor.

A They took my father, sir.

Q Who took your father?

PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong
entered your house, are these three (3) persons who entered your house in Court
now?

A Marlon Delim, Robert Delim and Ronald Delim, sir.

A They are here except the other one, sir.

Q When these three persons took your father, what did you do then?

Q Will you please step down and point to the persons who entered your house?

A None, sir.

A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.

COURT: How did they get your father?

A They poked a gun and brought him outside the house, sir.
FISCAL TOMBOC: Who poked a gun?
A Marlon Delim, sir.
Q Again, Mr. Witness, will you point to the person who poked a gun?
A (Witness is pointing to Malon (sic) Delim, one of the accused).
Q After bringing your father out from your house, what transpired next?

Q After these three (3) armed men entered your house, what happened then?
A My husband was brought out, sir.
Q What is the name of your husband?
A Modesto Delim, sir.[37]
2. Randy said that when Marlon and Ronald barged into their house, Leon, armed
with a handgun, acted as a lookout when he stood guard by the door of the house of
Modesto and remained thereat until 7:00 a.m. of the next day:

COURT: You said your father was taken out, who?

FISCAL TOMBOC: When your father was pulled out from your house by these three
persons, what did you and your mother do while these three persons were taking out
of your house?

A Marlon, Robert and Ronald, sir.

A We did not do anything because Manuel and Leon Delim guarded us.

FISCAL TOMBOC: Where did these three persons bring your father?

COURT: Where, in your house?

A I do not know where they brought my father, sir.

A Yes, sir.

COURT: Was your father taken inside your house or outside?

FISCAL TOMBOC: From that very time that your father was pulled out by these three
persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then?

A Manuel Delim and Leon Delim said, Stay in your house, and guarded us.

A Inside our house, sir.

Q You said that Marlon poked a gun at your father, is that correct?
A Yes, sir.

A They were at the door, sir.

COURT: Why do you know that they were guarding you?
A Because they were at the door, sir.

Q What did Ronald and Robert do while Marlon was poking his gun to your father?

CRIMINAL PROCEDURE | CASES

ALARCON | 77

FISCAL TOMBOC: What was their appearance that time when these two persons
were guarding you, these Leon and Manuel?
A They were armed, sir.
Q What do you mean by armed?
A They have gun, sir.
Q What kind of firearm?
A Short firearm, sir.

A Nida Pucal, sir.

Q Who else?
A Pepito Pucal, Bernard Osias and Daniel Delim, sir.
COURT: When you found your father, what was his condition?
A He was dead, sir.
COURT: Go ahead.

Q By the way, where are these Leon and Manuel now, if you know?

FISCAL TOMBOC: You said that he was already dead, what was his appearance then
when you saw him dead?

A Leon is here, sir.

A He has bad odor, sir, in the state of decompsition (sic).[39]

Q About Manuel?

The testimony of Randy was corroborated by Dr. de Guzman who testified that the
cadaver of Modesto was in a state of decomposition, with tiny white worms crawling
from his wounds, and that his penis and scrotum were inflamed. The victim
sustained five gunshot wounds and defensive wounds on the left arm and forearm:

A None, sir.
Q Will you please stand up and point at Leon, Mr. Witness?
A (Witness pointed to a person seated on the bench inside the courtroom, who when
his name was asked, answered, Leon Delim).[38]

PROS. TOMBOC:
Q Will you please tell the Honorable Court your findings, Doctora?

3. Rita and Randy were ordered by Leon not to leave the house as Ronald and
Marlon left the house with Modesto in tow. Rita and Randy were detained in their
house up to 7:00 a.m. of January 24, 1999 to prevent them from seeking help from
their relatives and police authorities.

WITNESS:

4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver
of Modesto was found under the thick bushes in a grassy area in the housing project
located about 200 meters away from the house of Modesto. The cadaver exuded bad
odor and was already in the state of decomposition:

Q How many days had already elapsed when you autopsied the cadaver of the
victim, Doctora?

Q So what did you do then on January 27, where did you look for your father?

Q And what was your findings Doctora?

A The same place and at 3:00 oclock P.M., we were able to find my father.
COURT: Where?

A The body was already under the state of decomposition, sir, with foul odor and
there were so many worms coming out from the injuries, there were tiny white
worms, sir.

A At the housing project at Paldit, Sison, Pangasinan, sir.

Q What else did you observe Doctora?

FISCAL TOMBOC: Do you have companions at that time when you were able to look
for your father on January 27, 1999 at 3:00 oclock P.M.?

A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the
victim was an igorot (sic) and they have tradition that they will bury
immediately. Whether they like it or not I should do it, sir.

A Yes, sir.
Q Who?
A My Aunt, sir.
Q What is the name of your Aunt?

CRIMINAL PROCEDURE | CASES

A First finding: Upon seeing the cadaver, this is the position of the body, both upper
extremities are flexed and both lower extremities are flexed (Nakakukot).

A Four (4) days upon the recovery of the body, sir.

Q What else Doctora?

A And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.
And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there
was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the
exit.

ALARCON | 78

Q So there were two (2) gunshot wounds (GSW) Doctora?

A Yes sir.
And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10
ml. GSW, below middle nose, directed upward (POE); and there was also 30 x 40 ml.
GSW, mid parieto-occipital area (POEx).
Q How many all in all are the gunshot wound?
A Five (5) sir.
And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed
wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1
x 1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound,
medial aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left
arm; and #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect,
M/3rd, left forearm.
Q How many stabbed wound are there Doctora?

the victim was killed precisely by the very malefactors who seized him on January
23, 1999.
5. When police authorities went to the residences of all the malefactors, the latter
had flown the coop and were nowhere to be found:
COURT: In connection with this case, you investigated the wife and son of Modesto
Delim?
A Yes, sir.
Q In the course of the investigation did you come to know who were the suspects?
A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and
his brothers, sir.
Q What are the names of the brothers?
A Manuel Delim, Leon Delim I cannot remember the others, sir.

A There were seven (7) stabbed wounds, sir.

Q By reason of that information were you able to apprehend any of them for
investigation?

Q Those stabbed wounds were defensive wounds, Doctora?

A No, sir.

A Yes sir.[40]

Q Why?

The state of decomposition of the cadaver, with tiny white worms swarming and
feasting on it and the distention of his scrotum and penis are evidence that the
cadaver was in the stage of putrefaction and that the victim had been dead for a
period ranging from three to six days.[41] Admittedly, there are variant factors
determinative of the exact death of the victim. An equally persuasive authority
states:

A Because when we were dispatched by the Chief of Police no Delim brothers could
be found, they all left the place, sir.

Chronological Sequence of Putrefactive Changes Occurring in Tropical Region:

Q In what place did you look for the brothers Delim?

A Within the vicinity, sir.
Q In what place?

Time Since Death Condition of the Body

A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place
where the cadaver was found in Paldit, sir.

48 hours Ova of flies seen.

Q Where did you look for the Delim brothers?

Trunk bloated. Face discolored and swollen. Blisters present.

A Nearby barangays, Immalog, sir.

Moving maggots seen.

Q Wherelse (sic)?

72 hours Whole body grossly swollen and

A Labayog, Sison, sir.

disfigured. Hair and nails loose.

Q Wherelse?

Tissues soft and discolored.[42]

A In mountainous part of Immalog, part of Tuba Benguet, sir.

The lapse of two or three to four days from the seizure of the victim in the evening
of January 23, 1999 to the discovery of his cadaver which was already in the state of
putrefaction in the afternoon of January 27, 1999, about 200 meters away from his
house, is consistent with and confirmatory of the contention of the prosecution that

CRIMINAL PROCEDURE | CASES

Q What was the result?

A Negative result, sir.[43]

ALARCON | 79

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to
the house of Modesto and Rita:

by the prosecution should not be trashed simply because the malefactors had no
motive to kill Modesto.

COURT: These Leon and Manuel Delim are they known to you prior to that day,
January 23, 1999?

Ranged against the evidence of the prosecution, the burden of evidence shifted on
Marlon, Ronald and Leon to rebut the same and explain what happened to the victim
after taking him from his house in the evening of January 23, 1999. They may have
freed the victim shortly after taking him, or the victim may have been able to escape
and that thereafter a person or some other persons may have killed him. However,
Marlon, Ronald and Leon failed to give any explanation. Instead, they merely denied
having seized and killed the victim and interposed alibi as their defense.

A Yes, sir, I know them.

Q Why do you know Manuel and Leon prior to January 23, 1999?
A They are my neighbors, sir.
Q How about Marlon, Robert and Bongbong do you know them before January 23,
1999?
A I know them, sir.
Q Why do you know them?
A They used to go to our house, sir.
Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your
husbands name is Modesto Delim are they related with each other?
A Yes, sir.[44]
The sudden disappearance of Marlon, Ronald and Leon from their houses in
Barangay Bila, Sison is strong circumstantial evidence of their guilt for the death of
Modesto. Although flight after the commission of an offense does not create a legal
presumption of guilt, nevertheless, the same is admissible in evidence against them
and if not satisfactorily explained in a manner consistent with their innocence, will
tend to show that they, in fact, killed Modesto. [45]
It is true that the prosecution failed to prove motive on the part of the malefactors to
abduct and kill Modesto. Indeed, Randy and Rita testified that they were not aware
of any misunderstanding or grudge between Modesto on the one hand and Marlon,
Ronald and Leon and their co-accused on the other before the incident, or any
motivation on the part of the three malefactors to cause harm to
Modesto. Nonetheless, it cannot thereby be concluded that a person or persons
other than Marlon, Ronald and Leon were criminally responsible for the death of the
victim. It is a matter of judicial notice that nowadays persons have killed or
committed serious crimes for no reason at all. [46] In this case, the inscrutable facts
are that Marlon and Ronald, each of whom was armed with a handgun, forcibly took
Modesto from his house at the gunpoint, hogtied, put a piece of cloth in his mouth
and after Ronald and Marlon had left the house with Modesto in tow, Rita heard
three gunshots or so and the cadaver of Modesto was found concealed under the
bushes and already in a state of putrefaction in the afternoon of January 27,
1999. Modesto sustained several gunshot wounds and died because of a gunshot
wound on the head. The criminal acts and the connection of Marlon, Ronald and
Leon with said acts having been proved by the prosecution beyond reasonable
doubt, the act itself furnishes the evidence, that to its perpetration there was some
causes or influences moving the mind. [47] The remarkable tapestry intricately woven

CRIMINAL PROCEDURE | CASES

Leon is equally guilty for the death of Modesto because the evidence on record
shows that he conspired with accused-appellants Marlon and Ronald and accused
Robert and Manuel in killing the victim.
There is conspiracy when two or more persons agree to commit a felony and decide
to commit it.[48] Conspiracy must be proven with the same quantum of evidence as
the felony itself, more specifically by proof beyond reasonable doubt. Conspiracy is
not presumed. It may be proved by direct evidence or by circumstantial
evidence. Conspiracy is deducible from the acts of the malefactors before, during
and after the commission of the crime which are indicative of a joint purpose,
concerted action and concurrence of sentiment. [49] To establish conspiracy, it is not
essential that there be proof as to the existence of a previous agreement to commit
a crime.[50] It is sufficient if, at the time of the commission of the crime, the accused
had the same purpose and were united in its execution. If conspiracy is established,
the act of one is deemed the act of all. It matters not who among the accused
actually shot and killed the victim.[51]This is based on the theory of a joint or mutual
agency ad hoc for the prosecution of the common plan:
x x x The acts and declarations of an agent, within the scope of his authority, are
considered and treated as the acts and declarations of his principal. What is so done
by an agent, is done by the principal through him, as his mere instrument. Franklin
Bank of Baltimore v. Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33
(1839). If the conspiracy be proved to have existed, or rather if evidence be given to
the jury of its existence, the acts of one in furtherance of the common design are the
acts of all; and whatever one does in furtherance of the common design, he does as
the agent of the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.) 1, 710. [52]
In the eyes of the law, conspirators are one man, they breathe one breath, they
speak one voice, they wield one arm and the law says that the acts, words and
declaration of each, while in the pursuit of the common design, are the acts, words
and declarations of all.[53]
In the case at bar, Marlon, Ronald and Leon arrived together in the house of
Modesto, each armed with a handgun. Marlon and Ronald barged into said house
while Leon stood guard by the door thereof. After Marlon and Ronald had left with
Modesto in tow, Leon stood by the door and warned Randy and Rita not to leave the
house. Leon stood guard by the door of the house until 7:00 a.m. of January 24,
1999 when he left the house. The overt acts of all the malefactors were so
synchronized and executed with precision evincing a preconceived plan or design of
all the malefactors to achieve a common purpose, namely the killing of
Modesto. Irrefragably, the tasks assigned to Leon in the commission of the crime

ALARCON | 80

were (a) to act as a lookout; (b) to ensure that Rita and Randy remain in their house
to prevent them from seeking assistance from police authorities and their relatives
before their mission to kill Modesto shall have been a fait accompli as well as the
escape of Marlon and Ronald.[54] Patently, Leon, a lookout for the group, is guilty of
the killing of Modesto.[55] Leon may not have been at the situs criminis when Modesto
was killed by Marlon and Ronald nevertheless he is a principal by direct
participation.[56] If part of a crime has been committed in one place and part in
another, each person concerned in the commission of either part is liable as
principal. No matter how wide may be the separation of the conspirators, if they are
all engaged in a common plan for the execution of a felony and all take their part in
furtherance of the common design, all are liable as principals. Actual presence is not
necessary if there is a direct connection between the actor and the crime. [57]
Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging
that the same were marred by inconsistencies:
1. Randy initially stated that he did not know where the assailants brought his
father. Later however, Randy claimed that the malefactors proceeded to the
direction of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged
into their house. She later changed her testimony and declared that it was Robert,
together with Marlon and Ronald who barged into the house;
3. Rita likewise testified that two men stood outside the house guarding them. Later,
she testified that after the three men brought out the victim, the two other accused
entered the house and guarded them there;
4. Rita claimed that she went out to look for her husband the next day, or on January
25, 1999, and she was accompanied by her son Randy. However, Randy testified
that he was alone when he looked for his father from January 24 to 26, 1999. [58]
We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of
facts of the trial court, its calibration of the collective testimonies of witnesses and
its assessment of the probative weight thereof and its conclusions culled from its
findings are accorded by the appellate court great respect, if not conclusive effect,
because of its unique advantage of observing at close range the demeanor,
deportment and conduct of the witnesses as they give their testimonies before the
court. In the present case, the trial court gave credence and full probative weight to
the testimonies of the witnesses of the prosecution. Moreover, there is no evidence
on record that Randy and Rita were moved by any improper or ill motive in testifying
against the malefactors and the other accused; hence, their testimonies must be
given full credit and probative weight. [59] The inconsistencies in the testimonies of
Rita and Randy do not render them incredible or their testimonies barren of
probative weight. It must be borne in mind that human memory is not as unerring as
a photograph and a persons sense of observation is impaired by many factors
including the shocking effect of a crime. A truth-telling witness is not always
expected to give an error-free testimony considering the lapse of time and the
treachery of human memory. What is primordial is that the mass of testimony jibes
on material points, the slight clashing of statements dilute neither the witnesses
credibility nor the veracity of his testimony. [60] Variations on the testimony of
witnesses on the same side with respect to minor, collateral or incidental matters do

CRIMINAL PROCEDURE | CASES

not impair the weight of their united testimony to the prominent facts.
[61]
Inconsistencies on minor and trivial matters only serve to strengthen rather than
weaken the credibility of witnesses for they erase the suspicion of rehearsed
testimony.[62]
Moreover, the testimony of a witness should be construed in its entirety and not in
truncated terms and the true meaning of answers to isolated questions propounded
to a witness is to be ascertained by due consideration of all the questions
propounded to the witness and his answers thereto. [63]
Randys testimony that he did know where the malefactors brought his father is not
inconsistent with his testimony that Ronald and Marlon brought his father towards
the direction of Paldit, Sison, Pangasinan. Randy may not have known the
destination of accused-appellants but he saw the direction to which they went. While
it may be true that when asked to identify the three who barged into their house,
Rita pointed to Leon as one of them, however, Rita had been consistent throughout
her testimony that those who barged into their house were Ronald and
Marlon. Leons counsel never cross-examined Rita and impeached her testimony on
her identification of Leon as one of those who barged into their house to give her an
opportunity to explain her perceived inconsistency conformably with Rule 132,
Section 13 of the Revised Rules of Evidence which reads:
Before a witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be related
to him, with the circumstances of the times and places and the persons present, and
he must be asked whether he made such statements, and if so, allowed to explain
them. If the statements be in writing they must be shown to the witness before any
question is put to him concerning them.[64]
Hence, the presentation of the inconsistent statements made by Rita is insufficient
for the desired impeachment of her. [65] As to whether Rita and Randy were together
in looking for Modesto or Leon merely stood guard by the door of the house or
entered the house are inconsequential. The fact is that Leon stood guard throughout
the night to prevent Rita and Randy from seeking assistance for the seizure and
killing of Modesto.
This Court is convinced, as the trial court was, that the respective testimonies of
Randy and Rita bear the earmarks of truth and sincerity. Despite intense and
grueling cross-examination, they responded with consistency upon material details
that could only come from a firsthand knowledge of the shocking events which
unfolded before their eyes. The Court thus finds no cogent reason to disregard the
findings of the trial court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a reversible error in
not giving credence and probative weight to their evidence to prove their defense of
alibi. They aver that their collective evidence to prove their defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the weakest of
defenses in criminal prosecution because the same is easy to concoct between
relatives, friends and even those not related to the offender. [66] It is hard for the
prosecution to disprove. For alibi to merit approbation by the trial court and this
Court, Marlon, Ronald and Leon are burdened to prove with clear and convincing

ALARCON | 81

evidence that they were in a place other than the situs criminis at the time of the
commission of the crime; that it was physically impossible for them to have
committed the said crime.[67] They failed to discharge their burden. Moreover, Rita
and Randy positively and spontaneously identified Marlon, Ronald and Leon as the
culprits. The house of Ronald, where he claimed he was when the crime was
committed, was only two kilometers away from the house of Modesto and can be
negotiated by a tricycle. Leon failed to adduce any documentary evidence to prove
his employment by Sally Asuncion. The barefaced fact that he was a resident of
Laoag City does not constitute proof that he was in Laoag City on the day of the
commission of the crime. With respect to Marlon, he failed to adduce evidence aside
from his self-serving testimony that he resided in, left Dumaguete City and arrived in
Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the qualifying
circumstance of treachery in the killing of Modesto. The trial court likewise
appreciated nighttime and abuse of superior strength and the use of unlicensed
firearms as separate aggravating circumstances. The Office of the Solicitor General
contends that indeed treachery was attendant in the killing of Modesto. Hence,
Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article 248
of the Revised Penal Code.
The Court however finds that Marlon, Ronald and Leon are guilty only of homicide
defined in and penalized by Article 248 of the Revised Penal Code.
Qualifying circumstances such as treachery and abuse of superior strength must be
alleged and proved clearly and conclusively as the crime itself. Mere conjectures,
suppositions or presumptions are utterly insufficient and cannot produce the effect
of qualifying the crime.[68] As this Court held: No matter how truthful these
suppositions or presumptions may seem, they must not and cannot produce the
effect of aggravating the condition of defendant. [69] Article 14, paragraph 16 of the
Revised Penal Code provides that there is treachery when the offender commits any
of the crimes against the person, employing means, methods or forms in the
execution thereof which tend directly and especially to insure its execution, without
risk to himself arising from the defense which the offended party might make. For
treachery to be appreciated as a qualifying circumstance, the prosecution is
burdened to prove the following elements: (a) the employment of means of
execution which gives the person attacked no opportunity to defend himself or
retaliate; (b) the means of execution is deliberately or consciously adopted.
[70]
Although the victim may have been defenseless at the time he was seized but
there is no evidence as to the particulars of how he was assaulted and killed,
treachery cannot be appreciated against the accused.[71] In this case, the victim was
defenseless when seized by Marlon and Ronald. However, the prosecution failed to
present any witness or conclusive evidence that Modesto was defenseless
immediately before and when he was attacked and killed. It cannot be presumed
that although he was defenseless when he was seized the victim was in the same
situation when he was attacked, shot and stabbed by the malefactors. To take
advantage of superior strength means to purposely use force that is out of
proportion to the means of defense available to the person attacked. [72] What is
primordial, this Court held in People v. Rogelio Francisco[73] is that the assailants
deliberately took advantage of their combined strength in order to
consummate the crime. It is necessary to show that the malefactors cooperated in

CRIMINAL PROCEDURE | CASES

such a way as to secure advantage from their superiority in strength. [74]In this case,
the prosecution failed to adduce evidence that Marlon and Ronald deliberately took
advantage of their numerical superiority when Modesto was killed. The barefaced
facts that the malefactors outnumbered Modesto and were armed while Modesto
was not does not constitute proof that the three took advantage of their numerical
superioty and their handguns when Modesto was shot and stabbed. [75]
In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide
defined in and penalized by Article 249 of the Revised Penal Code with reclusion
temporal in its full period.
Although the special aggravating circumstance of the use of unlicensed firearms was
proven during the trial, there is no allegation in the Information that Marlon, Ronald
and Leon had no license to possess the firearm. Lack of license to possess a firearm
is an essential element of the crime of violation of PD1866 as amended by Republic
Act No. 8294, or as a special aggravating circumstance in the felony of homicide or
murder.[76] Neither can dwelling, although proven, aggravate the crime because said
circumstance was not alleged in the Information as required by Rule 110, Section 8
of the Revised Rules of Court.[77] Although this rule took effect on December 1, 2000,
after the commission of the offense in this case, nonetheless it had been given
retroactive effect considering that the rule is favorable to the accused. [78]
There being no modifying circumstances in the commission of homicide, Marlon,
Ronald and Leon should be meted an indeterminate penalty, the minimum of which
shall be taken from the entirety of prision mayor, ranging from 6 years and one day
to 12 years and the maximum period of which shall be taken from the medium
period of reclusion temporal, ranging from 14 years, 8 months and one day to 17
years and 4 months.
Consequently, the award for damages in favor of the heirs of the victim should be
modified. The sum of P75,000.00 awarded as moral damages should be reduced
to P50,000.00 in accordance with prevailing jurisprudence.[79] The amount
of P25,000.00 as exemplary damages is in order. [80] In addition, civil indemnity in the
amount of P50,000.00 should be awarded without need of proof, likewise in
consonance with prevailing jurisprudence.[81]
IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED
with MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim
are hereby found guilty beyond reasonable doubt of the felony of Homicide defined
in and penalized by Article 249 of the Revised Penal Code. There being no modifying
circumstances in the commission of the crime, each of accused-appellants is hereby
meted an indeterminate penalty of from ten (10) years and one (1) day of prision
mayor in its maximum period as minimum to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal in its medium period as maximum. Accusedappellants are hereby ordered to pay, jointly and severally, to the heirs of the victim
the amount of P50,000.00 by way of civil indemnity, the amount of P50,000.00 by
way of moral damages and the amount of P25,000.00 by way of exemplary
damages.
SO ORDERED.

ALARCON | 82

[G.R. No. 132788. October 23, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ISAIAS FERNANDEZ y VERAS
a.k.a. ISAIAH FERNANDEZ, ROBERT BOBBY KIWAS y BINAWE, JOHN DOE,
PETER DOE and CHARLIE DOE, accused,
ISAIAS FERNANDEZ y VERAS a.k.a. ISAIAH FERNANDEZ, appellant.
DECISION
QUISUMBING, J.:
For automatic review is the decision [1] of the Regional Trial Court of Baguio City,
Branch 6, dated January 14, 1998, in Criminal Case No. 14390-R, finding appellant
Isaias Fernandez y Veras, guilty beyond reasonable doubt of violating Republic Act
No. 6539,[2] as amended by Republic Act No. 7659, and sentencing him to death.
In an Information dated June 18, 1996, the Office of the City Prosecutor of Baguio
City charged herein appellant, Robert Bobby Kiwas, and three Does with violation of
the Anti-Carnapping Act as amended by Rep. Act No. 7659, allegedly committed as
follows:

CRIMINAL PROCEDURE | CASES

ALARCON | 83

That on or about the 21st day of April 1996, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with intent
of gain and without the consent of the owner thereof, conspiring, confederating and
mutually aiding one another, did then and there willfully, unlawfully and feloniously
take, steal and drive away a motor vehicle described as follows:
MAKE---------------------------TOYOTA
SERIES--------------------------TAMARAW FX
TYPE OF BODY---------------WAGON
PLATE NO.---------------------AVF-723
MOTOR NO.--------------------2C 3020507
SERIAL/CHASSIS NO. ------CF50 0016027
belonging to SPOUSES JEFFRED ACOP & JOSEPHINE ACOP and driven by CLIFFORD
GUINGUINO y GORIO and on the occasion and by reason of said carnapping, with
intent to kill and with treachery and evident premeditation, the accused attacked,
assaulted and shot the said Clifford Guinguino y Gorio, thereby inflicting upon the
latter: Cardio Respiratory failure, Hypovolemic shock, Cardiac tamponade,
Hemothorax Intra Abdominal Hemorrhage Secondary to Gunshot Wound, Multiple,
which caused his death.
CONTRARY TO LAW.[3]
On May 21, 1997, appellant Fernandez, who was then at large, was arrested by
elements of the Philippine National Police Criminal Investigation Group (PNP-CIG)
in Baguio City, by virtue of a warrant of arrest issued by the trial court. [4]
The following day, appellant was arraigned and with assistance of counsel, pleaded
not guilty to the indictment.[5] He waived pre-trial. Thereafter, the case was set for
continuous trial to terminate within sixty (60) days, pursuant to Supreme Court Adm.
Order No. 104-96.[6] Appellant was tried separately as his co-accused, Robert Bobby
Kiwas, had been earlier tried and convicted of the offense charged.
The facts of this case, as drawn from the records, are as follows:
Engineer Jeffred Acop, a resident of Baguio City was the owner and operator of two
Tamaraw FX taxis, registered as RAMA. [7] One of said taxis was maroon in color and
bore registry plate no. AVF 723. Its regular driver was Clifford Guinguino.[8]
On the morning of April 21, 1996, Guinguino took out the maroon Tamaraw FX taxi to
ply his daily rounds in Baguio City.[9] Later that day, sometime between 6:00 to 7:00
p.m., prosecution witness Arcadio Awal, Guinguinos brother-in-law[10] and a taxi
driver by occupation, encountered the latter driving the RAMA taxi of Engr. Acop
at Governor Pack Road, BaguioCity[11] while Guinguino was driving the maroon
Tamaraw FX RAMA taxi towards Marcos Highway. Awal used to drive the RAMA taxi
that Guinguino was driving.[12] Guinguino had four or five male passengers on board.
[13]
Awal, however, failed to recognize the faces of Guinguinos passengers as it was
already dark and the two vehicles were moving at a fast clip.

CRIMINAL PROCEDURE | CASES

[14]

Awaland Guinguinos vehicles passed each other quickly and they blew the horns
of the vehicles they were driving as an exchange of greetings. It was to be the last
time that Guinguino was seen alive. Eng. Acop waited that whole night for Guinguino
to return the taxi he was driving but in vain.[15]
At around 8:00 a.m. of April 22, 1996, Police Precinct No. 5 in Baguio City received a
call informing them that a dead body was to be found at Interior
Balacbac, Baguio City.[16]Immediately, SPO4 Lucio Alvarado, who took the call and his
fellow law enforcer, SPO1 Wilfredo Cabayanan, proceeded to the area. On seeing
that there was indeed a male corpse in the area, apparently the victim of foul play,
SPO4 Alvarado immediately left to call a medico-legal officer, leaving SPO1
Cabayanan to secure the crime scene. The latter initially examined the cadaver and
saw that it had sustained several gunshot wounds. [17]
After some minutes, Dr. Arsenio B. Avenido, a medico-legal officer of the Baguio City
Health Department arrived. After his own preliminary examination of the victims
remains, Dr. Avenido surmised that the victim had been killed either late in the
evening of the previous day or very early in the morning of April 22, 1996.[18] The
corpse was then removed from the scene to enable Dr. Avenido to conduct a proper
autopsy.
The post-mortem examination conducted by Dr. Avenido showed that the victim had
sustained the following injuries:
HEAD No evidence of external physical injury
NECK Gunshot wound 3 cm. x. 0.3 cm., 2.4 cm. in depth latero medial neck right
point of exit once
THORAX Wound gunshot 1.4 x 0.7 cm., 3 cm. in depth hypochondrium left
ABDOMEN Gunshot wound 1.4 cm. x 1 cm., 4 cm. in depth anterior lumbar right. [19]
In the course of his examination, Dr. Avenido recovered a slug from the body, which
a ballistic examination showed had been fired from a .22 caliber firearm. [20] He
turned over the slug to the police for a ballistic examination. [21] Dr. Avenido found the
cause of death to be:
Cardio respiratory failure, hypovolemic shock, cardiac tamponade, hemothorax intra
abdominal hemorrhage due to gunshot wound, multiple.[22]
Meanwhile, on April 23, 1996, Engr. Acop accompanied by Awal and Magdalena
Guinguino, the victims mother, went to Baguio City Police Precinct No. 5 to report
that Acops Tamaraw FX taxi and its driver were missing. When shown the corpse
found by the police at Interior Balacbac, Acop identified it to be the remains of his
missing driver, Clifford Guinguino. TheBaguio City police force then conducted a
series of search and recovery operations to find and get back the missing motor
vehicle, but to no avail. Having come up empty through their efforts,
the Baguio City police then spread the word about the missing vehicle to the police
units in the nearby provinces and requested their assistance in locating it. [23]
While the Baguio City police were still busy with what proved to be fruitless efforts to
locate the RAMA Tamaraw FX taxi, which seemed to have vanished from the face of

ALARCON | 84

the earth, late one evening in the last week of April 1996, prosecution witness
Laurencio Ducusin, the barangay captain of Casanfernandoan, Pozorrubio,
Pangasinan, was informed by some of thebarangay tanods, that a Tamaraw FX had
stopped at one of their checkpoints. Ducusin and the tanods were at that time doing
the nightly ronda in the barangay.[24]
Ducusin proceeded to the checkpoint and saw a maroon Tamaraw FX driven by his
brother-in-law, the appellant herein.[25] He had four male companions with him
aboard the vehicle, one of whom was referred to as Kiwas.[26] Ducusin then got
aboard the vehicle and they proceeded to his house, with the appellant driving.
On reaching his house, Ducusin exerted all efforts to be hospitable to his visitors.
[27]
The appellant then informed Ducusin that the vehicle he was driving was owned
by the appellantskumpare. Ducusin noticed, however, that they were armed with
firearms of various calibers,[28] but gave no further thought to it since he knew for a
fact that the appellant was working as a security officer for a Baguio-based security
agency.[29]
The appellant and his group stayed for two (2) days at the house of Ducusin. They
left the vehicle with him, saying that they would be back for it. [30]
Several days later, three of appellants companions, one of whom Ducusin
recognized as Kiwas, returned to Ducusins place and took the vehicle with them.
[31]
After leaving for places unknown, they returned and stayed with Ducusin for
another two days. When they departed, they left the vehicle with Ducusin, on the
pretext that it had a defect.[32]
After several more days, Kiwas together with four companions returned and like the
last time, Kiwas drove away the vehicle only to return after several hours. [33] When
Ducusin asked why they were using the vehicle although it supposedly had a defect,
Kiwas replied that they would have it repaired. [34] The group then left, leaving
Ducusin again in possession of the vehicle. They promised to return for the vehicle
with the appellant whom they referred to as sir.[35]
After the lapse of several days, a mechanic arrived at Ducusins house saying that
the appellants group had sent him to effect repairs on the vehicle. [36] Meanwhile,
Ducusin had parked the vehicle inside the camalig of his mother, Catalina Ducusin,
which was some two hundred (200) meters away from his house. [37]
The mechanic worked for several days. He changed its chassis[38] and then repainted
the vehicle, changing its color from maroon to gold.[39]
Ducusin was made suspicious by this turn of events and fearful that the vehicle was
not really owned by his brother-in-laws kumpare, he confided his suspicions to SPO2
Maximiano Balelo of the Pozorrubio Police Station on June 5, 1996.[40] SPO2 Balelo
recalled that on April 23, 1996, the Baguio City Police Command advised them to be
on the lookout for a carnapped maroon Tamaraw FX taxi with the marking RAMA,
which had been taken by unidentified men in Marcos Highway in the evening of April
21, 1996.[41] The Pozorrubio police conducted surveillance operations to determine if
the vehicle was in their area of jurisdiction.
SPO2 Balelo then advised his superior officer, Chief Inspector Lorenzo Pedro,
Pozorrubio Chief of Police, about the information he received from Ducusin. Elements

CRIMINAL PROCEDURE | CASES

of the Pozorrubio police immediately conducted surveillance

in barangay Casanfernandoan to verify Ducusins report.[42]

operations

On June 5, 1996, the police confirmed the information given by Ducusin that a
Tamaraw FX was indeed to be found in Casanfernandoan. The next day, the police
recovered said vehicle at the camalig of Ducusins mother. They called up Engr. Acop
in Baguio City and asked him to go to Pangasinan to see if the vehicle recovered was
his missing Tamaraw FX taxi.
Despite the change in its color, Engr. Acop was able to identify the vehicle recovered
by the Pozorrubio police as his missing RAMA taxi. His identification was made
through the stickers that he placed on the vehicle, the floormats, the steering wheel
cover, and the several dents on its body. [43] He also tried his spare key in the vehicles
ignition to determine if this would fit. It turned out to be a perfect fit. [44] Engr. Acop
could not identify the vehicle through its engine number or chassis number, leading
him to believe that both the engine and the chassis had been changed, but
nonetheless, the vehicle recovered bore the same production number (JY 999-02) as
his missing Tamaraw FX. The recovered vehicle was then brought back
to Baguio City.
In Baguio City, a macro-etching examination was conducted by Alma Margarita D.
Villaseor, the PNP Forensic Chemist at Camp Bado Dangwa, La Trinidad. [45] The
examination showed that the engine number of the recovered vehicle had not been
tampered with, but the chassis number (EVER 96-49729-C) was different from that in
its certificate of registration (CF-50-0016027). [46] This led Villaseor to conclude that
the chassis had been replaced.[47] Nonetheless, Villaseor observed that the vehicle
could still be identified through its production number (JY 999-02), a secret
manufacturers number used to distinguish a particular vehicle from others of the
same make or model.[48]
One of the witnesses presented by the prosecution, Robert Reyes, a marketing
executive of Toyota Cubao, Inc., testified that there are three (3) ways by which a
Toyota vehicle may be identified: (1) by the engine number; (2) by the chassis
number; and (3) its production number. Reyes categorically declared that no two
(2) Toyota vehicles would have identical engine, chassis, and production numbers.
[49]
Reyes also identified the production number of the Toyota (JY 999-02) as that
indicated in the sales invoice prepared by Toyota Cubao, Inc. when the said vehicle
was sold by them to NORCAR Allied Motors in Baguio City.[50]
Honorio Danganan, owner of NORCAR Allied Motors, an authorized Toyota dealer
in Baguio City declared on the witness stand that he sold a Toyota Tamaraw FX to the
spouses Acop with the following vehicle identification markings: (1) Engine number:
2C-302507; (2) Chassis number CF-50-0016027; and (3) Production number JY 99902.[51] Danganan stated that although the recovered vehicle now had a different
chassis number, it still bore the original production number JY 999-02, thus leading
him to conclude that there is a very big possibility that it was the same vehicle he
sold to the spouses Acop.[52]
To prove that appellants group is a syndicate organized for carnapping activities, the
prosecution adduced in evidence the information filed against appellant, Kiwas, and
four other men, before the RTC of La Trinidad, Benguet for carnapping with violence
of another Toyota Tamaraw FX belonging to a certain James Advincula. [53]

ALARCON | 85

At the trial, herein appellant raised the defense of denial and alibi in his bid to
escape culpability. He claimed that on April 21, 1996, the date when Clifford
Guinguino was killed, he was working at the office of BISAI until 11:00 p.m.[54] Among
the things he did was to prepare his belongings as he was scheduled to go to
Balatoc, Antamok, Sangilo to deliver the pay of the guards stationed there. After he
was through with his preparations, he went straight home to Brookside, Baguio City.
[55]

Appellant further claimed that on April 28, 1996, he went home to Bued, Binalonan,
Pangasinan, after office hours. He said his family was throwing a thanksgiving party
for his daughter Carla Joy Fernandez, who just graduated from St.
Louis University with a nursing degree.[56] Carla Joy, however, was not present at said
affair as she was already attending board review classes in Manila.[57] He added that
it was in the midst of the family party that at about 11 p.m. Kiwas arrived. He said
Kiwas was one of the security personnel of BISAI. Together with five (5) male
companions, Kiwas came on board a Toyota Tamaraw FX with RAMA markings on the
sides.[58]
According to appellant, Kiwas introduced to him one of his companions, Benny, as
a kumpare. Benny was supposedly in need of money and willing to mortgage the
vehicle to the appellant.[59] As the latter had no money with him, Kiwas asked if they
could go to the appellants sister in Pozorrubio, Pangasinan, to mortgage the vehicle.

appellant had in fact returned to the office from his rounds of the security postings
to log out at7:00 p.m. since both ladies left the BISAI offices at 5:00 p.m.
On January 14, 1998, the trial court promulgated its judgment as follows:
WHEREFORE, the Court finds the accused ISAIAH FERNANDEZ Y VERAS, also known
as Isaias Fernandez, guilty beyond reasonable doubt of violation of Section 14 of
Republic Act 6539, as amended by Section 20 of Republic Act 7659 (Qualified
Carnapping where the driver of the carnapped vehicle, Clifford Guinguino, was killed
in the course of the commission of the carnapping or on the occasion thereof) as
charged in the Information in conspiracy with Robert Kiwas (who was already
convicted after a separate trial earlier) and others whose identities and whereabouts
are yet unknown, and hereby sentences him to suffer the supreme penalty of DEATH
to be implemented in accordance with law; to indemnify jointly and severally with
his confederates, the heirs of Clifford Guinguino the sum of P50,000.00 for his death,
P74,945.00 as actual damages, P200,000.00 as moral damages, and P1,590,000.00
as unearned income; and to likewise indemnify jointly and severally with his
confederates, the spouses Jeffred Acop and Josephine Acop, the owners of the
carnapped subject taxi, the amount of P373,500.00 as value of the carnapped
vehicle, all indemnifications are without subsidiary imprisonment in case of
insolvency; and to pay the proportionate costs.

[60]

SO ORDERED.[67]

Appellant stated that he accompanied Kiwas and his group to his sisters residence in
Pozorrubio. They arrived in town at around 11:00 p.m. There they ran into a
checkpoint manned by the barangay police. Appellant informed them that he was
looking for the barangay captain, Laurencio Ducusin, who happened to be his
brother-in-law.[61]

In view of the imposition of the death penalty, the records of Criminal Case No.
14390-R were elevated to this Court for automatic review.

When Ducusin arrived, the appellant claimed that he informed him about the offer of
Benny to mortgage the vehicle. As Ducusin was agreeable, appellant then asked
Kiwas to take him back to Binalonan as it was already late and he had to report for
work the following day in Baguio City.[62] He denied staying at the Ducusin residence
for two days. He said Ducusin and two of the companions of Kiwas brought him back
to Binalonan right away, arriving there at around two oclock in the morning.[63]

THE TRIAL COURT ERRED IN FINDING THAT FERNANDEZ IS GUILTY BEYOND

REASONABLE DOUBT OF QUALIFIED CARNAPPING.

To buttress his alibi that he was at work in BISAI the night of April 21, 1996, when
Clifford Guinguino was killed and the Toyota Tamaraw FX vehicle he was driving
disappeared, the appellant presented Rolanda Paraan, former Administrative
Manager of BISAI and two accounting clerks of said security agency, namely: Emma
Ruth Alcantara and Evelyn Madarang.

B.
THE TRIAL COURT ERRED IN LENDING UNDUE CREDENCE TO WITNESS
LAURENCIO DUCUSINS PATENTLY UNRELIABLE TESTIMONY.

Alcantara and Madarang corroborated appellants alibi that he worked from 7:00
a.m. to 7:00 p.m. on April 21, 1996.[64] Appellants defense presented the payroll of
BISAI and his daily time record. But on cross-examination, none of the defense
witnesses could state with certainty where appellant was from the time he reported
to work in the morning to the time he left in the evening.[65] As appellants own
testimony showed, his work as security operations officer was mainly in the field,
supervising and inspecting the security guards deployed in various places
in Baguio City.[66] Neither Alcantara nor Madarang could categorically state whether

CRIMINAL PROCEDURE | CASES

Before us, the appellant assigns the following errors:

I

A. THE TRIAL COURT ERRED IN HOLDING THAT THERE IS SUFFICIENT

CIRCUMSTANTIAL EVIDENCE ON RECORD TO PROVE THAT FERNANDEZ COMMITTED
QUALIFIED CARNAPPING.

C.
THE TRIAL COURT ERRED IN HOLDING THAT THERE IS SUFFICIENT
CIRCUMSTANTIAL EVIDENCE ON RECORD TO PROVE THAT FERNANDEZ CONSPIRED
WITH ROBERT KIWAS AND THREE (3) JOHN DOES TO COMMIT QUALIFIED
CARNAPPING.
D.
THE TRIAL COURT ERRED IN RELYING ON PATENTLY INADMISSIBLE EVIDENCE TO
SUPPORT ITS FINDING OF GUILT AGAINST FERNANDEZ.
E.
THE TRIAL COURT ERRED IN REFUSING TO LEND CREDENCE TO FERNANDEZ
VERSION OF THE EVENTS.

ALARCON | 86

F.
THE TRIAL COURT VIOLATED FERNANDEZ CONSTITUTIONAL RIGHT TO BE
PRESUMED INNOCENT UNTIL PROVEN GUILTY.
II
THE TRIAL COURT ERRED IN IMPOSING ON FERNANDEZ THE SUPREME PENALTY OF
DEATH.
A. THE TRIAL COURT ERRED IN HOLDING THAT FERNANDEZ IS A MEMBER OF AN
ORGANIZED GROUP OR SYNDICATE ENGAGED IN AN ILLEGAL CARNAPPING SCHEME.
[68]

Briefly stated, the issues for our resolution are: (1) the sufficiency of the evidence to
sustain appellants conviction; and (2) the propriety of the penalty imposed.
On the first issue, appellant argues that the prosecution failed to prove the essential
elements of carnapping as defined in Section 14 of the Anti-Carnapping Act of 1972,
as amended.He contends that, assuming arguendo there is on record circumstantial
evidence against appellant, nonetheless such evidence could not be relied upon by
the trial court to constitute proof beyond reasonable doubt that he participated in
the unlawful taking of the vehicle and fatal shooting of its driver. Instead, according
to appellant, the most that could be attributed to him is that he accompanied the
group of Kiwas in bringing the stolen vehicle to Laurencio Ducusin in Pangasinan.
For the appellee, the Office of the Solicitor General (OSG) counters that the
undisputed factual circumstances established by the prosecution constitute an
unbroken chain of events which lead fairly and reasonably to but one conclusion,
namely: that the appellant is guilty of the offense charged.
For circumstantial evidence to be a sufficient basis for a conviction, the following
requisites must be satisfied: (1) there must be more than one circumstance; (2) the
facts from which the inferences are derived are proven; and (3) the combination of
all the circumstances is such as to produce a conviction beyond reasonable doubt. [69]
Considering the evidence on record, with the submission of the parties, we find the
prosecution evidence sufficient to sustain appellants conviction beyond reasonable
doubt. Thus, we find no reason to deviate from the trial courts assessment as to
appellants culpability for carnapping with homicide.
The trial court found appellant and his companions were in control and possession of
the subject vehicle soon after the shooting of the driver, Clifford Guinguino. Witness
Laurencio Ducusin testified that when the group of appellant arrived in Pozzorubio,
Pangasinan, appellant who was addressed as Sir by his companions, was the one
driving the vehicle. Appellant himself admitted that the taxi he rode in going to the
Ducusins had the marking RAMA on it.[70]
In the absence of an explanation of how one has come into the possession of stolen
effects belonging to a person shot, wounded and treacherously killed, he must
necessarily be considered the author of the aggression, the death of the person, as
well as the robbery committed.[71] This presumption is consonant with Rule 131 (3) (j)
of the Rules of Court [72] and validly applies to a case of carnapping for, indeed, the
concept of unlawful taking in theft, robbery and carnapping is the same and, had it
not been for the enactment of the Anti-Carnapping Act, the unlawful taking of the

CRIMINAL PROCEDURE | CASES

motor vehicle would certainly fall within the purview of either theft or robbery. This
presumption extends to cases where such possession is either unexplained or that
the proffered explanation is rendered implausible in view of independent evidence
inconsistent thereto.[73] Appellant having failed to give a plausible explanation for his
possession of the stolen Tamaraw FX, perforce, he is presumed to have taken the
vehicle away from the rightful owner or possessor thereof.
We have no reason to doubt Ducusins credibility as a witness. Ducusin is appellants
own brother-in-law, but he is also a Barangay Captain. Despite his relationship with
appellant, his sense of justice proved unerring. He bared his suspicion to the police
that the vehicle left in his care was a hot item. Appellant tried to ascribe ill-motive
on Ducusin for testifying against him, but appellant failed in this regard. Absent
a showing that the witness was actuated by an improper motive, the presumption is
that he was not so actuated and his testimony is entitled to full faith and credit.
[74]
This rule has a more compelling application when the witness testifies against a
relative, for no person would implicate in a crime his own kin, disregarding the
unspeakable social stigma it may cause against his entire family, unless that person
seeks only the truth, for justice to prevail.
We find that sufficient circumstantial evidence exists, consistent with appellants
guilt, and inconsistent with his innocence. [75] Against appellant are the following
circumstances: (1) He and his group were in possession of the stolen Tamaraw FX
after its driver was shot to death. (2) The victim, Clifford Guinguino, was last seen
between 6 to 7 p.m. that night, with five men aboard the FX dovetailing with the
testimony of Ducusin that appellants party of five men were on board the vehicle
when they arrived in Pangasinan before midnight sometime in the latter part of April.
(3) Appellant who was addressed as Sir by the group, was the one driving the
vehicle when he, Kiwas, and three John Does arrived in Pangasinan hours after the
Guinguinos fatal shooting. (4) On arrival in Pangasinan, appellant and Kiwas were
armed with .22 caliber guns while the others were carrying .38 caliber guns, which
match the wounds of the victim, some of which were characteristic of .22 caliber
bullets while the others were bigger, typical of a .38 caliber. (5) Appellant and his
group left the vehicle at the Ducusins at the pretext that it needed repairs, although
it was brand new and was able to run all the way from Baguio. (6) Instead of just
repairing it, a man sent by appellants group changed the engine and chassis of the
vehicle and repainted its body from maroon to gold. (7) Appellant did a vanishing act
from his work a day after the stolen car was identified by its owner and placed
in custodia legis. (8)He went into hiding and was unheard of until his arrest.
The foregoing factual circumstances constitute evidence of weight and probative
force which may even surpass direct evidence in its effect upon the Court.
[76]
The peculiarity of circumstantial evidence under Sec. 4, Rule 133 of the Rules of
Court [77] is that the guilt of the accused cannot be deduced from scrutinizing just one
particular piece of evidence. Circumstantial evidence is like a rope composed of
many strands and cords. One strand might be insufficient, but five together may
suffice to give it strength. [78] Here, strands of evidentiary facts weaved together
compels to conclude that the crime of carnapping with homicide has been
committed, and that the appellant cannot hide behind the veil of presumed
innocence.
Lastly, we find appellants defense of alibi inadequate to support his exculpation.

