LUIS PANAGUITON, JR.

, petitioner
vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO
G. CAWILI, respondents.

DECISION

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals

dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119,
which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari
and his subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money

amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili
and his business associate, Ramon C. Tongson (Tongson), jointly
issued in favor of petitioner three (3) checks in payment of the said
loans. Significantly, all three (3) checks bore the signatures of both
Cawili and Tongson. Upon presentment for payment on 18 March 1993,
the checks were dishonored, either for insufficiency of funds or by the
closure of the account. Petitioner made formal demands to pay the
amounts of the checks upon Cawili on 23 May 1995 and upon Tongson
on 26 June 1995, but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and

Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)5 before
the Quezon City Prosecutor's Office. During the preliminary
investigation, only Tongson appeared and filed his counter-
affidavit.6 Tongson claimed that he had been unjustly included as party-
respondent in the case since petitioner had lent money to Cawili in the
latter's personal capacity. Moreover, like petitioner, he had lent various
sums to Cawili and in appreciation of his services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was

not Cawili's business associate; in fact, he himself had filed several
criminal cases against Cawili for violation of B.P. Blg. 22. Tongson
denied that he had issued the bounced checks and pointed out that his
signatures on the said checks had been falsified.
To counter these allegations, petitioner presented several documents
showing Tongson's signatures, which were purportedly the same as the
those appearing on the checks.7 He also showed a copy of an affidavit
of adverse claim wherein Tongson himself had claimed to be Cawili's
business associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V.

Lara found probable cause only against Cawili and dismissed the
charges against Tongson. Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the case against Cawili was
filed before the proper court. In a letter-resolution dated 11 July
1997,10 after finding that it was possible for Tongson to co-sign the
bounced checks and that he had deliberately altered his signature in the
pleadings submitted during the preliminary investigation, Chief State
Prosecutor Jovencito R. Zuño directed the City Prosecutor of Quezon
City to conduct a reinvestigation of the case against Tongson and to
refer the questioned signatures to the National Bureau of Investigation
(NBI).

Tongson moved for the reconsideration of the resolution, but his motion
was denied for lack of merit.

On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga

(ACP Sampaga) dismissed the complaint against Tongson without
referring the matter to the NBI per the Chief State Prosecutor's
resolution. In her resolution,11 ACP Sampaga held that the case had
already prescribed pursuant to Act No. 3326, as amended,12 which
provides that violations penalized by B.P. Blg. 22 shall prescribe after
four (4) years. In this case, the four (4)-year period started on the date
the checks were dishonored, or on 20 January 1993 and 18 March
1993. The filing of the complaint before the Quezon City Prosecutor on
24 August 1995 did not interrupt the running of the prescriptive period,
as the law contemplates judicial, and not administrative proceedings.
Thus, considering that from 1993 to 1998, more than four (4) years had
already elapsed and no information had as yet been filed against
Tongson, the alleged violation of B.P. Blg. 22 imputed to him had
already prescribed.13 Moreover, ACP Sampaga stated that the order of
the Chief State Prosecutor to refer the matter to the NBI could no longer
be sanctioned under Section 3, Rule 112 of the Rules of Criminal
Procedure because the initiative should come from petitioner himself
and not the investigating prosecutor.14 Finally, ACP Sampaga found that
Tongson had no dealings with petitioner.15
Petitioner appealed to the DOJ. But the DOJ, through Undersecretary
Manuel A.J. Teehankee, dismissed the same, stating that the offense
had already prescribed pursuant to Act No. 3326.16Petitioner filed a
motion for reconsideration of the DOJ resolution. On 3 April 2003,17 the
DOJ, this time through then Undersecretary Ma. Merceditas N.
Gutierrez, ruled in his favor and declared that the offense had not
prescribed and that the filing of the complaint with the prosecutor's office
interrupted the running of the prescriptive period citing Ingco v.
Sandiganbayan.18 Thus, the Office of the City Prosecutor of Quezon
City was directed to file three (3) separate informations against Tongson
for violation of B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's
Office filed an information20 charging petitioner with three (3) counts of
violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably

acting on a motion for reconsideration filed by Tongson, ruled that the
subject offense had already prescribed and ordered "the withdrawal of
the three (3) informations for violation of B.P. Blg. 22" against Tongson.
In justifying its sudden turnabout, the DOJ explained that Act No. 3326
applies to violations of special acts that do not provide for a prescriptive
period for the offenses thereunder. Since B.P. Blg. 22, as a special act,
does not provide for the prescription of the offense it defines and
punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised
Penal Code which governs the prescription of offenses penalized
thereunder.23 The DOJ also cited the case of Zaldivia v. Reyes,
Jr.,24 wherein the Supreme Court ruled that the proceedings referred to
in Act No. 3326, as amended, are judicial proceedings, and not the one
before the prosecutor's office.

Petitioner thus filed a petition for certiorari25 before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was
dismissed by the Court of Appeals in view of petitioner's failure to attach
a proper verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003
resolution of the DOJ attached to the petition is a mere
photocopy.26 Petitioner moved for the reconsideration of the appellate
court's resolution, attaching to said motion an amended
Verification/Certification of Non-Forum Shopping.27Still, the Court of
Appeals denied petitioner's motion, stating that subsequent compliance
with the formal requirements would not per se warrant a reconsideration
of its resolution. Besides, the Court of Appeals added, the petition is
patently without merit and the questions raised therein are too
unsubstantial to require consideration.28

In the instant petition, petitioner claims that the Court of Appeals

committed grave error in dismissing his petition on technical grounds
and in ruling that the petition before it was patently without merit and the
questions are too unsubstantial to require consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err
in dismissing the petition for non-compliance with the Rules of Court. It
also reiterates that the filing of a complaint with the Office of the City
Prosecutor of Quezon City does not interrupt the running of the
prescriptive period for violation of B.P. Blg. 22. It argues that under B.P.
Blg. 22, a special law which does not provide for its own prescriptive
period, offenses prescribe in four (4) years in accordance with Act No.
3326.

Cawili and Tongson submitted their comment, arguing that the Court of
Appeals did not err in dismissing the petition for certiorari. They claim
that the offense of violation of B.P. Blg. 22 has already prescribed per
Act No. 3326. In addition, they claim that the long delay, attributable to
petitioner and the State, violated their constitutional right to speedy
disposition of cases.30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before the
Court of Appeals substantially complies with the rules, the verification
being intended simply to secure an assurance that the allegations in the
pleading are true and correct and not a product of the imagination or a
matter of speculation. He points out that this Court has held in a number
of cases that a deficiency in the verification can be excused or
dispensed with, the defect being neither jurisdictional nor always fatal. 31

Indeed, the verification is merely a formal requirement intended to

secure an assurance that matters which are alleged are true and
correct–the court may simply order the correction of unverified
pleadings or act on them and waive strict compliance with the rules in
order that the ends of justice may be served,32 as in the instant case. In
the case at bar, we find that by attaching the pertinent verification to his
motion for reconsideration, petitioner sufficiently complied with the
verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing the
petition on the ground that there was failure to attach a certified true
copy or duplicate original of the 3 April 2003 resolution of the DOJ. We
agree. A plain reading of the petition before the

Court of Appeals shows that it seeks the annulment of the DOJ

resolution dated 9 August 2004,33 a certified true copy of which was
attached as Annex "A."34 Obviously, the Court of Appeals committed a
grievous mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case

involving the violation of a municipal ordinance, in declaring that the
prescriptive period is tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case is Ingco v.
Sandiganbayan,36 wherein this Court ruled that the filing of the
complaint with the fiscal's office for preliminary investigation suspends
the running of the prescriptive period. Petitioner also notes that the
Ingco case similarly involved the violation of a special law, Republic Act
(R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, petitioner notes.37 He argues that sustaining the DOJ's
and the Court of Appeals' pronouncements would result in grave
injustice to him since the delays in the present case were clearly beyond
his control.38

There is no question that Act No. 3326, appropriately entitled An Act to

Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin, is the law
applicable to offenses under special laws which do not provide their own
prescriptive periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless

otherwise provided in such acts, prescribe in accordance with the
following rules: (a) x x x; (b) after four years for those punished by
imprisonment for more than one month, but less than two years;
(c) x x x
 Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are

instituted against the guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not constituting
jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg.
22. An offense under B.P. Blg. 22 merits the penalty of
imprisonment of not less than thirty (30) days but not more than
one year or by a fine, hence, under Act No. 3326, a violation of
B.P. Blg. 22 prescribes in four (4) years from the commission of
the offense or, if the same be not known at the time, from the
discovery thereof. Nevertheless, we cannot uphold the position
that only the filing of a case in court can toll the running of the
prescriptive period.

It must be pointed out that when Act No. 3326 was passed on 4
December 1926, preliminary investigation of criminal offenses was
conducted by justices of the peace, thus, the phraseology in the law,
"institution of judicial proceedings for its investigation and
punishment,"39 and the prevailing rule at the time was that once a
complaint is filed with the justice of the peace for preliminary
investigation, the prescription of the offense is halted.40

The historical perspective on the application of Act No. 3326 is

illuminating.41 Act No. 3226 was approved on 4 December 1926 at a
time when the function of conducting the preliminary investigation of
criminal offenses was vested in the justices of the peace. Thus, the
prevailing rule at the time, as shown in the cases of U.S. v.
Lazada42 and People v. Joson,43 is that the prescription of the offense is
tolled once a complaint is filed with the justice of the peace for
preliminary investigation inasmuch as the filing of the complaint signifies
the

institution of the criminal proceedings against the accused.44 These

cases were followed by our declaration in People v. Parao and
Parao45 that the first step taken in the investigation or examination of
offenses partakes the nature of a judicial proceeding which suspends
the prescription of the offense. Subsequently, in People v. Olarte,47 we
held that the filing of the complaint in the Municipal Court, even if it be
merely for purposes of preliminary examination or investigation, should,
and does, interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or information is
filed cannot try the case on the merits. In addition, even if the court
where the complaint or information is filed may only proceed to
investigate the case, its actuations already represent the initial step of
the proceedings against the offender,48 and hence, the prescriptive
period should be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v.