ALARCON | 87

According to appellant, on April 21, 1996, he was at work from 7:00 a.m. to 11:00
p.m. and the next day, April 22, from 7:00 a.m. to 7:00 p.m. He presented in this
regard his payroll receipts as supporting evidence. However, as found by the trial
court, his claim that he worked on April 21, 1996 in BISAI from 7 a.m. to 11 p.m. is
contradicted by his own daily time record, which stated that he was at work from 7
a.m. to 7 p.m. only that day. Also, the Accounting Clerk from BISAI who prepared the
said payroll, said there was no way of ascertaining whether appellant was in fact
present at his post of duty because, as roving supervisor, he checked security
guards in their posts located at various client-establishments.

As to the penalty, the trial court imposed the death sentence on appellant. Pursuant
to the last clause of Section 14 of the Anti-Carnapping Act, amended by Section 20
of Republic Act 7659, the penalty of reclusion perpetua to death is imposable when
the owner or the driver of the vehicle is killed in the course of the commission of the
carnapping or on the occasion thereof. [80] Considering as aggravating the
commission of the offense by a person belonging to an organized or syndicated
crime group under Article 62 of the Revised Penal Code, as amended by R.A. 7659,
[81]
the trial court imposed the extreme penalty on appellant. But appellants defense
now questions the propriety of imposing on him the death sentence.

Appellant claims that he went down to Binalonan to attend his daughters graduation
thanksgiving party on April 28, 1996. There at about 11 p.m., Kiwas and five
companions whom he had not met before arrived on board the subject RAMA taxi
and spoke to him about their dire need of cash and their willingness to mortgage the
subject taxi, according to appellant. Since he was cash-strapped himself, appellant
said, he accompanied them to the house of his sister and brother-in-law, Laurencio
Ducusin, in Pozorrubio, Pangasinan. They arrived in Pozorrubio at about midnight.
But, according to appellant, it was not he but only Kiwas and his group who
transacted business with his sister. Thereafter, at 2 a.m. the next day, the group
brought him back to Binalonan while Kiwas and others spent the rest of the night in
Pozorrubio with the Ducusins.

Under Rule 110, Section 8 of the Revised Rules of Criminal Procedure, both
aggravating and qualifying circumstances must be alleged in the information. Being
favorable, to the appellant, this new rule can be given retroactive effect as they are
applicable to pending cases.[82]

As the trial court observed, appellants version of events runs contrary to ordinary
human experience. His story taxes ones credulity too much.

No aggravating circumstance having been alleged or proved properly in this case,

the provisions of Article 63 (2) of the Revised Penal Code should be applied. Without
mitigating nor aggravating circumstance found in the commission of the offense, the
lesser penalty for the offense, which is reclusion perpetua, should be imposed on
appellant.

Why would appellants family set the celebration of his daughters graduation on a
date when supposedly the celebrant was in Manila already reviewing for the board
exams? Whats the logic behind Kiwas driving all the way from Baguio to Pangasinan
in the middle of the night just to borrow money from appellant? Why was Kiwas
accompanied by five men just to get the alleged loan? What prompted appellant to
rush with a group of strangers to his sisters house in Pozorrubio, Pangasinan, in the
middle of the night? Why borrow only P10,000, but leave a new FX taxi
worth P400,000 as collateral? All these questions beg to be answered, but in vain, as
we try to make sense of appellants tale.
As a supervisor of the security agency, appellant was not a novice in the nuances of
the law. Seeing the taxis RAMA markings boldly written on it, appellant should have
been more circumspect as to vehicles ownership. Why didnt he inquire for the
registration papers of the FX? For someone of his stature and experience, it was
rather odd that he did not inquire into the basics of a rush transaction.
Even more puzzling, appellant did not present his sister to corroborate the essentials
of his story. The defense had no corroborating witnesses at all to back appellants
version. His denial and alibi have no leg to stand on.
In sum, we find no reason nor justification to reverse the findings and conclusions of
the trial court. In affirming convictions, the evidence required remains, as always,
one beyond reasonable doubt, though we do not ask for proof that excludes all
possibility of error.[79] Only moral, not absolute, certainty is what the fundamental
law requires. In this case, considering the circumstances of the case, we entertain no
doubt on appellants guilt.

CRIMINAL PROCEDURE | CASES

In this case, the allegation of being part of a syndicate or that appellant and
companions had formed part of a group organized for the general purpose of
committing crimes for gain, which is the essence of a syndicated or organized crime
group,[83] was neither alleged nor proved by the prosecution. Hence, we agree that it
was error for the trial court to sentence appellant under Article 62 of the Revised
Penal Code, as amended by R.A. 7659.

As to damages, the amount of the trial courts award for lost earnings needs to be
recomputed and modified accordingly.
The Court notes that the victim was 27 years old at the time of his death and his
wife testified that as a driver of the Tamaraw FX taxi, he was earning at least P250.
[84]
Hence, the damages payable for the loss of the victims earning capacity following
the formula[85] used by the Court in People v. Visperas, G.R. No. 147315, January 13,
2003, is computed thus:
Gross Annual Earnings = P250 x 261 working days in a year
= P 65,250
Net Earning Capacity = 2/3 x (80-27) x [P 65,250- P 32,625]
= 35.33 x P 32,625
Lost Earnings = P 1,152,641
With respect to the award by the trial court of P200,000 in moral damages, in line
with prevailing jurisprudence, it should be deleted for lack of needed proof. The
award of P74,945 as burial and other expenses is also deleted for lack of adequate
proof, but the victims heirs are entitled to temperate damages in the amount
of P25,000 pursuant to case law. The award ofP373,500 to the Spouses Jeffred and

ALARCON | 88

Josephine Acop, as restitution of the value of their FX taxi, should also be upheld
because it is supported by evidence on record. [86]

of RAPE, defined and punished under Article 335 of the Revised Penal Code,
committed as follows:

WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6,
dated January 14, 1998, in Criminal Case No. 14390-R, finding appellant ISAIAS
FERNANDEZ y VERAS a.k.a. ISAIAH FERNANDEZ guilty beyond reasonable doubt of
violation of Republic Act No. 6539 is AFFIRMED with MODIFICATIONS. Appellant is
sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of the
victim CLIFFORD GUINGUINO the sum of P50,000 as civil indemnity, P1,152,641
representing lost earnings, and P25,000.00 as temperate damages. Appellant is
also ORDERED TO PAY the owners of the FX taxi, Spouses Jeffred and Josephine
Acop, the amount of P373,500, as restitution for the stolen vehicle.Costs de oficio.

That on or about 7:00 oclock in the evening of July 17, 1992, at Barangay Marangi,
Municipality of San Fernando, Province of Camarines Sur, Philippines and within the
jurisdiction of this Honorable Court, the said accused, with lewd designs, and by
means of force and intimidation, did then and there willfully, unlawfully and
feloniously, have carnal knowledge with one Beatriz O. Pascuin, against her will.

SO ORDERED.

ACTS CONTRARY TO LAW.[2]

On his arraignment on November 5, 1993 the appellant, assisted by counsel,
entered a plea of not guilty.[3]
The Case for the Prosecution
Manuel and his wife Beatriz Pascuin resided in a remote area in Barangay
Marangi, San Fernando, Camarines Sur. It was an area where the community did not
as yet have the luxury of electric light in their houses.
At around 7:00 p.m. of July 17, 1992, Beatriz dropped by the store
of Marcial Olitoquit to buy kerosene. The store was about 300 meters away from
their house. She lighted the wick and used the kerosene lamp to light her way back
home. The road to their house was the path usually taken by carabaos going to
farm. The road sides were grassy and strewn with coconut trees.

[G.R. No. 121997. December 10. 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ANDRES MASAPOL, appellant.
DECISION
CALLEJO, SR., J.:
Before
this
Court
on
appeal
is
the
Decision [1] of
by
the Regional Trial Court of Naga City, Branch 28, convicting the appellant Andres
Masapol of the crime of Rape, and sentencing him to suffer the penalty of reclusion
perpetua and to pay the victim Beatriz O. Pascuin the sum of P50,000.00 as
damages.
The appellant was charged of rape in an Information, the accusatory portion of which
reads:
The undersigned 2nd Assistant Provincial Prosecutor, upon a sworn complaint
originally filed by the offended party, accuses ANDRES MASAPOL y DOE of the crime

CRIMINAL PROCEDURE | CASES

Suddenly, the appellant Andres Masapol appeared out of nowhere and poked a knife
at Beatriz. Before she could shout for help, the appellant covered her mouth with his
hand. He warned her not to shout; otherwise, he would kill her. Beatriz boxed the
appellant on the stomach, in an attempt to remove the latters hand from her
mouth. This enraged the appellant. He forthwith slapped Beatriz and boxed her on
the abdomen and on her back. The appellant dragged her off from the trail to a
grassy area and forced her to lie down on the ground. Beatriz let go of the
kerosene. It was then when the wicks flame went off. The appellant removed her
short pants and her panties even as she kicked and struggled to free
herself. Undeterred, the appellant undressed himself and went on top of her. While
his right hand held a knife pressed on the base of her neck, the appellant forced
Beatriz to spread her legs. He then inserted his penis with his left hand into her
vagina and had carnal knowledge of her. Satiated, the appellant dismounted. He
threatened to kill her if she told anyone what he had done. The appellant then
left. Beatriz put on her shorts and sped back towards her house.
At first, Beatriz balked at the thought of revealing her ordeal to her husband. She,
however, relented and told her husband that she was raped by the appellant. Upon
hearing this, Manuel was enraged; instead of consoling his wife, he even mauled
Beatriz. He ordered her not to report the incident to the police authorities because
he himself would confront the appellant and avenge the travesty that had been
committed against her. Manuel saw that his wifes polo shirt was torn under the
armpit and that the buttons of her shorts were missing.
Since then, Manuel was on the lookout for the appellant. On August 29, 1992,
Manuel armed himself with a bolo and waited for the appellant in the latters
house. Upon seeing the appellant, Manuel chased him and tried to hack him on the

ALARCON | 89

head, but the appellant escaped. When apprised of the incident, Nelia Masapol, the
appellants wife, filed a criminal complaint the following day against Manuel with
Barangay Captain Ramon Dimagante. A conference was held. Beatriz executed a
statement where she declared that she was raped by the appellant onJuly 17,
1992 and that when she reported the incident to her husband, he was so infuriated.
[4]
Manuel informed the barangay captain that he chased the appellant and wanted
to stab him with his bolo because the appellant sexually abused his wife. When
questioned by the barangay captain, the appellant admitted that he had sexual
relations with Beatriz, but averred that the same was consensual. [5]
Unable to settle the case, the barangay captain forwarded the same to the San
Fernando Police for investigation. On September 24, 1992, Beatriz gave a sworn
statement to SP04 Roger Atacador. She was examined by Dr. Alcantara of the Rural
Health Unit of San Fernando on September 14, 1992, who issued a medical
certificate thereon. During the preliminary investigation by the Presiding Judge of the
MCTC, the appellant offered to settle the case. The judge commented that if the
appellant truly wanted to settle, he should pay P33,000.00. The appellant made an
offer of P2,000.00, which Beatriz did not accept. Although the court required him to
submit a counter-affidavit, the appellant could not be located and failed to file
any.The court, thus, terminated the preliminary examination and investigation of the
case and proceeded with trial.
The Case for the Appellant
The appellant admitted having consensual sexual
sometime, even before July 17, 1992. He, however,
knowledge of her on July 17, 1992. He asserted that his
her birthday that day, and on the said date, he was
guests.

congress with Beatriz for

denied having had carnal
daughter Amelia celebrated
in their house entertaining

Macaria Mayores, the appellants first cousin, testified that she was the biological
mother of Amelia, and that she gave Amelia to the appellant when the girl was still
ten months old. She further testified that she did not register Amelias live birth since
she was busy at that time and that Amelia would after all be adopted by the
appellant.
Nelia Masapol, the appellants wife, testified that they had been celebrating Amelias
birthday on July 17 because it was on that date when Amelia was given to them by
Macaria Mayores.
Juana Chavez, a neighbor of the appellant, testified that on July 17, 1992, she was at
the appellants residence, and helped prepare the food and serve the guests at
Amelias birthday party. The appellant was in the house the whole day, while Juana
testified that she stayed there from 4:00 p.m. until around 8:00 a.m. the following
day.
Teresita Canaco, a barriomate of both Beatriz and the appellant, testified that she
had a conversation with Beatriz in the courthouse during the trial. Beatriz admitted
to her that she only concocted the story of rape because her husband Manuel had
maltreated her while being asked to confess. To stop the beating, Beatriz just told
her husband that she was raped by the appellant.

On rebuttal, the prosecution adduced in evidence the baptismal certificate of Amelia

Masapol, showing that she was born on September 19, and not July 17. [6]
After the parties adduced their testimonial and documentary evidence, the trial
court rendered its Decision on November 21, 1994, finding the appellant guilty
beyond reasonable doubt of the crime charged, sentencing him to suffer the penalty
of reclusion perpetua. The decretal portion of the decision reads:
WHEREFORE, in view of all the foregoing findings that the prosecution was able to
prove the guilt of accused ANDRES MASAPOL of the crime of rape of which he is
presently charged beyond reasonable doubt, judgment is hereby rendered whereby
the accused is sentenced to suffer the penalty of reclusion perpetua and to pay the
complainant damages in the amount of FIFTY THOUSAND (P50,000.00) PESOS. With
costs de oficio.
SO ORDERED.[7]
In his appeal brief, the appellant assails the decision of the trial court, alleging that:
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED OF THE CRIME AS
CHARGED DESPITE INSUFFICIENCY OF EVIDENCE TO WARRANT SUCH CONVICTION. [8]
The appellant asserts that the prosecution failed to prove that he forced and
intimidated Beatriz into having intercourse with him. He contends that the testimony
of Beatriz is inconsistent with her statement to the barangay captain. The
prosecution even failed to adduce any medical certificate to corroborate her
testimony. He contends that the fragility of the evidence for the prosecution is
highlighted by the following:
First. Beatriz testified that the kerosene lamp she was holding fell on the side while
she was being dragged by the appellant, and its light went out. However, in her
statement to the barangay captain, she declared that it was the appellant who blew
the light off.
Second. Beatriz testified that she was dragged for about 100 meters away from the
trail to a grassy place, and that the appellant had boxed and slapped her. However,
the prosecution never presented any medical certificate showing that she sustained
bruises or other injuries. The prosecution likewise failed to adduce in evidence the
panty and shorts Beatriz was wearing to show that her clothings had been torn.
Third. Beatriz declared that she could not shout because the appellants hand was
covering her mouth, and even if she shouted, no one would hear her as there were
no houses nearby.However, she contradicted herself when she declared in her
statement to the barangay captain that she was raped near the house of one
Manuel Calinog.
Fourth. Beatriz testified that after she was raped by the appellant, she put on her
panty and shorts and walked home crying and upon arriving home immediately told
her husband, Manuel, about the incident. However, in her statement to the barangay
captain, she declared that it was only three days after she was raped by the
appellant that she told her husband Manuel about it.
The appeal has no merit.

CRIMINAL PROCEDURE | CASES

ALARCON | 90

For a discrepancy or inconsistency in the testimony of a witness to serve as basis for

acquittal, it must refer to the significant facts vital to the guilt or innocence of the
accused for the crime charged. An inconsistency which has nothing to do with the
elements of the crime cannot be a ground for the acquittal of the accused. [9] Even if
the offended party may have erred in some aspects of her testimony, the same does
not necessarily impair her testimony nor corrode her credibility. The modern trend of
jurisprudence is that the testimony of a witness may be believed in part and
disbelieved in part, depending upon the corroborative evidence and the probabilities
and improbabilities of the case. The doctrine of FALSUS IN UNO FALSUS IN
OMNIBUS deals only with the weight of evidence and is not a positive rule of law,
and the same is not an inflexible one of universal application. [10] What is vital is that
the act of copulation be proven under any of the conditions enumerated in Article
335 of the Revised Penal Code, as amended by Republic Act No. 7659. [11]
The general rule is that contradictions and discrepancies between the testimony of a
witness in contrast with what was stated in an affidavit do not necessarily discredit
her.[12] Affidavits given to police and barangay officers are ex parte. Such affidavits
are often incomplete or inaccurate for lack of or absence of searching inquiries by
the investigating officer.[13] The discrepancies in Beatriz affidavit (Exhibit B) and her
testimony do not impair her testimony and her credibility. Also, victims of rape are
not expected to have an accurate or errorless recollection of the traumatic
experience that was so humiliating and painful, that she might, in fact, be trying to
obliterate it from her memory. [14] Whether the appellant himself put off the light from
the kerosene lamp with his left hand or the light was extinguished by itself when
Beatriz dropped it as the appellant dragged her to the grassy area and raped her, is
inconsequential.
The failure of the prosecution to adduce in evidence a medical certificate to prove
that the appellant had carnal knowledge of her and that she sustained injuries when
she resisted the appellant did not enfeeble the case for the prosecution. A medical
examination and a medical certificate are merely corroborative and are not
indispensable to the prosecution of a rape case. [15] It is absurd for the appellant to
claim a medical certificate because Beatriz is married and has children. [16] Beatriz
could not be faulted for the decision of the prosecution not to adduce in evidence
the medical certificate issued to her which she turned over to the prosecutor. The
fact that the house of Manuel Calinog was near where she was raped by the
appellant is likewise of minimal importance because even if she wanted to, she
could not have shouted for help as the appellant had covered her mouth with his
hand.
The fact of the matter is that Beatriz reported to her husband immediately upon
arriving home that the appellant had just raped her. Manuel corroborated his wifes
testimony, thus:
Q Do you remember where you were on the evening of July 17, 1992 at around 8:00
oclock in the evening?
A I was in my house in Marangi, San Fernando, Camarines Sur, sir.
Q What were you doing there at that time?
A I was cooking rice, sir.

CRIMINAL PROCEDURE | CASES

Q That evening, do you remember any unusual incident that happened?

A Yes, sir, my wife arrived home.
Q What happened when your wife arrived?
A She was crying, sir.
Q Did you inquire why she was crying?
A My wife informed me that she was raped by Andres Masapol, sir.
Q And what was your reaction?
A She informed me of what happened and that my wife and I will be killed, sir.
Q What did you do?
COURT:
Before that.
Q Who threatened your wife?
A It was Andres Masapol, sir.
COURT
Proceed.
PROS. LEAO:
Q What did you tell your wife?
A I told my wife that I will not file a case because if he would kill us we better kill
each other.
Q Did you have any occasion to see Andres Masapol thereafter?
A I was waiting for him in Balugo but he was evading me, sir.
Q Why do you know Andres Masapol in the first place?
A Because he is my barriomate, sir.[17]
...
ATTY. TAYER:
Q Will you describe to the Honorable Court what is the appearance of your wife
when she arrived for the first time?
A She was crying, sir.
Q Besides she was crying what did you observe from her?

ALARCON | 91

A As if she was shock, sir.

You reform.

Q Is it not that she was in that stage because you confronted her that night about
her relation with the accused?

ATTY. TAYER:

PROS. LEAO:
No basis .
COURT:
Objection sustained, that is your defense and you present your defense but not with
this witness.
ATTY. TAYER:
Q What was she wearing when she arrived for the first time in your house?
A She was wearing a polo and short pants which length is up to the knee.
Q And if I am not mistaken that was properly worn by your wife as she arrived?
PROS. LEAO:
Your Honor properly worn. . .
COURT:
What do you mean by that, you reform.
ATTY. TAYER:
Q Was the clothes with buttons, the upper clothes?
A Yes, sir.
Q And when she arrived that upper portion were buttoned?
A There was a tear below the right armpit, sir.
Q That was the only tear am I right?
A The button was detached, sir.
Q How many buttons were detached?

Q When your wife arrived was she wearing the short pants?
A Yes, sir.
Q And you said your wife reported that she was threatened by his assailant, am I
right?
A Yes, sir.
Q And what was the exact words that she uttered to you when she reported that she
was being threatened?
A My wife told me that if she would report the incident that she was raped, to me,
she and I will be killed by the accused.
Q And what was your reaction?
A I answered my wife that we will not file a case.
Q And when you said that what was your intention?
A I watched for him in Balugo, sir.[18]
The prosecutor proved that the appellant used a knife, a deadly weapon, in forcing
Beatriz to submit to his lustful desires. Under Article 335 of the Revised Penal Code,
the use of a deadly weapon such as a knife to commit a crime is a special
aggravating circumstance which requires the imposition of reclusion perpetua to
death.[19] However, such circumstance was not alleged in the Information as required
by Section 8, Rule 110 of the Revised Rules of Criminal Procedure. [20] Although the
said rules took effect only on December 1, 2000, long after the commission of the
crime on July 17, 1992, the same should be applied retroactively because it is
favorable to the appellant. Hence, such circumstance should not be appreciated
against the appellant.[21] In the absence of any modifying circumstance, the
appellant should be sentenced to reclusion perpetua, conformably to Article 63 of
the Revised Penal Code.
The trial court failed to award moral and exemplary damages in favor of
Beatriz. According to current jurisprudence, victims of rape are entitled
to P50,000.00 as moral damages,[22]P25,000.00 as exemplary damages.[23]

I think the question is vague.

IN THE LIGHT OF ALL THE FOREGOING, the appealed decision of

the Regional Trial Court of Naga City,
Branch
28,
is
AFFIRMED
WITH
MODIFICATION. The appellant Andres Masapol is found GUILTY of simple rape under
Article 335 of the Revised Penal Code and is hereby sentenced to reclusion
perpetua. He is also ordered to pay to the private complainant Beatriz O.
Pascuin P50,000.00,
as
civil
indemnity; P50,000.00
as
moral
damages;
and P25,000.00, as exemplary damages. Costs against the appellant.

COURT:

SO ORDERED.

A Three (3) sir.

Q And about the short pants was it worn, tucked with her waist?
PROS. LEAO:

CRIMINAL PROCEDURE | CASES

ALARCON | 92

[G.R. No. 121211. April 30, 2003]

PEOPLE OF THE
Roy, appellant.

PHILIPPINES, appellee, vs.

RONETO

DEGAMO

alias

DECISION
PER CURIAM:
Before us for automatic review is a decision rendered by the Regional Trial Court
(Branch 12) of Ormoc City imposing the supreme penalty of death on appellant
Roneto Degamo alias Roy for the crime of rape with the use of a deadly weapon and
the aggravating circumstances of dwelling and nighttime.
On October 4, 1994, a complaint was filed before the trial court charging appellant
with the crime of rape to which, upon arraignment, pleaded not guilty.
On January 17, 1995, before the start of the trial proper, the court a quo allowed the
complaint to be amended to include the allegation that by reason of the incident of
rape, the victim has become insane[1], to wit:
The undersigned Prosecutor accuses RONETO DEGAMO alias Roy of the crime of
RAPE committed as follows:
That on or about the 1st day of October 1994 at around 1:00 oclock in the early
morning, in Brgy. Punta, Ormoc City, and within the jurisdiction of this Honorable
Court, the above-named accused RONETO DEGAMO alias Roy, being then armed
with a bladed weapon, by means of violence and intimidation, did then and there
willfully, unlawfully and feloniously have carnal knowledge of the complainant herein
ELLEN VERTUDAZO, against her will and in her own house.
All contrary to law and with the aggravating circumstances that the said offense was
committed in the dwelling of the offended party, the latter not having given
provocation for the offense; and that by reason of the incident of rape, the victim
become insane.
In violation of Article 335, Revised Penal Code.
Upon re-arraignment, appellant pleaded not guilty to the charge.[2]
Trial ensued.
As borne out by its evidence, the following is the version of the prosecution:

CRIMINAL PROCEDURE | CASES

ALARCON | 93

Complainant Ellen Vertudazo and her children were living in a rented apartment at
Barangay Punta, Ormoc City. She and her family just moved into the neighborhood
on July 15, 1994.[3] She was not personally acquainted with appellant although she
knew him to be one of their neighbors. On August 2, 1994, her brother-in-law,
Venancio, came from the province for a visit and stayed in her house. It was during
this time that appellant became acquainted with Venancio. On September 30, 1994,
appellant invited Venancio for a night out. Venancio left complainants house
immediately after supper, telling her that he would return to the house. Later that
night, or on October 1, 1994, at around 1:00 in the morning, complainant heard
someone calling her name. She unwittingly opened the door thinking that Venancio
had returned.[4] Thereupon, appellant forced his way inside the house and poked a
knife at complainants neck. She tried to move away from appellant but he grabbed
her and told her that he would kill her if she will not accede to his demands.
Appellant then told her to put off the light, strip off her clothes and not make any
noise. Overwhelmed with fear, complainant meekly followed the orders of appellant
who proceeded to kiss her lips, breasts and all parts of her body. He laid her on the
concrete floor and succeeded in having carnal knowledge of her. Appellant was
holding the knife while having sexual intercourse with complainant. He warned her
not to tell anyone about the incident, then he left. Complainant went upstairs and
just cried. In the morning of the same day, complainant reported the incident to the
Barangay Captain and to the police. She submitted herself for medical examination
at the health. center on October 3, 1994. Upon learning of the incident, her husband,
who was working in Saudi Arabia, immediately came home.[5]
Due to her traumatic experience at the hands of appellant, complainant underwent
psychiatric treatment in Tacloban City.[6] She was first brought to Dr. Gemelina CerroGo[7] for treatment on November 8, 1994. Dr. Go found her case of psychosis already
acute and chronic. Complainant was talking to herself and each time Dr. Go would
ask her a question, she repeatedly said, Gi padlock ang akong hunahuna. Dr. Go also
observed that complainant talked irrelevantly, had lost association and had severe
destructive inclinations. She did not listen to anybody and just kept staring outside
the window. Dr. Go concluded that complainant was suffering from psychosis, a form
of mental disorder, induced by an overwhelming trauma secondary to rape.
Complainant visited Dr. Go again on December 15, 1994 and on January 3, 1995. Dr.
Go prescribed anti-psychotic drugs to complainant who, after three weeks of
treatment, showed signs of improvement. Complainant could already sleep although
she has not yet regained her normal or regular sleeping pattern. Her delusions and
hallucinations were not as serious anymore, but she was still out of contact. She
could not function normally as a wife and as a mother. Since complainant still
suffered from psychosis, Dr. Go administered to her a dose of low acting tranquilizer
injections, anti-depressants and short acting oral tablets. [8]
Dr. Go clarified that psychosis is usually the technical term for insanity. [9] She
declared that complainant has not fully recovered from psychosis and that without
continuous treatment, complainant would regress and she would completely lose all
aspects of functioning.[10]
Appellants version is based on his lone testimony. He admits that he and
complainant were neighbors but claims that they were lovers. He further testified
that he met complainant for the first time during the last week of August 1994 at a
neighborhood store. Complainant readily agreed when he asked her if it would be

CRIMINAL PROCEDURE | CASES

possible for them to get to know each other better. Later, at around 8:00 oclock in
the evening, he and complainant had a conversation in front of the gate of her
apartment. He learned from her that her husband was working abroad. When he told
the complainant that he wanted to court her, complainant said, Its up to you.
Encouraged by complainants reply, he returned at midnight and knocked at the gate
of her apartment. Complainant peeped through the jalousies and went down to the
first floor. She opened the gate and let him in. Upon having entered the house, he
sat at the sofa, placed his hands on the shoulder of complainant, who by then had
already sat beside him, and touched her ears. She did nothing to repel appellants
advances but just looked up. When asked to remove her shirt, complainant willingly
obliged. He proceeded to kiss complainant all over. She removed her short pants
when appellant asked her to do so. He then removed his shirt and continued to kiss
complainants breasts, chest and thighs. He wanted that they move upstairs but she
demurred saying that her children were upstairs. Complainant instead suggested
that they move to the cement floor since the sofa was noisy. He got aroused after
transferring to the floor, so he removed his short pants and briefs. Complainant
likewise removed her underwear. They had sexual intercourse without him having to
use force on complainant. Thereafter, they dressed up. He left the place at 1:00 in
the morning. They repeated the same act on four more occasions usually at 12:00
midnight. He did not have to use force, much less threaten complainant with a knife
when they had sexual intercourse on October 1, 1994. [11]
On May 22, 1995, the trial court rendered a decision, the dispositive portion of which
reads as follows:
WHEREFORE, decision is hereby rendered finding the accused RONETO DEGAMO, a.
k. a. Roy, guilty beyond reasonable doubt of rape defined and penalized under
paragraphs 2 and 3 of Article 335 of the Revised Penal Code, as amended by
Republic Act 7659. Appreciating the aggravating circumstances of dwelling and
nighttime with no mitigating circumstance to offset any of the two and pursuant to
Article 63 of the Revised Penal Code, this court imposes upon the same Roneto
Degamo, a.k.a. Roy, the extreme penalty of DEATH. Further, the same Roneto
Degamo, a. k. a. Roy, is directed to indemnify Ellen Vertudazo the sum of THIRTY
THOUSAND PESOS (P30,000.00) and to pay the costs.
As the sentence imposed is death, the jail warden of Ormoc City is directed to
immediately commit the person of Roneto Degamo, a. k. a. Roy, to the National
Bilibid Prisons at Muntinlupa, Metro Manila while awaiting the review of this decision
by the Supreme Court.
SO ORDERED.[12]
Hence, this automatic review.
A discussion of certain procedural rules is in order before going into the merits of the
case. It has not escaped our notice that the complaint for rape with use of a deadly
weapon was amended after arraignment of appellant to include the allegation that
the victim has become insane by reason or on the occasion of the rape. Although the
penalty for rape with the use of a deadly weapon under the original Information
is reclusion perpetua to death, the mandatory penalty of death is imposed where the
victim has become insane by reason or on the occasion of rape as alleged in the
Amended Information.

ALARCON | 94

Under Section 14, Rule 110 of the Rules of Court, an amendment after the plea of
the accused is permitted only as to matters of form, provided: (i) leave of court is
obtained; and (ii) such amendment is not prejudicial to the rights of the accused. A
substantial amendment is not permitted after the accused had already been
arraigned.
In Teehankee, Jr. vs. Madayag,[13] we had occasion to state that a substantial
amendment consists of recital of facts constituting the offense charged and
determinative of the jurisdiction of the court. All other matters are merely of form.
The following were held to be merely formal amendments: (1) new allegations which
relate only to the range of the penalty that the court might impose in the event of
conviction; (2) an amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations which do not
alter the prosecutions theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume; and (4) amendment, which does
not adversely affect any substantial right of the accused, such as his right to invoke
prescription.
We further elucidated in the Teehankee case that the test as to whether an
amendment is only of form and an accused is not prejudiced by such amendment is
whether or not a defense under the information as it originally stood would be
equally available after the amendment is made, and whether or not any evidence
which the accused might have would be equally applicable to the information in one
form as in the other; if the answer is in the affirmative, the amendment is one of
form and not of substance.[14]
Tested against the foregoing guidelines, the subject amendment is clearly not one of
substance as it falls under all of the formal amendments enumerated in
the Teehankee case. The insertion of the phrase that the victim has become insane
by reason or on occasion of the rape in the Information merely raised the penalty
that may be imposed in case of conviction and does not charge another offense
different from that charged in the original Information. Whatever defense appellant
may have raised under the original information for rape committed with a deadly
weapon equally applies to rape committed with a deadly weapon where the victim
has become insane by reason or on occasion of the rape. The amendment did not
adversely affect any substantial right of appellant. Therefore, the trial court correctly
allowed the amendment.
Furthermore, it is also settled that amendment of an information to charge a more
serious offense is permissible and does not constitute double jeopardy even where
the accused was already arraigned and pleaded not guilty to the charge, where the
basis of the more serious charge did not exist, but comes as a subsequent event.
[15]
In this case the basis for the amendment was the psychosis of complainant which
was determined after the filing of the information.
Unlike other qualifying circumstances, insanity of the victim by reason or on
occasion of the rape may not be readily discerned right after the commission of the
crime. The resultant insanity of the victim could be easily mistaken as a mere initial
reaction, such as shock, to the incident. In other cases, it may take some weeks or
even months for the insanity of the victim to manifest. Consequently, a psychiatrist
would need some time with the victim before concluding that she is indeed suffering
from insanity as a result of rape. Under these circumstances, the subsequent

CRIMINAL PROCEDURE | CASES

diagnosis of insanity by reason or on occasion of the rape is akin to a supervening

event; in which case, the corresponding amendment of the information may be
allowed, as correctly done by the trial court.
Besides, the trial proper started only after appellant had been re-arraigned and
appellant never objected to the amendment at any stage of the proceedings. It is
basic that objection to the amendment of an information or complaint must be
raised at the time the amendment is made, otherwise, silence would be deemed a
consent to said amendment. It is a time-honored doctrine that objection to the
amendment must be seasonably made, for when the trial was had upon an
information substituted for the complaint or information without any objection by the
defense, the defect is deemed waived. It cannot be raised for the first time on
appeal.[16]
We shall now proceed to the merits of the case.
The trial court gave credence to the testimony of victim Ellen Vertudazo that
appellant raped her with the use of a deadly weapon. It held that she would not have
agreed to endure the indignities of physical examination of her private parts and the
embarrassment of a public trial were it not for a desire to seek justice for herself.
Moreover, the trial court found that other than the self-serving testimony of
appellant, no evidence was introduced to support his claim that he and complainant
were having an illicit love affair; and that there was no ill motive on the part of
complainant for imputing the serious charge of rape against appellant.
In his Appellants Brief, appellant raises a single assignment of error, to wit: The trial
court erred in finding the accused guilty beyond reasonable doubt of the crime of
rape, in support of which, he argues:
1. The fact that at first complainant said she opened the door for the accused and
later denied this, is not an inconsequential contradiction.
2. Complainant had not become insane by reason of the rape because she gave
intelligent answers on the witness stand.
We find the appeal without merit.
It is doctrinal that the evaluation of testimonial evidence by trial courts is accorded
great respect precisely because of its chance to observe first-hand the demeanor of
the witnesses, a matter which is important in determining whether what has been
testified to may be taken to be the truth or falsehood. [17] Appellant failed to show any
cogent reason for us to disturb the findings of the trial court.
Complainant and her family had just moved in the neighborhood a little more than
two months before she was raped. Prior to the incident of rape, she only knew
appellant as one of her neighbors but did not personally know him. [18] Appellant
would have us to believe that hours after a chance meeting at a nearby sari-sari
store, complainant, a married woman with children, was so morally debased as to
readily accede to his sexual advances at her own apartment while her children were
asleep. Like the trial court, we find it unlikely for a married woman with children who
had just moved into the neighborhood to place herself on public trial for rape where
she would be subjected to suspicion, morbid curiosity, malicious imputations and
close scrutiny of her personal life and character, not to speak of the humiliation and

ALARCON | 95

scandal she and her family would suffer, if she were merely concocting her charge
against appellant and would not be able to prove it in court.
Appellant insists that the complaint was prompted by complainants fear that her
husbands relatives might discover her infidelity. We are not convinced. Aside from
the bare assertion of appellant that he and complainant were having an affair, he
failed to present corroborative evidence of any kind such as love notes, mementos
or pictures[19] or the testimonies of neighbors, relatives or friends. There is no
showing that the relatives of complainants husband even suspected that she was
having an illicit affair. Further, complainant not only filed the charges of rape
immediately after the incident, she also submitted herself for medical examination
and sought psychiatric treatment due to the trauma caused by her ordeal. If she and
appellant were indeed lovers, there would have been no reason for her to be so
traumatized by their sexual liaisons and undergo psychiatric treatment.
Worth noting too is the fact that there is no evidence nor even an indication that
complainant was impelled by an improper motive in making the accusation against
appellant. The absence of any improper motive of complainant to impute such a
serious offense against appellant persuades us that complainant filed the rape
charge against appellant for no other reason than to seek justice for the bestial deed
committed against her. Settled is the doctrine that when there is no evidence to
show any dubious reason or improper motive why a prosecution witness should
testify falsely against the accused or implicate him in a serious offense, the
testimony deserves full faith and credit.[20]
Appellant presses that the trial court should have taken note that complainant gave
contradicting testimonies as she had earlier testified that she opened the door to
appellant but later denied this on cross examination; and that complainant must
have perceived the serious implications of her earlier testimony so she deliberately
changed her testimony.
After a review of the testimony of complainant, we find no such contradictions.
Complainant clearly testified that she opened the door when she heard someone
calling her name to open it because she thought that her brother-in-law, Venancio,
who left the house earlier at the invitation of appellant, had already come home for
the night. It was too late when she realized that it was appellant alone who had
called on her to open the door.[21]
Appellant further argues that the qualifying circumstance of the use of a deadly
weapon in the commission of the crime should not be considered since the weapon
was never presented as evidence in court. We are not persuaded.
It is settled that the non-presentation of the weapon used in the commission of rape
is not essential to the conviction of the accused. [22] The testimony of the rape victim
that appellant was armed with a deadly weapon when he committed the crime is
sufficient to establish that fact for so long as the victim is credible. [23] It must be
stressed that in rape, it is usually only the victim who can attest to its occurrence
and that is why courts subject the testimony of the alleged victims to strict scrutiny
before relying on it for the conviction of the accused. [24] In the present case,
complainant positively described how appellant, armed with a knife, threatened and
raped her. Appellant failed to show any compelling reason for us to brush aside the
probative weight given by the trial court to the testimony of herein complainant.

CRIMINAL PROCEDURE | CASES

Absent any showing that certain facts of substance and significance have been
plainly overlooked or that the trial courts findings are clearly arbitrary, the
conclusions reached by the trial court must be respected and the judgment rendered
should be affirmed.[25]
We take note that Dr. Ernesto Calipayan conducted a physical examination of the
victim on October 3, 1994, and he issued a Medical Certificate wherein it is stated
that the entire vulva and vestibule are normally looking and showed no signs of
traumatic injury and that a microscopic examination of the cervical and vaginal
smear showed that it is negative for sperm cells. [26] Said findings however, do not
demolish the positive testimony of the victim that she had been raped by appellant.
The absence of traumatic injury on her vulva and vestibule is not a strong proof that
appellant did not use force on the victim who submitted to the dastardly act of
appellant because of the knife wielded by him. It is within the realm of logic, reason
and human experience that the victim, who had given birth to two children, because
of the fear for her life, may not have exerted that degree of resistance that would
have been needed to produce traumatic injury on her private parts.
Moreover, the fact that no sperm was found in the cervical and vaginal smear is
satisfactorily explained by Dr. Calipayan that human spermatozoa will not survive
between forty-eight to seventy-two hours. [27] In complainants case, she was
examined on October 3, 1994, or more than forty-eight hours after she was raped on
October 1, 1994 between 12:00 midnight and 1:00 in the morning.
It is a settled rule that proof beyond reasonable doubt does not connote absolute
certainty, it means that degree of proof which, after an investigation of the whole
record, produces moral certainty in an unprejudiced mind of the accuseds culpability.
[28]
It signifies such proof that convinces and satisfies the reason and conscience of
those who are to act upon it that appellant is guilty of the crime charged. [29]
In the case at bar, there is no doubt that appellant had committed the crime of rape.
Appellant failed to show that the trial court committed any reversible error in finding
him guilty beyond reasonable doubt of raping complainant with the use of a deadly
weapon.
Under Article 335 of the Revised Penal Code, as amended, whenever the crime of
rape is committed with the use of a deadly weapon, the penalty shall be reclusion
perpetua to death.
In meting out the penalty of death, the trial court considered dwelling and nighttime
as aggravating circumstances in the commission of the crime of rape committed
with a deadly weapon.
The trial court should not have considered the aggravating circumstance of
nighttime against appellant. Not only was it not alleged as an aggravating
circumstance in the Information, but also, there is no clear proof that appellant
deliberately took advantage of the cover of darkness to facilitate the commission of
the crime. Complainant herself even testified that the flourescent light at the ground
floor of the house was not switched off until after appellant had already entered the
house and told her to turn it off.[30]

ALARCON | 96

However, the trial court did not err in imposing the penalty of death on appellant. It
is established by the prosecution that the crime of rape with the use of a deadly
weapon was committed in the dwelling of complainant. Dwelling is alleged in the
Information and was unrefuted by appellant. Under Article 63 of the Revised Penal
Code, in cases where the law provides a penalty composed of two indivisible
penalties, the presence of an aggravating circumstance warrants the imposition of
the greater penalty which is death.

reclusion perpetua, be incorporated in the law.[37] Thus, Article 335, as amended by

R.A. No. 2632, read as follows:

We now turn to the issue as to whether or not the qualifying circumstance of insanity
of the victim by reason or on occasion of the rape committed against complainant
should likewise be considered in the imposition of the proper penalty.

1. By using force or intimidation;

Republic Act No. 7659[31] expressly provides that when by reason or on the occasion
of the rape, the victim has become insane, the penalty shall be death.
The trial court observes:
There is no jurisprudence yet, however, which construed the provision has become
insane. Though there is no doubt that the death penalty shall be imposed if the
victim becomes permanently insane, there is no ruling yet whether temporary
insanity by reason of rape (when the victim responded to psychiatric treatment as in
the present case) still falls within the purview of the same provision. [32]
For the guidance of the Bench and the Bar, we deem it proper to resolve what should
be the correct construction of the provision has become insane by reason or on
occasion of the rape committed.
It is a hornbook doctrine in statutory construction that it is the duty of the court in
construing a law to determine legislative intention from its language. [33] The history
of events that transpired during the process of enacting a law, from its introduction
in the legislature to its final validation has generally been the first extrinsic aid to
which courts turn to construe an ambiguous act. [34]
Republic Act No. 2632[35] is the first law that introduced the qualifying circumstance
of insanity by reason or on occasion of rape, amending Article 335 of the Revised
Penal Code. An examination of the deliberation of the lawmakers in enacting R.A. No.
2632, convinces us that the degree of insanity, whether permanent or temporary, is
not relevant in considering the same as a qualifying circumstance for as long as the
victim has become insane by reason or on occasion of the rape.
Congressional records[36] disclose that when Senator Pedro Sabido first broached the
possibility of regarding insanity as a qualifying circumstance in rape, he described it
as perpetual incapacity or insanity. The interpellations on Senate Bill No. 21 which
later evolved into R.A. No. 2632 did not include the rationale for the inclusion of the
victims insanity by reason or occasion of rape as a qualifying circumstance. Neither
did the legislators discuss the degree of insanity of the victim by reason or on
occasion of rape for it to be considered as a qualifying circumstance. After the
interpellations on the other proposed amendments to Senate Bill No. 21, the Senate
session was suspended. Upon resumption of the session, the legislators agreed,
among other matters, that the provision, when by reason or on occasion of rape, the
victim has become insane, the penalty of reclusion perpetua shall be likewise

CRIMINAL PROCEDURE | CASES

Art. 335. When and how rape is committed. Penalties - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.
The crime of rape shall be punished by reclusion temporal.
Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be imposed in its maximum period.
When by reason or on the occasion of rape, a homicide is committed the penalty
shall be reclusion perpetua to death.
When the rape is frustrated or attempted and a homicide is committed by reason or
on the occasion thereof, the penalty shall be reclusion perpetua.
When by reason or on the occasion of the rape the victim has become insane, the
penalty shall be likewise reclusion perpetua. [Emphasis supplied]
Significantly, the words perpetual and incapacity were not retained by the
legislators. They merely used the word insanity. It is well-established in legal
hermeneutics that in interpreting a statute, care should be taken that every part or
word thereof be given effect since the lawmaking body is presumed to know the
meaning of the words employed in the statute and to have used them advisedly.
[38]
Applied inversely, the courts should not interject a condition, make a distinction,
or impose any limitation where the legislators did not opt to do so.
Thus, it is without any doubt that when the legislators included the victims resultant
insanity as a qualifying circumstance in rape cases, it did not intend or impose as a
condition that the insanity must be of permanent nature, or that it should have been
manifested by the victim before the filing of the complaint of information, before,
during or after trial. Otherwise, it would have been so expressly stated, especially
so, that Senator Sabido had initially suggested perpetual incapacity or insanity, As
the Congressional records reveal, the legislators chose not to include the
word perpetual in the bill enacted into law.
Article 335 of the Revised Penal Code, as amended by R.A. No. 2632, was further
amended by Republic Act No. 4111 whereby the penalty is increased to death when
by reason or on the occasion of rape, the victim has become insane.
R.A. No. 7659 which took effect on December 31, 1993, merely reiterated the
imposition of death penalty when by reason or on the occasion of the rape, the
victim has become insane.

ALARCON | 97

In the enactment of both R.A. Nos. 4111 and 7659, the legislators merely reiterated
or reproduced the provision on insanity under R.A. No. 2632 except as to the
imposable penalty, without making any distinction as to the degree of insanity that
may or may not be considered as a qualifying circumstance.
Consequently, the fact that the victim during trial or while the case is pending, has
returned to normal behavior after undergoing treatment, does not exculpate the
appellant from the penalty of death.
It is inherently difficult for us to set the parameters or fix a hard and fast rule as to
when insanity may be considered a qualifying circumstance. Whether the rape
resulted in the insanity of the victim shall have to be resolved by the courts on a
case to case basis. Suffice it to be stated that the resultant insanity of the victim in
rape cases must at least be manifest at the time of filing the complaint or
information or at any time thereafter before judgment is rendered, in which case, the
information may accordingly be amended.[39] The reason for this is simple.Rape is
always a traumatic experience for the victim who necessarily suffers untold
psychological and emotional damage. Like victims of other crimes, rape victims have
different ways of coping with the trauma brought about by the crime. While one may
exhibit shock or depression immediately after the crime and recover thereafter,
another might require a longer period to exhibit these same symptoms and not
return to normalcy. Certainly, one can never calculate or measure the depths of the
psychological and emotional damage that rape inflicts on the victim.

considering that complainant had to undergo psychiatric treatment but was not able
to present proof of the expenses she incurred in her treatment.
Three members of the Court maintain their position that R.A. No. 7659, insofar as it
prescribes the death penalty, is unconstitutional; however, they submit to the ruling
of the Court, by majority vote, that the law is constitutional and that the death
penalty should be imposed accordingly.
WHEREFORE, the judgment of the lower court convicting appellant Roneto Degamo
alias Roy of qualified rape and sentencing him to suffer the penalty of DEATH is
AFFIRMED with the MODIFICATION that appellant is ordered to pay complainant Ellen
Vertudazo the amounts of Seventy-Five Thousand Pesos (P75,000.00), as civil
indemnity; Fifty Thousand Pesos (P50,000.00), as moral damages; Twenty-Five
Thousand Pesos (P25,000.00) as exemplary damages; and Twenty-Five Thousand
Pesos (P25,000.00) as temperate damages. Costs against appellant.
Upon the finality of this decision and pursuant to Section 25 of R.A. No.
7659, amending Article 83 of the Revised Penal Code, let the records of this case be
forthwith forwarded to the Office of the President of the Philippines for possible
exercise of the pardoning power.
SO ORDERED.

In the case at bar, Dr. Go had competently and convincingly testified that victim
Ellen Vertudazo suffered psychosis or insanity from which she seems to have
improved due to her treatment which treatment should be continuous and may last
from six months to five years so that the victim may not suffer from regression; and
that as of February 16, 1995, the date Dr. Go testified, complainant has not fully
recovered from her psychosis. [40] The qualifying circumstance of insanity had already
attached notwithstanding the recovery of the victim from her illness. The penalty of
death is imposable.
As to the damages awarded, the trial court erred in awarding the mere sum of
P30,000.00 to complainant as civil indemnity. Complainant is entitled to P75,000.00
as civil indemnity in accordance with our established rulings in cases where the
crime of rape is committed, qualified by any of the circumstances under which the
death penalty is authorized by law.[41] In the present case, the victim became insane
by reason of the rape committed against her; and in the commission of rape with the
use of a deadly weapon, the aggravating circumstance of dwelling is present.
Actually, the trial court had two grounds for the imposition of death penalty.
Complainant is likewise entitled to moral damages without need of further proof in
the sum of P50,000.00.[42] The fact that complainant has suffered the trauma of
mental, physical and psychological sufferings which constitute the basis for moral
damages is too obvious to still require the recital thereof at the trial by the victim
since the court itself even assumes and acknowledges such agony on her part as a
gauge of her credibility.[43]
In addition, complainant is entitled to the amount of P25,000.00 as and for
exemplary damages[44] considering the aggravating circumstance of dwelling; and to
the amount of P25,000.00 by way of temperate damages 45 in lieu of actual damages,

CRIMINAL PROCEDURE | CASES

ALARCON | 98

When the injuries sustained by petitioner turned out to be more serious than they
had appeared at first, an Information [5] for serious physical injuries, docketed as
Criminal Case No. 23787, was filed against respondent. [6] The earlier charge of slight
physical injuries was withdrawn.
At the same time, another Information[7] for grave threats, docketed as Criminal Case
No. 23728,[8] was filed against respondent on March 17, 1997.

[G.R. No. 134744. January 16, 2001]

GIAN PAULO VILLAFLOR, petitioner, vs. DINDO VIVAR y GOZON, respondent.
DECISION
PANGANIBAN, J.:
The absence of a preliminary investigation does not impair the validity of an
information or render it defective. Neither does it affect the jurisdiction of the court
or constitute a ground for quashing the information. Instead of dismissing the
information, the court should hold the proceedings in abeyance and order the public
prosecutor to conduct a preliminary investigation.
The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set
aside the Orders issued by the Regional Trial Court (RTC) of Muntinlupa City (Branch
276) in Civil Case No. 97-134. [1] Dated January 20, 1998,[2] the first Order granted the
Motion to Quash the Informations and ordered the dismissal of the two criminal
cases. The second Order dated July 6, 1998, denied the Motion for Reconsideration.
The Facts

Culled from the records and the pleadings of the parties are the following undisputed
facts.
An Information[3] for slight physical injuries, docketed as Criminal Case No. 23365,
was filed against Respondent Dindo Vivar on February 7, 1997. The case stemmed
from the alleged mauling of Petitioner Gian Paulo Villaflor by respondent around 1:00
a.m. on January 27, 1997 outside the Fat Tuesday Bar at the Ayala Alabang Town
Center, Muntinlupa City. After the severe beating he took from respondent, petitioner
decided to leave the premises together with a friend who was in the restroom when
the mauling incident took place. On his way out, petitioner again met respondent
who told him, Sa susunod gagamitin ko na itong baril ko [4] (Next time, I will use my
gun on you).

On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal Case No.
23787 (for serious physical injuries).[9] Instead of filing a counter-affidavit as required
by the trial court, he filed on April 21, 1997, a Motion to Quash the Information in
Criminal Case No. 23728 (for grave threats). He contended that the threat, having
been made in connection with the charge of serious physical injuries, should have
been absorbed by the latter. Thus, he concluded, Criminal Case No. 23728 should be
dismissed, as the trial court did not acquire jurisdiction over it. [10]
In an Order dated April 28, 1997 in Criminal Case No. 23728, the Metropolitan Trial
Court (MTC) denied the Motion to Quash, as follows:
For consideration is a motion to quash filed by accused counsel. Considering that
jurisdiction is conferred by law and the case filed is grave threats which is within the
jurisdiction of this Court and considering further that a motion to quash is a
prohibited [pleading] under the rule on summary procedure, the motion to quash
filed by accused counsel is DENIED.
WHEREFORE, the motion to quash filed by accused counsel is hereby DENIED and let
the arraignment of the accused be set on June 25, 1997 at 2:00 oclock in the
afternoon.[11]
The Motion for Reconsideration filed by respondent was denied by the MTC on June
17, 1997.[12] Thus, he was duly arraigned in Criminal Case No. 23728 (for grave
threats), and he pleaded not guilty.
On July 18, 1997, respondent filed a Petition for Certiorari with the RTC of Muntinlupa
City. This was docketed as Civil Case No. 97-134. On January 20, 1998, after the
parties submitted their respective Memoranda, the RTC issued the assailed Order
which reads as follows:
The Judicial Officer appears to have acted with grave abuse of discretion amounting
to lack of jurisdiction in declaring and denying the MOTION TO QUASH as a
prohibitive motion. The same should have been treated and [should have]
proceeded under the regular rules of procedure. The MOTION TO QUASH THE
INFORMATIONS filed without preliminary investigation is therefore granted and these
cases should have been dismissed.
Let this Petition be returned to the Metropolitan Trial Court, Branch 80-Muntinlupa
City for appropriate action.[13]
The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for
Reconsideration, as follows:
Submitted for resolution is the unopposed Motion for Reconsideration filed by Private
Respondent.

CRIMINAL PROCEDURE | CASES

ALARCON | 99

This Court agrees with the contention of private respondent that the Motion to
Quash filed by petitioner in the inferior court is a prohibited pleading under Rules on
Summary Procedure so that its denial is tenable. However, it would appear that the
criminal charges were filed without the preliminary investigation having been
conducted by the Prosecutors Office. Although preliminary investigation in cases
triable by inferior courts is not a matter of right, the provision of Sec. 51 par 3(a) of
Republic Act 7926 entitled An Act Converting the Municipality of Muntinlupa Into a
Highly Urbanized City To Be Known as the City of Muntinlupa provides that the city
prosecutor shall conduct preliminary investigations of ALL crimes, even violations of
city ordinances. This Act amended the Rules on Criminal Procedure. Since this
procedure was not taken against accused, the Order dated January 20, 1998 stands.
The Motion for Reconsideration is therefore denied. [14]
Hence, this Petition.[15]
The Issues

Petitioner submits the following issues for our consideration: [16]

I
Can the court motu propio order the dismissal of the two (2) criminal cases for
serious physical injuries and grave threats on the ground that the public prosecutor
failed to conduct a preliminary investigation?
II
Should the failure of the public prosecutor to conduct a preliminary investigation be
considered a ground to quash the criminal informations for serious physical injuries
and grave threats filed against the accused-respondent?
III
Should respondents entry of plea in the [grave] threats case and posting of cash
bond in the serious physical injuries case be considered a waiver of his right, if any,
to preliminary investigation?
The Courts Ruling

The Petition is meritorious.

First Issue: Lack of Preliminary Investigation

Preliminary investigation is an inquiry or proceeding to determine whether there is

sufficient ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof, and should be held for trial. [17] A
component part of due process in criminal justice, preliminary investigation is a
statutory and substantive right accorded to the accused before trial. To deny their
claim to a preliminary investigation would be to deprive them of the full measure of
their right to due process.[18]
However, the absence of a preliminary investigation does not impair the validity of
the information or otherwise render it defective. [19] Neither does it affect the

CRIMINAL PROCEDURE | CASES

jurisdiction of the court or constitute a ground for quashing the information. [20] The
trial court, instead of dismissing the information, should hold in abeyance the
proceedings and order the public prosecutor to conduct a preliminary investigation.
[21]

Hence, the RTC in this case erred when it dismissed the two criminal cases for
serious physical injuries (Criminal Case No. 23787) and grave threats (Criminal Case
No. 23728) on the ground that the public prosecutor had failed to conduct a
preliminary investigation.
Furthermore, we do not agree that a preliminary investigation was not conducted. In
fact, a preliminary investigation for slight physical injuries was made by the
assistant city prosecutor of Muntinlupa City. The said Information was, however,
amended when petitioners injuries turned out to be more serious and did not heal
within the period specified in the Revised Penal Code.
We believe that a new preliminary investigation cannot be demanded by
respondent. This is because the change made by the public prosecutor was only a
formal amendment.[22]
The filing of the Amended Information, without a new preliminary investigation, did
not violate the right of respondent to be protected from a hasty, malicious and
oppressive prosecution; an open and public accusation of a crime; or from the
trouble, the expenses and the anxiety of a public trial. The Amended Information
could not have come as a surprise to him for the simple and obvious reason that it
charged
essentially
the
same
offense
as
that
under
the
original
Information. Moreover, if the original charge was related to the amended one, such
that an inquiry would elicit substantially the same facts, then a new preliminary
investigation was not necessary.[23]
Second Issue: Motion to Quash

As previously stated, the absence of a preliminary investigation does not impair the
validity of the information or otherwise render it defective. Neither does it affect the
jurisdiction of the court over the case or constitute a ground for quashing the
information.[24]
Section 3, Rule 117 of the Revised Rules of Criminal Procedure, provides the grounds
on which an accused can move to quash the complaint or information. These are: (a)
the facts charged do not constitute an offense; (b) the court trying the case has no
jurisdiction over the offense charged (c) the court trying the case has no jurisdiction
over the person of the accused; (d) the officer who filed the information had no
authority to do so; (e) the information does not conform substantially to the
prescribed form; (f) more than one offense is charged, except in those cases in
which existing laws prescribe a single punishment for various offenses; (g) the
criminal action or liability has been extinguished; (h) the information contains
averments which, if true, would constitute a legal excuse or justification; and (i) the
accused has been previously convicted or is in jeopardy of being convicted or
acquitted of the offense charged.[25]
Nowhere in the above-mentioned section is there any mention of a lack of a
preliminary investigation as a ground for a motion to quash. Moreover, such motion

ALARCON | 100

is a prohibited pleading under Section 19 of the Revised Rules on Summary

Procedure. In the present case, the RTC therefore erred in granting herein
respondents Motion to Quash
Furthermore, we stress that the failure of the accused to assert any ground for a
motion to quash before arraignment, either because he had not filed the motion or
had failed to allege the grounds therefor, shall be deemed a waiver of such grounds.
[26]
In this case, he waived his right to file such motion when he pleaded not guilty to
the charge of grave threats.
In view of the foregoing, we find no more need to resolve the other points raised by
petitioner.
WHEREFORE, the Petition is GRANTED, and the assailed Orders of the Regional Trail
Court of Muntinlupa City are REVERSED. No costs.
SO ORDERED.

L-2593
entitled,
"The
People
of
the
Philippines
vs.
Melquiades
Fernandez, alias 'Moding' and Federico Conrado" convicting him and the other
accused of the crime of rape and sentencing them each to suffer inter alia two (2)
death penalties.
The criminal complaint dated 2 June 1982 filed before the trial court, reads as
follows:
That on or about the 13th day of January, 1982, at 2:00 o'clock in the afternoon, at
barangay Taloy, municipality of Malasiqui, province of Pangasinan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and mutually helping one another, did, then and there, wilfully, unlawfully, and
feloniously have sexual intercourse with the undersigned offended party Rebecca M.
Soriano, a virgin and 15 years old, by means of force and intimidation and against
the will of the latter. 1
Assisted by counsel, the accused Fernandez and Conrado, uncle and nephew
respectively, pleaded not guilty on arraignment 2 and underwent trial.
Teofilo Malong employed Rebecca Soriano as a househelper since September 1981.
Residing in Teofilo's house were his wife and daughters Amelita and Ma. Theresa.
Rebecca Soriano testified that on 13 January 1982 at about 2:00 o'clock in the
afternoon, and after she had just finished taking a bath and still naked, the two (2)
accused, both in short pants, surreptitiously entered the bathroom. To prevent her
from making an outcry, a piece of cloth was tightly tied around her neck, after which
she was forcibly laid down. Conrado held her hands behind her while Fernandez
sexually abused her. She declared that, immediately after Fernandez had raped her,
Conrado in turn went on top of her and likewise succeeded in having sexual
congress with her against her will. She added that, thereafter, Fernandez got a
handful of mud near the bathroom and placed it on her vagina. Thereupon, she ran
to the upper floor of the house to report the tragic incident to Amelita Malong. 3

G.R. No. L-62116 March 22, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MELQUIADES FERNANDEZ alias "Moding", and FEDERICO
CONRADO, defendants-appellants.
The Office of the Solicitor General for plaintiff-appellee.
Eduardo R. Ceniza for defendants-appellants.

PADILLA, J.:
Before the Court is Federico Conrado's appeal from the decision * of the Court of
First Instance (now Regional Trial Court) of Pangasinan, Branch I, in Criminal Case No.

CRIMINAL PROCEDURE | CASES

During the trial, Amelita Malong declared that in that afternoon of 13 January 1982,
she was combing her hair in her room when she saw the approaching Rebecca,
naked with smeared mud on her lower private part and a piece of cloth around her
neck. She testified that after she was told by Rebecca about the incident, they
reported the same to her father, Teofilo, who was in his store. She also declared that
she knew both the accused because Fernandez used to spray their mango trees
while Conrado sold to them a dog sometime in November 1981. 4
Teofilo Malong likewise testified for the prosecution. He stated that upon being
informed that his housemaid Rebecca was raped by the accused, he and his family,
together with Rebecca, proceeded to the office of the INP Police Station of Malasiqui
to report the crime and had Rebecca physically examined by Dr. Wilfredo Claudio of
the San Carlos General Hospital in that same afternoon. He further said that the
following day, or on 14 January 1982, he, Amelita and Rebecca gave their written
statements to the police. 5
Submitted as evidence for the prosecution was the "Medico-Legal Certificate" issued
by Dr. Claudio, indicating his findings of "hymenal lacerations at 6, 10, 3 o'clock
positions and one dead sperm cell seen on a slide examined." 6

ALARCON | 101

In defense, the two (2) accused denied any involvement in the offense, both
claiming they were nowhere at the scene of the crime when it was committed.
More particularly, Fernandez claimed he was in his house at Taloy, Malasiqui weaving
baskets when the incident happened. He admitted having been formerly employed
by Teofilo for about two (2) years to spray his mango trees and stated that during
the period he was hired as such, he lived alone in a small hut constructed under a
mango tree. 7 Conrado, on the other hand, alleged that when the crime was
committed, he was at Malimpuec, Malasiqui as he was hired to spray the mango
trees of a certain Mr. Overo Bo. Malimpuec is his hometown but he admitted that he
used to go to Bo. Taloy, prior to the incident, as his parents-in-law lived there. 8
In the trial court's decision holding that the guilt of both accused had been
established beyond shadow of any doubt, the following observations and conclusions
are made:
As already stated, the defense of both accused is alibi, which is not even
corroborated by a single defense witness. It is well-settled rule that alibi is the
weakest defense that can be resorted to by an accused, as it is easy to concoct or
fabricate. . . .
. . . the alibi of both accused can not prevail over their positive identification by the
prosecution witnesses (especially by complainant victim of rape, Rebecca Soriano)
as the perpetrators of the crime charged, they having testified in a clear,
straightforward, positive, truthful, and convincing manner, with no motive to
fabricate this serious charge of rape or falsify the truth. The alibi of both accused
can not also be given credence or weight, considering that at the time of the rape,
accused Melquiades Fernandez was in his house at Bo. Taloy, which is
just 150 meters away from the house of the Malongs, where Rebecca Soriano was
raped; and accused Federico Conrado was at Bo. Malimpuec, which is only 9 kms.
away from Bo. Taloy, where Rebecca was raped that afternoon of January 13, 1982.
The evidence disclose that said distance of 9 kms. can be negotiated in only about
30 minutes by motorized vehicle, on good road connecting the 2 barrios.
xxx xxx xxx
The clear, positive, straightforward, and convincing testimony of rape victim
Rebecca Soriano, as well as her immediate reporting of the incident to the police
authorities, just 30 minutes or so after she was raped that afternoon of January 13,
1982 and her giving of a sworn statement (Exh. A) on January 14, 1982 just the day
after she was raped) which was corroborated by the statements on the same date
(January 14, 1982) by prosecution witnesses Amelita Malong and Teofilo Malong,
more than convinces and satisfies this Court that the came charged was, in truth
and fact, perpetrated by both accused. 9
Hence, the judgment of conviction, now the object of this appeal, the dispositive part
of which reads as follows:
WHEREFORE, the Court finds each of the accused MELQUIADES
FERNANDEZ, alias "Moding"
and
FEDERICO
CONRADO, guilty beyond
reasonable doubt of two crimes of rape, aggravated by cruelty or
ignominy, and, pursuant to law, hereby sentences each of them to suffer

CRIMINAL PROCEDURE | CASES

two (2) penalties of death, to indemnify the aggrieved party, Rebecca M.

Soriano, in the amount of P12,000.00 as moral damages, without
subsidiary imprisonment in case of insolvency, and to pay the costs. 10
In an effort to reduce the imposed penalty of death to reclusion perpetua (life
imprisonment), without disproving the charges against them, the two (2) accused
assigned the following errors:
1. THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANTS FOR TWO (2)
CRIMES OF RAPE.
2. THE LOWER COURT ERRED IN HOLDING THAT THE COMMISSION OF THE RAPE WAS
ATTENDED BY THE AGGRAVATING CIRCUMSTANCE OF CRUELTY OR IGNOMINY.
3. THE LOWER COURT ERRED IN SENTENCING EACH OF THE ACCUSED-APPELLANTS
TO SUFFER TWO (2) PENALTIES OF DEATH. 11
In the light, however, of the 1987 Constitution, specifically, Section 19(1), Article III
thereof, under which a death penalty already imposed is reduced to reclusion
perpetua, Fernandez withdrew his appeal. 12 The lone appellant therefore is Conrado
who insists on his appeal, notwithstanding the advice of his counsel de officio to
discontinue the appeal allegedly on the ground that "it has become moot and
academic." 13
This Court nonetheless proceeded to consider accused-appellant's arguments for the
sake of verifying the correctness of the sentence imposed. We find no merit in the
appeal.
First Assignment of Error
The trial court is accused of violating the rule against duplicity of offenses in that,
the accused were convicted for two (2) crimes of rape even when under the criminal
complaint against them, there is only one (1) crime of rape alleged. The rule invoked
in Section 13, Rule 110 of the Rules of Court which states that there should be only
one (1) offense charged in a criminal complaint or information, the purpose of which
is to afford the defendant a necessary knowledge of the charge so that he may not
be confused in his defense. But it is likewise the rule that if ever duplicity of offenses
is committed, the same constitutes a ground for a motion to quash the complaint;
and failure of the accused to interpose the objection constitutes waiver. 14 Conrado,
after he had been convicted by the court a quo, can no longer assail its judgment by
raising this issue. Neither can he claim, as he now does, that he was denied the
information that he was to be tried for two (2) separate crimes of rape. The acts
complained of, as constituting the offenses, were stated in the 2 June 1982
complaint in ordinary and concise language that any person of common intelligence
would be able to understand and thereby know what acts he was to defend himself
against.
The imposition on each of the accused of the penalty corresponding to two (2)
crimes of rape is proper, because of the existence of conspiracy. As clearly found by
the trial court:
Both accused have, obviously, conspired and confederated to commit the crime,
considering that they entered the bathroom where Rebecca was, together and at

ALARCON | 102

the same time. Accused Fernandez then tied her with a piece of cloth tightly
around her neck, while accused Conrado held her handsplacing them behind her
body, to prevent her from struggling or resisting. Then after accused Fernandez had
raped Rebecca, accused Conrado raped her. Both accused, thereafter, fled from the
scene of the crime together and at the same time. All these circumstances show
beyond shadow of any doubt conspiracy on the part of both accused, which
renders each of them liable for two (2) crimes of rape, . . . 15
In a long line of decided cases, it has been held by this Court that in multiple rape,
each defendant is responsible not only for the rape personally committed by him,
but also for the rape committed by the others, because each of them (accused)
cooperated in the commission of the rape perpetrated by the others, by acts without
which it would not have been accomplished. 16
Second Assignment of Error
The trial court is correct in appreciating the aggravating circumstance of ignominy
because of the greater perversity displayed by the offenders. The testimony of the
examining physician that he did not find mud on the victim's private organ, does not
necessarily belie the latter's asseveration that the accused "plastered" (in the words
of the lower court) mud on her private part. It is worthwhile mentioning that the
victim was examined and treated by Dr. Claudio at 3:55 p.m. or about almost two (2)
hours after the rape was committed. 17 Given this circumstance, the absence of mud
in the victim's private part when she was examined by the physician, may be
attributed to the possibility that the mud washed or fell off even before the victim
left the house for her physical examination. Moreover, Rebecca's testimony was
corroborated by that of Amelita Malong who swore that she saw mud smeared on
Rebecca's private part when she (Amelita) saw Rebecca right after the incident. It is
also difficult to conceive why the offended party, young as she was, and with a
chaste reputation, would go to the extent of fabricating this portion of her testimony
notwithstanding the consequent humiliation on her person and disgrace on her
womanhood. We cannot but agree with the trial court's finding that the offense was
aggravated by ignominy. We are of the opinion, however that the word "cruelty"
used in the dispositive portion of the judgment, to describe an alternative
aggravating circumstance, is unnecessary. The act of "plastering" mud on the
victim's vagina right after she was raped, is adequately and properly described as
"ignominy" rather than "cruelty or ignominy."
Third Assignment of Error
Lastly, the original death sentence was correctly imposed pursuant to the provisions
of the Revised Penal Code, namely, Article 335 which states that when the crime of
rape is committed by two (2) or more persons, the penalty shall be reclusion
perpetua to death, and Article 63, which provides that when the penalty prescribed
is composed of two (2) indivisible penalties (as in this case) and the offense is
attended by an aggravating circumstance, the greater penalty shall be applied.
However, since the original death penalties imposed by the trial court are no longer
imposable under the present Constitution and are reduced to reclusion perpetua, the
sentence on appellant Federico Conrado has to be reduced to two (2) penalties
of reclusion perpetua. 18 But the indemnity he has to pay to the victim must be
increased to P20,000.00 in line with prevailing jurisprudence.

CRIMINAL PROCEDURE | CASES

WHEREFORE, the appealed judgment, as above modified, is AFFIRMED. With costs

against the accused-appellant Federico Conrado.
SO ORDERED.

[G.R. No. 119380. August 19, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FEDERICO LOPEZ @
AMBOY LOPEZ, accused-appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision [1] of the Regional Trial Court of Pangasinan
(Branch 52), finding accused-appellant guilty of two counts of murder and one count
of frustrated murder and ordering him to pay a total of P204,300.00 in damages.
The Information[2] against accused-appellant charged:
That on or about the 15th day of November, 1991, in the evening, at Brgy.
Nancalabasaan, municipality of Umingan, province of Pangasinan, New Republic of
the Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused together with one John Doe, whose identity has not yet been established,
armed with a short firearm, with intent to kill, with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault
and shoot ROGELIO SELDERA and RODOLFO PADAPAT which caused their immediate
death and on the same occasion and with treachery and evident premeditation
wound MARIO SELDERA on his breast to the damage and prejudice of the heirs of
Rogelio Seldera and Rodolfo Padapat and also to the damage and prejudice of said
Mario Seldera.
The prosecution presented evidence showing the following: At around 6:00 in the
evening of November 15, 1991, Mario Seldera, 11, his father Rogelio Seldera, and
his cousin Rodolfo Padapat worked in the riceland of a certain Lagula in Barangay
Nancalabasaan, Umingan, Pangasinan. It was harvest time and the three were hired
to bundle the palay stalks which had been cut. As it was a moonlit night, the three
worked in the field until around 9:00 when they started for home taking a trail
alongside the Banila river. The trail is about two feet wide only, and so the three
walked along the trail single file with Rogelio, being the oldest, leading the way,
followed by his son Mario and by Rodolfo who was last. As they reached a sloping
portion in the trail, accused-appellant Federico Lopez appeared armed with a
shotgun. Accused-appellant had a companion, a dark man. He was unarmed.
[3]
Without uttering a word, accused-appellant fired at the three, who slumped
forward, face down. Accused-appellants companion went near the bodies of the
victims and rolled them over with his foot. Satisfied that the victims were dead,
accused-appellant and his companion left.[4]

ALARCON | 103

However, Mario, the youngest in the group, was not killed, although he had been
wounded in the back. As soon as accused-appellant and his companion had left,
Mario stood up and, crying, he walked to the house of his uncle, Alfredo Padapat, the
father of Rodolfo, and reported the matter. He decided not to go home as accusedappellant and his companion went in the direction of their house. Marios mother was
fetched from their house and told what had happened to Rogelio and Rodolfo. The
three then reported the incident to the barangay captain who lost no time in
accompanying them to the police in Umingan, Pangasinan.[5]
Mario was investigated by CPL Jose Almerol. Afterwards, he was taken to the
Umingan Medicare Hospital where he was treated by Dr. Suller-Santos. The boy
suffered three gunshot wounds on the back, right side, each wound measuring about
.5 x 1 cm. The wounds were located vertically, the first about three centimeters from
the second and the latter about two centimeters from the third. [6] Dr. Santos issued a
medical certification (Exh. E) and referred Mario to the Eastern Pangasinan District
Hospital for x-ray examination.
Mario positively identified accused-appellant as the assailant. He testified that
accused-appellant wore a white, long-sleeved shirt, blue jeans and white slippers,
while his companion had a black t-shirt, black jeans and brown slippers on. [7] He was
able to recognize accused-appellant and notice the type and color of the latters
clothes and those of the latters companions because the moon was brightly
shining.He knew accused-appellant very well, because the latter used to frequent
their house in Nancalabasaan to play cards with his father. In addition, Mario used to
buy cigarettes from accused-appellants store. As to the gun used, he stated that it
was similar to those used by security guards. When asked whether his father and
accused-appellant had a quarrel on November 15, 1991, Mario said he did not know.
[8]

Dr. Thelma C. Busto, the rural health physician of Umingan, Pangasinan, examined
the bodies of Rogelio Seldera and Rodolfo Padapat on November 16, 1991.
Dr. Busto described Rogelios wounds as follows: [9]
1. Gunshot wound frontal area of head as point of entrance with exit at the occipital
area, . . . thru and thru.
2. Multiple gunshot wounds in the chest and neck (9).
Her post-mortem report on Rodolfo Padapat stated:[10]
Gunshot wound in the head right parieted area of head as entrance, no exit.
According to Dr. Bustos reports, the cause of death of the victims was cerebral
hemorrhage and cardiorespiratory arrest secondary to gunshot wounds. Testifying,
she said that the gunshot wounds were alike in size and nature. Although she could
not tell the type of firearm used nor determine the trajectory of the wounds, she said
the wounds could have been caused by a shotgun.[11]
Leonida Seldera, widow of the deceased Rogelio, and Alfredo Padapat, father of
Rodolfo, testified on the civil aspect of the case. The prosecution was precluded from
inquiring from these witnesses about events which transpired in the evening of
November 15, 1991 because they were present during the testimony in-chief of

CRIMINAL PROCEDURE | CASES

Mario Seldera. The defense counsel moved for their exclusion but the prosecution
manifested that they would only testify with regard to the civil aspect of the case.
Accused-appellants defense was alibi. He claimed that at around 5:00 in the
afternoon of November 15, 1991, he was in the house of his uncle, Asterio Sonaco,
in Caurdanetaan, another barangay of Umingan in Pangasinan, about three
kilometers from Nancalabasaan. He had a round of drinks with four friends [12] over a
dish of dog meat. At 11:00 that night, the party broke up and accused-appellant
went home. He claimed that it was dark that night and that during the party, they
used a lamp for illumination.[13]
Accused-appellant stated that he has no previous quarrel with the two deceased nor
with Mario Seldera. Nor had he been to the house of Rogelio Seldera. As to the
clothes he wore on the night of November 15, 1991, he claimed he had a pair
of maong pants and a t-shirt on, though he could not remember the color of the
latter.[14]
On cross-examination, accused-appellant admitted that he was known as Amboy
Lopez and that although a barriomate, Rodrigo Lopez, was also called Amboy, the
latter was known more as Thunder Lopez. He also said that he had a farm in
Nancalabasaan but he allegedly had not gone to the barangay proper as he only
pass by the eastern part thereof.[15]
In his counter-affidavit,[16] accused-appellant did not mention anything about cooking
dog meat during the party in Asterio Sonacos house on November 15, 1991 and that
he went home at 8:00 in the evening. Accused-appellant gave no explanation why in
his testimony in court he said he went home at 11:00 in the evening and that they
killed a dog and made its meat into a dish. [17]
The defense presented Daniel Fortunato and Mario Sonaco to corroborate accusedappellants testimony on the events which transpired in the evening of November 15,
1991. Daniel Fortunato testified that he is a barangay councilman of Caurdanetaan,
Umingan, Pangasinan. He claimed that from 4:00 in the afternoon to 11:00 in the
evening of November 15, 1991, he was with accused-appellant in a party where
there were about thirteen[18] other people, drinking gin and eating cooked dog
meat. Fortunato said he and Mario Sonaco helped accused-appellant home as the
latter was too drunk. Accused-appellant was allegedly received by his wife.[19]
On cross-examination Fortunato admitted that he was not always watching accusedappellant during the party and that it was possible that the latter may have slipped
out. With regard to the distance of Caurdanetaan to the Banila river, where the
incident happened, Fortunato estimated it to be about 1 1/2 kilometers, which can be
covered in 20 minutes by walking and in about 11 minutes by running.Fortunato
testified that accused-appellant had the same height and body build as Rodrigo
Thunder Lopez although the latter was darker. [20]
Mario Sonaco, for his part, claimed that there were less than ten [21] people present in
the house of his brother, Asterio Sonaco, in the evening of November 15,
1991. However, he corroborated Fortunatos testimony that he and Fortunato took
accused-appellant home at 11:00 oclock that night because the latter was drunk. [22]

ALARCON | 104

On cross-examination, Sonaco admitted that accused-appellant is his nephew. [23] He

estimated that accused-appellants house was less than two kilometers from the
Banila river. He reiterated that by taking the barangay road, the distance could be
covered in 30 minutes on foot but if one runs or uses the shorter route through the
ricefields, the travel time would be less.[24]
The defense also presented Juanito Costales, barangay captain of Caurdanetaan,
who testified that around 12:00 midnight of November 15, 1991, three policemen
went to his house to inform him that accused-appellant was a suspect in a killing in
the neighboring barangay of Nancalabasaan. He said he accompanied the
authorities to accused-appellants house and that when the latter came out, he
smelled of liquor. When asked by the policemen where he had been, accusedappellant allegedly answered he had been to a drinking party held that
afternoon. Apparently finding nothing unusual, Costales and the policemen left.[25]
Costales corroborated Mario Sonacos testimony that accused-appellants house is
less than two kilometers from the scene of the crime. When asked about the
condition of the night on November 15, 1991, he stated that it was so dark that the
policemen had to use flashlights.[26]
Corroborating accused-appellants claim that it was pitch dark on the evening of
November 15, 1991, Lorna Gonzales, a resident of Barangay Nancalabasaan, whose
house is about 100 meters from the Seldera household, testified that at around 9:00
in the evening of that day, she heard some wailing and weeping in the house of the
Selderas, and that she and her husband learned that Rogelio Seldera had
died. However, they did not go out of their house because it was allegedly very dark,
and she was afraid that her husband might be implicated in the killing. On crossexamination,
Gonzales
disclosed
that
her
house
is
surrounded
by
big camachile trees. When asked whether these could obstruct the light from the
moon, she only said: It [was] dark, sir.[27]
On January 20, 1995, the trial court rendered judgment, the dispositive portion of
which reads:[28]
WHEREFORE, in virtue of the foregoing disquisitions accused Federico Lopez @
Amboy Lopez is hereby declared GUILTY of the crime of Double Murder With
Frustrated Murder beyond reasonable doubt and is hereby sentenced to a penalty of
Reclusion Perpetua relative to the treacherous killing of Rogelio Seldera, and to pay
the heirs of the late Seldera the sum of Fifty Thousand Pesos (P50,000.00) as
compensatory damages, Thirty Thousand (P30,000.00) as moral damages, likewise
sentences the same accused Amboy Lopez of the penalty of Reclusion Perpetua for
the treacherous killing of Rodolfo Padapat, and to pay the heirs of the late Padapat
the sum of Fifty Thousand Pesos (P50,000.00) as compensatory damages, and the
sum of Thirty Thousand Pesos (P30,000.00) as moral damages, and to pay civil
liability or actual expenses incurred during the wake and burial and other expenses
incurred relative to the interment of both deceased in the amount of Fourteen
Thousand Pesos (P14,000.00) payable to the heirs of both victims, and finally
sentences accused Amboy Lopez for the crime of Frustrated Homicide for the injuries
sustained by victim Mario Seldera, with a penalty of Prision Mayor from six (6) years
and one (1) day to twelve (12) years, and to pay the widow of the late Rogelio
Seldera the sum of Twenty Thousand Pesos (P20,000.00) as moral damages, Ten

CRIMINAL PROCEDURE | CASES

Thousand Pesos (P10,000.00) exemplary damages, and P300.00 as actual damages

in the form of medical expenses. With cost de officio. Bailbond cancelled.
SO ORDERED.
In this appeal, accused-appellant alleges that:[29]
ASSIGNMENT OF ERRORS
(1) THE HONORABLE COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE
TESTIMONY OF MARIO [S]ELDERA;
(2) THE HONORABLE [COURT] ERRED IN NOT CONSIDERING THE TESTIMONIES OF
DEFENSE WITNESSES LORNA GONZALES AND BARANGAY CAPTAIN JUANITO
COSTALES AS TO THE CONDITION OF THE NIGHT;
(3) THAT THE HONORABLE COURT ERRED IN NOT CONSIDERING THE DEFENSE OF
ALIBI PUT UP BY THE ACCUSED;
(4) THE HONORABLE COURT ERRED IN NOT CONSIDERING THE EXISTENCE OF TWO
PERSONS SPORTING THE NAME OF AMBOY LOPEZ.
First. Accused-appellant questions the credibility of Mario Seldera. It is
unbelievable, he contends, that this witness observed even minute details, such as
the length and color of the shirts worn by accused-appellant and his companion, the
color of their slippers, and the type of firearm used by accused-appellant,
considering that the shooting took place suddenly and unexpectedly.[30]
The contention has no merit. As the Solicitor General points out, Mario Seldera went
through a harrowing experience. In fact, he suffered three gunshot wounds and was
given up for dead by the assailant. The memory of the massacre was etched deeply
in his memory. As this Court has many times held, the natural reaction of victims of
criminal violence is to strive to notice the appearance of their assailants and observe
the manner the crime was committed.[31]
Indeed, Marios statement that accused-appellant used a shotgun in shooting him
and his companions on November 15, 1991 is confirmed by the fact that the wounds
suffered by the victims were similar to those caused by a shotgun fired at close
range. Rogelio Seldera, who was less than three meters away from accusedappellant, had his head practically blown off. On his neck and chest were nine
wounds, probably caused by pellets from the blast. Mario, who was behind his
father, sustained three vertical, relatively small wounds on the right side of his
back. The wound on Rodolfos head, on the other hand, although without an exit, is
similar in size to that suffered by Rogelio Seldera on the head.
It is argued that Mario could not have recognized accused-appellant because it was
very dark on the night of November 15, 1991. [32] This is not true. According to the
Philippine Atmospheric Geophysical and Astronomical Services Administration, there
was 60% illumination from the moon over Umingan, Pangasinan at 9:00 in the
evening of November 15, 1991. In People v. Pueblas,[33] we held that a moon disc
62% full provides sufficient illumination in sustaining the identification of the
accused and convicting him of murder. In other cases, we held that the illumination

ALARCON | 105

from the moon[34] and even from the stars [35] is fair and sufficient to identify
perpetrators of crimes.
The Solicitor General observes that Mario had been walking under the light of the
moon for sometime before the incident so that his eyes had sufficiently adjusted to
the natural illumination, so as to enable him in identifying the accused-appellant.
[36]
Indeed, if accused-appellant recognized his intended victims, there is no reason
why the survivor from the ambush could not have also recognized him.
In the alternative, it is contended that even if there was fair illumination from the
moon on the night in question, nonetheless Mario Seldera could have mistaken
accused-appellant for Rodrigo Thunder Lopez.[37]
Again the contention is without merit. Rodrigo Thunder Lopez may also be called
Amboy Lopez in the barangay, but it was not by name that Mario made his
identification. In fact, Rodrigo Thunder Lopez was not even a suspect in the ambush
of Mario and the latters companions. As already stated, Mario identified accusedappellant based on this witness knowledge of accused-appellant. The latter was a
frequent visitor in their house and this witness used to buy from accused-appellants
store. Moreover, Rodrigo Lopez is darker and shorter than accused-appellant.
Indeed, Mario Seldera was very positive that it was accused-appellant who shot
them. He identified accused-appellant as their assailant upon reaching Alfredo
Padapats house. He again pointed to accused-appellant as the person who shot
them when his mother arrived and again when they reported the incident to the
police that same night. The rule is that identification of the accused, when there is
no improper motive for making it, should be given full faith and credence. In the
case at bar, no reason has been shown why Mario should falsely implicate accusedappellant.
Second. It is claimed that accused-appellant was in his uncles house in
Caurdanetaan at the time of the incident. The defense of alibi will be sustained
where the evidence of the prosecution is weak.[38]However, accused-appellant
himself said that Caurdanetaan is just three kilometers from Nancalabasaan. On the
other hand, his witnesses[39]themselves testified that accused-appellants house is
less than two kilometers from the scene of the crime and that the distance could be
negotiated in 30 minutes by foot and even less if one runs. For alibi to prosper,
accused-appellant must show that it was physically impossible for him to be at the
scene of the crime at the time of its commission. [40] Thus, assuming that he was
indeed at the party in Asterio Sonacos house, he could have easily slipped out of the
party, come back to the group, and then be at home in time for the police to find
him there.
Moreover, as already stated, accused-appellant was positively identified by Mario as
the triggerman. It is settled that the defense of alibi cannot prevail over positive
identification of the accused by an eyewitness who has no improper motive to
falsely testify.[41] The Court finds no reason to doubt the veracity of Marios testimony
who was only 11 when he witnessed the gruesome killing of his father and cousin
and barely 13 when he took the stand. He could possibly have no other motive but
to tell the truth about what he had observed.

Accused-appellants alibi is not only weak; it is also filled with inconsistencies. He

said in his counter-affidavit that he went home at 8:00 in the evening of November
15, 1991, a full hour before the shooting occurred but, in his testimony in court, he
said he went home at 11:00 in the evening. His witnesses, Daniel Fortunato and
Mario Sonaco, said there were at least ten persons in the party at the house of
Asterio Sonaco on November 15, 1991, but accused-appellant stated that there were
only five.
The Court is convinced that it was accused-appellant who shot Mario Seldera,
Rogelio Seldera, and Rodolfo Padapat on November 15, 1991. It is immaterial that
there is no proof of motive for the attack because this becomes significant only
where the identity of the assailant is in serious doubt. [42] But in this case, the
accused has been positively identified.
Third. The Information is formally defective as it charged more the one offense in
violation of Rule 110, 13 of the Revised Rules of Court. However, because of his
failure to file a motion to quash, accused-appellant is deemed to have waived
objection based on the ground of duplicity. [43] The dispositive portion of the trial
courts decision finds accused-appellant guilty of Double Murder with Frustrated
Murder, but sentences him for two separate counts of murder and one count of
frustrated homicide. We hold that accused-appellant was guilty of two counts of
murder and one count of attempted murder.Under Art. 48 of the Revised Penal Code,
a complex crime is committed only when a single act constitutes two or more grave
or less grave felonies. As the victims in this case were successively shot by accusedappellant with a shotgun, each shot necessarily constitutes one act. Accusedappellant should thus be held liable for three separate crimes.
The lower court correctly appreciated treachery as having qualified the killings of
Rogelio Seldera and Rodolfo Padapat. The essence of treachery is the swift and
unexpected attack on an unarmed victim without the slightest provocation on the
part of the victim.[44] Here, it was clearly established that the victims, when shot,
were unarmed and were peacefully walking along a trail when accused-appellant
suddenly opened fire on them. The swiftness of the shooting left them helpless to
put up any form of defense.
The lower court however erred in convicting accused-appellant of frustrated
homicide for the injuries inflicted on Mario Seldera. Although it correctly appreciated
the intent to kill, which can be inferred from the weapon used, the proximity of the
assailants and the location of the injuries, it should have appreciated treachery in
the attack. Treachery attended the shooting not only of Rogelio Seldera and Rodolfo
Padapat but also of Mario Seldera.
But, with respect to Mario Seldera, the crime was not frustrated, but only attempted
murder. This is the gist of our rulings in several cases. [45] For the injuries sustained by
Mario Seldera were not life threatening. Dr. Santos, the attending physician, certified
that Marios injuries would heal in seven days. [46] In fact, he was not confined at the
hospital. He was referred to the Eastern Pangasinan District Hospital only for x-ray
examination of his injuries. There is no evidence that he was given further medical
attention by this hospital other than what Dr. Santos had requested.
Fourth. Certain modification should also be made with respect to the award of
damages. The lower court awarded P50,000.00 for compensatory damages and

CRIMINAL PROCEDURE | CASES

ALARCON | 106

P30,000.00 for moral damages to each set of heirs of Rogelio Seldera and Rodolfo
Padapat in addition to the P14,000.00 actual damages to be divided among
them. The P50,000.00 should be treated as civil indemnity, which under prevailing
jurisprudence,[47] is fixed at P50,000.00, to be awarded without need of further proof
other than the death of the victim. Further, in accordance with our rulings in other
cases,[48] the amount of moral damages should be increased to P50,000.00.
With regard to the amount of actual damages, Leonida Seldera and Alfredo Padapat
testified that they could not present any receipt for their funeral expenses because
the funeral agency refused to issue one in view of an unpaid balance. They have
likewise allegedly lost the receipts for their joint expenses for the wake. Under the
Civil Code (Art. 2199), a party is entitled to compensation only for such pecuniary
loss suffered by him as he has duly proved. However, under Art. 2224, temperate
damages may be recovered if it is shown that such party suffered some pecuniary
loss but the amount thereof cannot, from the nature of the case, be proved with
certainty.[49] As the heirs of the two victims clearly incurred funeral expenses, an
award of P5,000.00 for each set of heirs by way of temperate damages should be
awarded, to be divided equally by the heirs of Seldera and Padapat.
For the injuries sustained by Mario Seldera, the court a quo awarded P10,000.00
moral damages, P20,000.00 exemplary damages and P300.00 actual damages for
medical expenses. The first item should be disallowed for lack of evidence to support
it. The second item should likewise be deleted as under Art. 2230 of the Civil Code,
exemplary damages are awarded when the crime is committed with one or more
aggravating circumstances. There was no aggravating circumstance in this case
other than the qualifying circumstance of treachery. As to the actual damages of
P300.00, as the prosecution failed to present any documentary proof for such, its
award is improper. However, the amount of P200.00 as temperate damages may be
made in its place.
Actual damages representing unearned income of Rogelio Seldera and Alfredo
Padapat should also be awarded. Leonida Seldera testified that her husband was 43
years old when he was killed and that he earned P13,000.00 a year as a farmer.
[50]
On the other hand, Alfredo Padapat testified that his son, Rodolfo, was then 25
years old when he died and that he was earning P5,000.00 a year also as a
farmhand.[51] The formula for the computation of unearned income is:[52]

3
= 24.67 x P6,500
= P160,355
Rodolfo Padapats unearned income is:
X

= 2[80 - 25] x P5,000 - P2,500

3
= 36.67 x P2,500
= P91,675
WHEREFORE, the decision of the Regional Trial Court of Pangasinan (Branch 52) is
AFFIRMED with the following modifications:
1. For the death of Rogelio Seldera, accused-appellant is found guilty of murder and
is sentenced to reclusion perpetua and to pay the heirs of the deceased Rogelio
Seldera the amount of P50,000.00 as indemnity, P50,000.00 as moral damages,
P5,000.00 as temperate damages, and P160,355.00 as unearned income.
2. For the death of Rodolfo Padapat, accused-appellant is found guilty of murder and
is sentenced to reclusion perpetua and to pay the heirs of the deceased Rodolfo
Padapat the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, P5,000.00 as temperate damages, and P91,675.00 as unearned income.
3. For the injuries of Mario Seldera, accused-appellant is found guilty of attempted
murder and is sentenced to 4 years and 2 months of prision correccional, as
minimum, to 10 years of prision mayor, as maximum, and to pay Mario Seldera
P200.00 as temperate damages.
SO ORDERED.

net life gross living

earning (x) = expectancy x annual less expenses
capacity income (50% of gross
annual income)
Life expectancy is determined in accordance with the formula
2

[53]

/3 x [80 - age of deceased]

Accordingly, Rogelio Selderas unearned income is:

X

= 2 [80 - 43] x P13,000 - P6,500

CRIMINAL PROCEDURE | CASES

ALARCON | 107

G.R. No. L-3851 December 17, 1908

J.N. Wolfson, for appellant.