Lim,50 which involved violations of the Anti-Graft and Corrupt Practices
Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293),
which are both special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for

preliminary investigation against the accused. In the more recent
case of Securities and Exchange Commission v. Interport Resources
Corporation, et al.,51 the Court ruled that the nature and purpose of the
investigation conducted by the Securities and Exchange Commission on
violations of the Revised Securities Act,52 another special law, is
equivalent to the preliminary investigation conducted by the DOJ in
criminal cases, and thus effectively interrupts the prescriptive period.

The following disquisition in the Interport Resources case53 is

instructive, thus:

While it may be observed that the term "judicial proceedings" in

Sec. 2 of Act No. 3326 appears before "investigation and
punishment" in the old law, with the subsequent change in set-up
whereby the investigation of the charge for purposes of
prosecution has become the exclusive function of the executive
branch, the term "proceedings" should now be understood either
executive or judicial in character: executive when it involves the
investigation phase and judicial when it refers to the trial and
judgment stage. With this clarification, any kind of investigative
proceeding instituted against the guilty person which may
ultimately lead to his prosecution should be sufficient to toll
prescription.54
Indeed, to rule otherwise would deprive the injured party the right to
obtain vindication on account of delays that are not under his
control.55 A clear example would be this case, wherein petitioner filed
his complaint-affidavit on 24 August 1995, well within the four (4)-year
prescriptive period. He likewise timely filed his appeals and his motions
for reconsideration on the dismissal of the charges against

Tongson. He went through the proper channels, within the prescribed

periods. However, from the time petitioner filed his complaint-affidavit
with the Office of the City Prosecutor (24 August 1995) up to the time
the DOJ issued the assailed resolution, an aggregate period of nine (9)
years had elapsed. Clearly, the delay was beyond petitioner's control.
After all, he had already initiated the active prosecution of the case as
early as 24 August 1995, only to suffer setbacks because of the DOJ's
flip-flopping resolutions and its misapplication of Act No. 3326.
Aggrieved parties, especially those who do not sleep on their rights and
actively pursue their causes, should not be allowed to suffer
unnecessarily further simply because of circumstances beyond their
control, like the accused's delaying tactics or the delay and inefficiency
of the investigating agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner 's
filing of his complaint-affidavit before the Office of the City Prosecutor
on 24 August 1995 signified the commencement of the proceedings for
the prosecution of the accused and thus effectively interrupted the
prescriptive period for the offenses they had been charged under B.P.
Blg. 22. Moreover, since there is a definite finding of probable cause,
with the debunking of the claim of prescription there is no longer any
impediment to the filing of the information against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court

of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED
and SET ASIDE. The resolution of the Department of Justice dated 9
August 2004 is also ANNULLED and SET ASIDE. The Department of
Justice is ORDERED to REFILE the information against the petitioner.

No costs.

SO ORDERED.
PRESIDENTIAL COMMISSION G.R. NO. 140231
ON GOOD GOVERNMENT
(PCGG), represented by ORLANDO
L. SALVADOR,
Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
NACHURA, JJ.
HON. ANIANO A. DESIERTO,
Office of the Ombudsman-Manila,
CONCERNED MEMBERS OF THE PNB
BOARD OF DIRECTORS,
REYNALDO TUASON, CARLOS
CAJELO, JOSE BARQUILLO, JR.,
LORETO SOLSONA, PRIMICIAS
BANAGA, JOHN DOES, and
NORTHERN COTABATO SUGAR
INDUSTRIES, INC. (NOCOSII), Promulgated:
Respondents. July 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
AUSTRIA-MARTINEZ, J.:

The Presidential Commission on Good Government[1] (petitioner) filed the

herein Petition for Certiorari under Rule 65 of the Rules of Court assailing
the Resolution[2] dated May 21, 1999 of Ombudsman Aniano A. Desierto in
OMB No. 0-95-0890 which dismissed petitioner's criminal complaint for
violation of Section 3(e) and (g) of Republic Act (R.A.) No. 3019[3] against
concerned members of Philippine National Bank (PNB) Board of Directors
and Northern Cotabato Sugar Industries, Inc. (NOCOSII) officers, namely:
Reynaldo Tuason, Carlos Cajelo, Jose Barquillo, Jr.,
Loreto Solsona, Primicias Banaga and John Does (respondents); and the
Order[4] dated July 23, 1999 which denied petitioner's Motion for
Reconsideration.

The facts:

On October 8, 1992, then President Fidel V. Ramos issued Administrative

Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans (Committee) which was tasked to inventory all behest loans,
determine the parties involved and recommend whatever appropriate actions
to be pursued thereby.

On November 9, 1992, President Ramos issued Memorandum Order

No. 61 expanding the functions of the Committee to include the inventory
and review of all non-performing loans, whether behest or non-behest.

The Memorandum set the following criteria to show the earmarks of a

behest loan, to wit: a) it is undercollaterized; b) the borrower corporation is
undercapitalized; c) a direct or indirect endorsement by high government
officials like presence of marginal notes; d) the stockholders, officers or
agents of the borrower corporation are identified as cronies; e) a deviation of
use of loan proceeds from the purpose intended; f) the use of corporate
layering; g) the non-feasibility of the project for which financing is being
sought; and, h) the extraordinary speed in which the loan release was made.

Among the accounts referred to the Committee's Technical Working

Group (TWG) were the loan transactions between NOCOSII and PNB.

After it had examined and studied all the documents relative to the said loan
transactions, the Committee classified the loans obtained by NOCOSII from
PNB as behest because of NOCOSIIs insufficient capital and inadequate
collaterals. Specifically, the Committee's investigation revealed that in 1975,
NOCOSII obtained loans by way of Stand-By Letters of Credit from the
PNB; that NOCOSII was able to get 155% loan value from the offered
collateral or an excess of 85% from the required percentage limit; that the
plant site offered as one of the collaterals was a public land contrary to the
General Banking Act; that by virtue of the marginal note of then President
Marcos in the letter of Cajelo, NOCOSII was allowed to use the public land
as plant site and to dispense with the mortgage requirement of PNB;
that NOCOSII's paid-up capital at the time of the approval of the guaranty
was only P2,500,000.00 or only about 6% of its obligation.

Based on the Sworn Statement of PCGG consultant Orlando Salvador,

petitioner filed with the Office of the Ombudsman the criminal complaint
against respondents.Petitioner alleges that respondents violated the
following provisions of Section 3 (e) and (g) of R.A. No. 3019:
Sec. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:

xxx

e. Causing undue injury to any party, including the

Government or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and
employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.
xxx

g. Entering, on behalf of the Government, into any contract

or transaction manifestly and grossly disadvantageous to
the same, whether or not the public officer profited or will
profit thereby.

The respondents failed to submit any responsive pleading before

the the Ombudsman, prompting Graft Investigator Officer (GIO) I Melinda
S. Diaz-Salcedo to resolve the case based on the available evidence.
In a Resolution dated January 12, 1998 in OMB-0-95-0890, GIO Diaz-
Salcedo recommended the dismissal of the case on the ground of
insufficiency of evidence or lack of probable cause against the respondents
and for prescription of the offense. Ombudsman Desierto approved the
recommendation on May 21, 1999.[5]

Petitioner filed a Motion for Reconsideration[6] but it was denied by GIO

Diaz-Salcedo in the Order dated July 9, 1999, which was approved by
Ombudsman Desiertoon July 23, 1999.[7]

Forthwith, petitioner elevated the case to this Court and in support of its
petition alleges that:

A) The Respondent Ombudsman gravely abused his discretion or

acted without or in excess of jurisdiction in dismissing the
complaint filed by the Petitioner on the ground of Prescription
considering that:

1. THE RIGHT OF THE STATE TO RECOVER

BEHEST LOANS AS ILL-GOTTEN WEALTH IS
IMPRESCRIPTIBLE UNDER ARTICLE XI,
SECTION 15, OF THE 1987 CONSTITUTION;

2. PRESCRIPTION DOES NOT RUN IN FAVOR

OF A TRUSTEE TO THE PREJUDICE OF THE
BENEFICIARY;

3. THE OFFENSES CHARGED ARE IN THE

NATURE OF CONTINUING CRIMES AS THE
STATE CONTINUES TO SUFFER INJURY ON
EACH DAY OF DEFAULT IN PAYMENT.
HENCE, PRESCRIPTION DOES NOT APPLY;

4. PRESCRIPTION AS A MATTER OF DEFENSE

MUST BE PLEADED, OTHERWISE, IT IS
DEEMED WAIVED;

5. PRESCRIPTION HAS NOT BEEN INVOKED

IN THIS CASE. SINCE IT MAY BE WAIVED OR
 MAY NOT BE SET IN DEFENSE, THE
OMBUDSMAN CANNOT MOTU
PROPRIO DISMISS THE COMPLAINT ON
GROUND OF PRESCRIPTION;

6. ARTICLE 91 OF THE REVISED PENAL CODE

WHICH ADOPTS THE DISCOVERY RULE
SHALL APPLY IN THIS CASE;

7. THE LOAN CONTRACT AS OTHER LOAN

TRANSACTIONS IN THE NATURE OF BEHEST
LOANS ARE KEPT SECRET.[8]

B) The respondent Ombudsman gravely abused his discretion or

acted without or in excess of jurisdiction in not finding that a
probable cause exists for violation by the private respondents of
section 3 (e) and (g) of RA 3019 despite the presence of clear,
overwhelming and unrebutted evidence.[9]

In its Comment, the Ombudsman, without delving on the issue of

prescription, in view of Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto(1999),[10] contends that its finding of insufficiency
of evidence or lack of probable cause against respondents deserves great
weight and respect, and must be accorded full weight and credit.

No comment was filed by the rest of the respondents.

The issue before the Court is whether the Ombudsman committed grave
abuse of discretion in ruling that: (a) the offense leveled against respondents
has prescribed; and (b) no probable cause exists against respondents.

The petition is partly meritorious.

Respondent Ombudsman committed grave abuse of discretion in dismissing

the subject complaint on the ground of prescription.
Respondents members of the PNB Board of Directors and Officers of
NOCOSII are charged with violation of R.A. No. 3019, a special
law. Amending said law, Section 4, Batas Pambansa Blg. 195,[11] increased
the prescriptive period from ten to fifteen years.

The applicable law in the computation of the prescriptive period is Section 2

of Act No. 3326,[12] as amended, which provides:
Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same not be
known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not constituting
jeopardy.
The issue of prescription has long been laid to rest in the
aforementioned Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto,[13] where the Court held:

x x x it was well-nigh impossible for the State, the

aggrieved party, to have known the violations of R.A. No. 3019 at
the time the questioned transactions were made because, as
alleged, the public officials concerned connived or conspired with
the beneficiaries of the loans. Thus, we agree with the
COMMITTEE that the prescriptive period for the offenses with
which respondents in OMB-0-96-0968 were charged should be
computed from the discovery of the commission thereof and not
from the day of such commission.
The assertion by the Ombudsman that the phrase if the
same not be known in Section 2 of Act No. 3326 does not mean
lack of knowledge but that the crime is not reasonably knowable
is unacceptable, as it provides an interpretation that defeats or
negates the intent of the law, which is written in a clear and
unambiguous language and thus provides no room for
interpretation but only application.[14]
The Court reiterated the above ruling in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto (2001),[15] thus:

In cases involving violations of R.A. No. 3019 committed

prior to the February 1986 Edsa Revolution that ousted President
Ferdinand E. Marcos, we ruled that the government as the
aggrieved party could not have known of the violations at the time
the questioned transactions were made (PCGG vs. Desierto, G.R.
No. 140232, January 19, 2001, 349 SCRA 767; Domingo
v. Sandiganbayan, supra, Note 14; Presidential Ad Hoc Fact
Finding Committee on Behest Loans v. Desierto, supra, Note 16).
Moreover, no person would have dared to question the legality of
those transactions. Thus, the counting of the prescriptive period
commenced from the date of discovery of the offense in 1992
after an exhaustive investigation by the Presidential Ad Hoc
Committee on Behest Loans.
As to when the period of prescription was interrupted, the
second paragraph of Section 2, Act No. 3326, as amended,
provides that prescription is interrupted when proceedings are
instituted against the guilty person.[16]

Records show that the act complained of was discovered in 1992. The
complaint was filed with the Office of the Ombudsman on April 5,
1995,[17] or within three (3) years from the time of discovery. Thus, the filing
of the complaint was well within the prescriptive period of 15 years.

On the issue of whether the Ombudsman committed grave abuse of

discretion in finding that no probable cause exists against respondents, it
must be stressed that the Ombudsman is empowered to determine whether
there exists reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts.[18] Settled is the rule
that the Supreme Court will not ordinarily interfere with the Ombudsmans
exercise of his investigatory and prosecutory powers without good and
compelling reasons to indicate otherwise.[19] Said exercise of powers is
based upon his constitutional mandate[20] and the courts will not interfere in
its exercise. The rule is based not only upon respect for the investigatory
and prosecutorypowers granted by the Constitution to the Office of the
Ombudsman, but upon practicality as well. Otherwise, innumerable petitions
seeking dismissal of investigatory proceedings conducted by the
Ombudsman will grievously hamper the functions of the office and the
courts, in much the same way that courts will be swamped if they had to
review the exercise of discretion on the part of public prosecutors each time
they decided to file an information or dismiss a complaint by a private
complainant.[21]

While there are certain instances when this Court may intervene in
the prosecution of cases, such as, (1) when necessary to afford adequate
protection to the constitutional rights of the accused; (2) when necessary for
the orderly administration of justice or to avoid oppression or multiplicity of
actions; (3) when there is a prejudicial question which is sub-judice; (4)
when the acts of the officer are without or in excess of authority; (5) where
the prosecution is under an invalid law, ordinance or regulation; (6) when
double jeopardy is clearly apparent; (7) where the court has no jurisdiction
over the offense; (8) where it is a case of persecution rather than
prosecution; (9) where the charges are manifestly false and motivated by the
lust for vengeance; and (10) when there is clearly no prima facie case
against the accused and a motion to quash on that ground has been
denied,[22] none apply here.

After examination of the records and the evidence presented by petitioner,

the Court finds no cogent reason to disturb the findings of the Ombudsman.

No grave abuse of discretion can be attributed to the Ombudsman. Grave

abuse of discretion implies a capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction.[23] The exercise of power must have been
done in an arbitrary or despotic manner by reason of passion or personal
hostility. It must be so patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform the duty enjoined or to act at all
in contemplation of law.[24]

The disquisition of GIO Diaz-Salcedo, in dismissing the criminal complaint,

as approved by Ombudsman Desierto, is worth-quoting, thus:
Taking into consideration the provisions of Administrative Order
No. 13 and Memorandum Order No. 61, the subject transactions
can not be classified as behest.

Evaluation of the records of this case reveals that the loans

acquired by NOCOSII are actually foreign loans from Midland
Bank Ltd. of London. There were no direct loans released by PNB
but merely credit accommodations to guaranty the loans from
Midland Bank.

Anent complainant's claim that the collaterals offered by

NOCOSII are insufficient, it should be noted that under PNB
Board Resolution No. 689 dated July 30, 1975, one of the
conditions imposed to NOCOSII was the execution of contract
assigning all NOCOSII's share of sugar and molasses to
PNB. NOCOSII was also required to increase its paid up capital
at P5,000,000.00 a year starting April 30, 1976 up to April 30,
1980 or a total of P25,000,000.00. In addition thereto, the
stockholders of NOCOSII were required to pledge or assign all
their present and future shares to PNB while the accommodation
remains standing. The proposed plant site which was offered as
collateral was estimated to cost P307,903,000.00. The foregoing
collaterals offered by NOCOSII are more than sufficient to cover
the loans of P333,465,260.00.

Furthermore, since the loan was approved by PNB, it presupposes

that all the required clearances were submitted by NOCOSII
including the clearance from the Office of the President; and
having complied with all the documentary requirements,
NOCOSII became entitled to the release of the loan.

Complainant further alleged that NOCOSII was undercapitalized

because its paid up capital was
only P50,000,000.00. Complainant, however, failed to consider
 the other assets of NOCOSII which also form part of its
capital. x x x[25]

The finding of insufficiency of evidence or lack of probable cause by the

Ombudsman is borne out by the evidence presented by petitioner: firstly,
there were no direct loans released by PNB but merely credit
accommodations to guaranty NOCOSII's foreign loans from Midland Bank
Ltd. of London; secondly, NOCOSII effectively came under government
control since 1975 when PNB acquired a majority of the voting rights in
NOCOSII and was given the power to appoint a comptroller
therein; thirdly, PNB's credit accommodations to NOCOSII between 1975
and 1981 in the aggregate sum of P333,465,260.00 were sufficiently secured
by: (1) the Assignment of Subscription Rights and/or Pledge of Shares dated
September 5, 1975 whereby NOCOSII officers pledged their shares of stock,
representing 90% of NOCOSII'ssubscribed capital stock, and assigned their
subscription rights to future stocks in favor of PNB;[26] (2) the Deed of
Assignment dated September 5, 1975 whereby NOCOSII assigned its share
of sugar and molasses from the operation of its sugar central located
at Barrio Mateo, Matalam, North Cotabato in favor of PNB;[27] (3) the Joint
and Solidary Agreement dated September 5, 1975 whereby the NOCOSII
officers bound themselves jointly and severally liable with the corporation
for the payment of NOCOSII's obligations to PNB;[28] (4) the Real Estate
Mortgage dated October 2, 1981 whereby NOCOSII mortgaged various
buildings, machineries and equipments, otherwise known as the NOCOSII
Sugar Mill Plant, with an estimated value of P307,593,000.00 in favor of
PNB;[29] and (5) the Chattel Mortgage with Power of Attorney dated October
2, 1981 whereby NOCOSII mortgaged various transportation, agricultural
and heavy equipment in favor of the PNB;[30] fourthly, PNB imposed other
conditions, such as, (1) the submission by NOCOSII of the Central Bank's
approval of its foreign loans; (2) the submission by NOCOSII of the
required clearances from the National Economic Development Authority
(NEDA) and/or Presidential Committee on Sugar Industry (PHILSUGIN);
(3) submission by NOCOSII of its milling contracts covering a total area of
not less than 14,000 hectares; (4) submission by NOCOSII of the
government permit that the planters can cultivate the required hectarage; (5)
further increase in NOCOSII's total paid-in capital to P25,000,000.00
at P5,000,000.00 a year starting April 30, 1976 up to April 30, 1980; (6)
deposit in NOCOSII's account with the PNB of all cash proceeds
of NOCOSII's foreign loans the disposition of which shall be subject to the
bank's control; and, (7) designation by the PNB of its own representatives
in NOCOSII's Board of Directors and its own comptroller who shall have
the authority to control all disbursements and receipts of funds of
NOCOSII.[31]
The herein assailed Orders being supported by substantial evidence, there is
no basis for the Court to exercise its supervisory powers over the ruling of
the Ombudsman. As long as substantial evidence supports the Ombudsmans
ruling, that decision will not be overturned.[32]

WHEREFORE, the petition is DISMISSED. Except as to prescription, the

assailed Resolution dated May 21, 1999 and Order dated July 23, 1999 of
the Ombudsman in OMB No. 0-95-0890 are AFFIRMED. No costs.

SO ORDERED.