Attorney-General Araneta, for appellee.

that he is not within the benefit of its provisos, though the purview should expressly
notice them, as by saying that none shall do the act prohibited, except in the cases
thereinafter excepted. For all these are matters of defense, which the prosecutor
need not anticipate, but which are more properly to come from the prisoner." But
Bishop insists that the correct doctrine is that "if exceptions are in the enacting
clause, it will be necessary to give them, in order that the description of the crime
may in all respects correspond with the statute," and amplifies this rule by laying
down the following propositions:

CARSON, J.:

First. The negative of all exceptions in the enacting clause should be averred, unless
such in form and substance that an affirmative offense will appear without.

THE UNITED STATES, plaintiff-appellee,

vs.
CHAN TOCO, defendant-appellant.

The accused in this case was charged with an infraction of section 4 of Act No. 1461
of the Philippine Commission, in that on the 23rd day of October, 1906, he smoked
opium in the store of a Chinaman named Liangco, in the municipality of Santo Nio,
in the province of Samar, without being duly registered, and without having secured
a certificate to that effect, as provided in section 4 of the Act. The evidence of record
fully sustains the findings of the trial court, and establishes the guilt of the accused
beyond a reasonable doubt, and we find no error in the proceedings prejudicial to
the rights of the appellant.
Counsel for the accused demurred to the information on the ground that it failed to
allege that the use of opium had not been prescribed as a medicine by a duly
licensed and practicing physician; and in support of his contention that the demurrer
filed in the court was improperly overruled, counsel for the appellant insists that the
statutory offense defined in section 4 of Act No. 1461, of which the appellant was
convicted, was not sufficiently alleged in the information, and a formidable array of
authorities have been cited holding that, where the enacting clause in a statute
describes an offense with certain exceptions, the exceptions should be negative in
the indictment, complaint or information.
Section 4 of Act No. 1461 is as follows:
(a) Except one prescribes as a medicine by a duly licensed and practicing physician,
it shall be unlawful for any person to smoke, chew, swallow, inject, or otherwise
consume or use opium in any of its forms unless such person has been duly
registered as provided in section two hereof and has secured the certificate therein
prescribed. Except when prescribed as a medicine by a duly licensed and practicing
physician, no registered confirmed user of opium shall, smoke, chew, swallow, inject
or otherwise use or consume opium except in his own residence.
(b) Any person violating the provisions of this section shall be punished by a fine not
exceeding two hundred pesos, or by imprisonment for a period not exceeding six
months, or by both such fine and imprisonment, in the discretion of the court.
Bishop, in his work on Criminal Procedure (Vol. I, paragraphs 631-645), discusses the
question of negativing exceptions at length. He says that the older writers, with
whom we may now class Chitty, present the distinctions without the nicer shades
discoverable in the latter decisions, Chitty being of the opinion that, were this
excusing matter stands in clauses separate from the main provisions, "it is not
necessary to state in the indictment that the defendant does not come within the
exceptions, or to negative the provisos it contains. Nor is it even necessary to allege

CRIMINAL PROCEDURE | CASES

Second. A negative descriptive of the offense must be alleged.

Third. However mutually located are the provisions of a statute, an indictment
thereon, as on the common law, must aver all negatives necessary to show
affirmatively an offense.
Fourth. As on the common law, so on a statute, the indictment need not negative
matter of defense.
Fifth. In general, and subject to exceptions growing out of doctrines already stated,
an exception or proviso which is not in the enacting clause, whether in the same
section with it or not, need not be negatived.
Sixth. Where there is in the enacting clause a reference to an exception or proviso
more fully stated in a separate clause or statute, the indictment is required to
negative it or not, according as the form of the expression and the nature of the
matter render the latter an element in the prima facie offense or in the defense.
Seventh. A negative not required by law may be rejected as surplusage.
Eight. A negative averment need not be so minute, or so nearly in the statutory
words, as must an affirmative one; but any negation in general terms, covering the
entire substance of the matter, will suffice.itc-alf
It must be admitted that, with varying modifications, the doctrine as to negativing
exceptions, thus laid down by Bishop, appears to be the accepted doctrine as
expressed in the opinion of most of the courts of last resort of the various States of
the United States, but the Supreme Court of the United States in the case of
U.S. vs. Cook (84 U S. Rep., 168, 173), modifies this doctrine in the following terms:
Where a statute defining an offense contains an exception in the enacting clause of
the statute which is so incorporated with the language defining the offense that the
ingredients of the offense can not be accurately and clearly described if the
exception is omitted, the rules of good pleading require that an indictment founded
upon the statute must allege enough to show that the accused is not within the
exception; but if the language of the section defining the offense is so entirely
separable from the exception that the ingredients constituting the offense may be
accurately and clearly defined without any reference to the exception, the pleader
may safely omit any such reference, as the matter contained in the exception is
matter of defense and must be shown by the accused.

ALARCON | 108

Offenses created by statute, as well as offenses at common law, must be accurately

and clearly described in an indictment, and if they can not be, in any case, without
an allegation that the accused is not within the exception contained in the statute
defining the offense, it is clear that no indictment founded upon the statute can be a
good one which does not contain such an allegation, as it is universally true that no
indictment is sufficient if it does not accurately and clearly allege all ingredients of
which the offense is composed.
With rare exceptions, offense consists of more than one ingredient, and in some
cases of many, and the rule is universal that every ingredient of which the offense is
composed must be accurately and clearly alleged in the indictment, or the
indictment will be bad, and may be quashed on motion, or the judgment may be
arrested, or be reversed on error.
Text writers and courts of justice have sometimes said that if the exception is in the
enacting clause the party pleading must show that accused is not within the
exception, but where the exception is in a subsequent section or statute, that the
matter contained in the exception is matter of defense and must shown by the
accused. Undoubtedly that the rule will frequently hold good, and in many cases
prove to be a safe guide in pleading, but it is clear that is not universal criterion, as
the words of the statute defining the offense may be so entirely separable from the
exception that all ingredients constituting the offense may be accurately and clearly
alleged without any reference to the exception.lawphil.net
Cases have also arisen, and others may readily be supposed, where the exception,
though in a subsequent clause or section, or even in subsequent statute, is
nevertheless clothed in such language, and is so incorporated as an amendment
with the words antecedently employed to define the offense, that it would be
impossible to frame the actual statutory charge in the form of an indictment with the
accuracy, and the required certainty, without an allegation showing that the accused
was not within the exception contained in the subsequent cause, section, or statute.
Obviously such an exception must be pleaded, as otherwise the indictment would
not present the actual statutory accusation, and would also be defective for the
want of clearness and certainty.
Commentators and judges have sometimes been led into error by supposing that the
words "enacting clause," as frequently employed, mean the section of the statute
defining the offense, as contradistinguished from a subsequent section in the same
statute, which is the misapprehension of the term, as the only real question in the
case is whether the exception is so incorporated with the substance of the clause
defining the offense as to constitute a material part of the description of the acts,
omission, or other ingredients which constitute the offense. Such an offense must be
accurately and clearly described, and if the exception is so incorporated with the
clause describing the offense that it becomes in fact a part of the description, then it
can not be omitted in the pleading, but if it is not so incorporated with the clause
defining the offense as to become a material part of the definition of the offense,
then it is a matter of defense and must be shown by the other party, though it be in
the same section or even in the succeeding sentence.
And in the case of Nelson vs. U.S. (30 Fed. Rep., 112), the court, after discussing the
material modification in the above-cited decision of the Supreme court of the United
States of the rule as laid down by Bishop and other law writers, says:

CRIMINAL PROCEDURE | CASES

But in my judgment they (referring to the fact that certain cases decide that
exceptions such as that mentioned in the indictment in that case should be
negatived) are more distinguished for verbal dialectics than good sense, and are
better calculated to puzzle and pervert than to promote the administration of justice.
As a rule, an exception in a statute by which certain particulars are withdrawn from
or accepted out of the operation of the enacting clause thereof defining a crime
concerning a class or species, constitutes no part of the definition of such crime,
whether placed close to or remote from such enacting clause. And, whenever a
person accused of the commission of such a crime claims to be within such
exception, it is more logical and convenient that he would aver and prove the fact
than that the prosecutor should anticipate such defense, and deny it.
The question raised in the case of Nelson vs. U.S. was almost identical with the
question submitted in the case at bar. An Act of Congress prohibited and penalized
the sale of intoxicating liquor in the territory of Alaska, except for mechanical,
medicinal, or scientific purposes, and the indictment failing to negative this
exception, counsel for defendant urged that it was fatally defective. The court held,
however, that the purpose of the statute was to the prohibit generally the sale if
intoxicating liquors throughout the territory, and that the exception as to the sale of
liquor for mechanical, medicinal, or scientific purposes merely withdrew such sales
from the operation of the enacting clause of the statute, and that it mattered not the
exception appeared to be grammatically a provision of the enacting clause, and that
under the technical rule laid down by the law writers it should be negatived,
practically it was more logical and convenient that the accused should aver and
prove the fact that the sale made by him fell within the exception, than that the
prosecutor should anticipate such defense and deny it.lawphil.net
So in the case at bar, the evident intent and purpose of the statute is to prohibit and
to penalize generally the smoking of opium in these Islands. But the legislator
desired to withdraw from the operation of the statute a limited class of smokers, to
wit, those who smoked under the advise and by prescription of a licensed and
practicing physician, and we do not think that it makes the slightest practical
difference, whether the excepting proviso as to such persons is found in the enacting
clause of the statute in a separate provision thereof or in a separate Act. Hence
where one is charged with a violation of the general provisions of the Opium Law, it
is "more logical as well as more practical and convenient," if he did in fact smoke
opium under the advise of a physician, that he should set up this fact by way of
defense, than that the prosecution should be called upon to prove that every
smoker, charged with a violation of the law, does so without such advice or
prescription. Indeed, when it is considered that under the law any person, in case of
need and at any time, procure the advice of a physician to use of opium or some of
its derivatives, and that in the nature of things no public record of prescription of this
kind is or can be required to be kept, it is manifest that it would not be wholly
impracticable and absurd to impose on the prosecution the burden of alleging and
proving the fact that one using opium does so without the advice of a physician. To
prove beyond a reasonable doubt in a particular case, that one using opium does so
without the advice or prescription of a physician would be in most cases practical
impossibility without the aid of the defendant himself, while the defendant charged
with the illegal use of opium should find little difficulty in establishing the fact that
used it under the advice and on the prescription of a physician, if in fact he did so.

ALARCON | 109

We conclude, therefore, that the demurrer was properly overruled in the trial court,
both from necessity of the case and under the doctrine laid down in the case of
Nelson vs. U.S. which we accept and approve, that, "as a rule, an exception in a
statute by which a certain particular are withdrawn from or excepted out of the
enacting clause thereof defining a crime concerning a class or species, constitutes
no part of the definition of such crime, whether placed clause to or remote from such
enacting clause."
It is worthy of consideration in this connection that in Act No. 1761, which repeals
Act No. 1461, reenacting most of its provision with certain amendments and
additions, it is expressly provided that the possession of opium, opium pipes, and
other instruments for its use, shall be deemed prima facie evidence that the person
in possession thereof has used one of the prohibited drugs without prescription of a
duly licensed and practicing physician, unless such prescription is produced by such
person.
It is not necessary to discuss the remaining alleged errors in procedure assigned by
counsel for appellant, because it does not appear that of objection based on this
court, and we have frequently held in similar cases that accused persons can not be
heard to raise such objections for the first time in this court.
The judgment and sentenced the trial court should be and is hereby affirmed, with
the costs of this instance against the appellant. So ordered.
G.R. No. L-38544 July 30, 1982

That in, about and during the period comprised between April 27, 1982 to June,
1972, inclusive, in the Municipality of Bauan, Batangas, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, being then an
employee of one Luz E. Balitaan, owner of a baby dresses mending shop in Barrio
Aplaya of the said municipality and having collected and received from Uniware,
Inc., a business establishment in Makati, Rizal, to which finished baby dresses are
turned over after they have been mended and made, the sum of P127.58 in
payment of work done on baby dresses by said Luz E. Balitaan, and under the
express obligation on the part of the accused to immediately account for and deliver
the said amount of P127.58 to said Luz E. Balitaan, with unfaithfulness and grave
abuse of confidence and in spite of repeated demands made to the said accused to
turn over the said amount of P127.58, did then and there, wilfully, unlawfully and
feloniously misappropriate, misapply and convert the sum of P127.58 to her
(accused) own use and benefit, to the damage and prejudice of the said Luz E.
Balitaan in the aforementioned amount of P127.58.
Contrary to law. 1
At the initial hearing on September 18, 1973, complaining witness Luz E. Balitaan,
herein petitioner, was called as the prosecution's first witness. She testified that she
was the proprietress of a baby dress mending shop, that her business was engaged
in the sewing of baby dresses with the accused, Rita de los Reyes, herein
respondent, as the one in charge of the management of her business, including the
procurement of unsewed baby dresses from, and the delivery of finished dresses to
Unaware, Inc. She further testified as follows:

LUZ E. BALITAAN, petitioner,

vs.
COURT OF FIRST INSTANCE OF BATANGAS, BRANCH II, and RITA DE LOS
REYES, respondents.

Q. Sometime in April 27,1972, do you know if the accused in this case, Rita de los
Reyes had made deliveries of baby dresses to Uniware, Incorporated?

Julio D. Enriquez, Sr. for petitioner.

Q. Do you have a receipt or cash voucher to show that those baby dresses were
delivered?

Jose N. Contreras for respondents.

A. Yes, sir.

A. Yes, sir.
GUERRERO, J.:
This is a petition for review on certiorari of the decision of the Court of First Instance
of Batangas in Civil Case No. 81 entitled "Rita de los Reyes vs. Luz E. Balitaan, et al."
which annulled the orders of the Judge of the Municipal Court of Bauan, Batangas
and ordered the questioned testimonies to be striken out from the record on the
ground that they are at variance with the allegations of the Information.
The chronological sequence of the events leading to the filing of the instant petition
is as follows:
On April 11, 1973, Special Counsel Arcadio M. Aguila filed with the Municipal Court of
Bauan, Batangas, an Information charging respondent Rita de los Reyes of the crime
of estafa. The Information reads as follows:

Q. I am going to show you a cash voucher dated April 27, 1972, which appears to be
the original carbon copy and which for purposes of Identification we ask that the
same be marked as Exhibit "A" for the prosecution.
COURT:
Mark it.
Atty. Enriquez:
Q. Is this the cash voucher of baby dresses delivered by Rita de los Reyes?
xxx xxx xxx
A. Yes, sir.
Q. Do you know this or what is this about?

CRIMINAL PROCEDURE | CASES

ALARCON | 110

A. This is receipt of payment made to us for the dresses we have made.

xxx xxx xxx
Q. It appears in this voucher, Exhibit "A", that the total payment made and suppose
to be received was in the amount of P1,632.27 in words and figures, how was the
payment made?
A. By checks sir.
Q. How many checks?
A. Three (3) checks, sir.
Q. Would you know from this Exhibit "A" the number of checks and the
corresponding amount appearing in the checks in payment of this P1,632.97?
(Witness again shown Exhibit "A").
A. Yes sir.
Q. Where, will you point to this Exhibit "A"?

was received by the accused, so that all these evidence, having received checks in
so much amount ... It is respectfully submitted by the defense that no evidence
could be admissible under the rules.
ATTY. ENRIQUEZ:
There was already testimony of this witness that there is certain amount received
and that portion thereof was not delivered to the offended party. What we are
proving here are preliminary evidence going directly to the present issue of P127.58
was received, as the Court would readily see in this cash voucher that the amount
subject matter of the information or complaint is indicated in this cash voucher. This
exhibit and evidence is germane and I want to show that there is misappropriation of
the amount from the total amount of P1,632.97.
ATTY. CONTRERAS:
The information alleges that the accused received the sum of P127.58, the
information does not cite that this amount was only a part of the cash received. All
these evidence will be immaterial, there is no allegation in the information by which
this information would be tending to sustain. I submit, your Honor.
ATTY. ENRIQUEZ:

A. Witnesses pointing to #17000703 and opposite it the amount of P500.00; she was
also pointing to #17000702 and opposite it P500.00; and also #17000704, opposite
it is the amount of P632.97.

We submit, your Honor.

Q. Now, who received the checks in payment of the dresses made in this cash
voucher?

Objection overruled.

A. Rita de los Reyes, sir. (herein respondent)

Q. From where?
A. In Makati.
Q. This cash voucher dated April 27, 1972, Exhibit "A", who received this from
Unaware, Incorporated, if it was received? 2
At this juncture, counsel for the accused Rita de los Reyes objected to the testimony
of complaining witness, Luz E. Balitaan and presented two motions. The transcript of
stenographic notes shows what these motions are:
ATTY. CONTRERAS:
If your Honor please, the defense is respectfully presenting to this Honorable Court
two (2) motions: first, to strike out all the testimonies of the witness as far as Exhibit
"A" is concerned on the ground that said testimonies are at variance with the
allegations in the information, there is no allegation in the information whatsoever
regarding these checks and this cash voucher, your Honor, and we are filing a
motion in the nature of an objection to any other question or questions regarding
these checks that were allegedly received by the herein accused from the Unaware
Incorporated because there is no allegation in the information. If the information will
only be read carefully, the sum of P127.58 in payment of work done in baby dresses

CRIMINAL PROCEDURE | CASES

COURT:
3

As clearly seen above, the objection was overruled. Luz E. Balitaan thereby
continued with her testimony and declared that accused Rita de los Reyes delivered
the said checks and voucher to her; that upon delivery, the said accused
represented to her that the baby dresses with style Nos. 648, 151, 161 and 203 were
those of Cesar Dalangin whose payment in the amount of P127.58 was included in
the checks; that in view of this statement, said Luz E. Balitaan instructed said
accused to cash the checks in order to pay Cesar Dalangin; that Rita de los Reyes
returned the following day with the cash minus the amount of P127.58. She further
declared that two or three weeks afterwards, she noticed that there were too many
baby dresses that were lost prompting her to verify the receipts of payment, one of
which is the cash voucher, Exhibit "A". In the course of her investigation, she went to
see Cesar Dalangin who declared that Style Nos. 648, 151, 161 and 203 were not his
and denied having received any amount from Rita de los Reyes or of even knowing
the latter; that when she confronted the accused and asked why she deceived her,
said accused could not talk, turned pale but later admitted having kept the amount.
At the close of the direct examination of Luz E. Balitaan, counsel for the accused
moved to strike out the foregoing testimonies but respondent court also denied the
motion.
Consequently, accused Rita de los Reyes instituted in the Court of First Instance of
Batangas, Eighth Judicial District, Branch II, Civil Case No. 81, against petitionerappellant, Luz E. Balitaan, and the Honorable Guillermo B. Magnaye, in his capacity
as Judge of the Municipal Court of Bauan, Batangas, a petition for certiorari, with

ALARCON | 111

preliminary injunction, to annul the aforementioned orders of the said Municipal

Court of Bauan, Batangas, overruling the objections of accused Rita de los Reyes to
the testimony of complaining witness on the grounds of immateriality and variance
with the Information as well as denying the motion to strike out the same.

three checks; and (2) a motion objecting to any and all other questions concerning
the checks in the total amount of P1,632.97 on the ground of variance inasmuch as
the Information recited that the accused received and misappropriated the amount
of P127.58 only.

In a decision dated March 13, 1973, the Court of First Instance of Batangas sustained
respondent's stand and hence, granted the petition for writ of certiorari, the
dispositive portion of the same states as follows:

In other words, it is petitioner's stand that since these were the only motions that
were denied by the Municipal Court, it is their denial that is accordingly questioned
by way of certiorari before the Court of First Instance and that when the latter court
went beyond the merits of the motions in question, it acted improperly for in so
doing, it did not give the adverse party a chance to argue the point and receive
evidence on the question.

WHEREFORE, the petition is granted and the orders of respondent Judge overruling
petitioner's objection, as well as denying her motion to strike out the testimonies of
Luz E. Balitaan abovequoted and appearing on pages 23-32 of the transcript of
stenographic notes marked Exhibit "X", are hereby annulled. Let said testimonies be
stricken out from the record of the hearing of September 18, 1973, of Criminal Case
No. 2172 of the Municipal Court of Bauan, Batangas entitled People vs. Rita de los
Reyes. Costs against private respondent Luz E. Balitaan.
SO ORDERED.

From said decision, Luz E. Balitaan filed this instant petition for review with the
following assigned errors:
I. The lower court erred in granting the writ of certiorari to annul the orders of the
Municipal Court of Bauan, Batangas in Criminal Case No. 2172.
II. The lower court erred in holding that there is a variance between the allegation in
the information for estafa in Criminal Case No. 2172 and the proof established by the
petitioner's testimony thereat.
III. The lower court, in resolving the present case, erred when it decided the merits of
Criminal Case No. 2172 instead of limiting itself to a determination of whether the
writ of certiorari should issue or not. 5
In resolving the issue of variance between allegation and proof, the Court of First
Instance ruled:
Private respondent contends that Luz E. Balitaan's testimonies about the delivery of
the checks to petitioner and their having been cashed by her is merely to show the
source of the P127.58 misappropriated. True but when she testified that petitioner
deducted the said amount from the proceeds falsely representing that the same
belonged to Cesar Dalangin, and should be delivered to him, when in fact she did
not deliver but misappropriated the same to her own use and benefit, the testimony
became objectionable. It became objectionable because it tended to prove estafa
committed not in the manner as alleged in the information but in a manner not
alleged therein. In overruling petitioner's objection, respondent Judge acted in
excess of his jurisdiction because the Rules expressly provides (sic) that evidence
should correspond with the allegations of the complaint or information. 6
Petitioner vehemently objected to the resolution of the issue in that manner,
contending that what counsel for Rita de los Reyes presented before the Municipal
Court of Bauan were only these two motions; viz: (1) to strike out complaining
witness' testimony concerning the cash voucher on the ground of immateriality and
variance with the Information which did not allege the existence of said voucher and

CRIMINAL PROCEDURE | CASES

We disagree. The facts of the case, culled from petitioner-appellant's brief itself,
show that aside from the two motions above-mentioned, private respondent moved
to strike out complaining witness' testimony "relating to the receipt (voucher) of the
three checks" and cashing thereof by the accused Rita de los Reyes, which,
according to counsel, is at variance with the allegation in the Information, it
appearing that there is no allegation or averment therein that "the accused received
the checks," that those checks "were cashed by the accused", and that the accused
got a portion of the amount or cash "for the purpose of having it delivered to Cesar
Dalangin." 7
The issue of variance between the mode or from of estafa alleged in the Information
and that sought to be proved by the testimony may be inferred from the foregoing
motion to strike out. Contrary also to petitioner's contention in her brief before this
Court that this issue was not raised in Civil Case No. 81 in the Court of First Instance
of Batangas, private respondent aptly quoted her arguments in her memorandum
dated February 3, 1974 before said court showing that the issue was in fact raised,
to wit:
... the information charges the accused with Estafa under Article 315, 4th par., No. 1,
letter (b) of the Revised Penal Code, the allegation being that the accused, with
unfaithfulness and abuse of confidence, misappropriated and converted the amount
of P127.58 which she received in trust for a certain specific purpose. But, the
evidence consisting of the testimony of the complainant, as already adverted to in
the foregoing discussion, tends to prove another kind of estafa which may fan under
Article 315, 4th par., No. 2, letter (a) of the Revised Penal Code wherein the
punishable act consists of using false pretenses or fraudulent act. This is so because,
according to the complainant's testimony, the accused made false pretense or
misrepresentation that the amount of P127.58 was due in favor of Cesar Dalangin.
The essence therefore of the criminal act shown by the testimonial evidence is the
element of deceit, and this is an entirely different kind of estafa (from that) charged
against the accused in the information under which she was arraigned and pleaded
not guilty. 8
After threshing out this preliminary matter of whether the issue at hand was raised
or not, We now proceed with the resolution of the said issue.
It is fundamental that every element of which the offense is composed must be
alleged in the complaint or information. What facts and circumstances are necessary
to be stated must be determined by reference to the definitions and the essentials of
the specific crimes. 9

ALARCON | 112

Thus, in the case at bar, inasmuch as the crime of estafa through misappropriation
or with grave abuse of confidence is charged, the information must contain these
elements: (a) that personal property is received in trust, on commission, for
administration or under any other circumstance involving the duty to make delivery
of or to return the same, even though the obligation is guaranteed by a bond; (b)
that there is conversion or diversion of such property by the person who has so
received it; (c) that such conversion, diversion or denial is to the injury of another
and (d) that there be demand for the return of the property. 10
The main purpose of requiring the various elements of a crime to be set out in an
information is to enable the accused to suitably prepare his defense. He is presumed
to have no independent knowledge of the facts that constitute the offense. 11
However, it is often difficult to say what is a matter of evidence, as distinguished
from facts necessary to be stated in order to render the information sufficiently
certain to Identify the offense. As a general rule, matters of evidence, as
distinguished from facts essential to the description of the offense, need not be
averred. 12 For instance, it is not necessary to show on the face of an information for
forgery in what manner a person is to be defrauded, as that is a matter of evidence
at the trial. 13
Moreover, reasonable certainty in the statement of the crime suffices. All that is
required is that the charge be set forth with such particularity as will reasonably
indicate the exact offense which the accused is alleged to have committed and will
enable him intelligently to prepare his defense, and if found guilty to plead her
conviction, in a subsequent prosecution for the same offense. 14
Applying these principles, We rule that the existence of the three checks need not be
alleged in the Information. This is an evidentiary matter which is not required to be
alleged therein. Further, that these checks, as testified by petitioner amounted to
P1,632.97 did not vary the allegation in the Information that respondent Rita de los
Reyes misappropriated the amount of P127.58. Proof of the checks and their total
amount was material evidence of the fact that respondent misappropriated the
amount of P127.58 which was but a part of the total sum of the checks.

This does not mean, however, that presentation of proof of deceit in a prosecution
for estafa under paragraph 1(b) is not allowed. Abuse of confidence and deceit may
co-exist. Even if deceit may be present, the abuse of confidence win characterize the
estafa as the deceit will be merely incidental or as the Supreme Court of Spain held,
is absorbed by abuse of confidence. 16
It has also been held that as long as there is a relation of trust and confidence
between the complainant and the accused and even though such relationship has
been induced by the accused thru false representations and pretense and which is
continued by active deceit without truthfully disclosing the facts to the complainant,
the estafa committed is by abuse of confidence although deceit co-exists in its
commission. 17
Thus, the questioned testimony eliciting the fact that accused respondent falsely
represented to the complainant-petitioner that the amount of P127.58 out of the
total of P1,632.97 belonged to Cesar Dalangin may not be said to be at variance
with the allegations of the Information. The presence of deceit would not change the
whole theory of the prosecution that estafa with abuse of confidence was
committed. Besides, in estafa by means of deceit, it is essential that the false
statement or fraudulent representation constitutes the very cause or the only motive
which induces the complainant to part with the thing. 18 The municipal court properly
denied, therefore, the motion to strike out the testimonies anent use of false
representations.
WHEREFORE, the decision of the Court of First Instance of Batangas, Branch II in Civil
Case No. 81, ordering the questioned testimonies to be stricken from the record is
hereby REVERSED and SET ASIDE.
SO ORDERED.

Inasmuch as the Information herein sufficiently charges the crime of estafa under
paragraph 1(b) of Article 315, Revised Penal Code, We shall now determine whether
the testimonies of complaining witness prove the same or tend to prove instead
estafa under paragraph 2(a) of the same article.
It is true that estafa under paragraph 1(b) is essentially a different offense from
estafa under paragraph 2(a) of the same article because the elements of these two
offenses are not the same. In estafa under paragraph 1(b), which is committed with
grave abuse of confidence, it must be shown that the offender received money or
other personalty in trust or on commission or for administration, or under any other
obligation involving the duty to make delivery of or to return the same but
misappropriated it to the prejudice of another. It is also necessary that previous
demand be made on the offender. To sustain a conviction for estafa under paragraph
2(a), on the other hand, deceit or false representation to defraud and the damage
caused thereby must be proved. And no demand is necessary. 15

CRIMINAL PROCEDURE | CASES

ALARCON | 113

G.R. No. L-38392 December 29, 1975

CRISANTO MATILDE, JR. Y CRUZ, petitioner,
vs.
HON. RAMON B. JABSON, in his capacity as Presiding Judge of Branch XXVI
of the Court of First Instance of Rizal and THE PEOPLE OF THE
PHILIPPINES, respondents.
Prudencio Cruz for petitioner.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Conrado T. Limcaoco and Solicitor Pio C. Guerrero for respondents.
ANTONIO, J.:p
Certiorari to nullify the judgment of respondent Court of First Instance of Rizal,
Branch XXVI, in Criminal Cases Nos. 9552, 9553 and 9554, imposing upon the
accused Crisanto Matilde, Jr. y Cruz, for the crime of simple theft, the penalty
prescribed in Presidential Decree No. 133 1 instead of that imposed by Article 309,
paragraph 3, of the Revised Penal Code. 2
On December 14, 1973, an Assistant Provincial Fiscal of Rizal filed three (3)
informations in Criminal Cases Nos. 9552, 9553 and 9554 against Crisanto Matilde,
Jr. y Cruz, Patricio Guiruela y Luna, Ricardo Abener y San Pascual, Edgardo Cape y
Atienza, Servando Calpo y Caballero, and Ireneo Belver y Bale.
Except for the dates of commission and the amounts involved, the aforesaid three
(3) informations uniformly stated that said accused were charged with the crime of
qualified theft, in relation to Presidential Decree No. 133, committed as follows:
That on or about the 14th day of November, 1973 in the Municipality of Pasig,
Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then laborers working at the Markes Agro-Chemical
Enterprises, conspiring and confederating together with one Renato Matuto y Ann,
who is still at large, all of them mutually helping and aiding one another, with intent
of gain, grave abuse of confidence, and without the knowledge and consent of the
said firm, its President and General Manager, Marciano K. Espiritu, did then and
there wilfully, unlawfully and feloniously take, steal and carry away the following, to
wit: ..."

CRIMINAL PROCEDURE | CASES

ALARCON | 114

In Criminal Case No. 9552, the articles allegedly stolen consisted of ten (10) boxes
of Malathion E-57 Insecticide, and eight (8) boxes of Endrin Insecticide, with a total
value of P9,414.00, belonging to the Markes Agro-Chemical Enterprises.
Criminal Case No. 9553 involved the qualified theft of thirteen (13) boxes
of Malathion Insecticide, valued at P1,802.00, while that of Criminal Case No. 9554
involved five (5) boxes of Susathion Insecticide, valued at P1,116.00, all belonging to
the same company.
It appears that the afore-mentioned informations were amended twice the first,
on the value of the article involved in Criminal Case No. 9552, and the second, on
the nature and character of the offense, changing it from "qualified theft" to "simple
theft" by deleting therefrom the phrase "with grave abuse of confidence". In view of
said amendments, petitioner withdrew his previous plea of not guilty to the aforementioned amended informations.
On February 18, 1974, respondent court promulgated its judgment, convicting the
accused in Criminal Cases Nos. 9552, 9553 and 9554, thus:
When these cases were called for hearing this morning, Trial Fiscal Francisco C.
Rodriguez, Jr., for the reasons cited by him, moved for the amendment of the
information from Qualified Theft to Simple Theft and deleting from the body of the
Information the phrase "Grave abuse of confidence", which Motion was granted by
the Court.

Crim. Case No. 9554 The Court finds accused GUILTY beyond reasonable doubt of
the crime of Simple Theft. In the absence of any modifying circumstance but
considering the mitigating circumstance of plea of guilty in his favor, in relation with
Presidential Decree No. 133, the Court hereby sentences the said accused to suffer
an indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY of Prison
Correccional as minimum to SIX (6) YEARS and ONE (1) DAY of Prison Mayor as
maximum, to indemnify the offended party in the sum of P2,226.00, without
subsidiary imprisonment in case of insolvency and to pay the costs.
Considering that the accused is a detention prisoner, he shall be credited with the
preventive imprisonment he has already suffered in accordance with law.
SO ORDERED.
Petitioner sought from the court a quo a reconsideration of its judgment, contending
that in the absence of any allegation in the body of the information alleging
specifically all the elements of the offense defined and penalized under Presidential
Decree No. 133, he cannot be convicted and penalized under the aforesaid decree.
This was, however, denied by said court on March 5, 1974, hence, petitioner
instituted the present petition. Raised in issue by the petitioner is whether on the
basis of the averments of the afore-mentioned informations, the respondent court
can validly impose upon petitioner the penalty prescribed by Presidential Decree No.
133.

Crim. Case No. No. 9552 The Court finds accused GUILTY beyond reasonable
doubt of the crime of Simple Theft. In the absence of any modifying circumstance
but considering the mitigating circumstance of plea of guilty in his favor, in relation
with Presidential Decree No. 133, the Court hereby sentences the said accused to
suffer an indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY
of Prision Correccional as minimum to SIX (6) YEARS and ONE (1) DAY of Prision
Mayor as maximum, without any pronouncement as to civil liability it appearing that
the articles subject matter of the same case were recovered and to pay the costs.

The Constitution guarantees that in all criminal prosecutions, the accused shall be
informed of the nature and cause of the accusation against him. 3 To give substance
to this Constitutional guarantee, Section 8 of Rule 110 of the Rules of Court requires
that the acts or omissions complained of as constituting the offense must be stated
in an ordinary and concise language so as (a) to enable a person of common
understanding to know what offense is intended to be charged; and (b) to enable the
court to pronounce proper judgment. The rule states that the statement need not
necessarily be in the language of the statute. What is important is that the crime is
described in intelligible terms with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged. In other words, the crime is stated in
such a way that a person of ordinary intelligence may immediately know what is
meant, and the court can decide the matter according to law. 4 Inasmuch as "not
only the liberty but even the life of the accused may be at stake, it is always wise
and proper that the accused should be fully apprised of the true charges against
them, and thus avoid all and any possible surprises which may be detrimental to
their rights and interests." 5 The main purpose of this requirement is to enable the
accused to suitably prepare his defense. He is presumed to be innocent and has,
therefore, no independent knowledge of the facts that constitute the offense with
which he is charged. 6 As aptly explained by Justice Fernando in People v. Mencias: 7

Crim. Case No. 9553 The Court finds accused GUILTY beyond reasonable doubt of
the crime of Simple Theft. In the absence of any modifying circumstance but
considering the mitigating circumstance of plea of guilty in his favor, in relation with
Presidential Decree No. 133, the Court hereby sentences the said accused to suffer
an indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY of Prision
Correccional as minimum to SIX (6) YEARS and ONE (1) DAY of Prision Mayor as
maximum, to indemnify the offended party in the sum of P2,808.00 without
subsidiary imprisonment in case of insolvency and to pay the costs.

2. Nor was the lower court any more justified in quashing the five informations on
the ostensible ground that private respondents had been denied the constitutional
right "to be informed of the nature and cause of the accusation against him. ..." Here
again its process of ratiocination is difficult to follow. Certainly it ought to have been
aware that all that this constitutional right signifies is that an accused should be
given the necessary data as to why he is being proceeded against. He should not be
left in the unenviable state of speculating why he is made the object of a
prosecution. As was so aptly pointed out in the same sponsorship speech of

Accordingly, accused Crisanto Matilde, Jr. y Cruz, thru counsel, Atty. Prudencio Cruz,
moved for the withdrawal of his former plea of not guilty in each of the aforesaid
cases and to substitute the same with a plea of guilty in the three cases, which was
granted by the Court.
Upon re-arraignment, accused Crisanto Matilde, Jr., assisted by same counsel,
voluntarily and spontaneously pleaded guilty to the crime of Simple Theft alleged in
each of the three Amended Informations.
WHEREFORE, the Court renders Judgment as follows:

CRIMINAL PROCEDURE | CASES

ALARCON | 115

Delegate Laurel: "It is the right of a person accused of crime to demand the nature
and cause of the accusation against him. He should know for what cause and of
what crime he is being charged. The Petition of Rights denounced the former
practice in England of imprisoning freeman by the King's special command, without
any charge." The act or conduct imputed to him must be described with sufficient
particularity so that he would be in a position to defend himself properly. If it were
not so, then there is an element of unfairness. Due process is in fact denied him ...

EIGHT [8] MONTHS and TWENTY [20] DAYS) for each of the aforesaid three (3)
criminal cases.
ACCORDINGLY, the writ of certiorari is granted and the questioned judgment should
be, as it is hereby set aside and another one should be rendered in accordance with
the foregoing. No pronouncement as to costs.
Fernando (Chairman), Barredo, Aquino and Concepcion, Jr., JJ., concur.

Concommitant with the foregoing is the rule "that an accused person cannot be
convicted of a higher offense than that with which he is charged in the complaint or
information on which he is tried. It matters not how conclusive and convincing the
evidence of guilt may be, an accused person cannot be convicted in the Courts of
these Islands of any offense, unless it is charged in the complaint or information on
which he is tried, or necessarily included therein. He has a right to be informed as to
the nature of the offense with which he is charged before he is put on trial, and to
convict him of a higher offense than that charged in the complaint or information on
which he is tried would be an authorized denial of that right." 8
The informations in these cases charge the accused simply with the crime of theft.
Thus, while alleging that the accused were laborers working in the Markers AgroChemical Enterprises, these informations charge them with having conspired and
confederated with one Renato Matuto, and having mutually aided one another, with
intent of gain and without the knowledge and consent of said Company, in taking
stealing and carrying away the articles mentioned therein belonging to said
Company. Nowhere is it alleged in the body of the afore-mentioned informations that
the articles stolen were materials or products which the accused-petitioner was
"working on or using or producing" as employee or laborer of the complainant. The
clear import of Presidential Decree No. 133 on the basis of its recitals is to eradicate
"graft and corruption in society, and promote the economic and social welfare of the
people" by placing a strong deterrent on workers and laborers from sabotaging the
productive efforts of the industry where they are employed, through the imposition
of heavier penalties for the theft of "any material, spare part, product, or article that
he is working on, using or producing." It is obvious that the averment of those facts
in the body of the complaint or information is essential and necessary to qualify the
offense and to justify the imposition of the heavier penalty prescribed by Presidential
Decree No. 133. It is true that in the preamble of the aforesaid informations, the
petitioner is charged with the crime of simple theft "in relation to Presidential Decree
No. 133". This is, however, insufficient for the purpose envisioned by the aforementioned constitutional guarantee, considering that it is well-settled that the real
nature of the criminal charge is determined not from the caption or preamble of the
information nor from the specification of the provision of law alleged to have been
violated, they being conclusions of law, but by the actual recital of facts in the
complaint or information.9
The appropriate penalty that should have been imposed is that prescribed by Article
309, paragraph 3, of the Revised Penal Code, which provides for the "penalty
of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos."
Considering the plea of guilty, the court a quo should have imposed the aforesaid
penalty in its minimum period (SIX [6] MONTHS and ONE [1] DAY to ONE [1] YEAR,

CRIMINAL PROCEDURE | CASES

[G.R. No. 124736. September 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO GALLO y
IGLOSO, accused-appellant.
RESOLUTION
PER CURIAM:
The penalty imposed upon accused-appellant Romeo Gallo y Igloso by the Regional
Trial Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond
reasonable doubt of the crime of qualified rape, was affirmed by this Court in its
decision promulgated on 22 January 1998.
On 24 August 1999, accused-appellant filed a Motion to Re-open Case (with Leave of
Court) seeking a modification of the death sentence to reclusion perpetua. Accusedappellant proffers that the reduction sought by him would be in line with the new
Court rulings which annunciate that the seven attendant circumstances introduced
in Section 11 of Republic Act No. 7659 partake of the nature of qualifying

ALARCON | 116

circumstances that must be pleaded in the indictment in order to warrant the

imposition of the penalty.
The Court in the case of People vs. Garcia,[1] speaking through then, Justice Florenz
D. Regalado, ratiocinated that the additional attendant circumstances introduced by
R.A. 7659 should be considered as special qualifying circumstances distinctly
applicable to the crime of rape and, if not pleaded as such, could only be
appreciated as generic aggravating circumstances. [2]
The Information filed against accused-appellant reads:
That on or sometime in the period of May, 1994 in the Municipality of Cardona,
Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the
above named accused, with lewd designs and by means of force or intimidation, did
then and there willfully, unlawfully and feloniously have sexual intercourse with a 13
year old girl, Marites Gallo y Segovia.[3]

WHEREFORE, the motion to re-open the case is GRANTED and the decision
sought to be reconsidered is MODIFIED by imposing on accused-appellant
the penalty of reclusion perpetua in lieu of the death penalty and ordering
him to indemnify the victim the amount of P50,000.00.
Considering that the records of all cases where the death penalty is imposed are
forwarded to the Office of the President in accordance with Section 25 of R.A. 7659,
the Court directs the Clerk of Court to furnish the Office of the President with a copy
of this resolution for appropriate guidance.
SO ORDERED.

The above indictment has not specifically alleged that accused-appellant is the
victims father; accordingly, accused-appellants relationship to the victim, although
proven during the trial, cannot be considered to be a qualifying circumstance. [4]
The next crucial point is whether the Court must now apply retroactively the Garcia
doctrine to the conviction of accused-appellant.
The Court has had the opportunity to declare in a long line of cases that the tribunal
retains control over a case until the full satisfaction of the final judgment
conformably with established legal processes.It has the authority to suspend the
execution of a final judgment or to cause a modification thereof as and when it
becomes imperative in the higher interest of justice or when supervening events
warrant it.[5]
The doctrine declared in People vs. Garcia, and its reiteration in People vs. Ramos,
[6]
People vs. Ilao,[7] and People vs. Medina,[8] came only after almost a year from the
promulgation of the instant case.
The Office of the Solicitor General, when requested to comment on the aforesaid
24th August 1999 motion of accused-appellant, had this to state:
Judicial decisions applying or interpreting the law or the Constitution shall form part
of the legal system of the land (Article 8, Civil Code of the Philippines). Medina,
which has the force and effect of law, forms part of our penal statutes and assumes
retroactive effect, being as it is, favorable to an accused who is not a habitual
criminal, and notwithstanding that final sentence has already been pronounced
against him (Article 22, Revised Penal Code).
Indeed, by operation of law, appellant is rightfully entitled to the beneficial
application of Medina. Accordingly, the Office of the Solicitor General hereby joins
appellants prayer for reduction of his sentence from death to reclusion perpetua.
The Court agrees with the Office of the Solicitor General in its above observations
and sees merit in its stand to join accused-appellant in praying for a modification of
the sentence from death to reclusion perpetua.

CRIMINAL PROCEDURE | CASES

[G.R. No. 118971. September 15, 1999]

RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL
TRIAL COURT OF MANILA, BRANCH 40, and THE PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
MENDOZA, J.:

ALARCON | 117

The question for determination in this case is the liability for libel of a citizen who
denounces a barangay official for misconduct in office. The Regional Trial Court of
Manila, Branch 40, found petitioner guilty and fined him P1,000.00 on the ground
that petitioner failed to prove the truth of the charges and that he was motivated by
vengeance in uttering the defamatory statement. On appeal, the Court of Appeals,
in a decision[1] dated February 1, 1995, affirmed. Hence, this petition for review. The
decision appealed from should be reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo
Foreshore Area. Sometime in April 1986, he and some 37 families from the area
went to see then National Housing Authority (NHA) General Manager Lito Atienza
regarding their complaint against their Barangay Chairman, Jaime Olmedo. After
their meeting with Atienza and other NHA officials, petitioner and his companions
were met and interviewed by newspaper reporters at the NHA compound concerning
their complaint. The next day, April 22, 1986, the following news article [2] appeared
in the newspaper Ang Tinig ng Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya
sa Tondo Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul
1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66,
Zone 6, Tondo Foreshore Area, sa mga project manager ng NHA upang makamkam
ang may 14 na lote ng lupa sa naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na
umaabot lang sa 487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan
ng mga barung-barung ng 38 pamilya.
Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga
survey ng NHA noong nakalipas na taon na may karapatan kami sa mga lupang ito
ng pamahalaan, ani Vasquez.
Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi
ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila,
MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman
kaya nakalusot ang mga ginawa nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa
mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok.
Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero
pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin
kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni
Vasquez.
Based on the newspaper article, Olmedo filed a complaint for libel against petitioner
alleging that the latters statements cast aspersions on him and damaged his

CRIMINAL PROCEDURE | CASES

reputation. After conducting preliminary investigation, the city prosecutor filed the
following information in the Regional Trial Court of Manila, Branch 40:
The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed as
follows:
That on or about April 22, 1986, in the city of Manila, Philippines, the said accused,
with malicious intent of impeaching the reputation and character of one Jaime
Olmedo, chairman of Barangay 66, Zone 6 in Tondo, Manila, and with evident intent
of exposing him to public hatred, contempt, ridicule, did then and there willfully,
unlawfully, feloniously and maliciously caused the publication of an article entitled
38 Pamilya Inagawan ng Lupa in Ang Tinig ng Masa, a daily newspaper sold to the
public and of general circulation in the Philippines in its April 22, 1986 issue, which
portion of the said article reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya
sa Tondo Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul
1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66,
Zone 6, Tondo Foreshore Area sa mga project manager ng NHA upang makamkam
ang may 14 na lote ng lupa sa naturang lugar.
x x x Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa
ito ni Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng
NHA, sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila,
MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman
kaya nakalusot ang mga ginawa nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa
mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok. x
xx
with which statements, the said accused meant and intended to convey, as in fact
he did mean and convey false and malicious imputations that said Jaime Olmedo is
engaged in landgrabbing and involved in illegal gambling and stealing of chickens at
the Tondo Foreshore Area, Tondo, Manila, which statements, as he well knew, were
entirely false and malicious, offensive and derogatory to the good name, character
and reputation of said Jaime Olmedo, thereby tending to impeach, besmirch and
destroy the honor, character and reputation of Jaime Olmedo, as in fact, the latter
was exposed to dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case
was tried. The prosecution presented Barangay Chairman Olmedo and his neighbor,
Florentina Calayag, as witnesses. On the other hand, the defense presented Ciriaco
Cabuhat, Nicasio Agustin, Estrelita Felix, Fernando Rodriguez all residents of the
Tondo Foreshore Area and petitioner as its witnesses.

ALARCON | 118

On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel
and sentencing him to pay a fine of P1,000.00. On appeal, the Court of Appeals
affirmed in toto. Hence, this petition for review. Petitioner contends that
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
PINPOINTING PETITIONER AS THE SOURCE OF THE ALLEGED LIBELOUS ARTICLE.

This was likewise what he stated in his testimony in court both on direct [6] and on
cross-examination.[7] However, by claiming that what he had told the reporter was
made by him in the performance of a civic duty, petitioner in effect admitted
authorship of the article and not only of the statements attributed to him therein, to
wit:

II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
THAT PETITIONER IMPUTED THE QUESTIONED ACTS TO COMPLAINANT.

Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi
ni Vasquez.

III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT THAT THE ALLEGED IMPUTATIONS WERE MADE MALICIOUSLY.

....

IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT WHICH FAILED TO APPRECIATE PETITIONERS DEFENSE OF TRUTH.

Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero
pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin
kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni
Vasquez.

V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was unfairly singled out as the source of the statements in
the article when any member of the 38 complainant-families could have been the
source of the alleged libelous statements. [3] The reference is to the following portion
of the decision of the Court of Appeals:
. . . In his sworn statement, appellant admitted he was the source of the libelous
article (Exh. B). He affirmed this fact when he testified in open court as follows: That
his allegation on the act of landgrabbing by Olmedo was based on the alleged report
and pronouncements of the NHA representatives (p. 5, tsn, Oct. 18, 1989); that said
allegations were made by him before the local press people in the pursuit of fairness
and truthfulness and not in bad faith (pp. 8-9, id.); that the only inaccurate account
in the published article of Ang Tinig ng Masa is the reference to the 487.87 sq.m. lot,
on which Olmedos residence now stands, attributed by the reporter as the lot
currently occupied by appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15,
1989; pp. 4-5, tsn, January 15, 1990); and that after the interview, he never
expected that his statement would be the cause of the much-publicized libelous
article (pp. 4-6, tsn, Nov. 15, 1989).[4]
It is true petitioner did not directly admit that he was the source of the statements in
the questioned article. What he said in his sworn statement[5] was that the contents
of the article are true in almost all respects, thus:
9. Tama ang nakalathala sa pahayagang Ang Masa maliban na lang sa tinutukoy na
ako at ang mga kasamahang maralitang taga-lungsod ay nakatira sa humigit
kumulang 487.87 square meters sapagkat ang nabanggit na 487.87 square meters
ay siyang kinatitirikan ng bahay ni Barangay Chairman Olmedo kung saan nakaloob
ang anim na lote - isang paglabag sa batas o regulasyon ng NHA;
10. Ang ginawa kong pahayag na nailathala sa Ang Masa ay sanhi ng aking nais na
maging mabuting mamamayan at upang maituwid ang mga katiwaliang nagaganap
sa Tondo Foreshore Area kung saan ako at sampu ng aking mga kasamang
maralitang taga-lungsod ay apektado at naaapi.

CRIMINAL PROCEDURE | CASES

Petitioner cannot claim to have been the source of only a few statements in the
article in question and point to the other parties as the source of the rest, when he
admits that he was correctly identified as the spokesperson of the families during
the interview.
Second. Petitioner points out that the information did not set out the entire news
article as published. In fact, the second statement attributed to petitioner was not
included in the information. But, while the general rule is that the information must
set out the particular defamatory words verbatim and as published and that a
statement of their substance is insufficient, [8] United States v. Eguia, 38 Phil. 857
(1918).8 a defect in this regard may be cured by evidence. [9] In this case, the article
was presented in evidence, but petitioner failed to object to its introduction. Instead,
he engaged in the trial of the entire article, not only of the portions quoted in the
information, and sought to prove it to be true. In doing so, he waived objection
based on the defect in the information. Consequently, he cannot raise this issue at
this late stage.[10]
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that
what he said was true and was made with good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal Code, the
following elements must be proved: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.[11]
An allegation is considered defamatory if it ascribes to a person the commission of a
crime, the possession of a vice or defect, real or imaginary, or any act, omission,
condition, status or circumstance which tends to dishonor or discredit or put him in
contempt, or which tends to blacken the memory of one who is dead. [12]
There is publication if the material is communicated to a third person. [13] It is not
required that the person defamed has read or heard about the libelous remark. What
is material is that a third person has read or heard the libelous statement, for a
mans reputation is the estimate in which others hold him, not the good opinion
which he has of himself.[14]

ALARCON | 119

On the other hand, to satisfy the element of identifiability, it must be shown that at
least a third person or a stranger was able to identify him as the object of the
defamatory statement.[15]
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code
provides:

In this case, contrary to the findings of the trial court, on which the Court of Appeals
relied, petitioner was able to prove the truth of his charges against the barangay
official. His allegation that, through connivance with NHA officials, complainant was
able to obtain title to several lots at the Tondo Foreshore Area was based on the
letter[20] of NHA Inspector General Hermogenes Fernandez to petitioners counsel
which reads:

Every defamatory imputation is presumed to be malicious, even if it be true, if no

good intention and justifiable motive for making it is shown, except in the following
cases:

09 August 1983

1. A private communication made by any person to another in the performance of

any legal, moral or security duty; and

Free Legal Assistance Group (FLAG)

2. A fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative or other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their functions.
In this case, there is no doubt that the first three elements are present. The
statements that Olmedo, through connivance with NHA officials, was able to obtain
title to several lots in the area and that he was involved in a number of illegal
activities (attempted murder, gambling and theft of fighting cocks) were clearly
defamatory. There is no merit in his contention that landgrabbing, as charged in the
information, has a technical meaning in law. [16] Such act is so alleged and proven in
this case in the popular sense in which it is understood by ordinary people. As held
in United States v. Sotto:[17]
. . . [F]or the purpose of determining the meaning of any publication alleged to be
libelous that construction must be adopted which will give to the matter such a
meaning as is natural and obvious in the plain and ordinary sense in which the
public would naturally understand what was uttered. The published matter alleged
to be libelous must be construed as a whole. In applying these rules to the language
of an alleged libel, the court will disregard any subtle or ingenious explanation
offered by the publisher on being called to account. The whole question being the
effect the publication had upon the minds of the readers, and they not having been
assisted by the offered explanation in reading the article, it comes too late to have
the effect of removing the sting, if any there be, from the words used in the
publication.
Nor is there any doubt that the defamatory remarks referred to complainant and
were published. Petitioner caused the publication of the defamatory remarks when
he made the statements to the reporters who interviewed him.[18]
The question is whether from the fact that the statements were defamatory, malice
can be presumed so that it was incumbent upon petitioner to overcome such
presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement
is made against a public official with respect to the discharge of his official duties
and functions and the truth of the allegation is shown, the accused will be entitled to
an acquittal even though he does not prove that the imputation was published with
good motives and for justifiable ends.[19]

Atty. Rene V. Sarmiento

55 Third Street
New Manila, Quezon City
Dear Atty. Sarmiento:
In connection with your request that you be furnished with a copy of the results of
the investigation regarding the complaints of some Tondo residents against
Chairman Jaime Olmedo, we are providing you a summary of the findings based on
the investigation conducted by our Office which are as follows:
1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedos present
structure is constructed on six lots which were awarded before by the defunct Land
Tenure Administration to different persons as follows:
Lot 4 - Juana Buenaventura - 79.76 sq. m.
Lot 6 - Servando Simbulan - 48.50 sq. m.
Lot 7 - Alfredo Vasquez - 78.07 sq. m.
Lot 8 - Martin Gallardo - 78.13 sq. m.
Lot 9 - Daniel Bayan - 70.87 sq. m.
Lot 1 - Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800)
The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus
sold the said lot to a certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other
remaining lots were either sold to Mr. Olmedo and/or to his immediate relatives.
Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo,
with an area of 47.40 sq. m.
The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.
2. Block 261, SB 8, Area III
Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A
four-door apartment owned by Mr. Olmedo is being rented to uncensused residents.
3. Block 262, SB 8, Area III

CRIMINAL PROCEDURE | CASES

ALARCON | 120

Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not
yet titled.
4. Block 256, SB 5, Area III
Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is
erected on a non-titled lot. The adjacent lot is titled in the name of Victoria. It was
issued OCT No. 10217 with an area of 202.23 sq. m. Inside this compound is another
structure owned and occupied by Amelia Dofredo, a censused houseowner. The
titled lot of Victoria now has an area of 338.20 sq. m.
For your information.
(s/t) HERMOGENES C. FERNANDEZ
Inspector General
Public Assistance & Action Office
In addition, petitioner acted on the basis of two memoranda, [21] both dated
November 29, 1983, of then NHA General Manager Gaudencio Tobias recommending
the filing of administrative charges against the NHA officials responsible for the
alleged irregular consolidation of lots [in Tondo to Jaime and Victoria Olmedo.]
With regard to the other imputations made by petitioner against complainant, it
must be noted that what petitioner stated was that various charges (for attempted
murder against petitioner, gambling, theft of fighting cocks) had been filed by the
residents against their barangay chairman but these had all been
dismissed. Petitioner was able to show that Olmedos involvement in the theft of
fighting cocks was the subject of an affidavit-complaint, [22] dated October 19, 1983,
signed by Fernando Rodriguez and Ben Lareza, former barangay tanods of Barangay
66, Zone 6, Tondo. Likewise, petitioner presented a resolution,[23] dated March 10,
1988, of the Office of the Special Prosecutor in TBP-87-03694, stating that charges of
malversation and corrupt practices had been filed against Olmedo and nine (9) other
barangay officials but the same were dismissed. Indeed, the prosecutions own
evidence bears out petitioners statements. The prosecution presented the
resolution[24]in TBP Case No. 84-01854 dismissing the charge of attempted murder
filed by petitioner against Jaime Olmedo and his son-in-law, Jaime Reyes. The
allegation concerning this matter is thus true.
It was error for the trial court to hold that petitioner only tried to prove that the
complainant [barangay chairman] is guilty of the crimes alluded to; accused,
however, has not proven that the complainant committed the crimes. For that is not
what petitioner said as reported in the Ang Tinig ng Masa. The fact that charges had
been filed against the barangay official, not the truth of such charges, was the issue.
In denouncing the barangay chairman in this case, petitioner and the other residents
of the Tondo Foreshore Area were not only acting in their self-interest but engaging
in the performance of a civic duty to see to it that public duty is discharged faithfully
and well by those on whom such duty is incumbent. The recognition of this right and
duty of every citizen in a democracy is inconsistent with any requirement placing on
him the burden of proving that he acted with good motives and for justifiable ends.

CRIMINAL PROCEDURE | CASES

For that matter, even if the defamatory statement is false, no liability can attach if it
relates to official conduct, unless the public official concerned proves that the
statement was made with actual malicethat is, with knowledge that it was false or
with reckless disregard of whether it was false or not. This is the gist of the ruling in
the landmark case of New York Times v. Sullivan,[25] which this Court has cited with
approval in several of its own decisions. [26] This is the rule of actual malice. In this
case, the prosecution failed to prove not only that the charges made by petitioner
were false but also that petitioner made them with knowledge of their falsity or with
reckless disregard of whether they were false or not.
A rule placing on the accused the burden of showing the truth of allegations of
official misconduct and/or good motives and justifiable ends for making such
allegations would not only be contrary to Art. 361 of the Revised Penal Code. It
would, above all, infringe on the constitutionally guaranteed freedom of
expression. Such a rule would deter citizens from performing their duties as
members of a self- governing community. Without free speech and assembly,
discussions of our most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, public discussion is a political duty and the greatest menace to
freedom is an inert people.[27]
Complainant contends that petitioner was actuated by vengeful political motive
rather than by his firm conviction that he and his fellow residents had been deprived
of a property right because of acts attributable to their barangay chairman. The
Court of Appeals, sustaining complainants contention, held:
That the said imputations were malicious may be inferred from the facts that
appellant and complainant are enemies, hence, accused was motivated by
vengeance in uttering said defamatory statements and that accused is a leader of
Ciriaco Cabuhat who was defeated by complainant when they ran for the position of
barangay captain. . . .[28]
As already stated, however, in accordance with Art. 361, if the defamatory matter
either constitutes a crime or concerns the performance of official duties, and the
accused proves the truth of his charge, he should be acquitted. [29]
Instead of the claim that petitioner was politically motivated in making the charges
against complainant, it would appear that complainant filed this case to harass
petitioner. Art. 360 of the Revised Penal Code provides:
Persons responsible.Any person who shall publish, exhibit, or cause the publication
or exhibition of any defamation in writing or by similar means, shall be responsible
for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a
daily newspaper, magazine or serial publication, shall be responsible for the
defamations contained therein to the same extent as if he were the author
thereof. . . .
Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was
charged in court. What was said in an analogous case[30] may be applied mutatis
mutandis to the case at bar:

ALARCON | 121

It is curious that the ones most obviously responsible for the publication of the
allegedly offensive news report, namely, the editorial staff and the periodical itself,
were not at all impleaded. The charge was leveled against the petitioner and,
curiouser still, his clients who have nothing to do with the editorial policies of the
newspaper. There is here a manifest effort to persecute and intimidate the petitioner
for his temerity in accusing the ASAC agents who apparently enjoyed special
privilegesand perhaps also immunitiesduring those oppressive times. The noninclusion of the periodicals was a transparent hypocrisy, an ostensibly pious if not at
all convincing pretense of respect for freedom of expression that was in fact one of
the most desecrated liberties during the past despotism.[31]
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner
is ACQUITTED of the crime charged.
SO ORDERED.

[G.R. No. 146458. January 20, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CAPT. MARCIAL LLANTO
Y LEUTERIO, accused-appellant.
DECISION
PUNO, J.:
The one battle the accused Capt. Marcial Llanto lost was fought against himself. He
utterly failed to measure up to the yardstick of an officer and a gentleman when he
was subdued by the beast in him and he committed lechery upon his minor kin.
On February 29, 2000, an information for rape was filed against the accused
Llanto, viz:
That on or about (the) twelfth day of November, 1999 at Pasay City and within the
jurisdiction of this Honorable Court, the above-named accused, actuated by lust,
with use of a knife, through force, violence and intimidation, and by taking
advantage of his moral ascendancy over his twelve (12) year old minor niece MARIA
CRISTY T. BALISI, did then and there willfully, unlawfully and feloniously have carnal
knowledge of Ma. Cristy T. Balisi against her will and consent, to her damage and
prejudice in whatever amounts may be awarded to her under provisions of the Civil
Code.
CONTRARY TO LAW.[1]

CRIMINAL PROCEDURE | CASES

The accused pleaded not guilty. Trial ensued.

The records show that Ma. Cristy Balisi was born to Gertrudes Balisi and Raul Balisi
on December 20, 1986. Her parents separated when she was six months old and
from then on her maternal grandmother took care of her until she was eight years
old. Her mother lives with her (Cristys) uncle in Litex, Quezon City while her father
lives with his common law wife in Calamba, Laguna.
In 1995, Cristy was entrusted to the care of the accused and his wife, Felicitas Balisi
Llanto, the sister of Cristys father. The accused is a member of the Philippine Air
Force. They lived in Clark Airbase, then moved to Mactan Airbase, Lapu-Lapu City,
Cebu, and in 1999, transferred to a house in Villamor Airbase in Pasay City.
On November 12, 1999, only Cristy and the accused were home. The accuseds wife
was then in Tuguegarao, Cagayan, while one of their two sons was in Laguna and the
other was in Cebu. At about 9:00 p.m., while Cristy was studying downstairs, the
accused told her that it was already time to go to bed. The accused pulled her to his
room upstairs, removed her shirt, bra and panty. Cristy cried. He tied her hands,
mashed her breasts, kissed her private part, and inserted his two fingers into her
vagina, causing her pain. He inserted his organ into her private part. The whole time,
she could not fight the accused as he tied her hands and held a knife. After satiating
his lust, he threatened her not to tell on him, then untied her hands. That was not
the first time the accused ravished her. When they lived in Cebu, the accused
violated her about three times a week when only the two of them were left in the
house.
The next day, November 13, 1999, Cristy told the accused that she would go to
school, but instead proceeded to her aunt, Dolores Balisi, the sister of the accuseds
wife. She divulged to Dolores her ordeal in the hands of the accused. Dolores
brought her to the National Bureau of Investigation (NBI) where Cristy executed a
sworn statement[2] and filled out a complaint sheet.[3] Dr. Annabelle Soliman
examined her and made a medico-genital report.
Cristy denied the claims of the accuseds family that they scolded her for repeatedly
stealing money from them. She also explained that she did not include in her sworn
statement that the accused tied her hands when he committed the lechery on her
because she was not asked what the accused did first before consummating coitus
with her.[4]
Dr. Annabelle Soliman, medico-legal officer of the NBI, testified that she examined
Cristy Balisi on November 17, 1999 upon her complaint that the accused had been
raping her since 1996, the last of which was on November 12, 1999. Cristy was
twelve years old at the time of the examination. The findings showed that the
victims hymen was tall, thick, intact, and distensible or elastic and there was no sign
of extra-genital injury. During the examination on Cristy, a tube 2.5 centimeters in
diameter was inserted into her hymenal opening without any injury. Her hymenal
opening is wide at 2.5 centimeters in diameter so as to allow complete penetration
by an average-sized adult Filipino male organ in full erection, about 2.5 centimeters,
without producing genital/hymenal injury. [5] Dr. Soliman opined that it is possible for
the hymen to remain intact even if it had been penetrated several times as the
rupture of the hymen depends on the manner of insertion and the opening of the
orifice. If the insertion is gentle, it might not break the hymen. If a woman is

ALARCON | 122

struggling when being raped, the penis might not fully penetrate the hymen, thus
leaving it intact.[6]
Rosalina Chiong, NBI agent, corroborated Cristys testimony that she filled out a
complaint sheet.[7] Chiong prepared a request for medico-legal examination [8] then
took the victims sworn statement.[9] She also received a copy of the examination
results.[10] During her testimony, Chiong presented a photocopy of a certification
from the Office of the Civil Registrar indicating that Cristy was born to Gertrudes
Tullawan and Raul Balisi on December 20, 1986.[11]
The accused took the witness stand. He is a captain of the Philippine Air Force
assigned as officer-in-charge at the Air Force Holding Center of Villamor Air
Base. Previously, he was assigned at Camp Lapu-Lapu, Laoag, Cebu City. He is
married and has two children, Jessel aged 25 and Jonnel, 24.
He narrated that Cristy started to live with his family in 1994 when she was eight
years old. Although she is only his niece, her father being the younger brother of his
wife, he and his wife treated Cristy like a real daughter. They cared for her,
supported her schooling and provided her food, clothing and other needs. Cristy
loved him and his wife and had been like a good daughter to them.
When the accused was assigned at Villamor Air Base in Pasay, Cristy stayed with the
accuseds wife at Clark Air Base. In 1996, when the accused was transferred to the
Visayas Command, the accuseds family, along with Cristy, moved to Cebu. The
accused stayed in the Bachelor Officers Quarters in Camp Lapu-Lapu, Cebu while
Cristy resided with the accuseds wife at the Junior Officers Quarters at Mactan Air
Base, Lapu-Lapu, Cebu, an hours drive from where the accused was staying. He
rarely went home to Mactan Air Base because of his hectic schedule.
In June 1999, the accused was re-assigned to Manila. The accused, his wife Felicitas
and Cristy transferred to San Pedro, Laguna and stayed with Felicitas sister,
Elizabeth Balisi.From there, they transferred to the Airmens Village on July 16, 1999.
On November 12, 1999, the alleged date of the rape, the accused was with his elder
son, Jessel, at Mahada Alpha, Barangay Mayapa, Calamba, Laguna. He left Villamor
Air Base at 2:00 p.m. and arrived at Mahada Alpha at 5:00 p.m. At past 5:00 p.m., he
met his son Jessel outside the factory of Yukusha, Philippines where the latter
worked. He informed Jessel that his younger brother Jonnel called up to ask about his
petition papers for Canada. After they talked, Jessel borrowed the accuseds car and
had a joy ride with his co-workers while the accused proceeded to the house Jessel
rented. The accused talked with Alma Saberola, the daughter of Jessels
landlord. When Jessel arrived at about 7:30 p.m., he told the accused that the cars
headlights were not functioning. The accused checked the headlights and tried to fix
them in vain. So, he decided to spend the night in Jessels place as it was difficult to
drive in the dark.He left Calamba the following morning at 7:00 a.m.
Cristy repeatedly stole money from the accused and his wife, but asked for
forgiveness. At first, the accused forgave her, but the last straw came on November
13, 1999 when he came home from Calamba. He found out that the one thousand
pesos in the pocket of his pants hanging on the wall was missing. When Cristy
arrived, he confronted her about it. The accused and his wife severely scolded her
and even threatened her with a hammer to reform her, but she did not say a word

CRIMINAL PROCEDURE | CASES

and just went out of the room. The accused followed her and she returned five
hundred pesos as she had already spent the other five hundred. Later that day, he
brought Cristy to Calamba to tell Jessel that he was fed up with her, then the two
went back home to Villamor Air Base. He decided to stop financing her schooling and
to return her to her parents. At 8:00 p.m., the accused went to his office and spent
the night there. The following day, the accused found out that Cristy ran away from
home. He asked her whereabouts from her relatives and classmates and learned
that Cristy did not go to school nor was she with her Aunt Dolores or her father. He
did not report the matter to the barangay and police authorities, nor did he make it
known at the Villamor Air Base. He suggests that she ran away because of his
decision to stop supporting her schooling.
The accused claims that Cristy filed charges of rape against him upon instigation of
her mother, Gertrudes Tullawan, and a certain Silverio Escobar to extort
his P500,000.00 retirement benefits. Escobar, an NBI agent who was his
wifes kababayan, called him up one time and told him that a complaint was filed
against him, then asked for P500,000.00. The accused did not give Escobar the
money as his conscience was clear. Besides, he did not have any money. The
following day, the accused received a subpoena. It was then that he learned that
Cristy, accompanied by her mother, filed a complaint against him.
It appears that Cristy filed another complaint for rape against the accused and the
case is pending at the Regional Trial Court of Cebu. [12]
The son of the accused, Jessel Llanto, corroborated his fathers testimony that he was
with him on November 12, 1999. His father visited him in Calamba, Laguna to ask if
the petition papers for Canada had already been sent by his aunt, his fathers
sister. They met at about 5:30 at the factory where Jessel worked. They then
proceeded to Jessels place at about 6:00 p.m. and there talked about the petition
papers. Alma Saberola and the other children of Jessels landlord and some of Jessels
friends were there. After about an hour, Jessel borrowed the accuseds car and with a
friend named Jonathan and another companion, went to a friends place at Palo Alto,
Calamba, Laguna. On their way home, they passed a very big hump, but they were
not able to slow down, causing the front of the car to jerk and destroy the
headlights. When they reached home, Jessel told his father that the headlights were
not working. As it was dangerous to drive in the dark, his father decided to spend
the night there and left the following morning for Villamor Air Base. Later that day,
at around 6:00 p.m., his father returned to Calamba with Cristy and told Jessel that
he would return Cristy to her parents as he was fed up with her stealing. Jessel
treated Cristy like his younger sister and begged his father to give her another
chance.[13]
Alma Saberola, Jessels landlady and sister of Jessels co-worker, corroborated the
accuseds testimony. She met the accused when he visited Jessel in her house on
November 12, 1999. The accused arrived in her house at about 5:30 p.m. while
Jessel was out for a joy ride using the accuseds car. When Jessel brought the car
home, its headlights no longer functioned. The accused thus decided to spend the
night at Jessels place and left at about 7:00 a.m. the following day.[14]
Felicitas Balisi, wife of the accused, testified for the defense. She is the older sister
of Raul, Cristys father. She has two children with the accused. In 1993, when Cristy
was only seven years old, she started living with her and her family. Felicitas was not

ALARCON | 123

particularly delighted with Cristy as she was hard-headed and not nice. She
repeatedly stole money from them from the time she started living with them. She
and her husband brought Cristy with them wherever he was assigned, first at Clark
Air Base, then at Mactan Air Base in Cebu City. In June 1999, Felicitas family stayed
with her sister, Elizabeth Balisi, in San Pedro, Laguna as the accused was assigned at
Villamor Air Base in Pasay. The following month, Cristy no longer lived with Felicitas
family. Felicitas rented a house for Cristy and her mother, Gertrudes Tullawan. They
were later joined by Cristys brother, Teodoro, who used to live with Felicitas sister,
Dolores Balisi, as the latter supported his studies.
In November 1999, the accused confided to her that he had a problem with a certain
Silverio Escobar who was asking for half a million pesos from him. Escobar was a
neighbor of the Balisis in Ogak, Norte, Tuguegarao and he used to play with Felicitas
in the Balisi residence in their childhood days. Escobar also asked money from
Felicitas in October 1999 when she was in Tuguegarao. He threatened her that if she
did not give the amount, he would kill her husband. Escobar represented to her that
he was an NBI agent, but Felicitas learned from the Chief of the Operation Unit of the
NBI that he was not. She saw Escobar talk with Cristys mother several times from
September to November 1999. In the year 2000, he reiterated his demand for
money, but this time in whatever amount she could afford. He told Felicitas that the
accused raped Cristy. She was shocked and refused to believe him, and told him that
she had no money at that time. But as he was insistent, she gave him P1,000.00, in
addition to the P5,000.00 she gave him in October. Felicitas contradicted herself in
another part of her testimony and stated that she learned of the rape charges filed
by Cristy against her husband in 1999, but could not remember the exact date as
her memory was dulled by an operation for myoma she underwent.[15]
Dolores Balisi, elder sister of Cristys father, sided with the accused. She refuted
Cristys testimony that right after the accused raped her, Cristy reported to her and
she accompanied Cristy to the NBI, then the latter stayed with her. Dolores went to
the accuseds house on November 1, 1999 and observed that the relationship
between Cristy and the accused seemed normal; Cristy did not reveal to her
anything unusual about their relationship. Even the accused and his wife spoke
highly of Cristy as a very good and obedient girl. After Dolores saw Cristy and her
mother on the last week of November 1999, she never saw Cristy again. Cristys
mother, Gertrudes Tullawan, informed her that she was already in the custody of the
DSWD.
According to Dolores, a certain Silverio Escobar often goes to her house and talks to
Tullawan who lived with Dolores for about a year, from July 1999 to March 25,
2000. Escobar introduced himself as an NBI agent, but Dolores learned from her
friends that he was lying. Cristys brother also lived with Dolores for four years. [16]
The defense also offered the testimony of Arsenio C. Pascual, surgeon and lawyer,
and Dr. Marilyn Ricardo, gynecologist, for them to give their expert opinion regarding
the medical certificate Dr. Soliman issued. They were supposed to testify that
although the finding that the hymen is intact is dispensable in rape cases in general,
it negates the charge of rape in Cristys case as she claimed to have been raped at
least three times. But the trial court did not allow the presentation of these two
witnesses as according to it, this Court has ruled that a medical certificate is not
even necessary in rape cases. The prosecution likewise pointed out that their

CRIMINAL PROCEDURE | CASES

testimonies were not necessary as the Court has ruled that there could be sexual
intercourse without laceration of the hymen and they never examined the victim. [17]
The trial court upheld the version of the prosecution and sentenced the accused to
the supreme penalty of death, viz:
WHEREFORE, in view of the foregoing, the Court finds the accused Capt. Marcial
Llanto y Leuterio guilty beyond reasonable doubt of RAPE and is hereby sentence
(sic) to DEATH and ordered to pay the victim civil indemnity in the amount of Php
75,000.00 and moral damages in the amount of Php 50,000.00.[18]
Hence, the case is before us on automatic review. The defense assails the decision
on the ground that the trial court misappreciated the facts and misapplied the law,
and gravely abused its discretion in not admitting the testimonies of their medicolegal experts.
The appeal is partially meritorious.
The accused avers that the trial court erred in believing Cristys testimony that he
raped her in Cebu thrice a week because the accused stayed at the Bachelor
Officers Quarters, an hours drive away from where the complainant and the
accuseds family stayed. That she was not raped on November 12, 1999 in Pasay City
nor thrice a week in Cebu is confirmed by the gynecological examination conducted
upon her, which showed that her hymen was intact and there was no injury to her
external genitalia. The trial court gravely abused its discretion, according to the
defense, when it refused to admit the testimonies of their medical experts who
would have given their expert opinion that it was improbable for the victim to have
been raped three times a week and her hymen to have remained intact. [19]
That Cristy was allegedly raped by the accused in many instances other than on
November 12, 1999 and her hymen remained intact do not lend support to the
cause of the accused. InPeople v. Caballes,[20] the fourteen year-old victim was
raped nine times by her father in a span of four months. The first time she was
raped, her father poked a knife at her, similar to the instant case. He had his way
with her daughter without the latter struggling as she was afraid. She felt pain in her
organ. In the other eight rape instances, the victim also acceded to her fathers
advances as he threatened her. A medical examination upon the victim showed that
the victims hymen was thick and very elastic. It had no lacerations and remained
intact. The examining physician presented by the prosecution opined that it is
possible for a womans hymen to remain intact even after having been raped if it is
lax, thick and elastic. She testified, viz:
Q-Is it possible for a woman to be raped 9 times and still would not sustain any
injury or laceration in her hymen?
A-As I said depending on the degree of penetration and the force of the
penetration. And also depending on the kind of hymen a woman has.
Q-Can you explain a little more on that?
A-As I said if the woman has a thick, elastic or lax hymen and just a very slight
degree of penetration like 1/8, 1/4 fractions proportion, then the hymen may not
break. . .[21]

ALARCON | 124

The trial court convicted the accused of all nine counts of rape. On appeal to this
Court, among the accuseds assignment of errors was that the victims intact hymen
was inconsistent with her charges of rape. This Court upheld the conviction as
jurisprudence is replete with rulings that mere entry of the male organ into the lips
of the female organ, without rupture of the hymen or laceration of the vagina, is
sufficient to warrant conviction.
In People v. Santos,[22] the accused was charged of raping the helpless eight-year
old complainant. He assailed the credibility of the victim as according to him it was
impossible for her to have been raped up to twenty times, but her hymen remained
intact. The Court found no merit in the accuseds contention, viz:
We find no merit in the contention of accused-appellant. Dr. Cenido thoroughly
discussed these intriguing hymenal qualities, but the accused-appellant would,
understandably so, pretend to find the whole concept as obscure. He said that, as a
general rule, a hymen that is intact would negate prior sexual intercourse but that
the rule was not absolute as penetration can happen with or without rupturing
the hymen. He confirmed that there were women whose hymens remained intact
even after giving birth owing to the fact that their hymens must be very elastic. . .
The doctors conclusions do not establish a novice medical nor legal theory. Our
jurisprudence is replete with cases which would easily lay waste any attempt by
accused-appellant to dent the credibility of the victim. The fact that there was no
deep penetration of the victims vagina and that her hymen was still intact does not
negate the commission of rape. Rape can be consummated even with the slightest
penetration. It is enough that there is proof of entrance of the male organ into the
labia or pudendum of the female organ (footnotes omitted), or a penetration,
however slight of the external genitalia (footnotes omitted). [23] (emphasis supplied)
Applying these rulings to the case at bar, it is possible for the victims hymen to
remain intact despite repeated sexual intercourse. Dr. Soliman testified that during
the examination on Cristy, a tube 2.5 centimeters in diameter was inserted into her
hymenal opening without any injury. Her hymenal opening is wide at 2.5 centimeters
in diameter so as to allow complete penetration by an average-sized adult Filipino
male organ in full erection, about 2.5 centimeters, without producing
genital/hymenal injury.[24] Likewise, whether the accuseds penis fully or only partially
penetrated the victims genitalia, it is still possible that her hymen would remain
intact because it was thick and distensible or elastic. We stated in People v.
Aguinaldo[25] that the strength and dilability of the hymen varies from one woman
to another such that it may be so elastic as to stretch without laceration during
intercourse, or on the other hand, may be so resistant that its surgical removal is
necessary before intercourse can ensue [26] In some cases even, the hymen is still
intact even after the woman has given birth. [27]
In view of Dr. Solimans medical examination and opinion and the foregoing rulings of
this Court that support the finding that a thick and elastic hymen can remain intact
despite several instances of sexual intercourse, we find that the trial court was not in
error in not admitting the expert testimonies of the defense witnesses who did not
examine Cristy.
Alternatively, the accused argues that even assuming he had sexual intercourse with
Cristy, it was not shown that he had his way with her through violence or

CRIMINAL PROCEDURE | CASES

intimidation.[28] Quite the contrary, Cristys testimony shows that she was
intimidated. She was afraid and not able to fight and resist the accuseds advances
because he held a knife and tied her hands, viz:
Q: What did you do when he removed your T-shirt, shorts, bra and panty?
A: I just keep (sic) on crying. I was crying.
Q: Did you not fight back when he removed your T-shirt, shorts, bra and panty?
A: No. sir.
Q: Why?
A: Because I was afraid of him.
Q: Why were you afraid of him?
A: I was afraid because he was holding a knife.
Q: And after removing your T-shirt, shorts, bra and panty and you felt afraid because
he was holding a knife, what happened next?
A: He tied my both hands.
Q: Will you demonstrate how the accused tied your both hands? Witness
demonstrating by raising her two hands and putting them at the back of her
head. After the accused Marcial Llanto tied your hands at your back, what
happened?
A: He started touching me by mashing my breasts.
Q: Besides mashing or touching your breast, what else did he do?
A: He kissed my vagina.
Q: What else happened?
Witness: He inserted his two fingers inside my vagina.
Fiscal Barrera: And what did you feel when he inserted his two fingers inside your
vagina?
A: I felt pain. It is (sic) painful.
Q: During the time he fondle (sic) your breasts and put his two fingers inside your
vagina, did you fight back?
A: No, sir.
Q: Why?
A: Because my hands were tied. I could not fight as my two hands were tied and he
was holding a knife and I was afraid.

ALARCON | 125

Q: After he mashed your breast and inserted his two fingers inside your vagina while
your two hands were tied, what happened next?
A: He inserted his penis inside my vagina.
Q: What did you feel when he inserted his penis inside your vagina?
A: I felt pain.
Q: What happened after he inserted his penis inside your vagina?
A: He threatened me not to tell anyone about what happened.
Q: What happened next after he threatened you?
A: He untied me. He removed the tie on my hands.[29]
Cristys affidavit also shows that she was threatened with a knife every time the
accused raped her, so she did not fight the accused, viz:
6. T: Ano ang ginawa ng Tito MARCIAL mo at inirereklamo mo siya ngayon?
S: Ni-rape po niya ako.
7. T: Kailan ka ni-rape ng Tito MARCIAL mo?
S: December 1, 1996.
8. T: Ilang beses kang ni-rape ng Tito MARCIAL mo?
S: Maraming beses na po.
T: Natatandaan mo pa ba ang mga petsa?
S: Hindi po.
T: Kailan yung huling insidente?
S: November 12, 1999.
xxxxxxxxx
18. T: Papaano ka nire-rape ng Tito MARCIAL mo?
S: Pinapahiga ako sa kama. Hinuhubaran ako, pinapatungan ako tapos ay ipinapasok
niya yung ari niya sa ari ko.
19. T: Bakit hindi ka humihingi ng tulong tuwing nire-rape ka ng Tito MARCIAL mo?
S: Natatakot po ako dahil palagi siyang may hawak ng (sic) kutsilyo na may tela sa
tuwing nire-rape niya ako.
20. T: Para saan yung tela?
S: Iyon po ang ipinanghahawak niya sa kutsilyo.[30]

CRIMINAL PROCEDURE | CASES

Physical resistance need not be proved in rape when intimidation is exercised upon
the victim and the latter submits herself, against her will, to the rapists advances
because of fear for her life and personal safety. [31] It suffices that the intimidation
produces fear in the mind of the victim that if she did not submit to the bestial
demands of the accused, something far worse would befall her at the time she was
being molested. As held by the Court, (i)f resistance would nevertheless be futile
because of intimidation, then offering none at all does not mean consent to the
assault so as to make the victims submission to the sexual act voluntary. [32] We have
ruled in several rape cases that threatening the victim with bodily injury while
holding a knife or a bolo constitutes intimidation sufficient to bring a woman to
submission to the lustful desires of the molester. [33]
The accused stresses that rape is hard to prove, but harder for him to disprove,
though innocent. Especially when the allegation of rape is based solely on the
testimony of the complaining witness, the latters story should be carefully examined
and the accused should not be convicted unless the testimony is impeccable. In
assessing Cristys credibility, the accused implores the Court to consider her bad
character, shown by her frequently going out with male companions and coming
home late[34] and her penchant for lying such as her alleged report of the rape to
Dolores Balisi which the latter denied. Likewise, the accused faults the trial court for
discarding Dolores testimony because blood is thicker than water, so Dolores was
expected to side with the accused. Following this reasoning of the trial court, the
accused argues that there was more reason for Dolores to come to Cristys aid
because she is a relative by blood, being the daughter of Dolores brother, while the
accused is only a relative by affinity.[35] The accused suggests that Cristy merely
fabricated the rape charges to extort hisP500,000.00 retirement benefits and to
retaliate against him because he scolded her for stealing money from him and his
wife, neglecting her duties at home, and frequently watching television and
gossiping with their neighbors. It was simply inconceivable for the accused to rape
Cristy whom he treated like a family member.
The accused cannot fault the trial court for relying on Cristys sole eyewitness
account in convicting him. This Court has long held that the testimony of a sole
eyewitness is sufficient to support a conviction so long as it is clear, straightforward
and worthy of credence by the trial court. [36] Neither does the self-serving evidence
of the accused convince us that Cristy was merely instigated by her mother to file
the rape complaint to extort his P500,000.00 retirement benefits. Nor does the
imputation of Cristys bad character affect her credibility as the victims character is
immaterial in a rape case.[37] Likewise, the testimonies of the defense witnesses on
her alleged stealing are inconsistent and not worthy of credence. The accused
testified that Cristy repeatedly stole money from him and his wife, but at the same
time said that she was like a good daughter to them. His wife Felicitas, on the other
hand, testified that Cristy was hard-headed and not nice and repeatedly stole money
from her and her husband since she started living with them in 1993. Felicitas sister,
Dolores, stated that the accused and Felicitas spoke highly of Cristy as a good and
obedient girl. Considering these inconsistent testimonies, we are not convinced with
the accuseds allegation that Cristy filed the rape charges in retaliation to his
scolding her for stealing money and deciding to stop financing her schooling.
On the contrary, we have consistently taken judicial notice of the fact that no
woman, especially one so young like Cristy, would concoct a tale of defloration, allow

ALARCON | 126

the examination of her private parts, and undergo the expense, trouble,
inconvenience and trauma of a public trial if she were not motivated by the desire to
have the culprit apprehended and punished.[38]Cristys testimony deserves credence
over the testimonies of the accused and the trial court correctly held, viz:

In a catena of cases, we have ruled that the allegation that the accused is the uncle
of the victim and the latter is his niece is not specific enough to satisfy the special
qualifying circumstance of relationship under Art. 266-B, supra. In People v.
Lachica,[44] we held:

In this particular case, the minor complainant has been under the care of the
accused Marcial Llanto and Felicitas Balisi Llanto for a period of four years providing
for her sustenance, support and education and it would be unbelievable that a child
of such tender age, not exposed to the ways of the world would impute a crime so
serious as rape to the person who took care of her, supported her and sent her to
school if it is not true and she is motivated by the desire to have the accused
apprehended and punished to vindicate her honor.[39]

If the offender is merely a relation not a parent, ascendant, step-parent, or guardian

or common law spouse of the mother of the victim it must be alleged in the
Information that he is a relative by consanguinity or affinity [as the case
may be] within the third civil degree. (People v. Libo-on, GR No. 136737, May
23, 2001, per Gonzaga-Reyes, J.; People v. Banihit, 339 SCRA 86, 96, August 25,
2000, per Ynares-Santiago, J. both citing People v. Ferolino, 329 SCRA 719, 735, April
5, 2000, per Davide, CJ.) Moreover, even if the relationship by consanguinity or
affinity is alleged in the Information, it is still necessary to allege further that such
relationship is within the third civil degree. . . [45] (emphasis supplied)

Anent the accuseds alibi, suffice it to say that the defense of alibi is inherently weak
and easily fabricated.[40] This cannot prevail over Cristys positive identification,
unless buttressed by strong evidence of non-culpability. [41]
The trial court erred, however, when it meted out to the accused the supreme
penalty of death under Article 266-B of the Revised Penal Code which provides that
the death penalty shall be imposed when the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the common-law spouse of
the parent of the victim.[42] The information reads, viz:
That on or about (the) twelfth day of November, 1999 at Pasay City and within the
jurisdiction of this Honorable Court, the above-named accused, actuated by lust,
with use of a knife, through force, violence and intimidation, and by taking
advantage of his moral ascendancy over his twelve (12) year old minor niece MARIA
CRISTY T. BALISI, did then and there willfully, unlawfully and feloniously have carnal
knowledge of Ma. Cristy T. Balisi against her will and consent, to her damage and
prejudice in whatever amounts may be awarded to her under provisions of the Civil
Code.[43]
The Revised Rules of Criminal Procedure, which took effect on December 1, 2000,
require both qualifying and aggravating circumstances to be alleged in the
information, viz:
SEC. 8. Designation of the offense. The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. . .
SEC. 9. Cause of the accusation. The acts or omissions complained of as constituting
the offense and the qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.