SECOND DIVISION

SOCIAL SECURITY SYSTEM, G.R. No. 158131

Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

DEPARTMENT OF JUSTICE,
JOSE V. MARTEL, OLGA S.
MARTEL, and SYSTEMS AND Promulgated:
ENCODING CORPORATION,
Respondents. August 8, 2007
x--------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This is a petition for review[1] filed by the Social Security System

(petitioner) of the Decision[2] dated 17 October 2002 and Resolution dated 5
May 2003 of the Court of Appeals. The Decision of 17 October 2002
affirmed the ruling of the Department of Justice (DOJ) dismissing
petitioners complaint against respondents Jose V. Martel, Olga S. Martel and
five other individuals[3] for violation of Section 22(a) and (b) in relation to
Section 28(e) of Republic Act No. 1161 (RA 1161),[4] as amended by
Republic Act No. 8282 (RA 8282),[5] for non-remittance of contributions to
petitioner. The 5 May 2003 Resolution denied petitioners motion for
reconsideration.

The Facts

Respondents Jose V. Martel and Olga S. Martel (respondent Martels) are

directors of respondent Systems and Encoding Corporation (SENCOR), an
information technology firm, with respondent Jose V. Martel serving as
Chairman of the Board of Directors. Petitioner is a government-owned and
controlled corporation mandated by its charter, RA 1161, to provide
financial benefits to private sector employees. SENCOR is covered by RA
1161, as amended by RA 8282, Section 22 of which requires employers like
SENCOR to remit monthly contributions to petitioner representing the share
of the employer and its employees.

In 1998, petitioner filed with the Pasay City Prosecutors Office a complaint
against respondent Martels and their five co-accused (docketed as I.S. No.
98-L-1534) for SENCORs non-payment of contributions amounting
to P6,936,435.80 covering the period January 1991 to May 1997. To pay this
amount, respondent Martels offered to assign to petitioner a parcel of land in
Tagaytay City covered by Transfer Certificate of Title No. 26340 issued
under respondent Martel’s name. Petitioner accepted the offer subject to the
condition that x x x [respondent Martels] will x x x settle their obligation
either by way of dacion en pago or through cash settlement within a
reasonable time x x x.[6] Thus, petitioner withdrew its complaint from the
Pasay City Prosecutor’s Office but reserved its right to revive the same in
the event that no settlement is arrived at. Accordingly, the Pasay City
Prosecutors Office dismissed I.S. No. 98-L-1534.

In December 2001, respondent Jose V. Martel wrote petitioner offering, in

lieu of the Tagaytay City property, computer-related services. The record
does not disclose petitioners response to this new offer but on 7 December
2001, petitioner filed with the Pasay City Prosecutors Office another
complaint against respondent Martels and their five co-accused (docketed as
I.S. No. 00-L-7142) for SENCORs non-remittance of contributions, this time
from February 1991 to October 2000 amounting to P21,148,258.30.

In their counter-affidavit, respondent Martels and their co-accused alleged

that petitioner is estopped from holding them criminally liable since
petitioner had accepted their offer to assign the Tagaytay City property as
payment of SENCORs liability. Thus, according to the accused, the
relationship between SENCOR and petitioner was converted into an
ordinary debtor-creditor relationship through novation.

The Ruling of the Pasay City Prosecutors Office

In the Resolution of 28 February 2001, Pasay City Assistant Prosecutor

Artemio Puti (Prosecutor Puti) found probable cause to indict respondent
Martels for violation of Section 22(a) and (b) in relation to Section 28(e) of
RA 1161, as amended by RA 8282.[7] Prosecutor Puti rejected respondent
Martels claim of negation of criminal liability by novation, holding that (1)
SENCORs criminal liability was already consummated before respondent
Martels offered to pay SENCORs liability and (2) the dacion en
pago involving the Tagaytay City property did not materialize. Prosecutor
Puti noted that respondent Martels did not dispute petitioners claim on
SENCORs non-remittance of contributions.[8] Accordingly, the Pasay City
Prosecutors Office filed with the Regional Trial Court of Pasay City the
corresponding Information against respondent Martels, docketed as Criminal
Case No. 01-0517.

Respondent Martels appealed to the DOJ.

The Ruling of the Department of Justice

In the Resolution dated 18 May 2001 signed by DOJ Undersecretary Manuel

A.J. Teehankee, the DOJ granted respondent Martels appeal, set aside
Prosecutor Putis Resolution of 28 February 2001, and ordered the
withdrawal of the Information filed in Criminal Case No. 01-0517. The DOJ
found that respondent Martels and petitioner entered into a compromise
agreement before the filing of the Information in Criminal Case No. 01-0517
and that such negated any criminal liability on respondent Martels part. The
DOJ Resolution pertinently reads:

From the facts obtaining, it cannot be denied that the

dismissal of the first complaint docketed as I.S. No. 98-L-1534
constituted the compromise agreement between the parties
whereby complainant SSS agreed to respondents mode of settling
their liability through a dacion en pago. Consequently, the
original relation between the parties was converted to that of an
ordinary creditor-debtor relationship thereby extinguishing the
original obligation by a new one. Complainant, therefore, cannot
insist on the original trust it had with respondents existing prior to
the dismissal of the former complaint (I.S. No. 98-L-1534) by
filling [sic] the present complaint (I.S. No. 00-L-7142 now
subject of this appeal). Incidentally, this Office considers the
latter complaint as a mere refilling [sic] of the former already
compromised and dismissed [complaint], because of the
similarity of the parties and causes of action.

After the dismissal of the complaint in I.S. No. 98-L-1534 and

prior to the filing of the complaint at bar docketed as 00-L-7142,
respondents have exerted great effort towards complying with the
terms and conditions of the compromise by way of dacion en
pago. For example, respondents cite their arrangement for ocular
inspection of the Tagaytay land by the Presidential Commission
on Tagaytay-Taal and with the Municipal Engineer of Laurel,
Batangas. The approval of the said commission to build a 12-
storey building had been complied with. This is not disputed by
complainant. Access roads were acquired by respondents from
adjacent owners, ready to be titled in complainants name. Papers
and permits like ecological impact certification, site resurvey, soil
test and site appraisal were secured from various offices like the
Municipality of Laurel, the Municipal Engineer, the Presidential
Commission on Tagaytay-Taal, the Philippine Volcanology
Commission, the Bureau of Lands and the Department of
Agriculture, among others.

On the part of complainant, it equally shows [sic] adherence to

the agreement to compromise. Records show that on October
1999, one of its officers, Atty. Mariano Pablo S. Tolentino,
assistant vice-president, had expressed in writing his finding to
the effect that (they) are satisfied to see the lot that (respondents)
have negotiated with Congressman Dumpit that (respondents)
offered as access road to (respondents[]) property (Annex 8 of
Petition for Review). And, as borne by the records, a Dacion En
Pago Committee had been created by complainant SSS precisely
to set the mechanism of the settlement in motion. Further,
respondents proposed an alternative mode of settlement
through computer-related services, which proposal was submitted
to complainant as late as December 1, 2000.

Verily, the foregoing facts indelibly show that the parties had
acted with an obvious intention to compromise. Hence,
respondents reliance on the doctrine of incipient criminal liability
had [sic] factual and legal bases. While the rule provides that
novation does not extinguish criminal liability, this rule, however
 holds true only if a criminal information is already filed in
court. Before that bench mark point, the criminal liability is only
at its incipient stage and the new relation between the parties
forged at such stage had the effect of negating the criminal
liability of the offender (People vs. Galsim, People vs. Trinidad,
53 OG 731). x x x x

In fine, the compromise agreement between the parties whereby

respondents obligation will be settled through a dacion en pago and the
dismissal of the complaint in I.S. No. 98-L-1534 has [sic] all the earmarks
of novation negating respondents criminal liability. Ergo, complainant is
precluded from filing the present criminal complaint against
respondents.[9]

Petitioner sought reconsideration but the DOJ denied its motion in the
Resolution of 20 September 2001.

Petitioner appealed to the Court of Appeals in a petition for certiorari.

The Ruling of the Court of Appeals

In its Decision of 17 October 2002, the Court of Appeals affirmed the

DOJs rulings and dismissed petitioners petition. The appellate court deferred
to the DOJs power to review rulings of prosecutors and held that in reversing
Prosecutor Putis findings, the DOJ did not act with grave abuse of
discretion.[10]

Petitioner sought reconsideration but the appellate court denied its

motion in the Resolution of 5 May 2003.

Hence, this petition. Petitioner contends that the Court of Appeals erred in
affirming the DOJs rulings because (1) respondent Martels were charged not
with Estafa but with violation of Section 22(a) and (b) in relation to Section
28(e) of RA 1161, as amended, a special law impressed with public interest;
(2) petitioner did not agree to settle respondent Martels criminal liability;
and (3) novation serves only to negate civil, but not criminal, liability.
In their Comment, respondent Martels countered that the DOJ correctly
applied the concept of novation as they had settled SENCORs liability.
Respondent Martels added that as of the filing of their Comment, they had
already paid P17,887,442.54 of SENCORs liability.

In its Reply, petitioner contended that although respondent Martels

attempted to pay SENCORs overdue contributions through dacion en pago,
no payment took place, as evidenced by respondent Martels alternative offer
to provide computer related services to petitioner instead of assigning
the Tagaytay City realty. On respondent Martels partial payment of
SENCORs liability, petitioner contended that such does not preclude the
resolution of this petition.

The Issue

The issue is whether the concept of novation serves to abate the prosecution
of respondent Martels for violation of Section 22(a) and (b) in relation to
Section 28(e) of RA 1161, as amended.

The Ruling of the Court

We rule in the negative and accordingly grant the petition.

The Concept of Novation Finds No Application Here

Novation, a civil law concept relating to the modification of

obligations,[11] takes place when the parties to an existing contract execute a
new contract which either changes the object or principal condition of the
original contract, substitutes the person of the debtor, or subrogates a third
person in the rights of the creditor.[12] The effect is either to modify or
extinguish the original contract. In its extinctive form, the new obligation
replaces the original, extinguishing the obligor’s obligations under the old
contract.[13]

This Court first recognized the possibility of applying the concept of

novation to criminal cases in People v. Nery,[14] involving a case for
Estafa. In that case, the Court observed that although novation is not one of
the means recognized by the Revised Penal Code to extinguish criminal
liability,[15] it may prevent the rise of criminal liability or to cast doubt on the
true nature of the original basic transaction, provided the novation takes
place before the filing of the Information with the trial court. We held:

The novation theory may perhaps apply prior to the filing

of the criminal information in court by the state prosecutors
because up to that time the original trust relation may be
converted by the parties into an ordinary creditor-debtor situation,
thereby placing the complainant in estoppel to insist on the
original trust. But after the justice authorities have taken
cognizance of the crime and instituted action in court, the
offended party may no longer divest the prosecution of its power
to exact the criminal liability, as distinguished from the civil. The
crime being an offense against the state, only the latter can
renounce it x x x.
It may be observed in this regard that novation is not
one of the means recognized by the Penal Code whereby
criminal liability can be extinguished; hence, the role of
novation may only be to either prevent the rise of criminal
liability or to cast doubt on the true nature of the original
basic transaction, whether or not it was such that its breach
would not give rise to penal responsibility, as when money
loaned is made to appear as a deposit, or other similar
disguise is resorted to x x x.[16](Emphasis supplied)

Thus, novation has been invoked to reverse convictions in cases where an

underlying contract initially defined the relation of the parties such as the
contract in sale on commission in Estafa cases[17] or the contract in sale of
goods in cases of violation of the Trust Receipts Law.[18] Further, the party
invoking novation must prove that the new contract did indeed take effect.[19]
The facts of this case negate the application of novation. In the first place,
there is, between SENCOR and petitioner, no original contract that can be
replaced by a new contract changing the object or principal condition of the
original contract, substituting the person of the debtor, or subrogating a third
person in the rights of the creditor. The original relationship between
SENCOR and petitioner is defined by law RA 1161, as amended which
requires employers like SENCOR to make periodic contributions to
petitioner under pain of criminal prosecution. Unless Congress enacts a law
further amending RA 1161 to give employers a chance to settle their
overdue contributions to prevent prosecution, no amount of agreements
between petitioner and SENCOR (represented by respondent Martels) can
change the nature of their relationship and the consequence of SENCORs
non-payment of contributions.

The indispensability of a prior contractual relation between the complainant

and the accused as requisite for the application of novation in criminal cases
was underscored in People v. Tanjutco.[20] In that case, the accused, who was
charged with Qualified Theft, invoked People v. Nery to support his claim
that the complainants acceptance of partial payment of the stolen funds
before the filing of the Information with the trial court converted his liability
into a civil obligation thus rendering baseless his prosecution. The Court
rejected this claim and held that unlike in Nery, there was, in that case, no
prior contractual relationship or bilateral agreement, which can be modified
or altered by the parties, thus:
Reliance on the aforecited Nery case, in support of the contention
that the acceptance by complainant of payment converted the
liability of the accused-appellant into a civil obligation or else that
it estopped said complainant from proceeding with the
prosecution of the case, is misplaced and unwarranted.
[I]n the Nery case, which is an action for estafa, there
was contractual relationship between the parties that can be
validly novated by the settlement of the obligation of the
offender. Whatever was said in that case, therefore, cannot be
invoked in the present case where no contractual relationship
or bilateral agreement, which can be modified or altered by
the parties, is involved. There is here merely a taking of the
 complainant’s property by one who never acquired juridical
possession thereof, qualified by grave abuse of
confidence.[21] (Italicization in the original; boldfacing and
underscoring supplied)

Similarly, there is here merely an employers failure to pay its contributions

to a government corporation as mandated by that corporations charter.

Secondly, as Prosecutor Puti correctly noted, the agreement between

petitioner and respondent Martels for the latter to pay SENCORs overdue
contributions through the assignment to petitioner of a piece of realty never
materialized. Petitioners acceptance of respondent Martels offer was subject
to a suspensive condition that x x x [private] respondents will x x x settle
their obligation either by way of dacion en pago or through cash settlement
within a reasonable time x x x. This condition was not met because three
years after respondent Martels offer, petitioner did not receive any payment.
In fact, respondent Jose Martel, at that point, changed the terms of the
supposed settlement by offering computer-related services instead of
assigning the Tagaytay City realty. In their Comment to the petition,
respondent Martels explained that they made such alternative offer because
the processing of the papers for the Tagaytay property met with some
delay.[22] In short, respondent Martels failed to make good on their promise
in 1998 to settle SENCORs liability through dacion en pago. The
circumstances the DOJ cited as proof of the compromise agreements alleged
implementation were nothing but steps preparatory to the actual payment of
SENCORs overdue contributions.

In sum, we hold that any payment respondent Martels would have made to
petitioner (and it appears that pending this petition, respondent Martels
partially paid SENCORs liability) only affects their civil, if any, but not their
criminal liability for violation of Section 22(a) and (b) in relation to Section
28(e) of RA 1161, as amended. As noted in the Resolution dated 28
February 2001 of the Pasay City Prosecutors Office, respondent Martels do
not dispute SENCORs non-remittance of contributions from February 1991
to October 2000. Thus, the existence of probable cause against respondent
Martels, SENCORs directors,[23] is beyond doubt.
 Prosecutors Findings Not Conclusive

In dismissing petitioners petition, the Court of Appeals held:

[T]his Court has no power to determine whether probable cause to

warrant prosecution exist or not. x x x [T]he determination of
whether or not probable cause exists to warrant the prosecution in
court of [respondent Martels] should be consigned and entrusted to
the Department of Justice as reviewer of the findings of the public
prosecutor x x x.

In this Petition, We are being asked to assume the function

of Public Prosecutor by determining whether probable cause
exists or not. Such is a function that this Court should not be
called upon to perform x x x.[24]

This is a misstatement of the law. This Court and the Court of Appeals
possess the power to review findings of prosecutors in preliminary
investigations.[25]Although policy considerations call for the widest latitude
of deference to the prosecutors findings,[26] courts should never shirk from
exercising their power, when the circumstances warrant, to determine
whether the prosecutors findings are supported by the facts, or as in this
case, by the law. In so doing, courts do not act as prosecutors but as organs
of the judiciary, exercising their mandate under the Constitution, relevant
statutes, and remedial rules to settle cases and controversies. Indeed, the
exercise of this Courts review power ensures that, on the one hand, probable
criminals are prosecuted[27] and, on the other hand, the innocent are spared
from baseless prosecution.[28]

WHEREFORE, we GRANT the petition. We SET

ASIDE the Decision dated 17 October 2002 and Resolution dated 5 May
2003 of the Court of Appeals. We REINSTATE the Resolution dated 28
February 2001 of the Pasay City Prosecutors Office.
 SO ORDERED.

SPECIAL FIRST DIVISION

BENJAMIN (KOKOY) T. G.R. Nos. 165510-33

ROMUALDEZ,
Petitioner, Present:
Quisumbing,
- versus - Ynares-Santiago,
Carpio, and
Azcuna, JJ.
HON. SIMEON V. MARCELO,
in his official capacity as the Ombudsman,
and PRESIDENTIAL COMMISSION
ON GOOD GOVERNMENT, Promulgated:
Respondents.
July 28, 2006
x ---------------------------------------------------------------------------------------- x

RESOLUTION
YNARES-SANTIAGO, J.:

For resolution is petitioners Motion for Reconsideration[1] assailing

the Decision dated September 23, 2005, the dispositive portion of which
states:

WHEREFORE, the petition is DISMISSED. The resolutions

dated July 12, 2004 and September 6, 2004 of the Office of the Special
Prosecutor, are AFFIRMED.

SO ORDERED.[2]

Petitioner claims that the Office of the Ombudsman gravely abused its
discretion in recommending the filing of 24 informations against him for
violation of Section 7 of Republic Act (RA) No. 3019 or the Anti-Graft and
Corrupt Practices Act; that the Ombudsman cannot revive the
aforementioned cases which were previously dismissed by the
Sandiganbayan in its Resolution of February 10, 2004; that the defense of
prescription may be raised even for the first time on appeal and thus there is
no necessity for the presentation of evidence thereon before the court a
quo. Thus, this Court may accordingly dismiss Criminal Case Nos. 28031-
28049 pending before the Sandiganbayan and Criminal Case Nos. 04-
23185704-231860 pending before the Regional Trial Court of Manila, all on
the ground of prescription.

In its Comment, the Ombudsman argues that the dismissal of the

informations in Criminal Case Nos. 13406-13429 does not mean that
petitioner was thereafter exempt from criminal prosecution; that new
informations may be filed by the Ombudsman should it find probable cause
in the conduct of its preliminary investigation; that the filing of the
complaint with the Presidential Commission on Good Government (PCGG)
in 1987 and the filing of the information with the Sandiganbayan in 1989
interrupted the prescriptive period; that the absence of the petitioner from the
Philippines from 1986 until 2000 also interrupted the aforesaid period based
on Article 91 of the Revised Penal Code.

For its part, the PCGG avers in its Comment[4] that, in accordance with the
1987 Constitution and RA No. 6770 or the Ombudsman Act of 1989, the
Omdudsman need not wait for a new complaint with a new docket number
for it to conduct a preliminary investigation on the alleged offenses of the
petitioner; that considering that both RA No. 3019 and Act No. 3326 or
the Act To Establish Periods of Prescription For Violations Penalized By
Special Acts and Municipal Ordinances and to Provide When Prescription
Shall Begin To Run, are silent as to whether prescription should begin to run
when the offender is absent from the Philippines, the Revised Penal Code,
which answers the same in the negative, should be applied.

The issues for resolution are: (1) whether the preliminary

investigation conducted by the Ombudsman in Criminal Case Nos. 13406-
13429 was a nullity; and (2) whether the offenses for which petitioner are
being charged have already prescribed.

Anent the first issue, we reiterate our ruling in the assailed Decision
that the preliminary investigation conducted by the Ombudsman in Criminal
Case Nos. 13406-13429 is a valid proceeding despite the previous dismissal
thereof by the Sandiganbayan in its Minute Resolution[5] dated February 10,
2004 which reads:

Crim. Cases Nos. 13406-13429PEO. vs. BENJAMIN T. ROMUALDEZ

Considering that the Decision of the Honorable Supreme Court in G.R.