Consequently, because of the defect in the information, the accused can only be
held liable for simple rape.
At any rate, the prosecution was not able to prove beyond reasonable doubt the
kinship between the accused and the victim. We ruled in People v. Capili,[46] viz:
In People v. Liban (345 SCRA 453 [2000]), where the age of the victim was at issue,
the Court ruled that the testimony of the victim was insufficient to establish her
minority, but that, further thereto, the prosecution should present
corroborative evidence. In the instant case, the bare statement in passing of
Melissa that appellant is an uncle, without any corroborating testimonial or
documentary evidence to clearly establish that relationship, would be insufficient to
pass the test set in Liban.[47] (emphasis supplied)
In the case at bar, the prosecution failed to corroborate Cristys testimony that the
accused is her uncle, being the husband of her fathers sister. The accused himself
admitted that his wife, Felicitas, is the sister of Cristys father, Raul. Felicitas and her
sister, Dolores, confirmed the accuseds testimony. However, we cannot consider
their testimonies corroborative of Cristys testimony. Well-settled is the doctrine that
the prosecution bears the burden of proving all the elements of a crime, including
the qualifying circumstances, thus the testimonies of the defense witnesses cannot
be used to benefit the prosecution, to the disadvantage of the accused. [48]
IN VIEW OF THE FOREGOING, we AFFIRM the decision of the trial court with the
MODIFICATION that the accused-appellant is found guilty of the crime of simple rape
and sentenced to suffer the penalty of imprisonment of reclusion perpetua with all
its accessory penalties and to pay the victim P50,000.00 as civil indemnity
and P50,000.00 as moral damages. Costs against the accused-appellant.
SO ORDERED.

While the rape in the case at bar was committed on November 12, 1999, we shall
give retroactive application to Secs. 8 and 9, supra, as they are favorable to the
accused.

CRIMINAL PROCEDURE | CASES

ALARCON | 127

[G.R. No. 143468-71. January 24, 2003]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FREEDIE LIZADA @
FREDIE LIZADA, accused-appellant.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision[1] of the Regional Trial Court of Manila,
Branch 54, finding accused-appellant Freedie Lizada guilty beyond reasonable doubt
of four (4) counts of qualified rape and meting on him the death penalty for each
count.
I. The Charges
Accused-appellant[2] was charged with four (4) counts of qualified rape under four
separate Informations. The accusatory portion of each of the four Informations
reads:
That sometime in August 1998 in the City of Manila, Philippines, the said accused,
with lewd designs, did then and there willfully, unlawfully and feloniously, by means
of force, violence and intimidation upon the person of one ANALIA ORILLOSA y
AGOO, by then and there embracing her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing himself on top of her and trying to
insert his penis into her vagina and succeeded in having carnal knowledge with the
said ANALIA ORILLOSA y AGOO, against her will and consent.
Contrary to law.
XXX

CRIMINAL PROCEDURE | CASES

ALARCON | 128

That on or about November 5, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about October 22, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.

In the meantime, Rose secured a loan anew and used the proceeds thereof to put up
a video shop in her house. She sold Avon products from house to house to augment
her income.Whenever she was out of their house, Rossel and Analia took turns in
tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid
on top of her, removed her T-shirt and underwear. He then inserted his finger in her
vagina. He removed his finger and inserted his penis in her vagina. Momentarily, she
felt a sticky substance coming out from his penis. She also felt pain in her sex
organ. Satiated, accused-appellant dismounted but threatened to kill her if she
divulged to anyone what he did to her. Accused-appellant then returned to his
room. The incident lasted less than one hour. Petrified by the threats on her life,
Analia kept to herself what happened to her. [7]
Sometime in August 1997, accused-appellant entered again the room of Analia,
placed himself on top of her and held her legs and arms. He then inserted his finger
into her sex organ (fininger niya ako). Satiated, accused-appellant left the
room. During the period from 1996 to 1998, accused-appellant sexually abused
private complainant two times a week.

II. Evidence of the Prosecution[5]

On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house
studying her assignments. Accused-appellant was also in the sala. Rossel tended the
video shop while his mother was away. Analia went into her room and lay down in
bed. She did not lock the door of the room because her brother might enter any
time. She wanted to sleep but found it difficult to do so. Accused-appellant went to
his room next to the room of Analia. He, however, entered the room of Analia. He
was wearing a pair of short pants and was naked from waist up. Analia did not mind
accused-appellant entering her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her bed, placed himself on
top of her, held her hands and legs and fondled her breasts. She struggled to
extricate herself. Accused-appellant removed her panty and touched her sex
organ. Accused-appellant inserted his finger into her vagina, extricated it and then
inserted his penis into her vagina. Accused-appellant ejaculated. Analia felt pain in
her sex organ. Momentarily, Rossel passed by the room of Analia after drinking
water from the refrigerator, and peeped through the door. He saw accused-appellant
on top of Analia. Accused-appellant saw Rossel and dismounted.Accused-appellant
berated Rossel and ordered him to go to his room and sleep. Rossel did. Accusedappellant then left the room. Analia likewise left the room, went out of the house and
stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not
divulge to her mother what accused-appellant had just done to her.

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three
(3) children, namely: Analia, who was born on December 18, 1985; [6] Jepsy, who was
11 years old, and Rossel, who was nine years old. However, the couple decided to
part ways and live separately. Rose left Bohol and settled in Manila with her young
children. She worked as a waitress to make both ends meet.

On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant
was in the sala of the house watching television. Analia tended the video
shop. However, accused-appellant told Analia to go to the sala. She refused, as
nobody would tend the video shop. This infuriated accused-appellant who
threatened to slap and kick her.

In 1994, Rose met accused-appellant. They decided to live together as husband and
wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose
resigned from her job as a waitress. She secured a loan, bought a truck and used it
for her business.

Analia ignored the invectives and threats of accused-appellant and stayed in the
video shop. When Rose returned, a heated argument ensued between accusedappellant and Analia.Rose sided with her paramour and hit Analia. This prompted
Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the
house on board the motorcycle driven by her mother in going to Don Bosco Street,

XXX
That on or about September 15, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.[3]
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99171391, 99-171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and
entered a plea of not guilty to each of the charges. [4] A joint trial then ensued.

CRIMINAL PROCEDURE | CASES

ALARCON | 129

Moriones, Tondo, Manila, to retrieve some tapes which had not yet been
returned. When Rose inquired from her daughter what she meant by her
statement, ayoko na, ayoko na, she told her mother that accused-appellant had
been touching the sensitive parts of her body and that he had been on top of
her. Rose was shocked and incensed. The two proceeded to Kagawad Danilo Santos
to have accused-appellant placed under arrest. On November 10, 1998, the two
proceeded to the Western Police District where Analia gave her Affidavit-Complaint
to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She related to the
police investigator that accused-appellant had touched her breasts and arms in
August, 1998, September 15, 1998, October 22, 1998 and on November 5, 1998, at
3:00 p.m. Analia then submitted herself to genitalia examination by Dr. Armie Umil,
a medico-legal officer of the NBI. The medico-legal officer interviewed Analia, told
him that she was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00
p.m.[8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which
contained her findings during her examination on Analia, thus:
xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts,
developed, hemispherical, firm. ----, brown, 3.0 cms. in diameter. Nipples brown,
protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette,
tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice
measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject
at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete
penetration by an average-sized adult Filipino male organ in full erection without
producing any genital injury.[9]
Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang
sinabi ko. When Rose inquired from her daughter what she meant by her statement,
Analia revealed to her mother that accused-appellant had sexually abused her. On
December 15, 1998, Analia executed a Dagdag na Salaysay ng Paghahabla and
charged accused-appellant with rape.[10]
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of
courtship, he and Rose agreed in 1994 to live together as husband and wife. He was
then a utility worker with the Navotas Branch of the Philippine Banking

CRIMINAL PROCEDURE | CASES

Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house
at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the
children of Rose as if they were his own children. He took care of them, as in fact he
cooked and prepared their food before they arrived home from school. At times, he
ironed their school uniforms and bathed them, except Analia who was already
big. Analia was hard-headed because she disobeyed him whenever he ordered her
to do some errands. Because of Analias misbehavior, accused-appellant and Rose
oftentimes quarreled. Rose even demanded that accused-appellant leave their
house. Another irritant in his and Roses lives were the frequent visits of the relatives
of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and
received a separation pay of P9,000.00 which he used to put up the VHS Rental and
Karaoke from which he earned a monthly income of P25,000.00. While living
together, accused-appellant and Rose acquired two colored television sets, two VHS
Hi-fi recorders, one VHS player, one washing machine, one scooter motor, two VHS
rewinders, one sala set, one compact disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to
testify against him and used them to fabricate charges against him because Rose
wanted to manage their business and take control of all the properties they acquired
during their coverture. Also, Rose was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant
finding him guilty beyond reasonable doubt of four (4) counts of rape, defined and
penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal Code, and
meted on him the death penalty for each count. The dispositive portion of the
decision reads:
From all the evidence submitted by the prosecution, the Court concludes that the
accused is guilty beyond reasonable doubt of the crime charged against him in these
four (4) cases, convicts him thereof, and sentences him to DEATH PENALTY in each
and every case as provided for in the seventh paragraph, no. 1, Article 335 of the
Revised Penal Code.
SO ORDERED.[11]
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his brief
that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS
DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.[12]
XXX

ALARCON | 130

THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR

(4) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.[13]
VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the
trial court is null and void as it failed to comply with the requirements of Section 14,
Article VIII of the 1987 Constitution and Section 1, Rule 36 of the 1997 Rules of Civil
Procedure, as amended. He avers that the court a quo made no findings of facts in
its decision. The trial court merely summarized the testimonies of the witnesses of
the prosecution and those of accused-appellant and his witnesses, and forthwith set
forth the decretal portion of said decision. The trial court even failed to state in said
decision the factual and legal basis for the imposition of the supreme penalty of
death on him. The Solicitor General, on the other hand, argues that there should be
no mechanical reliance on the constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering that courts are harassed by
crowded dockets and time constraints. Even if the trial court did not elucidate the
grounds as the legal basis for the penalties imposed, nevertheless the decision is
valid. In any event, the Solicitor General contends that despite the infirmity of the
decision, there is no need to remand the case to the trial court for compliance with
the constitutional requirement as the Court may resolve the case on its merits to
avoid delay in the final disposition of the case and afford accused-appellant his right
to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the
1987 Constitution provides that no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is
based. This requirement is reiterated and implemented by Rule 120, Section 2 of the
1985 Rules on Criminal Procedure, as amended, which reads:
SEC. 2. Form and contents of judgment.The judgment must be written in the official
language, personally and directly prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the facts proved or admitted by the
accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or
mitigating circumstances attending the commission thereof, if there are any; (b) the
participation of the accused in the commission of the offense, whether as principal,
accomplice, or accessory after the fact; (c) the penalty imposed upon the accused;
and (d) the civil liability or damages caused by the wrongful act to be recovered
from the accused by the offended party, if there is any, unless the enforcement of
the civil liability by a separate action has been reserved or waived. [14]
The purpose of the provision is to inform the parties and the person reading the
decision on how it was reached by the court after consideration of the evidence of
the parties and the relevant facts, of the opinion it has formed on the issues, and of
the applicable laws. The parties must be assured from a reading of the decision of
the trial court that they were accorded their rights to be heard by an impartial and
responsible judge.[15] More substantial reasons for the requirement are:

CRIMINAL PROCEDURE | CASES

For one thing, the losing party must be given an opportunity to analyze the decision
so that, if permitted, he may elevate what he may consider its errors for review by a
higher tribunal. For another, the decision if well-presented and reasoned, may
convince the losing party of its merits and persuade it to accept the verdict in good
grace instead of prolonging the litigation with a useless appeal. A third reason is that
decisions with a full exposition of the facts and the law on which they are based,
especially those coming from the Supreme Court, will constitute a valuable body of
case law that can serve as useful references and even as precedents in the
resolution of future controversies.[16]
The trial court is mandated to set out in its decision the facts which had been proved
and its conclusions culled therefrom, as well as its resolution on the issues and the
factual and legal basis for its resolution. [17] Trial courts should not merely reproduce
the respective testimonies of witnesses of both parties and come out with its
decretal conclusion.
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on direct
and cross examinations and merely made referral to the documentary evidence of
the parties then concluded that, on the basis of the evidence of the prosecution,
accused-appellant is guilty of four (4) counts of rape and sentenced him to death, on
each count.
The trial court even failed to specifically state the facts proven by the prosecution
based on their evidence, the issues raised by the parties and its resolution of the
factual and legal issues, as well as the legal and factual bases for convicting
accused-appellant of each of the crimes charged. The trial court rendered judgment
against accused-appellant with the curtdeclaration in the decretal portion of its
decision that it did so based on the evidence of the prosecution. The trial court
swallowed hook, line and sinker the evidence of the prosecution. It failed to explain
in its decision why it believed and gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court, one is apt to conclude that the
trial court ignored the evidence of accused-appellant. The trial court did not even
bother specifying the factual and legal bases for its imposition of the supreme
penalty of death on accused-appellant for each count of rape. The trial court merely
cited seventh paragraph, no. 1, Article 335 of the Revised Penal Code. The decision
of the trial court is a good example of what a decision, envisaged in the Constitution
and the Revised Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity
of the decision of the trial court, for compliance with the constitutional
provision. However, to avert further delay in the disposition of the cases, the Court
decided to resolve the cases on their merits considering that all the records as well
as the evidence adduced during the trial had been elevated to the Court. [18] The
parties filed their respective briefs articulating their respective stances on the
factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to
accuse a man of rape is easy but to disprove it is difficult though the accused may
be innocent; (2) considering the nature of things, and only two persons are usually
involved in the crime of rape, the testimony of the complainant should be

ALARCON | 131

scrutinized with great caution; (3) the evidence for the prosecution must stand or fall
on its own merits and not be allowed to draw strength from the weakness of the
evidence of the defense.[19] By the very nature of the crime of rape, conviction or
acquittal depends almost entirely on the credibility of the complainants testimony
because of the fact that usually only the participants can testify as to its
occurrence. However, if the accused raises a sufficient doubt as to any material
element of the crime, and the prosecution is unable to overcome it with its evidence,
the prosecution has failed to discharge its burden of proving the guilt of the accused
beyond cavil of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as
follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum
of evidence that he raped the private complainant precisely on September 15, 1998
and October 22, 1998. Moreover, the medical findings of Dr. Armie Umil show that
the hymen of the private complainant was intact and its orifice so small as to
preclude complete penetration by an average size adult Filipino male organ in full
erection without producing any genital injury. The physical evidence belies private
complainants claim of having been deflowered by accused-appellant on four
different occasions. The Office of the Solicitor General, for its part, contends that the
prosecution through the private complainant proved the guilt of accused-appellant
for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private
complainant testified that since 1996, when she was only eleven years old, until
1998, for two times a week, accused-appellant used to place himself on top of her
and despite her tenacious resistance, touched her arms, legs and sex organ and
inserted his finger and penis into her vagina.In the process, he ejaculated. Accusedappellant threatened to kill her if she divulged to anyone what he did to her.
[20]
Although private complainant did not testify that she was raped on September
15, 1998 and October 22, 1998, nevertheless accused-appellant may be convicted
for two counts of rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to
have been committed on or about September 15, 1998 and on or about October 22,
1998. The words on or about envisage a period, months or even two or four years
before September 15, 1998 or October 22, 1998. The prosecution may prove that
the crime charged was committed on or about September 15, 1998 and on or about
October 22, 1998.
In People vs. Gianan,[21] this Court affirmed the conviction of accused-appellant of
five (5) counts of rape, four of which were committed in December 1992 (two
counts) and one each in March and April, 1993 and in November, 1995 and one
count of acts of lasciviousness committed in December 1992, on a criminal
complaint for multiple rape, viz:
That sometime in November 1995, and some occasions prior and/or subsequent
thereto, in the Municipality of Dasmarias, Province of Cavite, and within the

CRIMINAL PROCEDURE | CASES

jurisdiction of this Honorable Court, the above-named accused, with lewd designs,
taking advantage of his superior strength over the person of his own twelve (12)
year old daughter, and by means of force, violence and intimidation, did, then and
there, willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra
M. Gianan, against her will and consent, to her damage and prejudice. [22]
On the contention of accused-appellant in said case that his conviction for rape in
December 1992 was so remote from the date (November 1995) alleged in the
Information, so that the latter could no longer be considered as being as near to the
actual date at which the offense was committed as provided under Section 11, Rule
110 of the Rules on Criminal Procedure, as amended, this Court held:
Accused-appellant nevertheless argues that his conviction for rape in December
1992 is so remote from the date (November 1995) alleged in the information, so that
the latter could no longer be considered as being as near to the actual date at which
the offense was committed as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction
for ten counts of rape based on an information which alleged that the accused
committed multiple rape from November 1990 up to July 21, 1994, a time difference
of almost four years which is longer than that involved in the case at bar. In any
case, as earlier stated, accused-appellants failure to raise a timely
objection basedon this ground constitutes a waiver of his right to object.[23]
Moreover, when the private complainant testified on how accused-appellant defiled
her two times a week from 1996 until 1998, accused-appellant raised nary a
whimper of protest.Accused-appellant even rigorously cross-examined the private
complainant on her testimony on direct examination. The presentation by the
prosecution, without objection on the part of accused-appellant, of evidence of rape
committed two times a week from 1996 until 1998 (which includes September 15,
1998 and October 22, 1998) to prove the charges lodged against him constituted a
waiver by accused-appellant of his right to object to any perceived infirmity in, and
in the amendment of, the aforesaid Informations to conform to the evidence
adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not
preclude her having been repeatedly sexually abused by accused-appellant. The
private complainant being of tender age, it is possible that the penetration of the
male organ went only as deep as her labia. Whether or not the hymen of private
complainant was still intact has no substantial bearing on accused-appellants
commission of the crime.[24] Even the slightest penetration of the labia by the male
organ or the mere entry of the penis into the aperture constitutes consummated
rape. It is sufficient that there be entrance of the male organ within the labia of
the pudendum.[25] In People vs. Baculi, cited in People vs. Gabayron,[26] we held that
there could be a finding of rape even if despite repeated intercourse over a period of
four years, the complainant still retained an intact hymen without injury. In these
cases, the private complainant testified that the penis of accused-appellant gained
entry into her vagina:
Fiscal Carisma
(continuing)

ALARCON | 132

After your underwear was removed by the accused, what happened next?

committed on a date as near as possible to the actual date of its commission. (11a)
[30]

Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong nya
yong ano nya and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming
out, sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape,
instead of qualified rape. The evidence on record shows that accused-appellant is
the common-law husband of Rose, the mother of private complainant. The private
complainant, as of October 1998, was still 13 years old, and under Article 335 as
amended by Republic Act 7659, the minority of the private complainant, concurring
with the fact that accused-appellant is the common-law husband of the victims
mother, is a special qualifying circumstance warranting the imposition of the death
penalty.[28] However, said circumstance was not alleged in the Informations as
required by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which
was given retroactive effect by this Court because it is favorable to the accused.
[29]
Hence, even if the prosecution proved the special qualifying circumstance of
minority of private complainant and relationship, the accused-appellant being the
common-law husband of her mother, accused-appellant is guilty only of simple
rape. Under the given law, the penalty for simple rape is reclusion
perpetua. Conformably with current jurisprudence, accused-appellant is liable to
private complainant for civil indemnity in the amount of P50,000.00 and moral
damages in the amount of P50,000.00 for each count of rape, or a total
of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed
on or about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99171390 is defective because the date of the offense on or about August 1998
alleged therein is too indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:

Accused-appellant further asserts that the prosecution failed to prove that he raped
private complainant in August 1998. Hence, he argues, he should be acquitted of
said charge. The Office of the Solicitor General, for its part, argued that the date on
or about August 1998 is sufficiently definite. After all, the date of the commission of
the crime of rape is not an essential element of the crime. The prosecution adduced
conclusive proof that accused-appellant raped private complainant on or about
August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise
date of the commission of the crime of rape is not an essential element of the
crime. Failure to specify the exact date when the rape was committed does not
render the Information defective. The reason for this is that the gravamen of the
crime of rape is carnal knowledge of the private complainant under any of the
circumstances enumerated under Article 335 of the Revised Penal Code, as
amended. Significantly, accused-appellant did not even bother to file a motion for a
bill of particulars under Rule 116, Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed, accused-appellant was duly arraigned
under the Information and entered a plea of not guilty to the charge without any
plaint on the sufficiency of the Information. Accused-appellant even adduced his
evidence after the prosecution had rested its case. It was only on appeal to this
Court that accused-appellant questioned for the first time the sufficiency of the
Information filed against him. It is now too late in the day for him to do so. Moreover,
in People vs. Salalima,[31] this Court held that:
Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The precise
date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the
circumstances enumerated under Article 335 of the Revised Penal Code. As long as
it is alleged that the offense was committed at any time as near to the actual date
when the offense was committed an information is sufficient. In previous cases, we
ruled that allegations that rapes were committed before and until October 15, 1994,
sometime in the year 1991 and the days thereafter, sometime in November 1995
and some occasions prior and/or subsequent thereto and on or about and sometime
in the year 1988constitute sufficient compliance with Section 11, Rule 110 of the
Revised Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates when
the sexual assaults took place, we believe that the allegations therein that the acts
were committed sometime during the month of March 1996 or thereabout,
sometime during the month of April 1996 or thereabout, sometime during the month
of May 1996 or thereabout substantially apprised appellant of the crimes he was
charged with since all the elements of rape were stated in the informations. As such,
appellant cannot complain that he was deprived of the right to be informed of the
nature of the cases filed against him.Accordingly, appellants assertion that he was
deprived of the opportunity to prepare for his defense has no leg to stand on.

Sec. 11. Date of commission of the offense.It is not necessary to state in the
complaint or information the precise date the offense was committed except when it
is a material ingredient of the offense. The offense may be alleged to have been

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ALARCON | 133

The prosecution proved through the testimony of private complainant that accusedappellant raped her two times a week in 1998. As in Criminal Cases Nos. 99-171392
and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant
avers that he is not criminally liable of rape. We agree with accused-appellant. The
collective testimony of private complainant and her younger brother Rossel was that
on November 5, 1998, accused-appellant who was wearing a pair of short pants but
naked from waist up, entered the bedroom of private complainant, went on top of
her, held her hands, removed her panty, mashed her breasts and touched her sex
organ. However, accused-appellant saw Rossel peeping through the door and
dismounted. He berated Rossel for peeping and ordered him to go back to his room
and to sleep. Accused-appellant then left the room of the private complainant. The
testimony of private complainant on direct examination reads:

Same ruling. Let the complainant continue considering that she is crying and still
young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - Court:

Fiscal Carisma:

May answer.

Q In between 1996 and August 1997?

Fiscal Carisma:

A Yes, sir, sometimes two (2) times a week.

I will re-propound the question, your honor.

Q In November of 1998, do you recall of any unusual experience that happened to

you again?

You said that he touched your sex organ, will you tell the court with what part of his
body, did he touch your sex organ?

A Yes, sir.

Witness:

Q What was this unusual experience of yours?

With his hands, sir.

A He laid himself on top of me, sir.

Q You said he whom are you referring to?

Q What about after November 1998 - - -was this the last incident, this unusual thing
that you experienced from the hands of the accused was this that last time, the one
you narrated in November 1998?

A Freedie Lizada Jakosalem, sir.

A Yes, sir.[32]

Q The same person you pointed to earlier?

On cross-examination, the private complainant testified, thus:

A Yes, sir.

Atty. Balaba:

Q You said he placed himself on top of you in November, 1998, what did he do while
he was on top of you?

Q Who was that somebody who entered the room?

A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - Court:

A My stepfather Freedie Lizada, sir.

Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?

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ALARCON | 134

A No, sir, I was not afraid.

A I cannot recall, sir.

Q What happened when you realized that somebody entered the room, and the one
who entered was your stepfather, Freedie Lizada?

Q What was the position of Freedie Lizada when he held your arms?

A I did not mind him entering the room because I know that my brother was around
but suddenly I felt that somebody was holding me.

A He was sitting on our bed, sir.

Q Which side of your bed was Freedie Lizada sitting on?

Q He was holding you, where were you when he held you?

A I do not know, sir. I cannot recall.

A I was in the bed, sir, lying down.

Atty. Balaba:

Q You were lying down?

Can we take a recess your honor?

A Yes, sir.

Court:

Q What part of the body did the accused Freedie Lizada touched you?

How long will it take you to finish your cross?

A My two arms, my legs and my breast, sir.

Atty. Balaba:

Q Do you mean to tell us that he was holding your two arms and at the same time
your legs, is that what you are trying to tell us?

We will confront the witness with so many things your honor.

A He held me first in my arms and then my legs, sir.

Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - Court:
Proceed.

Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?

Atty. Balaba:

A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I
was struggling to free myself from him, sir.

Q He held your arms with his two hands?

Q And you were not able to extricate yourself from him?

A Only with one hand, sir.

A I was not able to extricate myself, sir.

Q Which hand were you touched?

Q You were struggling with one arm of Lizada holding your arm, and the other hand
was holding your leg, is that what you are trying to tell us?

A I do not know which hand, sir.

Q Which arm of yours was held by Freedie Lizada?

A No, sir, its not like that.

A I could not recall, sir.

Q Could you tell us, what happened, you did not shout for help and you were trying
to extricate yourself, what happened?

Q Which side of your body was Freedie Lizada at that time?

A He suddenly went out of the room, sir.

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ALARCON | 135

Q Now, he went - - Court:

You did not shout during that time?
A No, your honor.[33]
Rossel, the nine-year old brother of the private complainant corroborated in part his
sisters testimony. He testified on direct examination, thus:

A I saw my stepfather removing the panty of my sister and he touched her and then
he laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.

Fiscal Carisma: (continuing)

Court Interpreter:

Q Now, on November 2, 1998 do you recall where you were at about 3:00 oclock?

Witness pointing to a male person who when asked answers to the name Freedie
Lizada.

A I was outside our house, sir.

Q Where was your house again, Mr. witness, at that time? Where was your house at
that date, time and place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:

Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did
you see this before or after you went to the fridge to get some water?
A I already got water then, sir.

Q The same address?

Q What did you do as you saw this thing being done by your stepfather to your elder
sister?

A Yes, sir.

A I was just looking at them when he saw me, sir.

Fiscal Carisma:

Q Who, you saw who? You are referring to the accused Freedie Lizada?

Q On that date, time and place, do your recall where your sister Anna Lea Orillosa
was?

A Yes, sir.

A Yes, sir.

Q So, what did you do as you were seen by your stepfather?

Q Where was she?

A He scolded me, he shouted at me, he told me something and after that he went to
the other room and slept, sir.[34]

A She was sleeping, sir.

Rossel testified on cross-examination, thus:

Q Now, on that date, time and place you said you were outside your house, did you
stay the whole afternoon outside your house?

Q So you got thirsty, is that correct, and went inside the house?

A No, sir.
Q Where did you go next?
A Inside, sir.

A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.

Q For what purpose did you get inside your house?

Q And it was at this time that you saw the accused Freedie Lizada touching your
sister?

A Because I was thirsty, sir.

A Yes, sir.

Q So you went to the fridge to get some water?

Q Where was this refrigerator located?

A Yes, sir.

A In front of the room where my sister sleeps, sir.

Q And what happened as you went inside your house to get some water?

Q So the door of your sisters room was open?

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ALARCON | 136

A Yes, sir.

Atty. Balaba:

Q And --- okay, you said your sister was sleeping. What was the position of your
sister when you said the accused removed her panty?

Q And which part of your sisters body was the accused touching with his right hand?
Your sisters body was the accused touching with his right hand?

A She was lying straight, but she was resisting, sir.

A Her right leg, sir.

Q Were you noticed by your sister at that time?

Q How about his left hand, what was the accused doing with his left hand?

A No, sir.

A Removing her panty, sir.

Q And your sister did not call for help at that time?

Q Removing her?

A No, sir.

A Panty, sir.

Q And all this time you saw the accused doing this, from the refrigerator where you
were taking a glass of water?

Q Which hand of your sister was being removed with the left hand of the accused?

A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what
you are trying to tell us?

Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:

A Yes, sir.

The question is vague, your honor.

Q And where was the - - - and the accused saw you when he was removing the panty
of your sister?

Atty. Balaba:

A Not yet, sir, but after a while he looked at the refrigerator because he might be
thirsty.
Q So---you said the accused was touching your sister. What part of her body was
touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.

Because he said that removing the hand --Fiscal Carisma:

He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister --Fiscal Carisma:
The right thigh.
Atty. Balaba:

Q What hand was he touching your sister?

Q Rather the right thigh of your sister and with his left hand removing the panty, is
that what you are telling to tell us?

A This hand, sir.

A Yes, sir.

Court Interpreter:

Q And your sister all the time was trying to ---was struggling to get free, is that not
correct?

Witness raising his right hand.

CRIMINAL PROCEDURE | CASES

A Yes, sir, she was resisting. (witness demonstrating)

ALARCON | 137

Q She was struggling --- was the accused able to remove the panty?

3. The offenders act be not stopped by his own spontaneous desistance;

A Yes, sir.

4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance.[40]

Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.[35]
In light of the evidence of the prosecution, there was no introduction of the penis of
accused-appellant into the aperture or within the pudendum of the vagina of private
complainant.Hence, accused-appellant is not criminally liable for consummated
rape.[36]
The issue that now comes to fore is whether or not accused-appellant is guilty of
consummated acts of lasciviousness defined in Article 336 of the Revised Penal Code
or attempted rape under Article 335 of the said Code, as amended in relation to the
last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on
record, we believe that accused-appellant is guilty of attempted rape and not of acts
of lasciviousness.
Article 336 of the Revised Penal Code reads:
Art. 336. Acts of Lasciviousness.Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional.[37]
For an accused to be convicted of acts of lasciviousness, the prosecution is burdened
to prove the confluence of the following essential elements:
1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age. [38]
Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of
immorality which has relation to moral impurity; or that which is carried on a wanton
manner.[39]
The last paragraph of Article 6 of the Revised Penal Code reads:
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;

CRIMINAL PROCEDURE | CASES

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed.[41]
An overt or external act is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation,
which if carried out to its complete termination following its natural course, without
being frustrated by external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. [42] The raison
detre for the law requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never ceased to
be equivocal; and this is necessarily so, irrespective of his declared intent. It is that
quality of being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or an overt act
or before any fragment of the crime itself has been committed, and this is so for the
reason that so long as the equivocal quality remains, no one can say with certainty
what the intent of the accused is.[43] It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it
was the first or some subsequent step in a direct movement towards the commission
of the offense after the preparations are made. [44] The act done need not constitute
the last proximate one for completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. [45] In the words of Viada, the overt
acts must have an immediate and necessary relation to the offense. [46]
Acts constitutive of an attempt to commit a felony should be distinguished from
preparatory acts which consist of devising means or measures necessary for
accomplishment of a desired object or end. [47] One perpetrating preparatory acts is
not guilty of an attempt to commit a felony. However, if the preparatory acts
constitute a consummated felony under the law, the malefactor is guilty of such
consummated offense.[48] The Supreme Court of Spain, in its decision of March 21,
1892, declared that for overt acts to constitute an attempted offense, it is necessary
that their objective be known and established or such that acts be of such nature
that they themselves should obviously disclose the criminal objective necessarily
intended, said objective and finality to serve as ground for designation of the
offense.[49]
There is persuasive authority that in offenses not consummated as the material
damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained but the same must be inferred from the nature of the acts executed
(accion medio).[50] Hence, it is necessary that the acts of the accused must be such
that, by their nature, by the facts to which they are related, by circumstances of the
persons performing the same, and by the things connected therewith, that they are
aimed at the consummation of the offense. This Court emphasized in People vs.
Lamahang[51] that:

ALARCON | 138

The relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must be
ascertained from the facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to cause a particular injury. [52]
If the malefactor does not perform all the acts of execution by reason of his
spontaneous desistance, he is not guilty of an attempted felony. [53] The law does not
punish him for his attempt to commit a felony. [54] The rationale of the law, as
explained by Viada:
La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el
delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el
borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia,
una gracia un perdon que concede la Ley al arrepentimiento voluntario.[55]
As aptly elaborated on by Wharton:
First, the character of an attempt is lost when its execution is voluntarily
abandoned. There is no conceivable overt act to which the abandoned purpose could
be attached. Secondly, the policy of the law requires that the offender, so long as he
is capable of arresting an evil plan, should be encouraged to do so, by saving him
harmless in case of such retreat before it is possible for any evil consequences to
ensue. Neither society, nor any private person, has been injured by his act. There is
no damage, therefore, to redress. To punish him after retreat and abandonment
would be to destroy the motive for retreat and abandonment. [56]
It must be borne in mind, however, that the spontaneous desistance of a malefactor
exempts him from criminal liability for the intended crime but it does not exempt
him from the crime committed by him before his desistance.[57]
In light of the facts established by the prosecution, we believe that accusedappellant intended to have carnal knowledge of private complainant. The overt acts
of accused-appellant proven by the prosecution were not mere preparatory acts. By
the series of his overt acts, accused-appellant had commenced the execution of rape
which, if not for his spontaneous desistance, will ripen into the crime of
rape. Although accused-appellant desisted from performing all the acts of execution
however his desistance was not spontaneous as he was impelled to do so only
because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant
is guilty only of attempted rape. [58] In a case of similar factual backdrop as this case,
we held:

The penalty for attempted rape is prision mayor which is two degrees lower
than reclusion perpetua.[59] Accused-appellant should be meted an indeterminate
penalty the minimum of which should be taken from prision correccional which has a
range of from six months and one day to six years and the maximum of which shall
be taken from the medium period of prision mayor which has a range of from eight
years and one day to ten years, without any modifying circumstance. Accusedappellant is also liable to private complainant for moral damages in the amount
of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond
reasonable doubt of simple rape under Article 335 of the Revised Penal Code as
amended and is hereby meted the penalty of reclusion perpetua. Accused-appellant
is also hereby ordered to pay private complainant Analia Orillosa the amounts
of P50,000.00 by way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of
attempted rape under Article 335 of the Revised Penal Code as amended in relation
to Article 6 of the said Code and is hereby meted an indeterminate penalty of from
six years of prision correccional in its maximum period, as minimum to ten years
of prision mayor in its medium period, as maximum. Accused-appellant is hereby
ordered to pay private complainant Analia Orillosa the amount of P25,000.00 by way
of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby
found guilty beyond reasonable doubt of two counts of simple rape, defined in
Article 335 of the Revised Penal Code as amended and is hereby meted the penalty
of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to
private complainant Analia Orillosa the amount of P50,000.00 by way of civil
indemnity and the amount of P50,000.00 by way of moral damages for each count,
or a total amount of P200,000.00.
SO ORDERED.

Applying the foregoing jurisprudence and taking into account Article 6 of the Revised
Penal Code, the appellant can only be convicted of attempted rape. He commenced
the commission of rape by removing his clothes, undressing and kissing his victim
and lying on top of her. However, he failed to perform all the acts of execution which
should produce the crime of rape by reason of a cause other than his own
spontaneous desistance, i.e., by the timely arrival of the victims brother. Thus, his
penis merely touched Mary Joys private organ. Accordingly, as the crime committed
by the appellant is attempted rape, the penalty to be imposed on him should be an
indeterminate prison term of six (6) years of prision correccional as minimum to
twelve (12) years of prision mayor as maximum.

CRIMINAL PROCEDURE | CASES

ALARCON | 139

[G.R. No. 124342. December 8, 1999]

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
LADRILLO, accused-appellant.

vs.

EDWIN

DECISION
BELLOSILLO, J.:
It is basic that the prosecution evidence must stand or fall on its own weight and
cannot draw strength from the weakness of the defense. [1] The prosecution must
demonstrate the culpability of the accused beyond reasonable doubt for accusation
is not synonymous with guilt. Only when the requisite quantum of proof necessary
for conviction exists that the liberty, or even the life, of an accused may be declared
forfeit. Correlatively, the judge must examine with extreme caution the evidence for
the state to determine its sufficiency. If the evidence fails to live up to the moral
conviction of guilt the verdict must be one of acquittal, for in favor of the accused
stands the constitutional presumption of innocence; so it must be in this prosecution
for rape.
Jane Vasquez, the eight (8) year old complaining witness, could not state the month
and year she was supposedly abused by her cousin Edwin Ladrillo. She could narrate
however that one afternoon she went to the house of accused-appellant in Abanico,
Puerto Princesa City, which was only five (5) meters away from where she
lived. There he asked her to pick lice off his head; she complied. But later, he told
her to lie down in bed as he stripped himself naked. He removed her panty and
placed himself on top of her. Then he inserted his penis into her vagina. He covered
her mouth with his hand to prevent her from shouting as he started gyrating his
buttocks. He succeeded in raping her four (4) times on the same day as every time
his penis softened up after each intercourse he would make it hard again and insert
it back into her vagina. After successively satisfying his lust accused-appellant Edwin
Ladrillo would threaten to "send her to the police" if she would report the incident to
anyone.[2]
Sometime in 1994 Salvacion Ladrillo Vasquez, mother of Jane, noticed that Jane had
difficulty urinating and kept pressing her abdomen and holding her private part. As
she writhed in discomfort she approached her mother and said, "Ma, hindi ka
maniwala sa akin na yung uten ni Kuya Edwin ipinasok sa kiki ko (Ma, you wont
believe that Kuya Edwin inserted his penis into my vagina). [3] Perturbed by her
daughters revelation, Salvacion immediately brought her to their church, the Iglesia
ni Kristo, where she was advised to report to the National Bureau of Investigation
(NBI). At the NBI Salvacion was referred to the Puerto Princesa Provincial Hospital so
that Jane could be physically examined.
Dr. Danny O. Aquino, the examining physician, reported in his medico-legal
certificate that Jane had a "non-intact hymen." [4] He later testified that a "non-intact
hymen" could mean either of two (2) things: it could be congenital, i.e., the victim
was born without a fully developed hymen, [5] or it could be caused by a trauma, as
when a male organ penetrated the private organ of the victim. [6]

CRIMINAL PROCEDURE | CASES

ALARCON | 140

On 3 February 1995 Jane Vasquez with the assistance of her mother Salvacion
Ladrillo Vasquez filed a criminal complaint against accused-appellant Edwin Ladrillo.

A careful study of the records sustains accused-appellants plea that the verdict
should have been one of acquittal.

The defense is anchored on alibi and denial. Accused-appellant claims that in 1992,
the year he allegedly raped Jane as stated in the Information, he was still residing in
Liberty, Puerto Princesa City, and did not even know Jane or her mother at that
time. That it was only in 1993, according to him, that he moved to Abanico, Puerto
Princesa City. To corroborate his testimony, the defense presented as witnesses,
Wilfredo Rojas and Teodoro Aguilar, both of whom were neighbors of accusedappellant in Liberty, Puerto Princesa City. They testified that in 1992 accusedappellant was still their neighbor in Liberty and it was only in 1993 when accusedappellant and his family moved to Abanico.[7]

Preliminarily, the crime was alleged in the Information to have been committed "on
or about the year 1992" thus -

Edito Ladrillo, accused-appellants father, testified that his family lived in Abanico for
the first time only in 1993; that when he and his sister Salvacion, mother of Jane,
had a quarrel, he forbade his son Edwin from attending church services with
Salvacion at the Iglesia ni Kristo, which caused his sister to be all the more angry
with him; and, the instant criminal case was a means employed by his sister to exact
revenge on him for their past disagreements.[8]
The trial court found accused-appellant Edwin Ladrillo guilty as charged, sentenced
him to reclusion perpetua, and ordered him to indemnify Jane Vasquez the amount
of P100,000.00, and to pay the costs.[9] Thus, the court rationalized The crux of accuseds defense is that he was not in the place of the alleged rape in
Abanico, Puerto Princesa City when this allegedly happened. He denied committing
the crime of rape against the young girl, Jane Vasquez. After having carefully
examined and calibrated the evidence on record, the Court is convinced more than
ever that the accused Edwin Ladrillo indeed repeatedly raped or sexually abused
Jane Vasquez, a girl who was then only five (5) years old. This Court has no reason
to doubt the veracity of the testimony of Jane Vasquez given the straightforward
clarity and simplicity with which it was made. It is highly improbable that a young, 8year old girl would falsely testify that her own cousin, the accused herein, raped
her. She told her mother: Ma, hindi ka maniwala sa akin na ang utin ni Kuya Edwin
ay ipinasok sa kiki ko. Jane also described that after the intercourse and as the penis
of the accused softened, the latter would make it hard again and then inserted it
again into her vagina and this was made four (4) times. Janes testimony has all the
characteristics of truth and is entitled to great weight and credence. The Court
cannot believe that the very young victim is capable of fabricating her story of
defloration.
Accused-appellant contends in this appeal that the trial court erred in: (a) not giving
credence to his defense that at the supposed time of the commission of the offense
he was not yet residing in Abanico, Puerto Princesa City, and did not know the
complainant nor her family; (b) finding him guilty of rape considering that the
prosecution failed to prove his guilt beyond reasonable doubt; (c) not finding that
the prosecution failed to sufficiently establish with particularity the date of
commission of the offense; (d) giving great weight and credence to the testimony of
the complainant; and, (e) failing to consider the mitigating circumstance of minority
in imposing the penalty of reclusion perpetua, assuming for the sake of argument
that indeed the crime of rape was committed.[10]

CRIMINAL PROCEDURE | CASES

That on or about the year 1992 at Abanico Road, Brgy. San Pedro, Puerto Princesa
City x x x x the said accused, with the use of force and intimidation did then and
there willfully, unlawfully, and feloniously have carnal knowledge with the
undersigned five (5) years of age, minor, against her will and without her consent.
The peculiar designation of time in the Information clearly violates Sec. 11, Rule 110,
of the Rules Court which requires that the time of the commission of the offense
must be alleged as near to the actual date as the information or complaint will
permit. More importantly, it runs afoul of the constitutionally protected right of the
accused to be informed of the nature and cause of the accusation against him.
[11]
The Information is not sufficiently explicit and certain as to time to inform
accused-appellant of the date on which the criminal act is alleged to have been
committed.
The phrase "on or about the year 1992" encompasses not only the twelve (12 )
months of 1992 but includes the years prior and subsequent to 1992, e.g., 1991 and
1993, for which accused-appellant has to virtually account for his
whereabouts. Hence, the failure of the prosecution to allege with particularity the
date of the commission of the offense and, worse, its failure to prove during the trial
the date of the commission of the offense as alleged in the Information, deprived
accused-appellant of his right to intelligently prepare for his defense and
convincingly refute the charges against him. At most, accused-appellant could only
establish his place of residence in the year indicated in the Information and not for
the particular time he supposedly committed the rape.
In United States v. Dichao,[12] decided by this Court as early as 1914, which may be
applied by analogy in the instant case, the Information alleged that the rape was
committed "on or about and during the interval between October 1910 and August
1912. This Court sustained the dismissal of the complaint on a demurrer filed by the
accused, holding that In the case before us the statement of the time when the crime is alleged to have
been committed is so indefinite and uncertain that it does not give the accused the
information required by law. To allege in an information that the accused committed
rape on a certain girl between October 1910 and August 1912, is too indefinite to
give the accused an opportunity to prepare for his defense, and that indefiniteness
is not cured by setting out the date when a child was born as a result of such
crime. Section 7 of the Code of Criminal Procedure does not warrant such
pleading. Its purpose is to permit the allegation of a date of the commission of the
crime as near to the actual date as the information of the prosecuting officer will
permit, and when that has been done any date may be proved which does not
surprise and substantially prejudice the defense. It does not authorize the total
omission of a date or such an indefinite allegation with reference thereto as
amounts to the same thing.