Nos. 143618-41, entitled Benjamin Kokoy Romualdez vs. The Honorable
Sandiganbayan (First Division, et al.) promulgated on July 30, 2002
annulled and set aside the orders issued by this Court on June 8, 2000
which, among others, denied the accuseds motion to quash the
informations in these cases; that in particular the above-mentioned
Decision ruled that the herein informations may be quashed because the
officer who filed the same had no authority to do so; and that the said
Decision has become final and executory on November 29, 2002, these
cases are considered DISMISSED. Let these cases be sent to the archives.

The aforesaid dismissal was effected pursuant to our ruling

in Romualdez v. Sandiganbayan[6] where petitioner assailed the
Sandiganbayans Order dated June 8, 2000 in Criminal Case Nos. 13406-
13429 which denied his Motion to Quash, terminated the preliminary
investigation conducted by Prosecutor Evelyn T. Lucero and set his
arraignment for violations of Section 7 of RA No. 3019 on June 26,
2000.[7] In annulling and setting aside the aforesaid Order of the
Sandiganbayan, we held that:

In the case at bar, the flaw in the information is not a mere

remediable defect of form, as in Pecho v. Sandiganbayan where the
wording of the certification in the information was found inadequate, or
in People v. Marquez, where the required certification was absent. Here,
the informations were filed by an unauthorized party. The defect cannot be
cured even by conducting another preliminary investigation. An invalid
information is no information at all and cannot be the basis for criminal
proceedings.[8]

In effect, we upheld in Romualdez v. Sandiganbayan[9] petitioners

Motion to Quash and directed the dismissal of Criminal Case Nos. 13406-
13429 because the informations were filed by an unauthorized party,
hence void.

In such a case, Section 6, Rule 117 of the Rules of Court is pertinent

and applicable. Thus:
 SEC. 6. Order sustaining the motion to quash not a bar to another
prosecution; exception. 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 3(g) and (i)[10] of this Rule.

An order sustaining a motion to quash on grounds other than

extinction of criminal liability or double jeopardy does not preclude the
filing of another information for a crime constituting the same facts. Indeed,
we held in Cudia v. Court of Appeals[11] that:

In fine, there must have been a valid and sufficient complaint or

information in the former prosecution. If, therefore, the complaint or
information was insufficient because it was so defective in form or
substance that the conviction upon it could not have been sustained, its
dismissal without the consent of the accused cannot be pleaded. As the
fiscal had no authority to file the information, the dismissal of the first
information would not be a bar in petitioners subsequent prosecution. x x
x.[12]

Be that as it may, the preliminary investigation conducted by the

Ombudsman in the instant cases was not a violation of petitioners right to be
informed of the charges against him. It is of no moment that the cases
investigated by the Ombudsman bore the same docket numbers as those
cases which have already been dismissed by the Sandiganbayan, to wit:
Criminal Case Nos. 13406-13429. As we have previously stated:

The assignment of a docket number is an internal matter designed for

efficient record keeping. It is usually written in the Docket Record in
sequential order corresponding to the date and time of filing a case.

This Court agrees that the use of the docket numbers of the
dismissed cases was merely for reference. In fact, after the new
informations were filed, new docket numbers were assigned, i.e., Criminal
Cases Nos. 28031-28049 x x x.[13]

Besides, regardless of the docket numbers, the Ombudsman conducted

the above-referred preliminary investigation pursuant to our Decision
in Romualdez v. Sandiganbayan[14] when we categorically declared therein
that:

The Sandiganbayan also committed grave abuse of discretion when

it abruptly terminated the reinvestigation being conducted by Prosecutor
 Lucero. It should be recalled that our directive in G.R. No. 105248 for the
holding of a preliminary investigation was based on our ruling that the
right to a preliminary investigation is a substantive, rather than a
procedural right. Petitioners right was violated when the preliminary
investigation of the charges against him were conducted by an officer
without jurisdiction over the said cases. It bears stressing that our directive
should be strictly complied with in order to achieve its objective of
affording petitioner his right to due process.[15]

Anent the issue on the prescription of the offenses charged, we should first
resolve the question of whether this Court may validly take cognizance of
and resolve the aforementioned issue considering that as we have said in the
assailed Decision, this case has never progressed beyond the filing of the
informations against the petitioner[16] and that it is only prudent that
evidence be gathered through trial on the merits to determine whether the
offense charged has already prescribed.[17] We reconsider our stance and
shall rule in the affirmative.

Rule 117 of the Rules of Court provides that the accused may, at any time
before he enters his plea, move to quash the complaint and information [18] on
the ground that the criminal action or liability has been
extinguished,[19] which ground includes the defense of prescription
considering that Article 89 of the Revised Penal Code enumerates
prescription as one of those grounds which totally extinguishes criminal
liability. Indeed, even if there is yet to be a trial on the merits of a criminal
case, the accused can very well invoke the defense of prescription.
Thus, the question is whether or not the offenses charged in the subject
criminal cases have prescribed? We held in the case of Domingo v.
Sandiganbayan[20] that:

In resolving the issue of prescription of the offense charged, the

following should be considered: (1) the period of prescription for the
offense charged; (2) the time the period of prescription starts to run; and
(3) the time the prescriptive period was interrupted.[21]

Petitioner is being charged with violations of Section 7 of RA No. 3019 for

failure to file his Statements of Assets and Liabilities for the period 1967-
1985 during his tenure as Ambassador Extraordinary and Plenipotentiary
and for the period 1963-1966 during his tenure as Technical Assistant in the
Department of Foreign Affairs.
Section 11 of RA No. 3019 provides that all offenses punishable therein
shall prescribe in 15 years. Significantly, this Court already declared in the
case of People v. Pacificador[22] that:

It appears however, that prior to the amendment of Section 11 of R.A. No.

3019 by B.P. Blg. 195 which was approved on March 16, 1982, the
prescriptive period for offenses punishable under the said statute was only
ten (10) years. The longer prescriptive period of fifteen (15) years, as
provided in Section 11 of R.A. No. 3019 as amended by B.P. Blg. 195,
does not apply in this case for the reason that the amendment, not being
favorable to the accused (herein private respondent), cannot be given
retroactive effect. Hence, the crime prescribed on January 6, 1986 or ten
(10) years from January 6, 1976.[23]

Thus, for offenses allegedly committed by the petitioner from 1962 up

to March 15, 1982, the same shall prescribe in 10 years. On the other hand,
for offenses allegedly committed by the petitioner during the period
from March 16, 1982 until 1985, the same shall prescribe in 15 years.

As to when these two periods begin to run, reference is made to Act No.
3326 which governs the computation of prescription of offenses defined by
and penalized under special laws. Section 2 of Act No. 3326 provides:

SEC. 2. Prescription shall begin to run from the day of the

commission of the violation of the law, and if the same be not known at
the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted

against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.

In the case of People v. Duque,[24] we construed the aforequoted provision,

specifically the rule on the running of the prescriptive period as follows:
In our view, the phrase "institution of judicial proceedings for its
investigation and punishment" may be either disregarded as surplusage or
should be deemed preceded by the word "until." Thus, Section 2 may be
read as:
"Prescription shall begin to run from the day of the
commission of the violation of the law; and if the same be
not known at the time, from the discovery thereof;"
or as:
 "Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof
and until institution of judicial proceedings for its
investigation and punishment." (Emphasis supplied)[25]

Thus, this Court rules that the prescriptive period of the offenses herein
began to run from the discovery thereof or on May 8, 1987, which is the date
of the complaint filed by the former Solicitor General Francisco I. Chavez
against the petitioner with the PCGG.

In the case of Presidential Ad Hoc Fact-Finding Committee on Behest

Loans v. Desierto[26] this Court already took note that:

In cases involving violations of R.A. No. 3019 committed prior to

the February 1986 EDSA Revolution that ousted President Ferdinand E.
Marcos, we ruled that the government as the aggrieved party could not
have known of the violations at the time the questioned transactions were
made. Moreover, no person would have dared to question the legality of
those transactions. Thus, the counting of the prescriptive period
commenced from the date of discovery of the offense in 1992 after an
exhaustive investigation by the Presidential Ad Hoc Committee on Behest
Loans.[27]

However, both respondents in the instant case aver that, applying

Article 91 of the Revised Penal Code suppletorily, the absence of the
petitioner from the Philippines from 1986 until April 27, 2000 prevented
the prescriptive period for the alleged offenses from running.

We disagree.
Section 2 of Act. No. 3326 is conspicuously silent as to whether the absence
of the offender from the Philippines bars the running of the prescriptive
period. The silence of the law can only be interpreted to mean that Section 2
of Act No. 3326 did not intend such an interruption of the prescription
unlike the explicit mandate of Article 91. Thus, as previously held:

Even on the assumption that there is in fact a legislative gap caused

by such an omission, neither could the Court presume otherwise and
supply the details thereof, because a legislative lacuna cannot be filled by
judicial fiat. Indeed, courts may not, in the guise of the interpretation,
enlarge the scope of a statute and include therein situations not provided
 nor intended by the lawmakers. An omission at the time of the enactment,
whether careless or calculated, cannot be judicially supplied however after
later wisdom may recommend the inclusion. Courts are not authorized to
insert into the law what they think should be in it or to supply what they
think the legislature would have supplied if its attention has been called to
the omission.[28]
The only matter left to be resolved is whether the filing of the
complaint with the PCGG in 1987 as well as the filing of the informations
with the Sandiganbayan to initiate Criminal Case Nos. 13406-13429 in
1989 interrupted the running of the prescriptive period such that when the
Ombudsman directed petitioner to file his counter-affidavit on March 3,
2004, the offenses have already prescribed.

Under Section 2 of Act No. 3326, the prescriptive period shall be interrupted
when proceedings are instituted against the guilty person. However, there is
no such proceeding instituted against the petitioner to warrant the tolling of
the prescriptive periods of the offenses charged against him.

In Romualdez v. Sandiganbayan,[29] petitioner averred that PCGG

acted without jurisdiction and/or grave abuse of discretion in conducting a
preliminary investigation of cases not falling within its competence.[30] This
Court, in its resolve to deal with the merits of the case to remove the
possibility of any misunderstanding as to the course which it wishes
petitioners cases in the Sandiganbayan to take[31]declared invalid

the preliminary investigation conducted by the PCGG over the 24 offenses

ascribed to Romualdez (of failure to file annual statements of assets and
liabilities), for lack of jurisdiction of said offenses.[32]
In Romualdez v. Sandiganbayan,[33] petitioner assailed the validity
of the informations filed with the Sandiganbayan in Criminal Case Nos.
13406-13429 considering that the same were subscribed and filed by the
PCGG. In granting petitioners plea, this Court held, thus:

Here, the informations were filed by an unauthorized party. The defect

cannot be cured by conducting another preliminary investigation. An
invalid information is no information at all and cannot be the basis for
criminal proceedings.[34]
 Indeed, the nullity of the proceedings initiated by then Solicitor
General Chavez in 1987 with the PCGG and by the PCGG with the
Sandiganbayan in 1989 is judicially settled. In contemplation of the law,
no proceedings exist that could have merited the suspension of the
prescriptive periods.

Besides, the only proceeding that could interrupt the running of

prescription is that which is filed or initiated by the offended party before the
appropriate body or office. Thus, in the case of People v. Maravilla,[35] this
Court ruled that the filing of the complaint with the municipal mayor for
purposes of preliminary investigation had the effect of suspending the period
of prescription. Similarly, in the case of Llenes v. Dicdican,[36] this Court
held that the filing of a complaint against a public officer with the
Ombudsman tolled the running of the period of prescription.

In the case at bar, however, the complaint was filed with the wrong
body, the PCGG. Thus, the same could not have interrupted the running of
the prescriptive periods.

However, in his Dissenting Opinion, Mr. Justice Carpio contends that

the offenses charged against the petitioner could not have prescribed because
the latter was absent from the Philippines from 1986 to April 27, 2000 and
thus the prescriptive period did not run from the time of discovery on May 8,
1987, citing Article 91 of the Revised Penal Code which provides that [t]he
term of prescription should not run when the offender is absent from the
Philippine Archipelago.

Mr. Justice Carpio argues that

Article 10 of the same Code makes Article 91 x x x supplementary to

[special laws], unless the latter should x x x provide the contrary. Nothing
in RA 3019 prohibits the supplementary application of Article 91 to that
law. Hence, applying Article 91, the prescriptive period in Section 11 of
RA 3019, before and after its amendment, should run only after petitioner
returned to this jurisdiction on 27 April 2000.

There is no gap in the law. Where the special law is silent, Article
10 of the RPC applies suppletorily, as the Court has held in a long line of
decisions since 1934, starting with People v. Moreno. Thus, the Court has
 applied suppletorily various provisions of the RPC to resolve cases where
the special laws are silent on the matters in issue. The law on the
applicability of Article 10 of the RPC is thus well-settled, with the latest
reiteration made by this Court in 2004 in Jao Yu v. People.

He also expresses his apprehension on the possible effects of the

ruling of the Majority Opinion and argues that

The accused should not have the sole discretion of preventing his
own prosecution by the simple expedient of escaping from the
States jurisdiction. x x x An accused cannot acquire legal
immunity by being a fugitive from the States jurisdiction. x x x.

To allow an accused to prevent his prosecution by simply leaving this

jurisdiction unjustifiably tilts the balance of criminal justice in favor of the
accused to the detriment of the States ability to investigate and prosecute
crimes. In this age of cheap and accessible global travel, this Court should
not encourage individuals facing investigation or prosecution for violation
of special laws to leave Philippine jurisdiction to sit-out abroad the
prescriptive period. The majority opinion unfortunately chooses to lay the
basis for such anomalous practice.

With all due respect, we beg to disagree.

Article 10 of the Revised Penal Code provides:
ART. 10. Offenses not subject to the provisions of this
Code. Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the
contrary.

Pursuant thereto, one may be tempted to hastily conclude that a

special law such as RA No. 3019 is supplemented by the Revised Penal
Code in any and all cases. As it is, Mr. Justice Carpio stated in his
Dissenting Opinion that
There is no gap in the law. Where the special law is silent, Article
10 of the RPC applies suppletorily, as the Court has held in a long line of
decisions since 1934, starting with People v. Moreno. Thus, the Court has
applied suppletorily various provisions of the RPC to resolve cases where
the special laws are silent on the matters in issue. The law on the
applicability of Article 10 of the RPC is thus well-settled, with the latest
reiteration made by this Court in 2004 in Jao Yu v. People.
 However, it must be pointed out that the suppletory application of the
Revised Penal Code to special laws, by virtue of Article 10 thereof, finds
relevance only when the provisions of the special law are silent on a
particular matter as evident from the cases cited and relied upon in the
Dissenting Opinion:

In the case of People v. Moreno,[37] this Court, before ruling that the
subsidiary penalty under Article 39 of the Revised Penal Code may be
applied in cases of violations of Act No. 3992 or the Revised Motor Vehicle
Law, noted that the special law did not contain any provision that the
defendant can be sentenced with subsidiary imprisonment in case of
insolvency.

In the case of People v. Li Wai Cheung,[38] this Court applied the rules
on the service of sentences provided in Article 70 of the Revised Penal Code
in favor of the accused who was found guilty of multiple violations of RA
No. 6425 or The Dangerous Drugs Act of 1972 considering the lack of
similar rules under the special law.

In the case of People v. Chowdury,[39] the Court applied Articles 17,

18 and 19 of the Revised Penal Code to define the
words principal, accomplices and accessories under RA No. 8042 or
the Migrant Workers and Overseas Filipinos Act of 1995 because it was not
defined therein although it referred to the same terms in enumerating the
persons liable for the crime of illegal recruitment.

In the case at bar, the silence of RA No. 3019 on the question of

whether or not the absence of the accused from the Philippines prevents or
tolls the running of the prescriptive period is more apparent than real.

Even before the enactment of RA No. 3019 in 1960, Act No. 3326
was already in effect as early as December 4, 1926. Section 3 thereof
categorically defines special acts as acts defining and penalizing violations
of the law not included in the Penal Code.

Thus, in the case of Presidential Ad Hoc Fact-Finding Committee on

Behest Loans v. Desierto,[40] this Court was categorical in ruling that
 The law on prescription of offenses is found in Articles 90 and 91
of the Revised Penal Code for offenses punishable thereunder. For those
penalized under special laws, Act No. 3326 applies.

Section 2 of Act No. 3326 provides that the prescription shall begin to
run from the day of the commission of the violation of the law, and if the
same be not known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment. The running of
the prescriptive period shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy. Clearly,
Section 2 of Act No. 3326 did not provide that the absence of the accused
from the Philippines prevents the running of the prescriptive period. Thus,
the only inference that can be gathered from the foregoing is that the
legislature, in enacting Act No. 3326, did not consider the absence of the
accused from the Philippines as a hindrance to the running of the
prescriptive period. Expressio unius est exclusio alterius. To elaborate, -

Indeed, it is an elementary rule of statutory construction that the

express mention of one person, thing, act, or consequence excludes all
others. This rule is expressed in the familiar maxim expressio unius est
exclusio alterius. Where a statute, by its terms, is expressly limited to
certain matters, it may not, by interpretation or construction, be extended
to others. The rule proceeds from the premise that the legislature would
not have made specified enumerations in a statute had the intention been
not to restrict its meaning and to confine its terms to those expressly
mentioned.[41]

Had the legislature intended to include the accuseds absence from

the Philippines as a ground for the interruption of the prescriptive period
in special laws, the same could have been expressly provided in Act No.
3326. A case in point is RA No. 8424 or the Tax Reform Act of
1997 where the legislature made its intention clear and was thus
categorical that

SEC. 281. Prescription for Violations of any Provision of this

Code All violations of any provision of this Code shall prescribe after five
(5) years.

Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the
 discovery thereof and the institution of judicial proceedings for its
investigation and punishment.

The prescription shall be interrupted when proceedings are instituted

against the guilty persons and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.

The term of prescription shall not run when the offender is absent
from the Philippines. (Emphasis supplied)
According to Mr. Justice Carpio, Article 91 of the Revised Penal
Code fills the so-called gap in Act No. 3326. Thus, while Act No. 3326
governs the operation of the prescriptive period for violations of R.A. No.
3019, Article 91 of the Revised Penal Code can and shall still be applied in
cases where the accused is absent from the Philippines. In effect, Article 91
would supplement Act No. 3326.

This could not have been the intention of the framers of the law.

While it is true that Article 10 of the Revised Penal Code makes the
Code suppletory to special laws, however, Act No. 3326 cannot fall within
the ambit of special law as contemplated and used in Article 10 of the RPC.

In the case of United States v. Serapio,[42] the Court had the occasion
to interpret the term special laws mentioned in Article 7 of then Penal Code
of the Philippines, which is now Article 10 of the Revised Penal Code, as
referring to penal laws that punish acts not defined and penalized by the
Penal Code of the Philippines. Thus

This contention makes it necessary to define "special laws," as

that phrase is used in article 7 of the Penal Code. Does this phrase
"leyes especiales," as used in the Penal Code (article 7) have the
meaning applied to the phrase "special laws," as the same is
generally used? x x x It is confidently contended that the phrase
"leyes especiales," as used in the Penal Code (article 7) is not used
with this general signification: In fact, said phrase may refer not to
a special law as above defined, but to a general law. A careful
reading of said article 7 clearly indicates that the phrase "leyes
especiales" was not used to signify "special laws" in the general
signification of that phrase. The article, it will be noted, simply
says, in effect, that when a crime is made punishable under some
 other law than the Penal Code, it (the crime) is not subject to the
provisions of said code.[43]

Even if we consider both Act No. 3326 and Article 91 as supplements

to RA No. 3019, the same result would obtain. A conflict will arise from the
contemporaneous application of the two laws. The Revised Penal Code
explicitly states that the absence of the accused from the Philippines shall be
a ground for the tolling of the prescriptive period while Act No. 3326 does
not. In such a situation, Act No. 3326 must prevail over Article 91 because it
specifically and directly applies to special laws while the Revised Penal
Code shall apply to special laws only suppletorily and only when the latter
do not provide the contrary. Indeed, elementary rules of statutory
construction dictate that special legal provisions must prevail over general
ones.