ALARCON | 141

Moreover, there are discernible defects in the complaining witness testimony that
militates heavily against its being accorded the full credit it was given by the trial
court. Considered independently, the defects might not suffice to overturn the trial
courts judgment of conviction, but assessed and weighed in its totality, and in
relation to the testimonies of other witnesses, as logic and fairness dictate, they
exert a powerful compulsion towards reversal of the assailed judgment.
First, complainant had absolutely no recollection of the precise date she was
sexually assaulted by accused-appellant. In her testimony regarding the time of the
commission of the offense she declared Q: This sexual assault that you described when your Kuya Edwin placed himself on
top of you and had inserted his penis on (sic) your private part, when if you could
remember, was (sic) this happened, that (sic) month?
A: I forgot, your Honor.
Q: Even the year you cannot remember?
A: I cannot recall.
Q: But is there any incident that you can recall that may draw to a conclusion that
this happened in 1992 or thereafter?
A: None, your Honor.
Q: About the transfer of Edwin from Abanico to Wescom Road?
A: I dont know, your Honor (underscoring supplied).[13]
In People v. Clemente Ulpindo[14] we rejected the complaining witness testimony as
inherently improbable for her failure to testify on the date of the supposed rape
which according to her she could not remember, and acquitted the accused. We held
in part While it may be conceded that a rape victim cannot be expected to keep an
accurate account of her traumatic experience, and while Reginas answer that
accused-appellant went on top of her, and that she continuously shouted and cried
for five (5) minutes may have really meant that accused-appellant had carnal
knowledge of her for five (5) minutes despite her shouts and cries, what renders
Reginas story inherently improbable is that she could not remember the month or
year when the alleged rape occurred, and yet, she readily recalled the incident
when she was whipped by accused-appellant with a belt that hit her vagina after she
was caught stealing mangoes.
Certainly, time is not an essential ingredient or element of the crime of
rape. However, it assumes importance in the instant case since it creates serious
doubt on the commission of the rape or the sufficiency of the evidence for purposes
of conviction. The Information states that the crime was committed "on or about the
year 1992," and complainant testified during the trial that she was sexually abused
by accused-appellant in the latters house in Abanico, Puerto Princesa City. [15] It
appears however from the records that in 1992 accused-appellant was still residing
in Liberty, Puerto Princesa City, a town different from Abanico, Puerto Princesa City,

CRIMINAL PROCEDURE | CASES

and had never been to Abanico at any time in 1992 nor was he familiar with the
complainant and her family. He only moved to Abanico, Puerto Princesa City, in
1993.[16] It was therefore impossible for accused-appellant to have committed the
crime of rape in 1992 at his house in Abanico, Puerto Princesa City, on the basis of
the prosecution evidence, as he was not yet residing in Abanico at that time and
neither did his family have a home there. The materiality of the date cannot
therefore be cursorily ignored since the accuracy and truthfulness of complainants
narration of events leading to the rape practically hinge on the date of the
commission of the crime.
The ruling of the trial court to the effect that it was not physically impossible to be in
Abanico from Liberty when the crime charged against him was committed, is
manifestly incongruous as it is inapplicable. The trial court took judicial notice of the
fact that Liberty and Abanico were not far from each other, both being within the city
limits of Puerto Princesa, and could be negotiated by tricycle in less than thirty (30)
minutes.[17] But whether or not it was physically impossible for accused-appellant to
travel all the way to Abanico from Liberty to commit the crime is irrelevant under the
circumstances as narrated by complainant. Truly, it strains the imagination how the
crime could have been perpetrated in 1992 at the Ladrillo residence in
Abanico when, to repeat, accused-appellant did not move to that place and take up
residence there until 1993.
To complicate matters, we are even at a loss as to how the prosecution came up with
1992 as the year of the commission of the offense. It was never adequately
explained nor the factual basis thereofestablished. The prosecutor himself admitted
in court that he could not provide the specific date for the commission of the crime COURT: Wait a minute. (To witness) How many times did your Kuya Edwin placed
(sic) himself on top of you and inserted (sic) his penis to (sic) your private organ?
A: Four (4) times, your Honor.
COURT: You demonstrate that with your fingers.
A: Like this, your Honor (witness raised her four (4) fingers).
COURT: Fiscal, did you charge the accused four (4) times?
PROS. FERNANDEZ: No, your
dates (underscoring supplied).[18]

Honor

because

we

cannot

provide

the

Indeed, the failure of the prosecution to prove its allegation in the Information that
accused-appellant raped complainant in 1992 manifestly shows that the date of the
commission of the offense as alleged was based merely on speculation and
conjecture, and a conviction anchored mainly thereon cannot satisfy the quantum of
evidence required for a pronouncement of guilt, that is, proof beyond reasonable
doubt that the crime was committed on the date and place indicated in the
Information.
Second, neither did the testimony of Dr. Danny O. Aquino, the medico-legal officer,
help complainant's cause in any way. In his medico-legal certificate, Dr. Aquino
concluded on examination that complaining witness' hymen was not intact. When
asked by the trial court what he meant by "non-intact hymen," Dr. Aquino explained

ALARCON | 142

that it could be congenital, i.e., natural for a child to be born with a "non-intact
hymen."[19] However, he said, he could not distinguish whether complainants "nonintact hymen" was congenital or the result of a trauma. [20] When asked further by the
public prosecutor whether he noticed any healed wound or laceration in the hymen,
Dr. Aquino categorically answered: "I was not able to recognize (healed wound), sir,"
and "I was not able to appreciate healed laceration, sir." [21] The answers of Dr. Aquino
to subsequent questions propounded by the prosecutor were very uncertain and
inconclusive. To questions like, "Is she a virgin or not?" and "So you are now saying
that Jane Vasquez was actually raped?" the answers of Dr. Aquino were, "I cannot tell
for sure, your Honor." "That is a big probability," and, "Very likely."
It is clear from the foregoing that the prosecution likewise failed to establish the
medical basis for the alleged rape. The failure of Dr. Aquino to make an unequivocal
finding that complainant was raped and that no healed wound or laceration was
found on her hymen seriously affects the veracity of the allegations of the
prosecution.
Third, from her testimony, complainant would have this Court believe that while she
was being raped accused-appellant was holding her hand, covering her mouth and
gripping his penis all at the same time. Complainants narration is obviously
untruthful. It defies the ordinary experience of man. The rule is elementary that
evidence to be believed must not only proceed from the mouth of a credible witness
but must be credible in itself.
And fourth, complainant reported the alleged rape to her mother only in 1994 or two
(2) years after its occurrence. It hardly conforms to human experience that a child
like complainant could actually keep to herself such a traumatic experience for a
very long time. Perhaps it would have been different if she were a little older and
already capable of exercising discretion, for then, concealment of the rape
committed against her would have been more readily explained by the fact, as in
this case, that she was probably trying to avoid the embarrassment and disrepute to
herself and her family. Children, on the other hand, are naturally more spontaneous
and candid, and usually lack the same discretion and sensibility of older victims of
the same offense. Thus, the fact that complainant, who was only five (5) years old
when the supposed rape happened, concealed her defilement to her mother for two
(2) years seriously impairs her credibility and the authenticity of her story.
We are not unmindful of the fact that a child of tender years, like complaining
witness herein, could be so timid and ignorant that she could not narrate her ordeal
accurately. But the mind cannot rest easy if this case is resolved against accusedappellant on the basis of the evidence for the prosecution which, as already
discussed, is characterized by glaring inconsistencies, missing links and loose ends
that refuse to tie up. The rule that this Court should refrain from disturbing the
conclusions of the trial court on the credibility of witnesses, does not apply where, as
in the instant case, the trial court overlooked certain facts of substance or value
which if considered would affect the outcome of the case; or where the disputed
decision is based on misapprehension of facts.
Denial and alibi may be weak but courts should not at once look at them with
disfavor. There are situations where an accused may really have no other defenses
but denial and alibi which, if established to be the truth, may tilt the scales of justice
in his favor, especially when the prosecution evidence itself is weak.

CRIMINAL PROCEDURE | CASES

Let it be made clear, however, that this opinion does not necessarily signify
acceptance of accused-appellants version of the incident. If complainant was indeed
sexually abused, this view should not be considered a condonation of what was
done, as it was indeed reprehensible. This only indicates that reasonable doubt has
been created as to accused-appellants guilt. Consequently, under the prevailing
judicial norm, accused-appellant is entitled to acquittal. To reiterate, there is in his
favor the constitutional presumption of innocence, which has not been sufficiently
dented.
Rape is a very emotional word, and the natural human reactions to it are
categorical: sympathy for the victim and admiration for her in publicly seeking
retribution for her outrageous misfortune, and condemnation of the rapist. However,
being interpreters of the law and dispensers of justice, judges must look at a rape
charge without those proclivities and deal with it with extreme caution and
circumspection. Judges must free themselves of the natural tendency to be
overprotective of every woman decrying her having been sexually abused and
demanding punishment for the abuser. While they ought to be cognizant of the
anguish and humiliation the rape victim goes through as she demands justice,
judges should equally bear in mind that their responsibility is to render justice based
on the law.[22]
WHEREFORE, the assailed decision of RTC-Br. 47, Palawan and Puerto Princesa City,
is REVERSED. Accused-appellant EDWIN LADRILLO is ACQUITTED of rape based on
insufficiency of evidence and reasonable doubt. Consequently, his immediate
release from confinement is ORDERED unless he is otherwise detained for any other
lawful or valid cause. Costs de oficio.
SO ORDERED.

[G.R. No. 127122. July 20, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOVITO LOSANO y
NACIS accused-appellant.
DECISION
PER CURIAM:
Despite the growing number of individuals in Death Row for incestuous rape of
minors, the number of these corrupt perverts hardly seems to have

ALARCON | 143

diminished. Before us yet again is another loathsome example of a mans lechery so

depraved, it exposes him to be nothing more than a ravenous beast masquerading
as a man.
On March 13, 1996, accused-appellant Jovito Losano y Nacis was charged with the
despicable crime of raping his own daughter under the following information:
That sometime in may, 1995, in Barangay Alipangpang, Municipality of Pozorrubio,
Province of Pangasinan and within the jurisdiction of this Honorable Court, the
above-named accused, by means of force and intimidation, did then and there,
willfully, unlawfully and feloneously (sic) have carnal knowledge of private
complainant, ROWENA LOSANO, daughter of accused, then being only 6 years of
age, all against her will and without her consent.
CONTRARY to Law.[1]
Upon his arraignment on August 26, 1996, accused-appellant entered a plea of not
guilty. Trial thereafter ensued, with the prosecution presenting as its witnesses the
victim, Rowena Losano, and her grandmother, Veronica Losano. Their testimonies
show the following:
Rowena is the daughter of accused-appellant and Rosita Losano, their third child a
brood of four. At the time of the alleged rape, Rowena was only six years old, having
been born on April 17, 1990.Veronica Losano, on the other hand, is the grandmother
of Rowena, accused-appellant being her son. Veronica testified that on September
25, 1995, while they were in Baguio City, Rowena told her that her father had
mashed her breast and removed her panties. Upon further questioning, Rowena
added that her father had inserted his penis inside her. To verify whether or not
Rowena was telling the truth, Veronica and her daughter Priscilla Fetalino, brought
Rowena to the Baguio City office of the NBI to have her examined. Dr. Ronald
Bandonill, an NBI medico-legal officer, conducted the medical examination on
October 3, 1995. The medical certificate issued by Dr. Bandonill states that 1) at the
time of the examination, there were no extra-genital physical injuries on Rowenas
body; and 2) that her physical virginity was preserved. It did, however, remark that:
The presence of congestion and inflammation at the vestibular mucosa and the
hymenal area coupled with intense pain and tenderness indicates the probability of
attempted penetration of the area by the hard erect male organ which was not
successful, since it would produce massive genital injury.[2]
Veronica stated that the alleged rape incident took place at her house in Barangay
Alipangpang, Pozorrubio, Pangasinan. On cross-examination, Veronica admitted not
having personal knowledge of the alleged rape, having only been informed thereof
by her granddaughter. She also said that Rowenas mother was in Kuwait, having
gone there in 1995, and that up to the time of the trial, the latter had not yet
returned.
When put on the witness stand, Rowena testified that while she was staying at their
house in Barangay Alipangpang, she remembered her father removing her dress and
panties, fondling her breasts and getting on top of her. She remembered seeing his
sex organ and having it inserted inside her. She said she felt pain when he did
so. Rowena testified that her father told her not to tell anybody, otherwise he would

CRIMINAL PROCEDURE | CASES

kill her. On further questioning, she said her father inserted his penis inside her
everyday.
On cross-examination, Rowena testified that her father had raped her at
nighttime. She said that while she was sleeping with her sister Maricel, and their
grandmother Veronica, in a room on the second floor of their house, her father
carried her outside and raped her. She said her grandmother woke up when she was
carried outside the room by her father.
Testifying in his own behalf, accused-appellant said that he loved his children and
that he could not have raped Rowena, the latter being his daughter. He claimed that
the charge of rape was filed to discredit him and that he was the victim of a
frameup. Accused-appellant stated that his mother Veronica and his sister Priscilla
held a grudge against him, thus, their filing of the rape case. In elaboration,
accused-appellant claimed that Priscilla wanted to buy from him a karaoke, a
Walkman, and several watches, items that he had brought back from Saudi Arabia,
at a very low price. He, however, declined.Instead, he sold these items to a third
person for a higher price. From then on, according to accused-appellant, bad blood
ran between him and Priscilla. Accused-appellant further testified that Veronica and
Priscilla had asked him to sign a document selling their land, which request he had
not acceded to. He also explained that his mother and sister claimed the money that
his wife sent him every month.
On cross-examination, accused-appellant admitted that his daughter Rowena was six
years of age. Likewise, he testified that his wife had gone to Kuwait in 1993. Lastly,
accused-appellant admitted that his other daughter Maricel, age 11, had filed a
criminal case for acts of lasciviousness against him. Sometime during the
proceedings, accused-appellants counsel adopted the medical certificate issued by
Dr. Bandonill as their Exhibit 1 to prove the absence of spermatozoa in the sex organ
of Rowena.
On September 27, 1996, the trial court rendered a decision, the dispositive portion
of which reads as follows:
WHEREFORE, the Court finds the accused, JOVITO LOSANO y NACIS, GUILTY beyond
reasonable doubt of the crime of RAPE defined and penalized under Republic Act No.
7659, the offense having been committed with the attendant aggravating
circumstances of when the woman is under twelve years old and when the victim is
under eighteen (18) years of age and the offender is a parent, (sic) hereby
sentences him to suffer the supreme penalty of DEATH to be executed pursuant to
Rep. Act No. 8177 known as the Lethal Injection Law, to pay the complainant,
ROWENA LOSANO in the amount of P50,000.00 as damages, and to pay the costs.
And the word of the law, it is said:
Dura lex, sed lex, interpreted as: The law is harsh (sic) but that (sic) is the law.
SO ORDERED.[3]
The penalty of death having been imposed, the decision is now before us for
automatic review, pursuant to Article 47 of the Revised Penal Code and Section 1(e),
Rule 122 of the Rules of Court. The Free Legal Assistance Group (FLAG) Anti-Death
Penalty Task Force submitted a brief on behalf of the accused-appellant. In seeking a

ALARCON | 144

reversal of the September 27, 1996 decision, it raises the following as errors of the
trial court:
1. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF
AN OFFENSE NOT CHARGED IN THE INFORMATION;
2. THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO
THE TESTIMONY OF THE PRIVATE COMPLAINANT AND IN DISREGARDING ITS
INCONSISTENCIES;
3. THE TRIAL COURT MANIFESTED BIAS, THEREBY DEPRIVING THE ACCUSEDAPPELLANT OF HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL AND VIOLATING HIS
RIGHT TO BE PRESUMED INNOCENT, WHEN IT LED THE ACCUSED-APPELLANT TO
ADMIT A MEDICO-LEGAL EXAMINATION REPORT THAT IT LATER USED TO CONVICT
HIM;
4. THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE ACCUSED-APPELLANT
HAD THE PROPENSITY TO SEXUALLY ABUSE HIS CHILDREN ON THE BASIS OF A
PENDING CASE OF ACTS OF LASCIVIOUSNESS FILED AGAINST HIM BY ANOTHER
CHILD, AND IN USING SAID FINDING TO CONVICT THE ACCUSED-APPELLANT.
After a thorough and painstaking review of the evidence on record, as well as of the
arguments advanced by the FLAG Anti-Death Penalty Task Force and by the Solicitor
General, we resolve to affirm the judgement of conviction.
In support of his allegation that he was convicted of an offense not charged in the
information, accused-appellant notes that he was charged with having committed
rape sometime in May 1995, in Barangay Alipangpang, Municipality of Polyzoarium,
Pangasinan. He, however, asserts that the prosecution failed to prove that he had
committed rape sometime in May 1995. If ever accused-appellant raped his
daughter, he claims that this did not occur in May but much later. In support of his
argument, accused-appellant points to the medico-legal report, which puts the time
of commission of the alleged rape at sometime in August 1995. Furthermore,
accused-appellant alleges that the congestion and inflammation at the vestibular
mucosa and the hymenal area coupled with intense pain and tenderness mentioned
in the medico-legal report would have long disappeared if the rape had occurred
sometime in May, four months before the medical examination. Lastly, accusedappellant points to the testimonies of the prosecution witnesses themselves as
indicative that the alleged rape took place much later than May 1995.
Veronica Losano:
Q: Now, Madam Witness, between the period of September 25, 1995 can you recall if
there was anything unusual that happened?
A: Yes, sir.
Q: What was that unusual incident about, Madam Witness?
A: My granddaughter told me that her breasts were mashed and her panties were
removed, sir.

Q: Now, what else did your granddaughter, Rowena, tell you aside from telling that
the accused Jovito Losano, her own father, mashed her breasts and remove her
panties?
A: My granddaughter told me that after the accused mashed her breasts he inserted
his penis in the organ of my granddaughter, sir. [4]
Rowena Losano:
Q: How many times did your father insert his penis to your vagina?
A: Everyday, sir.
Q: And after the length or rather after the last time that he did that to you you
informed your grandmother about it?
A Yes, sir.[5] (Italics accused-appellants)
From the foregoing, accused-appellant draws the conclusion that what the
prosecution may have proved was a rape that occurred sometime in August or
September, much later than May 1995, an offense he considers different from that
which was alleged in the information. Drawing on the principle that an accused
cannot be convicted for an offense not charged in the information, no matter how
conclusive and convincing the evidence of guilt, [6] accused-appellant argues that his
conviction should be reversed.
Accused-appellants argument holds no water. Section 11 of Rule 110 of the Rules of
Court provides:
Section 11. Time of the commission of the offense.- It is not necessary to state in the
complaint or information the precise time at which the offense was committed
except when time is a material ingredient of the offense, but the act may be alleged
to have been committed at any time as near to the actual date at which the offense
was committed as the information or complaint will permit.
Thus, early as 1903, this Court has ruled that while the complaint must allege a
specific time and place when and where the offense was committed, the proof need
not correspond to this allegation, unless the time and place is material and of the
essence of the offense as a necessary ingredient in its description. Evidence so
presented is admissible and sufficient if it shows 1) that the crime was committed at
any time within the period of the statute of limitations; and 2) before or after the
time stated in the complaint or indictment and before the action is commenced. [7]
Unfortunately for accused-appellant, the date of commission is not an essential
element of the crime of rape,[8] what is material being the occurrence of the rape,
not the time of commission thereof. [9]Hence, proof as to the time of rape need not
correspond to the allegation in the information. Likewise, the rape was committed
within the period provided by the statute of limitations. It may also be observed that
while the rape proven occurred after the time stated in the complaint, the action was
commenced after the rape incident had transpired.

xxx xxx xxx

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ALARCON | 145

Additionally, it is too late in the day for accused-appellant to object to his conviction
on the basis of the erroneous date charged in the information. Sections 1 and 3(d) of
Rule 117 of the Rules of Court provides:
Section 1. Time to move to quash. At any time before entering his plea, the accused
may move to quash the complaint or information.
Section 3. Grounds. The accused may move to quash the complaint or information
on any of the following grounds:
xxx xxx xxx

date of the commission of a crime is erroneously set forth in the information, the
fact that the prosecution proves the correct date does not mean necessarily that an
inference could legitimately be drawn that two crimes had been committed. If the
accused himself offers no objection to such a variance it must be assumed that he is
not prejudiced thereby and that the change in date has in no wise affected his ability
or opportunity to defend himself.This is especially true where, in place of objection,
the accused accepts the issue tendered by the evidence of the prosecution and
proceeds to meet it with evidence of his own. [11] Accused-appellant may not, thus,
allege that he was convicted of an offense different from that charged in the
information.

xxx xxx xxx (Italics ours)

In his second assignment of error, accused-appellant characterizes Rowenas

testimony as coached, the same having been educed through leading questions
propounded by the prosecution.

Likewise, Section 8 of Rule 117 provides:

Fiscal Matro

Section 8. Failure to move to quash or to allege any ground therefor. The failure of
the accused to assert any ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or failed
to allege the same in said motion shall be deemed a waiver of the grounds of a
motion to quash, except the grounds of no offense charged, lack of jurisdiction over
the offense charged, extinction of the offense or penalty and jeopardy, as provided
for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule. (Italics ours)

Q: Are you the same Rowena Losano who is the complainant in this case?

d) That it does not conform substantially to the prescribed form;

Section 3(d) of Rule 117 refers to the formal parts of a complaint or information
provided for in Sections 6 to 12 of Rule 110. These include, among others, the time
of the commission of the offense. In accordance with the above-mentioned sections,
accused-appellant should have filed a motion to quash the information on the
ground that it alleged an erroneous date, before he entered his plea. Accusedappellant, however, did not file a motion to quash. Instead, he had himself
arraigned, entering a plea of not guilty to the crime of rape. Such being the case,
accused-appellant has waive his right to object to the information on the ground of
an error as to the time of the alleged rape.
When there is a variance between the allegation of the information and the evidence
of the prosecution with respect to the time when the crime was committed, and the
accused interposed a timely objection to such variance and showed that it was
prejudicial to his interest in that it deceived him and prevented him from having a
fair opportunity to defend himself, the trial court may, in the exercise of sound
discretion, order the information amended so as to set forth the correct date and
may grant an adjournment for such a length of time as will enable the defendant to
prepare himself to meet the variance in date which was the cause of his
surprise. But if the accused himself offers no objection to such a variance and no
relief is asked, and that in place of objection the accused accepts the issue and
enters upon his defense and produces his witnesses, giving evidence with regard to
the very transaction concerning which the prosecutions witnesses had offered their
testimony, an objection raised for the first time in the appellate court based on such
variance is untenable.[10]
It is likewise, erroneous for accused-appellant to claim that what the prosecution was
able to prove was an offense different from that charged in the information. If the

CRIMINAL PROCEDURE | CASES

A: Yes, sir.
Q: The one you (sic) accusing in this (sic) is Jovito Losano who is your own father?
A: Yes, sir.
Q: Can you recall what your father did to you which is now the subject of your
complaint?
A: Yes, sir.
Q: What did your father Jovito Losano did (sic) to you?
Atty. Padilla
I would like to manifest, your Honor, that the witness cannot answer the question,
despite reasonable time, your Honor.
xxx xxx xxx
Fiscal Matro
Q: Do you remember that your father did something to you while you were in your
house in Alipangpang, Pozorrubio, Pangasinan?
A: Yes, sir.
Q: Do you remember your father having removed your dress and panties?
A: Yes, sir.
Q: After your father removed your panties what did he do to you?
A: (No answer from the witness)
Q: Do you also remember your father fondling your breast?

ALARCON | 146

A: Yes, sir.
Q: After your father fondled your breast, he made you lie down, is it not?
A: Yes, sir.
Q: Then he also removed his pants and his brief, do you remember that also?
A: Yes, sir.
Q: And after that he went on top of you, is that correct?
A: Yes, sir.
Q: Do you remember having seen his sex organ?
A: Yes, sir.
Q: After he went on top of you do you still remember what he did to you?
A: Yes, sir.
Q: What did he do to you? Do you remember your father inserting his penis to (sic)
your vagina?
A: Yes, sir.
Q: What did you feel after that?
A: It was painful, sir.
Q: Was he able to insert his penis in whole to (sic) your vagina?
A: Yes, sir.
Q: How long did he insert his penis to (sic) your vagina?
A: Brief (sic), sir.
Q: After that what did your father tell you?
A: He told me not to tell anybody otherwise he will kill me, sir.
Q: And after your father left the house, do you remember?
A: Yes, sir.
Q: How many times did your father insert his penis to your vagina?
A: Everyday, sir.[12]
As a general rule, leading questions are not allowed. When the witness is a child of
tender years, however, it is proper for the court to allow leading questions, [13] as it
usually difficult for a child of tender years to state facts without prompting or
suggestion. In the case at hand, Rowena is a child of tender years, being only seven
years old at the time of her testimony. As we have held in People v. Vargas,[14]

CRIMINAL PROCEDURE | CASES

[c]hildren are naturally meek and shy. They need patient and careful probing to
encourage them to talk in public about a traumatic experience. Indeed, recounting
an ordeal of rape in a courtroom is tremendously difficult and devastating even for
an adult woman Hence, we find nothing wrong when the trial judge propounded
probing questions to (the victim) to coax truth out of her reluctant lips.
Accused-appellant also points to inconsistencies in the testimony of Rowena as proof
that the alleged rape never took place. Accused-appellant juxtaposes Rowenas
testimony saying that her grandmother was awakened when her father came to her
room to get her with Veronicas testimony saying that she was in Baguio at the time
her granddaughter was raped. Accused-appellant also claim that he could not have
raped his daughter for if Rowenas grandmother was awake at the time of the alleged
rape, she certainly would have heard the cries of pain of her granddaughter.
This Court has time and again ruled that the sole testimony of the victim in a rape
case is sufficient to sustain a conviction if such testimony is credible. [15] By the very
nature of rape cases, conviction or acquittal depends almost entirely on the
credibility of the complainants testimony, the fact being that usually only the
participants thereto can testify as to its occurrence. [16] In the instant case, the trial
court found the testimony of Rowena to be credible, possessing as they did all the
semblance of truth. We find no compelling reason to disturb the trial courts reliance
on Rowenas testimony, it being hornbook doctrine that the findings of fact of the
trial court is entitled to the highest respect, it being in the best position to determine
questions of credibility of witnesses, having heard them and observed their
department and manner of testifying.[17]
Furthermore, the alleged inconsistencies pointed out by accused-appellant pertain
only to minor matters which strengthen rather than weaken the credibility of
Rowena. In any case, the presence or absence of Veronica at the house where the
alleged rape took place does not detract from the fact that Rowenas testimony
points to accused-appellant as her assailant. When a woman, especially if she is a
minor, says that she has been raped she says in effect all that is necessary to show
that rape was committed.[18]
Likewise, whether or not Veronica awoke when accused-appellant took his daughter
out of the room will not and cannot affect Rowenas credibility, as the same does not
disprove that the rape was not committed. And even if it were true that Veronica
awoke at the time accused-appellant carried his daughter out of the room, no
protest could have been forthcoming, as the former probably did not know that
accused-appellant was out to rape his own flesh and blood. Again, the allegation
that the rape could not have taken place due to the proximity of Veronicas presence
holds no water. The nearby presence of people in a certain place is no guarantee
that rape will not and cannot be committed, [19] lust being no respecter of time and
place.
It may also be observed that for his defense, accused-appellant could only deny
having raped his daughter. Well-entrenched is the rule that denial is inherently weak
and easily fabricated.[20] It becomes even weaker in the face if the positive
identification by the victim, Rowena, of accused-appellant as her assailant.
We also reject accused-appellants contention that the rape charge was due to the
bad blood between him and his mother and sister. No sister would be so depraved as

ALARCON | 147

to condemn a brother to possible death for failure to sell a karaoke, Walkman and
watches at bargain basement prices. Neither would a mother be so callous as to seal
her sons doom for his refusal to sell a piece of land. Lastly, it would be unlikely for
Rowena, a seven-year old, to fabricate a story of rape which would put her own
father on Death Row. As aptly stated by the trial court, [v]eritas simplex oration
est, the language of truth is simple, it can come from the mouth of a child and the
lips of the poor, simple and unlettered.
In his third assignment of error, accused-appellant claims that the trial court judge
was biased against him, allegedly because it peremptorily ordered his defense
counsel to stipulate to the medico-legal report since the findings therein were
negative, thereby depriving him of a chance to cross-examine the doctor on the
correctness of the latters findings. Accused-appellant claims these findings were
used by the trial court in convicting him, as follows:
It could now be deduced without contradiction that the accused had really inserted
his sexual organ upon the pudenda of his daughter but he was hesitant to fully insert
it considering the size of his erected penis to that vagina of his 5 years and 1 month
old child as this would, according to the medical witness, produce massive genital
injury. Evidence would show that the accuseds sex organ had penetrated slightly into
his daughters vagina because of the presence of congestion and inflammation at the
vestibular mucosa and the hymenal area coupled with the intense pain and
tenderness indicates the probability of attempted penetration of the area by the
hard erect male organ which was not successful. [21]
The relevant testimony cited by accused-appellant to prove the trial courts alleged
bias is as follows:
Court
Who is your next witness, Fiscal?
Fiscal Matro
The doctor, Your Honor.
Court
Can you stipulate on this whether you agree or not? Anyway, the finding there is
negative. You stipulate now as to the existence of Exhibit A. (Italics ours)
Atty. Padilla
Yes, Your Honor. We admit.
Court
Place on record that the Counsel for the accused is admitting the existence of
Exhibit A.[22]
While the trial courts denomination of the medico-legal report as negative may not
have been judicial nor judicious, it can hardly be deduced from the above testimony
that the court a quo peremptorily ordered defense counsel to stipulate on the
medico-legal report. In fact, the Court was not addressing defense counsel but the

CRIMINAL PROCEDURE | CASES

fiscal. It was defense counsel, however, who admitted to the existence of the
medico-legal report. In fact, not only did defense counsel admit the existence of
such report, it would later on adopt the same as its own exhibit in order to prove the
absence of spermatozoa.[23] Accused-appellant cannot, thus, denounce the judge for
bias for the improvidence of his counsel in adopting said medico-legal report.
Neither may accused-appellant repudiate the actions of his counsel, it being within
the competence of the latter to stipulate on the existence of said medico-legal
report, the same being a mere procedural question. Well-settled is the rule that such
questions as what action or pleading to file, where and when to file it, what are its
formal requirements, what should be the theory of the case, what defenses to raise,
how the claim of defense may be proved, when to rest the case, as well as those
affecting the competency of a witness, the sufficiency, relevancy, materiality or
immateriality of certain evidence and the burden of proof are within the authority of
the attorney to decide.[24] Whatever decision an attorney makes on any of these
procedural questions, even if it adversely affects a clients case, will generally bind a
client. More importantly, accused-appellants conviction does not rest on this piece of
evidence alone but on the testimony of the victim herself.
Lastly, accused-appellant scores the trial court for holding that he had the
propensity to sexually abuse his children on the basis of a pending case for acts of
lasciviousness filed against him by another child. Upon this particular, accusedappellant raises a valid point. The trial court, in its assessment of the evidence,
found that accused-appellant had admitted that a case for acts of lasciviousness had
been filed against him. Based on Section 34 of Rule 130 [25] providing that similar acts
may be received to prove a specific intent, plan, system, scheme, and the like, the
trial court drew the conclusion that the accused-appellant had the propensity to prey
on his daughters.
The admission of the accused-appellant that he was facing a charge of acts of
lasciviousness filed by his eleven-year old daughter only proves that such a case
was filed and pending with the municipal court. It does not prove the propensity of
the accused-appellant to crave for his children. The pendency of the case of acts of
lasciviousness is not equivalent to evidence that the accused-appellant was guilty of
the same. In equating the pendency of said case to his guilt thereof, the trial court
ignored the constitutional presumption of innocence afforded to the accusedappellant.
The trial courts error on this point does not, however, obliterate the fact that the
prosecution was able to prove that indeed, accused-appellant raped his daughter. In
sum, we find no reason to disturb the finding of the trial court that the guilt of the
accused-appellant has been proved beyond reasonable doubt.
As to the penalty imposed, Article 335, as amended by Republic Act No. 7659,
provides that the death penalty shall be imposed if the rape victim is under eighteen
years of age and the offender is a parent, ascendant, step-parent, guardian, relative
by consanguinity or affinity within the third civil degree, or a common-law spouse of
the parent of the victim. The case at hand is clearly within the ambit of Article 335,
accused-appellant being the father of the victim. Rowena who was only six years of
age at the time of the rape incident. The supreme penalty of death was, thus,
properly imposed upon accused-appellant.

ALARCON | 148

With regard to the civil indemnity, recent jurisprudence has held that where the
crime of rape is committed or effectively qualified by any of the circumstances
under which the death penalty is authorized, the civil indemnity to be awarded to
the victim is increased to P75,000.00.[26] We also find it proper to award P50,000.00
as moral damages although proof of such entitlement was not presented. [27]
Four members of the Court maintain their position that Republic Act No. 7659,
insofar as it prescribes the death penalty, is unconstitutional; nevertheless they
submit to the ruling of the Court, by a majority vote, that the law is constitutional
and that the death penalty should be accordingly imposed.
WHEREFORE, premises considered, the judgment of the trial court dated
September 27, 1996 imposing the death penalty on accused-appellant Jovito Losano
y Nacis is hereby AFFIRMED, with the MODIFICATION that accused-appellant should
indemnify the victim, ROWENA LOSANO, in the amount of P75,000.00 as civil
indemnity and P50,000.00 as moral damages, respectively. Costs against the
accused-appellant.
In accordance with Article 83 of the Revised Penal Code, as amended by Section 25
of Republic Act No. 7659, upon finality of this Decision, let a certified true copy
thereof, as well as the records of this case be forthwith forwarded to the Office of the
President for possible exercise of executive clemency.

On or about and during the interval between October, 1910, to August, 1912, in the
municipality of Davao, District of Davao, Moro Province, P.I., the aforesaid accused
did then and there, willfully, maliciously, and feloniously have sexual intercourse
with, and did lie with, and carnally know a woman, Isabel de la Cruz, under 12 years
of age, in the following manner, to wit: the aforesaid accused is the stepfather of the
aforesaid Isabel de la Cruz and during the aforesaid period was the legal guardian of
the said Isabel de la Cruz; that by threats and corporal punishment upon said Isabel
de la Cruz, the aforesaid accused, Antonio Javier Dichao, had sexual intercourse with
and did lie with and carnally know said Isabel de la Cruz; as a result whereof the said
Isabel de la Cruz gave birth on August 5, 1912, to a child. All contrary to law.
The demurrer alleged:
That the facts therein set forth and contained do not constitute a public offense.
That the said criminal complaint does not conform substantially to the prescribed
form.
That said complaint is vague and ambiguous.
We are of the opinion that the order appealed from must be affirmed. The
allegations of an information should, if possible, be sufficiently explicit and certain as
to time to inform the defendant of the date on which the criminal act is alleged to
have been committed. Unless the accused is informed of the day, or about the day,
he may be, to an extent, deprived of the opportunity to defend himself.

SO ORDERED.

G.R. No. L-8781

The undersigned accuses one Antonio Javier Dichao of the crime of rape, committed
as follows:

March 30, 1914

THE UNITED STATES, plaintiff-appellant,

vs.
ANTONIO JAVIER DICHAO, defendant-appellee.
Attorney-General Villamor for appellant.
J. F. Yeager for appellee.

While section 7 of the Code of Civil Procedure provides that "except when time is a
material ingredient of an offense, the precise time of commission need not be stated
in a complaint or information, but the cat may be alleged to have been committed at
any time before the filing thereof," this does not mean that the prosecuting officer
may be careless about fixing the date of the alleged crime, or that he may omit the
date altogether, or that he may make the allegation so indefinite as to amount to
the same thing. Where the exact date cannot fixed, or where the prosecuting officer
is not thoroughly satisfied that he can prove a precise date, he should allege in the
information that the crime was committed on or about a date named. Under such
allegation he is not required to prove any precise date but may prove any date
which is not so remote as to surprise and prejudice the defendant. In case of
surprise the court may allow an amendment of information as to time and an
adjournment to the accused, if necessary, to meet the amendment.
In the case of United States vs. De Castro (2 Phil. Rep., 616), the information
demurred to was as follows:

MORELAND, J.:

The undersigned provincial fiscal accuses the defendant of the crime of bribery,
committed as follows:

This is an appeal from an order of the Court of First Instance of the Fourteen Judicial
District sustaining a demurrer to a information and dismissing the case.

That as municipal president of the town, in consideration of gifts of money, he

permitted opium joints and gambling houses. This contrary to the law.

The information is as follows:

Among the many defects of this information the court pointed out the following:

CRIMINAL PROCEDURE | CASES

ALARCON | 149

The complaint is also defective in not stating the time at which the offense occurred.
While it is not necessary, unless time is a material ingredient of the offense, that the
precise time of the commission of the offense should be stated, still the act should
be alleged to have been committed at some time before the filing of the complaint.
The decisions in the case of United States vs. Enriquez (1 Phil. Rep., 179), and United
States vs. Cardona (1 Phil. Rep., 381), are not in conflict with the doctrine herein laid
down, nor with the case of United States vs. De Castro from which the above
quotation is made. In the first case the information alleged that the estafa
complained of was committed on the 20th of November 1897. A demurrer was filed
to the information on statutory grounds. It was overruled and the defendant put
upon trial. He was convicted and appealed to this court, bringing up on the appeal
the questions arising on the order overruling the demurrer as well as on the merits.
It is clear that the demurrer did not raise, so far as the information is concerned, the
question of time, as in the case at bar, as the precise date upon which the crime was
alleged to have been committed was set out in the information. The questions
presented to the Supreme Court was, therefore, not whether the information alleged
the time with sufficiently certainty. The question in the case was whether the
allegations of the complaint sufficiently notified the defendant "of the transaction
from which it is claimed the crime results, so that he can prepare his defense." The
discussion in that case turned on whether the defendant, after reading the
complaint, was able to tell "to what acts of his done in the past the complaint
refers." In determining the question the court discussed, among other things, the
allegation with reference to the time when the estafa was committed. In the
connection it was said:
In this complaint the estafa is alleged to have been committed on November 20,
1897. Time, however, was not a material ingredient in the offense of estafa here
charged, and under the provisions of article 7 of General Orders, No. 58, that date
need not have been alleged.
After discussing the various elements of an information charging estafa necessary to
identify the acts which constitutes the crime, thereby notifying the defendant of the
precise act of his complained of, the court concluded: "It is plain that the complaint
did not restrict the Government to proof of any defined specific transaction, and
consequently that the defendant had no notice of the transaction which was to be
investigated."
In the Cardona case the theft of a carabao was alleged in the information to have
taken place on the 25th of March of a certain year. The evidence introduced showed
that the crime was committed on the 5th day or 6th of March of the same year. The
defendant in his brief claimed that the evidence introduced should have been
restricted to the date mentioned in the information, or the 25th of March.
The court in response to this contention said: "The testimony as to the whereabouts
of the defendant on March 25 was unimportant, as the evidence shows that the
robbery was committed about the 5th or 6th of March. The defendant in his briefs
claimed that the evidence should be restricted to the date mentioned in the
complaint, which was the 25th of March. In this case, however, the date was not a
material ingredient of the offense, and under the provisions of section 7 of General
Orders, No. 58, the Government was not limited in its proof to the date stated
therein."

CRIMINAL PROCEDURE | CASES

In these two cases, therefore, different questions are presented from those found in
the case before us. In the first case the question of time is alleged in the information
was discussed in an accidental way for the sole purpose of determining whether it of
itself, or in connection with the other allegations, sufficiently identified the
transaction which it was claimed constituted the estafa, so as to notify the
defendant of the transaction referred to. the other allegations of the information not
being sufficient of themselves to do so. In the Cardona case the question was raised
by demurrer. The allegation in the information as to the time when the crime was
committed was definite and certain. The only question raised on the appeal related
to the alleged variance between the date of the crime as alleged in the information
and that proved on the trial. In that case, as we have seen, the court said that, the
time alleged not being, under section 7, a material ingredient of the offense, it did
not have to proved as laid. It did not hold that, if it had appeared to the trial court,
on the trial, that the variance between the allegation of the information and the
proof on the trial had been such as to surprise the defendant and prejudice him in
his defense, the court would not have been authorized to amend the information and
to grant an adjournment, if necessary, to give the defendant an opportunity to meet
the charge as amended.
The same remarks apply to the case of United States vs. Arcos (11 Phil. Rep., 555),
where the information alleged "that between the 2d and the 15th of August, 1906,"
the accused committed the crime described therein; and the case of United
States vs. Smith (3 Phil. Rep., 20), in which the information charged "that the
accused, in the month of December last," committed the crime therein set forth.
The question whether the allegations of the information are sufficiently definite as to
time and question which arises on a variance between the allegations and the proof
are different in nature and legal effect, and are decided on different principles.
In the case before us the statement of the time when the crime is alleged to have
been committed is so indefinite and uncertain that it does not give the accused the
information required by law. To allege in an information that the accused committed
rape on a certain girl between October, 1910, and August, 1912, is too indefinite to
give the accused an opportunity to prepare his defense, and that indefiniteness is
not curd by setting out the date when a child was born as a result of such crime.
Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its
purpose is to permit the allegation of a date of the commission of the crime as near
to the actual date as the information of the prosecuting officer will permit, and when
that has been done by any date may be prove which does not surprise and
substantially prejudice the defense. It does not authorize the total omission of a date
of such an indefinite allegation with reference thereto as amounts to the same thing.
As before intimated, we are not to be understood as saying that a variance between
the date of the commission of the crime as alleged in the information and that as
proved on the trial warrants necessarily the acquittal of the accused. The result of
what we intend to say is that, if such a variance occurs and it is shown to the trial
court that the defendant is surprised thereby, and that, by reason of that surprise,
he is unable to defend himself properly, the court may, in the excercise of sound
discretion based n all the circumstances, order the information amended so as to set
forth the correct date and may grant an adjournment for such length of time as will
enable the defendant to prepare himself to meet the variance in the date which was
the cause of surprise.

ALARCON | 150

The judgment appealed from is affirmed.

G.R. No. L-67842 September 24, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLO MOLERO, defendant-appellant.
GUTIERREZ, JR., J.:
Appellant Pablo Molero was charged with the crime of rape by his own daughter
Pacita Molero in a complaint filed in the Court of First Instance of Negros Oriental.
The criminal complaint dated March 30, 1978 alleged:
That on or about the 5th day of February, 1976, on the banks of the river Siaton at
Sitio Balogo, Barangay Tamlang, Municipality of Santa Catalina, Province of Negros
Oriental, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with grave abuse of confidence being the father of the herein
complainant, with force and intimidation by brandishing a bolo in threatening the
undersigned that if the latter would not submit to his carnal desires he would kill the
undersigned and all the members of the family, did then and there wilfully,
unlawfully and feloniously have carnal knowledge with the undersigned complainant
against the will of the latter.
The facts established by the prosecution and accepted by the trial court as basis for
the judgment of conviction are summarized by the court as follows:
It appears from the evidence particularly in the testimony of complainant Pacita
Molero that on February 5, 1976 at about 9:00 o'clock in the morning, her father,
Pablo Moler, told her to go with him to the Siaton River at Tamlang, Sta. Catalina,
Negros Oriental, about a kilometer away from their house ostensibly to catch
shrimps and perhaps fish presumably for viand for the family that day. Pacita was
the third among the seven children of Pablo. On February 5, 1976, she was barely 17
years young having been born on November 11, 1958. Obeying the command of her
father, she went with him to the Siaton River which evidently was a secluded area in
the mountain barrio of Tamlang. As they reached the river and while walking along
its bank, with Pacita ahead and followed by her father, all so suddenly Pacita was
hugged from behind by her father, and she staggered and fell to the ground face up.
He fell too as he was holding her left hand placing it on her back while he knelt on
her right arm. She tried to struggle but he unsheathed his harp bolo (locally known
as PINUTI) and placed it along her side. He then proceeded to pull up her dress and
remove her short pants and panty. She cried saying 'why are you doing this to me'
and he only answered 'you shut up.' (Tsn-Gertrudes Tangon, Dec. 7, 1978, page 12 of
her transcript and page 247 of record). Then he unbuttoned his pants, let out his
penis and lay on top of her and did the push and pull movement in sexual
intercourse. She tried to kick him but he again held the unsheathed bolo which was
placed on her side. Afraid that he might do her harm with the bolo if she continued
to put up resistance, and obviously because of his moral ascendancy over her, the
accused succeeded in having sexual intercourse with his daughter and the latter
again cried.
After he satisfied his carnal lust, he stood up and the complainant likewise stood up
and put on her panties and pants and proceeded home. Before she walked home,
the accused warned her not to tell her mother of what happened otherwise he would

CRIMINAL PROCEDURE | CASES

ALARCON | 151

kill all of them . As she walked home, she noticed that her father followed her and
did not proceed anymore in catching fish or shrimps. She surmissed that he followed
her, so she would not have the opportunity to tell her mother of what happened until
three days later or on February 8, 1976. Among others, Pacita Molero said:
I just decided to report the matter to my mother whether he will kill all of us because
I could no longer endure what he had been doing to me.' (Tsn-Gertrudes Tangon,
page 14 of transcript and page 249 of record)
Upon being informed of the incident her mother told her to just keep quiet for the
moment as they would report the matter to the police authorities soon. They were
secretive about their plan to report to the police because the mother and the
daughter and the whole family knew that the accused was quite a fierce man, a
cruel husband and a merciless father.
On February 11, 1976, Pacita Molero and her mother went to the office of the Station
Commander of Pamplona, Negros Oriental, to report the incident. The accused was
also called to the office and the accused and his daughter had a confrontation before
the Station Commander. The accused asked 'what is this all about, Pacita' and she
answered saying 'this could not have happened if you did not abuse me.' (Tsn-Nena
S. Saad, Dec. 5, 1978, page 15 of her transcript, page 219 of record). It would seem
that the case was too serious for the station Commander of Pamplona to handle, so
the complainants were advised to report to the PC Headquarters at barrio Palanas.
At the PC Headquarters the complaint was investigated by Patrolman Arturo
Adriatico Sr. who took down the statement of Pacita Molero and her mother. The
accused was likewise investigated by Adriatico on February 25, 1976, but the
accused did not want the investigation to be continued beacuse according to him
this was just their 'own problem.' Asked to elaborate what he meant by 'own
problem' the accused said 'kaugalingon ra nakong sala sa akong pagpuyo' which in
English , means 'it is my own fault in my family life.' Asked to elaborate further on
his last statement, the accused said:
Nga akong nahapanglapasan ang salingsing sa sacramento sa among pagpuyo nga
ang akong anak babaye akong gibuongan sa iyang dumgog
which in English means:
I have commited a wrong against my own daughter wherein I destroyed her virtue
as a woman.
These statement above quoted are found in the sworn statement of the accused
(Exhibit "B" ) which was testified to by Pat. Arturo Adriatico, Sr.
In connection with the investigation of the complaint of Pacita Molero, Dr. Enofreda
Abordo-Sebul testified that she conducted an internal and external examination of
Pacita Molero and she found that her vaginal opening admitted two fingers freely
and easily and there were old lacerations of the hymen at two o'clock , three o'clock,
five o'clock , six o'clock , seven o'clock, nine o'clock, ten o'clock and twelve o'clock,
thus showing that Pacita Molero had several previous sexual intercourses, although
the cervical smear showed no signs of spermatozoa.

CRIMINAL PROCEDURE | CASES

The appellant denied the charge. According to him, he could not have committed the
crime because on February 5, 1976, he was already confined in the provincial jail
and that he had been in jail since December 7, 1975.
The appellant also denied any knowledge of the sworn statement he made "because
I am an illiterate" (TSN, March 8, 1982, p. 11). He, however, admitted that he was
investigated by PC soldiers before he was placed in the stockade.
During the investigation, he denied the rape charge filed against him by his own
daughter "because as a man, I have been earning my living for I have masters to
serve like my stomach and my children. So, I have to work in my own humble way."
(TSN, March 8, 1982, p. 12) Moreover, he stated that before the investigation started
he was not informed of his constitutional rights to remain silent and to counsel; that
he was not assisted by counsel during the investigation and that the first time he
had a lawyer was at the trial of the instant case.
The appellant's defense of alibi was readily refuted by Benjamin Alcorcon,
Supervising Prison Guard of the Negros Oriental Provincial Jail who informed the
court that according to the records of the Provincial Jail, the appellant was
committed to the Jail only on December 2, 1976 and that definitely on February 5,
1976, he was not yet confined there.
The trial court found the appellant guilty beyond reasonable doubt of the crime of
Rape as defined and penalized under Art. 335 of the Revised Penal Code. He was
sentenced to suffer the penalty of Reclusion Perpetua and to indemnify Pacita Molero
the sum of P10,000.00 and to pay the costs of this action.
The appellant submits that the issues involved in the instant case are as follows:
a) Whether or not, under the facts obtaining in the case at bar, accused- appellant,
Pablo Molero was placed under double jeopardy; and
b) Whether or not the accused-appellant committed the crime of rape.
The double jeopardy issue stems from the following antecedent facts:
The original complaint of Pacita Molero, dated March 22, 1977, charged her father
with the crime of rape allegedly committed "on or about the 13th day f February,
1976." Except for the date which is "on or about the 5th day of February, 1976" in
the March 30, 1978 complaint, the facts alleged in the two complaints were exactly
the same.
The appellant was originally arraigned under the March 22, 1977 criminal complaint.
He pleaded "Not Guilty."
During the trial, Pacita Molero, the complaining witness testified that she was raped
by her father on February 5, 1976.
In view of Pacita's testimony, the assistant provincial fiscal filed a motion for leave to
amend the complaint.
The motion was granted. However, upon a motion for reconsideration filed by the
appellant, the trial court issued an Order the dispositive portion of which reads:

ALARCON | 152

WHEREFORE, the motion for reconsideration filed by the accused dated February 22,
1978 in relation to the Reply to Opposition to Motion for Reconsideration dated
March 6, 1978 is hereby granted and the Order of this Court dated February 17,
1978 admitting the amended criminal complaint dated February 2, 1978 is hereby
set aside, and the said amended criminal complaint is hereby denied admission.
Accordingly, this case is hereby dismissed with costsde oficio, but the accused shall
not be discharged as there appears a good cause to detain him in custody to answer
for the proper offense pursuant to Sec. 12, Rule 119 of the Rules of Court. the
Provincial Fiscal and/or the prosecuting fiscal is hereby ordered to cause the filing of
a new complaint and/or information charging the accused of the proper offense of
rape committed on or before February 5, 1976 within thirty (30) days from receipt of
this Order. (People v. de la Cruz, 59 Phil. 529, cited by Padilla, Criminal Procedure,
1971 ed., p. 763.)

under the jeopardy clause of the Constitution, it must have the effect of acquittal."
(People v. Agoncillo, supra)

Accordingly, the corrected criminal complaint dated March 30, 1978 was filed.

Contrary to the claim of the appellant, the dismissal of Criminal Case No. 2148 did
not amount to his acquittal.

The appellant filed a motion to quash the criminal complaint on the ground that the
appellant had been previously in jeopardy of being convicted of the offense charged
citing Section 1(h) Rule 112 of the Revised Rules of Court. The motion was denied.
Arraignment followed. The appellant pleaded "Not Guilty." Thereafter, hearings were
conducted resulting in the conviction of the appellant.
The appellant now contends that he was placed in double jeopardy when the instant
case was filed and he was brought to trial to answer for the crime of rape allegedly
committed on February 5, 1976. He argues that the dismissal of Criminal Case No.
2148 on ground of variance between allegation and proof amounted to his acquittal,
citing People v. Opemia (98 Phil. 698). He points to the fact that the criminal
complaint alleged that he committed the crime of rape on February 13, 1976 and yet
the prosecution's evidence shows that the alleged crime was committed on February
5, 1976.
Section 22, Article IV of the 1973 Constitution states that no person shag be put
twice in j jeopardy of punishment for the same offense." Section 9, Rule 117 of the
Revised Rules of Court, now substantially reproduced as Section 7, Rule 117 in the
1985 Rules on Criminal Procedure, lays down the necessary requisites in order that
defense of double jeopardy may prosper, to wit:
Former conviction or acquittal double jeopardy. -When defendant shall have been
convicted or acquitted, or the case against him dismissed or otherwise terminated
without the express consent of the defendant by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the defendant had pleaded to the
charge, the conviction or acquittal of the defendant or the dismissal of the case shall
be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint or
information.
Dismissal of the first case contemplated by this rule presupposes a definite or
unconditional dismissal which terminates the case. (Jaca v. Blanco, 86 Phil. 452;
People v. Manlapas, 5 SCRA 883; Republic v. Agoncillo, 40 SCRA 579; People v. Hon.
Surtida, 43 SCRA 29; People v. Mogol, 131 SCRA 296). And "for dismissal to be a bar

CRIMINAL PROCEDURE | CASES

It is quite clear that the order of the trial court dismissing the Criminal Case No.
2148 was without prejudice to the filing of a new complaint and/or information
charging the appellant with the proper offense. The case was not terminated
because the dispositive portion of the order expressly directed the Provincial Fiscal
and/or the prosecuting fiscal to file a new complaint and/or information charging the
accused with the proper offense of rape committed on or before February 5, 1976.
The case was dismissed for no other reason except to correct the date of the crime
from "on or about the 13th day of February" to "on or about the 5th day of February."
Hence, the provisional dismissal of Criminal Case No. 2148 could not have barred
the prosecution of the case against the appellant.

There was no need for the trial court to have used such a cumbersome procedure.
What the trial court should have done was simply to deny the motion for
reconsideration of the order granting the prosecution's motion for leave to amend
the complaint as to the date of the commission of the crime from February 13, 1976
to February 5, 1976. There was no need to dismiss the case without prejudice to the
filing of a new complaint. Section 12, Rule 119, Revised Rules of Court applies when
there is a mistake in charging the proper offense but not when an honest error of a
few days is sought to be corrected and the change does not affect the rights of the
accused. The prosecution in Criminal Case No. 2148 had already moved for the
amendment of the date of the commission of the crime. The dismissal of the case
pursuant to Section 12, Rule 119 of the Revised Rules of Court was made only for
that precise purpose.
After arraignment and where the appellant has pleaded "not guilty," it is still proper
to amend the date of the commission of the crime? The applicable rules are Sections
10 and 13, Rule 110 of the Revised Rules of Court. These rules provide:
Time of the commission of the offense.-It is not necessary to state in the complaint
or information the precise time at which the offense was committed except when
time is a material ingredient of the offense, but the act may be alleged to have been
committed at any time as near to the actual date at which the offense was
committee as the information or complaint will permit.
xxx xxx xxx
Amendment. The information or complaint may be amended, in substance or form,
without leave of court, at any time before the defendant pleads; and thereafter and
during the trial as to all matters of form, by leave and at the discretion of the court,
when the same can be done without prejudice to the rights of the defendant.
Applying the rules, the amendment sought by the prosecution should have been
granted.
The precise time of the commission of the crime is not an essential element of the
offense of rape. The amendment of the complaint changing the date of the
commission of the crime of rape from February 13, 1976 to February 5, 1976, a

ALARCON | 153

difference of eight (8) days was only a matter of form under the facts of this case
and did not prejudice the rights of the appellant. This Court has ruled:

The appellant's arguments deserve no merit. Pacita's narration of the incident

clearly shows that the appellant employed force and intimidation against her, to wit:

In the case of People v. Rivera (1970, 33 SCRA 746), We ruled that the amendment
of the information as to the date of the commission of the offense from March 2,
1964 to March 2, 1965, a difference of one (1) year or twelve (I 2) months, was
merely a matter of form and does not prejudice the rights of the accused, reiterating
the ruling in the case of U.S. v. Ramos,(1912, 23 Phil. 300) where the Fiscal was
permitted to amend the date of the commission of the offense from June 16, 1910 to
June, 1911.

FISCAL:

The phrase 'on or about' employed in the information does not require the
prosecution 'to prove any precise date but may prove any date which is not so
remote as to surprise and prejudice the defendant. In case of surprise, the Court
may allow an amendment of the information as to time and an adjournment to the
accused, if necessary, to meet the amendment' (U.S. v. Dichao, 27 Phil. 420, 423
[1914]).
In the case of People v. Reyes, (supra) on which the respondent judge relies, the
change sought was from 1964 to 1969, a difference of five (5) years, which gap of
five years 'is so great as to defy approximation in the commission of one and the
same offense.'
This is not so in the case at bar where the difference is only, as aforestated, two
months and five days, which disparity allows approximation as to the date of the
commission of the offense of grave coercion." (People v. Borromeo, 123 SCRA 253).
The appellant's reliance on the case of People v. Opemia supra, is not well- taken.
The amendment proposed in that case was the changing of the date of the
commission of the crime from June 18, 1952 to July, 1947, or a difference of five
years. We disallowed the amendment and adopted the lower court's ruling that "the
amendment that would change the date of the commission of the offense from 1947
to 1952 is certainly not a matter of form.... It is apparent that the proposed
amendment concerns with material facts constituting the offense, and consequently,
it would be prejudicial to the constitutional rights of the defendants."
The dismissal of Criminal Case No. 2148 did not amount to the appellant's acquittal.
In effect, the order of dismissal does not constitute a proper basis for a claim of
double jeopardy: (See People v. Bocar, 138 SCRA 166)
The constitutional mandate against putting a person twice in jeopardy of
punishment for the same offense is to protect the accused from going through a trial
a second time. But, since the first proceedings has not yet been terminated, there is
no second proceeding to speak of, and, therefore, no double jeopardy (Flores, Jr. v.
Enrile, 115 SCRA 236).
Under the second issue, the appellant insists that the evidence failed to establish
the presence of force and intimidation in the commission of the sexual act. He
mentions Pacita's testimony that she had a series of sexual intercourses with the
appellant since she was thirteen years old and yet did not report the incident to her
mother. He argues that if a crime was committed by him at all, it was one of
qualified seduction.

CRIMINAL PROCEDURE | CASES

Q Now,on what part of the river did this incident happen??

A At Balogo while we were walking on the edge of the river.
Q You mean, you were following the river?
A Yes, I was ahead.
Q Now, while you were ahead, there was that incident that happened. What was that
incident?
A Because he made me go ahead and suddenly he wrestled me.
COURT:
Q Is that the correct translation?
FISCAL:
No, Your Honor. She was hugged from behind.
COURT:
'I was ahead and suddenly he hugged me from behind.'
That is the correct translation.
FISCAL:
Now, when you were hugged by your father suddenly from behind, what happened?
A I fell down.
Q On the very place where you were then hugged by your father?
A Yes.
Q When you fell to the ground, what was your position?
A My left hand was placed in my back because he held my left hand.
Q When did your father hold your left hand placing it at your back?
COURT:
After you fell or before you fell?
A I had already my hand at my back when I fell down because he immediately
embraced me but then I tried to free myself. After which, I fell down.
FISCAL:

ALARCON | 154

When your father was hugging you and you told this Court that you struggled to free
yourself and you also told the Court that you fell to the ground, when you fell to the
ground, did you fall to the ground together with your father or you were the only one
who fell to the ground?
A He also fell down following me because he was holding my hand.
Q And your father at that time was holding which of your hand or arm?

A My right.
Q Then, while your father was doing that, what did he do to you?
A He was removing his buttons and he took off my panties.
Q All right, now, how about your dress, what kind of dress were you wearing at that
time?

A Left.

A I was wearing a thick clothing because I was sure that I will be wet and I was also
wearing a short pants.

Q And when you were already on the ground, win you please tell the Court what was
your position?

COURT:

A I was lying on my back.

What is this thick clothes you were wearing? You mean, dress, pants or blouse?

Q And how about your left arm, which you said was being held by your father while
you were already lying flat on the ground?

A What I mean is that, the dress I was wearing was not like this one I am wearing
now but it was for a daily use.

A He pulled up my dress and put off my panties." (TSN, November 20, 1978, pp. 810)

Q It is a one-piece dress?

xxx xxx xxx

FISCAL:

A Yes.
Q And you were wearing also short pants, according to you?
A Yes.

According to you, you fell to the ground followed by your father and your father was
still holding your left arm which was placed at your back. While you were already flat
on the ground, was your father still holding your left arm at the back?

Q And you were wearing panties under the short pants?

A He was still holding my left arm and then when we fell down he knelt on my other
arm.

ATTY. REYES:

Q And you are referring to your right hand?

Your Honor please, may we add for the records that she refers to a dress made of
cotton or silk but relatively of light material.

A Yes.

COURT:

Q When your father, the accused therein, was doing that, where was he in relation to
you?

Make that of record.

COURT:
What was the position of your father when he was kneeling on your right arm and
holding your left arm on the back?
A He was on a kneeling but bending position.

A Yes.

COURT:
Go ahead, Fiscal.
FISCAL:

FISCAL:

All right, now, according to you, your father, the accused therein, removed your
panty. Now, which was removed first, your panty or the short pant you were wearing
because according to you, you were wearing short pant?

Was he directly on top of you or he was on either side of your body?

COURT:

A On my side.

How can you remove the panty first when you are wearing the short pant? Well,
witness may answer the question.

Q Which side of your body was your father when he was kneeling or bending?

A Both were removed at the same time.

CRIMINAL PROCEDURE | CASES

ALARCON | 155

FISCAL:
And which took first, the simultaneous removal of your shorts and panty or the
unbottoning of the pants of your father?
A He took off my panty and shorts first.
COURT:
How was he able to remove your panty and shorts, were you not struggling to free
yourself?

Now, after your panty and short pant were already removed and according to you,
your father unsheathe his bolo and threatened you. When did your father remove or
unbutton his pants, while he was still holding that bolo?
A He put down the bolo on his side and after which, he unbuttoned his pants.
Q At that time, what was the kind of pants your father was wearing?
A He was only wearing an improvised short pant and with buttons in front.
Q Was your father actually able to unbutton his improvised short pants?

A I was not able to struggle because he unsheathe a bolo.

A Yes.

Q What did he do with the bolo

Q After he was able to unbutton his improvised short pants what did he do?

A That if I continue to struggle, he would kill me.

A He lay down on top of me.

Q When he was holding that bolo, with what hand was he holding that?

Q And how about your legs at that time, was it already spread out?

A Right.

A I tried to hold my both thighs together but then he opened them.

Q How about his left hand, what was it doing at that time?

Q And your father, according to you, placed himself on top of you while your legs
were already spread out?

A His left hand was also holding my other hand and so when he unsheathe his bolo, I
did not continue to struggle because I know he would kill me.
FISCAL:
And which took place first, the simultaneous removal of your shorts and panty or the
unsheathing of the bolo by your father?
A The simultaneous taking of the panty and short pant took place first because I
kept on struggling so he unsheathe his bolo.
COURT:
Actually, the Court gets it from you that he was able to remove your panty and short
pant before he unsheathe his bolo?
A Yes, after he took off my panty and short pant that was the time he threatened
me.
Q He was able to remove your panty and short pant completely out before he
threatened you with the use of a bolo?
A Yes.
COURT:

A When he was able to lie on top of me, I tried to close both legs but then he held
them open and he lay on top of me.
Q So that when your father was lying on top of you, your both legs were already
spread
A Yes.
Q How about your dress at that time your father was on top of you, what was the
position of your dress?
A He rasised it up to my stomach.
Q Now, what happened while he was already on top of you?
A He was doing the push and pull movement of his buttocks.
Q And at that time, did you not struggle to free yourself?
A When he was doing that act, I kicked him but then he again got hold of the bolo
placed on his side.
Q Then, what did you do after he got hold of the bolo?
A I cried because he made sexual intercourse with me.

Go ahead.
FISCAL:

CRIMINAL PROCEDURE | CASES

Moreover, there is no doubt that the appellant had a moral ascendancy and
influence over Pacita such that he could easily intimidate and force her to submit to

ALARCON | 156

his lustful desires considering that the appellant was her father and she was only
seventeen(17) years old at that time. The complainant is obviously illiterate and
unschooled. Her complaint is signed with a thumbmark. These, plus the fact that the
appellant at the time of the commission of the crime threatened her with a bolo had
practically rendered complainant helpless against the lustful demands of the
appellant. (See People v. Alcid, 135 SCRA 280). The records also show that the
appellant was a fierce man, a cruel husband, and a merciless father such that
mother and daughter had to cower in secretive fear before reporting the rape to the
authorities.

WHEREFORE, except for the MODIFICATION that the indemnity of P10,000.00 is

increased to TWENTY THOUSAND PESOS (P20,000.00), the decision appealed from is
AFFIRMED in all respects.
SO ORDERED.

The fact that Pacita did not report the previous incidents involving her and the
appellant to her mother has no bearing on the prosecution of the instant case. This
case refers to the commission of the crime of rape on February 5, 1976 by the
appellant against Pacita which is a distinct and separate crime from whatever crimes
the appellant might have committed when he had sexual intercourse with his own
daughter Pacita ever since she was thirteen years old. An intimidated person cowed
into submitting to a series of repulsive acts may acquire some courage as she grows
older and finally state that enough is enough, the depraved malefactor must be
punished. The tragedy in this case is that the criminal happens to be her own father.
Indeed, we find no reason to depart from the trial court's finding that the appellant is
guilty beyond reasonable doubt of the crime of rape against his own daughter. We
agree with the findings of the trial court that:
As against the vivid and clear testimony of Pacita Molero, the accused had nothing
to offer except his short testimony denying having committed in any way the crime
of Rape against his very own daughter, He denied having brought his daughter to
the Siaton River on February 5, 1976 because he insisted that he was already
confined in the PC Stockade on February 13, 1975, and that he was already
incarcerated in the Provincial Jail since December 5, 1975. However, defense witness
Benjamin Alcorcon, Supervising Prison Guard of the Negros Oriental Provincial Jail
clearly told the Court that the record of the Provincial Jail shows that the accused
was committed to the Provincial Jail only on December 2, 1976 and definitely on
February 5, 1976 he was not yet confined in the Provincial Jail. . . . Pressed by the
Court if he could have any satisfactory explanation why his daughter would file such
a serious charge against him if in truth he had not committed the act, the accused
just matter-of-factly said that 'my daughter Pacita and her mother agreed to file this
case.' (Tsn-Liberata Balasbas March 10, 1982, page 11 of transcript, page 434 of
record).
The defense placed Pacita Molero as its own witness and her testimony as witness
for the defense, that her father had sexual intercourse with her on February 5, 1976
when he brought her to the Siaton River, has only served to reinforce her testimony
on 'this aspect of the case, when she testified as a witness for the prosecution.
Undoubtedly, the accused is bound by the testimony of his own witness.

G.R. No. L-66038 March 16, 1989

All told, the Court finds that the guilt of the accused was established beyond
reasonable doubt by the clear and convincing testimony of the complainant, Pacita
Molero. Although at times during her testimony she got confused as to dates, this is
understandable considering that she is illiterate and this did not in any way affect
the vivid portrayal of the heinous act committed on her by her father.

The Solicitor General for plaintiff-appellee.

CRIMINAL PROCEDURE | CASES

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VICENTE LUALHATI, defendant-appellant.

Deogracias de Luna for accused-appellant.

ALARCON | 157

GRIO-AQUINO, J.:
Appellant Vicente Lualhati was charged with Rape by his common-law wife's 11-yearold daughter, Josephine Dimaunahan, in a complaint (Exhibit D, p. 1, Records) filed
in the Municipal Court of Candelaria, Quezon. After the preliminary investigation, the
case was forwarded to the Court of First Instance of Quezon, where the Provincial
Fiscal filed on March 21, 1979 the following information against the appellant:
That in or about the month of June 1978, at Barangay Masalucot 2, in the
Municipality of Candelaria, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, by means of roce (sic) and
intimidation, did then and there wilfully, unlawfully and feloniously have carnal
knowledge of one Josephine M. Dimaunahan, a minor, 11 years of age, against her
will.
That in the commission of the above-described crime, the following aggravating
circumstances were present: relationship, the accused being the step-father of the
offended party, and dwelling.
Contrary to law. (Annex A, p. 6, Rollo.)
As summarized in the People's brief, (p. 92, Rollo), the facts are:
Complainant Josephine Dimaunahan was born on January 7, 1967 (p. 5, tsn, Sept.
10, 1980). About eight (8) years before the June, 1978 incident in question, her
mother separated from her father and started to live with appellant Vicente Lualhati
without the benefit of marriage (pp. 36-40, tsn, Jan. 7, 1981; pp. 5-6, tsn, Nov. 19,
1981; pp. 7-12, tsn, Dec. 10, 1981; pp. 3-4, tsn, Jan. 14, 1982). She likewise lived
with appellant who supported her, took care of her studies and treated her like his
own daughter (p. 5, tsn, Sept. 10, 1980; pp. 13-14, tsn, Dec. 10, 1981; pp. 4-5, tsn,
Jan. 14, 1982).
Sometime in June, 1978, while complainant's mother was at work, appellant and
complainant were alone in the house in Masalukot II, Candelaria, Quezon, appellant
had sexual intercourse with complainant (pp. 9-15, tsn, Sept. 10, 1980; pp. 8-14, tsn,
Oct. 8, 1980; pp. 11-16, tsn, Oct. 21, 1981; pp. 4-5, tsn, Nov. 3, 1982). It appeared
that even prior to June, 1978, appellant had already several sexual relations with
complainant (pp. 8-9, 20-23, 26, tsn, Jan. 7, 1981; p. 20, tsn, Oct. 20, 1981).

about the month of June 1978," the trial judge denied the motion to dismiss (p. 197,
Records).
On December 11, 1978, the accused filed another Motion to Dismiss (p. 44,
Records), alleging that he had been pardoned by the offended party, her mother and
grandmother. Attached, to the Motion to Dismiss was the joint affidavit of desistance
signed by the offended party, her mother and grandmother on December 11, 1978
(p. 45, Records).
On December 14, 1978, the offended party executed and filed an affidavit alleging
that her father abandoned her at the age of two (2) years and three (3) months,
without providing for her support and studies, and that the same were provided by
her mother and grandmother who, on the same date, executed a joint affidavit to
the same effect (p. 46, Records).
On January 6, 1979, the Prosecuting Fiscal filed an Addendum to the Opposition to
the Motion to Dismiss (p. 63, Records). He alleged therein that the express pardon
given the accused was invalid for the offended party did not have "a will of her own,"
being merely eleven (11) years old when the crime was committed; that Rodolfo
Dimaunahan, father of the offended party, executed an affidavit objecting to the
pardon given to the accused; and that, as the father, he still possessed the "patria
potestas" over the offended party in spite of his having abandoned her.
In an Order dated March 7, 1979, the trial court denied the motion to dismiss on
account of the insistence of the victim's father to prosecute the accused, absent
judicial pronouncement depriving him of parental authority over the offended party,
a child below twelve (12) years old (p. 73, Records).
On November 9, 1979, a Motion to Quash (p. 117, Records) was filed by the accused.
This was denied on November 15, 1979 by the trial court (p. 126, Records).
After trial, the court a quo, convicted the accused of rape, and imposed upon him
the penalty of reclusion perpetua (p. 549, Records).
Hence, this appeal in which the appellant alleges that the trial court erred:
1. in not holding void the complaint of the offended party charging the accused with
more than one offense;

Upon arraignment on November 13, 1979, the accused pleaded not guilty (p. 120
Records).

2. in giving due course to the information filed by the prosecuting fiscal against the
accused, there being no valid complaint against him;

On January 5, 1980, the accused, through counsel, filed a motion to dismiss (p. 168,
Records) on the ground that the complaint charged more than one offense, namely:

3. in not giving effect to the pardon given to the accused by the offended party, her
mother and grandmother; and

That on or about the month of June, 1978, and for sometime prior and subsequent
thereto, ... the accused Vicente Lualhati wilfully, unlawfully and feloniously have
carnal knowledge of the complainant Josephine M. Dimaunahan ... (Emphasis
supplied.) (Exh. D, p. 1, Records).

4. in giving the father of the offended party authority to prosecute the accused,
notwithstanding the fact that he had abandoned her while a child two years old and
had not provided for her support and studies. (p. 79, Rollo.)

On the basis of the Fiscal's Opposition (p. 195, Records) alleging that the accused
was being tried on the Information which charged only one offense committed "in or

CRIMINAL PROCEDURE | CASES

Those assignments of error raise only two issues, namely: (1) whether there was a
valid complaint against the appellant; and (2) whether the pardon given to him by
the offended party, her mother, and grandmother extinguished his criminal liability,
in spite of the objection of the victim's father.

ALARCON | 158

On the first issue, the appellant contends that the complaint is void because it
charges at least three (3) crimes of rape, namely: (1) that which was committed "on
or about the month of June, 1978;" (2) that which was committed "sometime prior to
said period;" and (3) that which was committed "subsequent thereto." (p. 168,
Records.)
The argument has no merit. Attached to Josephine's complaint was her sworn
statement (Exh. E, p. 2, Records), taken before S/Sgt. Domingo V. Averon Jr. of the
21st CIS Detachment at Camp Guillermo Nakar Lucena City on August 8, 1978,
wherein, she categorically affirmed that Vicente abused her before the start of
classes in June 1978. That affidavit, which may be considered part of the complaint
required by law, cures any ambiguity in the complaint regarding the number of
offenses committed by the accused (People vs. Babasa, 97 SCRA 672). Discrepancies
between the accusation and the complaint as to time of occurrence of the carnal
copulations in rape do not affect any essential right of the accused, where the acts
occurred within the period of time alleged in both writings and the difference noted
in other respects was of a formal, rather than a substantial, character. (Delos Santos
vs. People, 69 Phil. 321.)
Furthermore, Section 10, Rule 110 of the 1964 Rules of Court provided:
Sec. 10. Time of the commission of the offense.-It is not necessary to state in the
complaint or information the precise time at which the offense was committed
except when time is a material ingredient of the offense, but the act may be alleged
to have been committed at any time as near to the actual date at which the offense'
was committed as the information or complaint will permit.

dismissal of said cause. The only act that riding to Article 344 extinguishes the penal
action and the penalty that may have been imposed, is the marriage between the
offender and the offended party. (Emphasis supplied.)
While the Miranda case involved the crime of seduction, the ruling therein is
applicable to rape inasmuch as the prosecution of both offenses is covered by Article
344. The rationale of the law on the prosecution of private crimes is simple: The law
deems it the wiser policy to let the aggrieved woman and her family decide whether
to expose to public view or to heated controversies in court the vices, faults and
disgraceful acts occurring in the family (People vs. Babasa, 97 SCRA 672). However,
when, as in the case at bar, the pardon is given after the filing of the complaint in
court, it comes too late to hide the shameful occurrence from public notice.
Although the accused herein pleaded not guilty when arraigned, he admitted having
carnal knowledge of Josephine many times, even prior to June, 1978. His allegation
that he was "tempted" by her would not mitigate, much less exculpate, him. In
statutory rape it is not necessary to prove that the victim was intimidated or that
force was used against her (People vs. Jones, 137 SCRA 166).
WHEREFORE, the decision of the trial court finding Vicente Lualhati guilty
beyond reasonable doubt of rape and imposing upon him the penalty
of reclusion perpetua is affirmed. Pursuant to present judicial policy, the
appellant is ordered to pay the offended party moral damages in the
increased sum of P 25,000.00 and the costs.
SO ORDERED.

With respect to the efficacy of the pardon given to the appellant by his victim, her
mother, and grandmother, Article 344 of the Revised Penal Code provides:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction,
rape and acts of lasciviousness. ...
The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be
prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the
offender with the offended party shall extinguish the criminal action or remit the
penalty already imposed upon him. The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and accessories after the fact of the
abovementioned crimes.
In People vs. Miranda (57 Phil. 274), this Court interpreted paragraph 3 of Article 344
as follows:
Paragraph 3 of the legal provision above-quoted prohibits a prosecution for
seduction, abduction,rape, or acts of lasciviousness, except upon a complaint made
by the offended party or her parents, grandparents, or guardian, nor, in any case, if
the offender has been expressly pardoned by the above-named persons, as the case
may be. It does not prohibit the continuance of a prosecution if the offended party
pardons the offender after the cause has been instituted, nor does it order the

CRIMINAL PROCEDURE | CASES

ALARCON | 159

Acts committed contrary to the provisions of Articles 308, 309 of the Revised Penal
Code.

G.R. No. 72994

The accused, thru counsel de officio, Atty. Lilio L. Amora, moved to quash the
information, 3 alleging that the statement of the time of commission of the felony
charged, "from 1977 to December 1983, . . . a period of seven years," or "about
2,551 days," was fatally defective: there was "so great a gap as to defy
approximation in the commission of one and the same offense" (citing Peo. v. Reyes,
108 SCRA 203); "the variance is certainly unfair to the accused for it violates their
constitutional right to be informed before the trial of the specific charge against
them and deprives them of the opportunity to defend themselves . . ." (invoking Peo.
v. Openia, 98 Phil. 698).

January 23, 1991

FELICISIMO ROCABERTE, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. ANDRES S. SANTOS, Judge, RTC,
Tagbilaran, Bohol,respondents.

The motion was denied4 as was, too, the defendants' motion for reconsideration. 5 In
the motion for reconsideration, the accused drew attention to Section 4, Rule 117 "of
the 1985 Rules on Criminal Procedure," as a remedy that could be alternatively
granted, viz.:

Lilio L. Amora for petitioner.

NARVASA, J.:
The case at bar treats of the sufficiency of the averment in the information of the
time of the commission of the felony of theft ascribed to petitioner Felicisimo
Rocaberte and two (2) others. The information, filed in the Regional Trial Court of
Bohol, City of Tagbilaran,1 Judge Andres S. Santos, presiding, reads as follows: 2
The undersigned Assistant Provincial Fiscal hereby accused Felicisimo Rocaberte,
Florencio Ranario and Flaviana Ranario of the crime of Theft, committed as follows:
That on or about the Period from 1977 to December 28, 1983 at the off offshore of
West Canayaon, municipal of Garcia-Hernandez, province of Bohol, Philippines . . .,
the above-named accused, conspiring, confederating and helping each other, with
intent to gain and without the consent of the owner, did then and there, willfully,
unlawfully and feloniously take, steal and carry away the following properties, to wit:
One (1) pc. sledge hammer, valued at

P136.00

Sec. 4. Amendment of complaint or information. If the motion to quash is based

on an alleged defect in the complaint or information which can be cured by
amendment, the court shall order the amendment to be made. (2a)
Felicisimo Rocaberte then instituted in this Court, thru his aforenamed counsel de
oficio, the special civil action ofcertiorari at bar, impugning the denial by respondent
Judge Santos of his motion to quash, or his refusal, at the very least, to direct the
amendment of the information pursuant to Section 4, Rule 117 of the 1985 Rules of
Court,supra. He is correct, and will be granted appropriate relief.
The rules of criminal procedure declare

that

. . . A complaint or information is sufficient if it states the name of the defendant; the

designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of
the commission of the offense, and the place wherein the offense was committed.
and as regards the time of the commission of the offense, particularly that: 7

One (1) pc. H beam, valued at

Two
(2)
cut
abrasive
berth cover protector
Ninety-nine
(99)
blocks
anodes at P3,750.00 each block

400.00
steel

plates

for

cargo
158.00

of

aluminum,

. . . It is not necessary to state in the complaint or information the precise time at

which the offense was committed except when time is a material ingredient of the
offense, but the act may be alleged to have been committed at any time as near to
the actual date at which the offense was committed as the information or complaint
will permit.

alloy

In line with this last mentioned rule, a variance of a few months between the time
P371,250.00set out in the indictment and that established by the evidence during the trial has
been held not to constitute an error so serious as to warrant reversal of a conviction
TOTAL
P371,944.00solely on that score. Hence, where the information sets the date of commission of a
robbery at March 25, 1900, evidence was allowed to show that the offense was
actually perpetrated on the 5th or 6th of March; and an amendment of an
in the total amount of THREE HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED
information so as to change the year therein stated to that following it, was allowed
FORTY-FOUR PESOS (P371,944.00), Philippine Currency, belonging to and owned by
it appearing that the alteration impaired none of the defendant's rights. 8
the Philippine Sinter Corporation, to the damage and prejudice of the latter in the
aforestated amount.

CRIMINAL PROCEDURE | CASES

ALARCON | 160

Where, however, there was a variance of several years between the time stated in
the information, 1947, and the proof of its actual commission adduced at the trial,
1952, the dismissal of the case by the Trial Court was sustained by this Court, since
to allow amendment of the indictment to conform to the evidence would be violative
of defendant's constitutional right to be informed of the nature and cause of the
accusation against him.9
Again, the statement of the time of the commission of the offense which is so
general as to span a number of years, i.e., "between October, 1910 to August,
1912," has been held to be fatally defective because it deprives the accused an
opportunity to prepare his defense. 10
A defect in the averment as to the time of the commission of the crime charged is
not, however, a ground for a motion to quash under Rule 116 of the Rules of Court.
Even if it were, a motion for quashal on that account will be denied since the defect
is one that can be cured by amendment; instead, the court shall order the
amendment to be made by stating the time with particularity. 11
The remedy against an indictment that fails to allege the time of the commission of
the offense with sufficient definiteness is a motion for a bill of particulars, provided
for in Section 6, Rule 116 of the Rules of Court of 1964. 12
Bill of particulars. Defendant may, at the time of or before arraignment, move for
or demand a more definite statement or a bill of particulars of any matter which is
not averred with sufficient definiteness or particularity to enable him properly to
plead or prepare for trial. The motion shall point out the defects complained of and
the details desired.
From all that has been said, the conclusion should be clear. The information against
petitioner Rocaberte is indeed seriously defective. It places on him and his coaccused the unfair and unreasonable burden of having to recall their activities over a
span of more than 2,500 days. It is a burden nobody should be made to bear. The
public prosecutor must make more definite and particular the time of the
commission of the crime of theft attributed to Rocaberte and his co-defendants. If he
cannot, the prosecution cannot be maintained, the case must be dismissed.
WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is
ISSUED, ANNULLING AND SETTING ASIDE the challenged Orders of respondent Judge
dated August 12, 1985 and September 10, 1985 in Criminal Case No. 3851, and
DIRECTING the amendment of the information in said case by the prosecution within
such time as the respondent Judge may deem proper, failing which the criminal
prosecution against the petitioner and his co-defendants shall be dismissed.
SO ORDERED.

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ALARCON | 161

English, is as follows: "And the Filipinos, like myself, must use bolos for cutting off
Wood's head for having recommended a bad thing for the Philippines.
Contrary to article 256 of the Penal Code.
At the trial of the case, two witnesses were called on behalf of the prosecution and
three witnesses on behalf of the defense. According to the first witness for the
Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the
occasion in question was this:

G.R. No. L-21049 December 22, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ISAAC PEREZ, defendant-appellant.
Mario Guaria for appellant.
Attorney-General Villa Real for appellee.
MALCOLM, J.:
Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a
citizen of that municipality, happening to meet on the morning of April 1, 1992, in
the presidencia of Pilar, they became engaged in a discussion regarding the
administration of Governor-General Wood, which resulted in Perez shouting a
number of times: "The Filipinos, like myself, must use bolos for cutting off Wood's
head for having recommended a bad thing for the Filipinos, for he has killed our
independence." Charged in the Court of First Instance of Sorsogon with a violation of
article 256 of the Penal Code having to do with contempt of ministers of the Crown
or other persons in authority, and convicted thereof, Perez has appealed the case to
this court. The question presented for decision is, What crime, if any, did the
accused commit?
A logical point of departure is the information presented in this case. It reads in
translation as follows:
That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon,
Philippine Islands, the said accused, Isaac Perez, while holding a discussion with
several persons on political matters, did criminally, unlawfully and wilfully and with
knowledge that Honorable Leonard Wood was the Governor-General of the Philippine
Islands and in the discharge of his functions as such authority, insult by word,
without his presence, said Governor-General, uttering in a loud voice and in the
presence of many persons, and in a public place, the following phrases: "Asin an
manga filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an
payo ni Wood huli can saiyang recomendacion sa pag raot con Filipinas," which in

CRIMINAL PROCEDURE | CASES

"The Filipinos, like myself, should get a bolo and cut off the head of GovernorGeneral Wood, because he has recommended a bad administration in these Islands
and has not made a good recommendation; on the contrary, he has assassinated the
independence of the Philippines and for this reason, we have not obtained
independence and the head of that Governor-General must be cut off." Higinio J.
Angustia, justice of the peace of Pilar, in a written statement, and Gregorio
Cresencio, another witness for the prosecution, corroborated the testimony of the
first witness. Cresencio understood that Perez invited the Filipinos including himself
to get theirbolos and cut off the head of Governor-General Wood and throw it into
the sea.
The witnesses for the defense did not deny that an altercation took place on the
morning of April 1, 1922, in which the accused participated. But they endeavored to
explain that the discussion was between Perez and one Severo Madrid, the latter
maintaining that the fault was due to the Nacionalista Party, while Perez argued that
the Governor-General was to blame. The accused testified that the discussion was
held in a peaceful manner, and that what he wished to say was that the GovernorGeneral should be removed and substituted by another. On the witness stand, he
stated that his words were the following: "We are but blaming the Nacionalista Party
which is in power but do not take into account that above the representatives there
is Governor-General Wood who controls everything, and I told him that the day on
which the Democrats may kill that Governor-General, then we, the Filipinos will
install the government we like whether you Democratas want to pay or not to pay
taxes."
The trial judge found as a fact, and we think with abundant reason, that it had been
proved beyond a reasonable doubt that the accused made use of the language
stated in the beginning of this decision and set out in the information. The question
of fact thus settled, the question of law recurs as to the crime of which the accused
should be convicted.
It should be recalled that the fiscal named, in the information, article 256 of the
Penal Code as having been infringed and the trial judge so found in his decision. The
first error assigned by counsel for the appellant is addressed to this conclusion of the
lower court and is to the effect that article 256 of the Penal Code is no longer in
force.
In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was
charged with having uttered the following language: "To hell with the President of
the United States and his proclamation!" Mr. Helbig was prosecuted under article
256, and though the case was eventually sent back to the court of origin for a new

ALARCON | 162

trial, the appellate court by majority vote held as a question of law that article 256 is
still in force.
In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged
with having published an article reflecting on the Philippine Senate and its members
in violation of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted
by unanimous vote, with three members of the court holding that article 256 was
abrogated completely by the change from Spanish to American sovereignty over the
Philippines, and with six members holding that the Libel Law had the effect of
repealing so much of article 256 as relates to written defamation, abuse, or insult,
and that under the information and the facts, the defendant was neither guilty of a
violation of article 256 of the Penal Code nor of the libel Law. In the course of the
main opinion in the Perfecto case, is found this significant sentence: "Act No. 292 of
the Philippine Commission, the Treason and Sedition Law, may also have affected
article 256, but as to this point, it is not necessary to make a pronouncement."
It may therefore be taken as settled doctrine, to which those of us who retain a
contrary opinion must bow with as good grace as we can muster, that until
otherwise decided by higher authority, so much of article 256 of the Penal Code as
does not relate to ministers of the Crown or to writings coming under the Libel Law,
exist and must be enforced. To which proposition, can properly be appended a
corollary, namely: Seditious words, speeches, or libels, constitute a violation of Act
No. 292, the Treason and Sedition Law, and to this extent, both the Penal Code and
the Libel Law are modified.
Accepting the above statements relative to the continuance and status of article 256
of the Penal Code, it is our opinion that the law infringed in this instance is not this
article but rather a portion of the Treason and Sedition Law. In other words, as will
later appear, we think that the words of the accused did not so much tend to
defame, abuse, or insult, a person in authority, as they did to raise a disturbance in
the community.
In criminal law, there are a variety of offenses which are not directed primarily
against individuals, but rather against the existence of the State, the authority of the
Government, or the general public peace. The offenses created and defined in Act
No. 292 are distinctly of this character. Among them is sedition, which is the raising
of commotions or disturbances in the State. It is a revolt against legitimate authority.
Though the ultimate object of sedition is a violation of the public peace or at least
such a course of measures as evidently engenders it, yet it does not aim at direct
and open violence against the laws, or the subversion of the Constitution. (2
Bouvier's Law Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera
[1922], 43 Phil., 64.)
It is of course fundamentally true that the provisions of Act No. 292 must not be
interpreted so as to abridge the freedom of speech and the right of the people
peaceably to assemble and petition the Government for redress of grievances.
Criticism is permitted to penetrate even to the foundations of Government. Criticism,
no matter how severe, on the Executive, the Legislature, and the Judiciary, is within
the range of liberty of speech, unless the intention and effect be seditious. But when
the intention and effect of the act is seditious, the constitutional guaranties of
freedom of speech and press and of assembly and petition must yield to punitive
measures designed to maintain the prestige of constituted authority, the supremacy

CRIMINAL PROCEDURE | CASES

of the constitution and the laws, and the existence of the State. (III Wharton's
Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422;
Peoplevs. Perfecto, supra.)
Here, the person maligned by the accused is the Chief Executive of the Philippine
Islands. His official position, like the Presidency of the United States and other high
offices, under a democratic form of government, instead, of affording immunity from
promiscuous comment, seems rather to invite abusive attacks. But in this instance,
the attack on the Governor-General passes the furthest bounds of free speech was
intended. There is a seditious tendency in the words used, which could easily
produce disaffection among the people and a state of feeling incompatible with a
disposition to remain loyal to the Government and obedient to the laws.
The Governor-General is an executive official appointed by the President of the
United States by and with the advice and consent of the Senate of the United States,
and holds in his office at the pleasure of the President. The Organic Act vests
supreme executive power in the Governor-General to be exercised in accordance
with law. The Governor-General is the representative of executive civil authority in
the Philippines and of the sovereign power. A seditious attack on the GovernorGeneral is an attack on the rights of the Filipino people and on American sovereignty.
(Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr [1903], 2 Phil., 332.)
Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692,
appears to have been placed on the statute books exactly to meet such a situation.
This section reads as follows:
Every person who shall utter seditious words or speeches, or who shall write, publish
or circulate scurrilous libels against the Government of the United States or against
the Government of the Philippine Islands, or who shall print, write, publish utter or
make any statement, or speech, or do any act which tends to disturb or obstruct any
lawful officer in executing his office or in performing his duty, or which tends to
instigate others to cabal or meet together for unlawful purposes, or which suggests
or incites rebellious conspiracies or which tends to stir up the people against the
lawful authorities, or which tends to disturb the peace of the community or the
safety or order of the Government, or who shall knowingly conceal such evil
practices from the constituted authorities, shall be punished by a fine not exceeding
two thousand dollars United States currency or by imprisonment not exceeding two
years, or both, in the discretion of the court.
In the words of the law, Perez has uttered seditious words. He has made a statement
and done an act which tended to instigate others to cabal or meet together for
unlawful purposes. He has made a statement and done an act which suggested and
incited rebellious conspiracies. He has made a statement and done an act which
tended to stir up the people against the lawful authorities. He has made a statement
and done an act which tended to disturb the peace of the community and the safety
or order of the Government. All of these various tendencies can be ascribed to the
action of Perez and may be characterized as penalized by section 8 of Act No. 292 as
amended.
A judgment and sentence convicting the accused of a violation of section 8 of Act
No. 292 as amended, is, in effect, responsive to, and based upon, the offense with
which the defendant is charged. The designation of the crime by the fiscal is not

ALARCON | 163

conclusive. The crime of which the defendant stands charged is that described by
the facts stated in the information. In accordance with our settled rule, an accused
may be found guilty and convicted of a graver offense than that designated in the
information, if such graver offense is included or described in the body of the
information, and is afterwards justified by the proof presented during the trial.
(Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal Procedure,
p. 9.)

452, 456). Indeed they are so excessive and outrageous in their character that they
suggest the query whether their superlative vilification has not overleapt itself and
become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.)
While our own sense of humor is not entirely blunted, we nevertheless entertain the
conviction that the courts should be the first to stamp out the embers of
insurrection. The fugitive flame of disloyalty, lighted by an irresponsible individual,
must be dealt with firmly before it endangers the general public peace.

The penalty meted out by the trial court falls within the limits provided by the
Treason and Sedition Law, and will, we think, sufficiently punish the accused.

The result is to agree with the trial Judge in his findings of fact, and on these facts to
convict the accused of a violation of section 8 of Act No. 292 as amended. With the
modification thus indicated, judgment is affirmed, it being understood that, in
accordance with the sentence of the lower court, the defendant and appellant shall
suffer 2 months and 1 day's imprisonment and pay the costs. So ordered.

That we have given more attention to this case than it deserves, may be possible.
Our course is justified when it is recalled that only last year, Mr. Chief Justice Taft of
the United States Supreme Court, in speaking of an outrageous libel on the Governor
of the Porto Rico, observed: "A reading of the two articles removes the slightest
doubt that they go far beyond the "exuberant expressions of meridional speech," to
use the expression of this court in a similar case in Gandia vs. Pettingill (222 U.S. ,

CRIMINAL PROCEDURE | CASES

Street, Ostrand, Johns and Romualdez, JJ., concur.

ALARCON | 164