The majority notes Mr. Justice Carpios reservations about the effects
of ruling that the absence of the accused from the Philippines shall not
suspend the running of the prescriptive period. Our duty, however, is only to
interpret the law. To go beyond that and to question the wisdom or effects of
the law is certainly beyond our constitutionally mandated duty. As we have
already explained

Even on the assumption that there is in fact a legislative gap caused

by such an omission, neither could the Court presume otherwise and
supply the details thereof, because a legislative lacuna cannot be filled by
judicial fiat. Indeed, courts may not, in the guise of interpretation, enlarge
the scope of a statute and include therein situations not provided nor
intended by the lawmakers. An omission at the time of the enactment,
whether careless or calculated, cannot be judicially supplied however after
later wisdom may recommend the inclusion. Courts are not authorized to
insert into the law what they think should be in it or to supply what they
think the legislature would have supplied if its attention has been called to
the omission.[44]
Mr. Justice Carpio also remarks that the liberal interpretation of the
statute of limitations in favor of the accused only relates to the following
issues: (1) retroactive or prospective application of laws providing or
extending the prescriptive period; (2) the determination of the nature of
the felony committed vis--vis the applicable prescriptive period; and (3)
the reckoning of when the prescriptive period runs. Therefore, the
aforementioned principle cannot be utilized to support the Majority
 Opinions conclusion that the prescriptive period in a special law continues
to run while the accused is abroad.

We take exception to the foregoing proposition.

We believe that a liberal interpretation of the law on prescription in

criminal cases equally provides the authority for the rule that the prescriptive
period runs while the accused is outside of Philippine jurisdiction. The
nature of the law on prescription of penal statutes supports this conclusion.
In the old but still relevant case of People v. Moran,[45] this Court
extensively discussed the rationale behind and the nature of prescription of
penal offenses

We should at first observe that a mistake is sometimes made in

applying to statutes of limitation in criminal suits the construction that has
been given to statutes of limitation in civil suits. The two classes of
statutes, however, are essentially different. In civil suits the statute is
interposed by the legislature as an impartial arbiter between two
contending parties. In the construction of the statute, therefore, there is no
intendment to be made in favor of either party. Neither grants the right to
the other; there is therefore no grantor against whom the ordinary
presumptions, of construction are to be made. But it is, otherwise when a
statute of limitation is granted by the State. Here the State is the grantor,
surrendering by act of grace its rights to prosecute, and declaring the
offense to be no longer the subject of prosecution.' The statute is not a
statute of process, to be scantily and grudgingly applied, but an
amnesty, declaring that after a certain time oblivion shall be cast over
the offence; that the offender shall be at liberty to return to his
country, and resume his immunities as a citizen and that from
henceforth he may cease to preserve the proofs of his innocence, for
the proofs of his guilt are blotted out. Hence it is that statutes of
limitation are to be liberally construed in favor of the defendant, not only
because such liberality of construction belongs to all acts of amnesty and
grace, but because the very existence of the statute, is a recognition and
notification by the legislature of the fact that time, while it gradually wears
out proofs of innocence, has assigned to it fixed and positive periods in
which it destroys proofs of guilt. Independently of these views, it must be
remembered that delay in instituting prosecutions is not only productive of
expense to the State, but of peril to public justice in the attenuation and
distortion, even by mere natural lapse of memory, of testimony. It is the
policy of the law that prosecutions should be prompt, and that statutes,
enforcing such promptitude should be vigorously maintained. They are not
merely acts of grace, but checks imposed by the State upon itself, to exact
 vigilant activity from its subalterns, and to secure for criminal trials the
best evidence that can be obtained. (Emphasis supplied)

Indeed, there is no reason why we should deny petitioner the

benefits accruing from the liberal construction of prescriptive laws on
criminal statutes.Prescription emanates from the liberality of the
State. Any bar to or cause of interruption in the operation of prescriptive
periods cannot simply be implied nor derived by mere implication. Any
diminution of this endowment must be directly and expressly sanctioned
by the source itself, the State. Any doubt on this matter must be resolved
in favor of the grantee thereof, the accused.

The foregoing conclusion is logical considering the nature of the

laws on prescription. The exceptions to the running of or the causes for
the interruption of the prescriptive periods may and should not be easily
implied. The prescriptive period may only be prevented from operating or
may only be tolled for reasons explicitly provided by the law.

In the case of People v. Pacificador,[46] we ruled that:

It bears emphasis, as held in a number of cases, that in the
interpretation of the law on prescription of crimes, that which is more
favorable to the accused is to be adopted.The said legal principle takes
into account the nature of the law on prescription of crimes which is an act
of amnesty and liberality on the part of the state in favor of the offender.In
the case of People v. Moran, this Court amply discussed the nature of the
statute of limitations in criminal cases, as follows:
The statute is not statute of process, to be scantily
and grudgingly applied, but an amnesty, declaring that after
a certain time oblivion shall be cast over the offense; that
the offender shall be at liberty to return to his country, and
resume his immunities as a citizen; and that from
henceforth he may cease to preserve the proofs of his
innocence, for the proofs of his guilt are blotted out. Hence,
it is that statues of limitation are to be liberally construed in
favor of the defendant, not only because such liberality of
construction belongs to all acts of amnesty and grace, but
because the very existence of the statute is a recognition
and notification by the legislature of the fact that time,
while it gradually wears out proofs of innocence, has
 assigned to it fixed and positive periods in which it destroys
proofs of guilt.[47]

In view of the foregoing, the applicable 10-and-15-year prescriptive

periods in the instant case, were not interrupted by any event from the
time they began to run on May 8, 1987. As a consequence, the alleged
offenses committed by the petitioner for the years 1963-1982 prescribed
10 years from May 8, 1987 or on May 8, 1997. On the other hand, the
alleged offenses committed by the petitioner for the years 1983-1985
prescribed 15 years from May 8, 1987 or on May 8, 2002.

Therefore, when the Office of the Special Prosecutor initiated the

preliminary investigation of Criminal Case Nos. 13406-13429 on March
3, 2004 by requiring the petitioner to submit his counter-affidavit, the
alleged offenses subject therein have already prescribed. Indeed, the State
has lost its right to prosecute petitioner for the offenses subject
of Criminal Case Nos. 28031-28049 pending before the Sandiganbayan
and Criminal Case Nos. 04-23185704-231860 pending before the
Regional Trial Court of Manila.

WHEREFORE, premises considered, petitioners Motion for

Reconsideration is GRANTED. Criminal Case Nos. 28031-28049
pending before the Sandiganbayan and Criminal Case Nos. 04-23185704-
231860 pending before the Regional Trial Court of Manila are all hereby
ordered DISMISSED.

SO ORDERED.

G.R. No. 100285 August 13, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NAPOLEON DUQUE, accused-appellant.

The Solicitor General for plaintiff-appellee.

Trinidad, Reverente, Makalintal, Cabrera and Monsod Law Office for accused-appellant.

FELICIANO, J.:

Appellant Napoleon Duque was charged with and convicted of violating Section 38 in relation
to Section 39 of P.D. No. 442, as amended, known as The Labor Code of the Philippines.
The charge of illegal recruitment was set out in the information in the following terms:

That on or about and/or sometime in January 1986, at Calamba, Laguna and

within the jurisdiction of this Honorable Court, the above named accused well
knowing that he is not licensed nor authorized by the proper government
agency (POEA) to engage in recruitment of workers for placement abroad,
did then and there wilfully, unlawfully and feloniously recruit Glicerio Teodoro,
Agustin Ulat, Ernesto Maunahan, Norma Francisco, Elmo Alcaraz and
Marcelino Desepida as workers abroad exacted and actually received money
from the above-named victims, to their damage and prejudice.

Contrary to law. 1

The evidence in chief of the prosecution consisted principally of the testimony of the
following witnesses: Agustin Ulat, Elmo Alcaraz, Marcelino Desepida and Norma Francisco.
Their testimonies were summarized in the trial court's decision as follows:

. . . sometime in January 1986, he (Agustin Ulat) was invited by the accused

to his house in Calamba, Laguna. Thereat accused informed him that he was
recruiting workers for Saudi Arabia and that he was interested in getting (sic)
him. Accused likewise presented to him that he (accused) was a licensed
recruiter (TSN, 22 Oct. 1990, pp. 6-7). The accused told him to secure his
birth certificate, an NBI clearance and medical certificate. He was able to
secure an NBI clearance which he showed to the accused. The latter
thereafter told him that he would secure the rest of his papers like passport,
visa and medical certificate for him and for this, accused asked him to
prepare the amount of P20,000.00. He did not have that money, so he
mortgaged his lot for P20,000.00 to the cousin of the accused, Socorro
Arlata. He immediately gave this amount to the accused who assured him
that he would be able to leave within two months. The accused did not issue
a receipt for that amount despite his request. He did not persist in asking the
accused because he trusted him, accused coming from an affluent family and
a member of a well-known Catholic organization, the "Cursillo" (TSN, 22 Oct.
1990, pp. 4-9). However, accused failed to employ him at Saudi Arabia within
two months despite repeated promise (sic) to do so. Thus, he demanded the
return of his money but accused failed. Finally, he decided, together with the
other complainants, to file a complaint against accused before the Philippine
Overseas Employment Agency (POEA). . . .
 Elmo Alcaraz, Marcelino Desepida and Norma Francisco individually testified
to the following: sometime also in January 1986, they went to the house of
accused for work abroad as the latter had earlier told them that he was
recruiting workers for the Saudi Arabia. The accused asked money to
process their papers. Alcaraz was able to give the accused on 22 February
1986 the amount of P5,000.00, but the accused failed to issue him a receipt
and he did not persist in asking for it because he trusted the accused on
(TSN, 5 Nov. 1990, pp. 5-7). Desepida was able to give the accused on 18
Feb. 1986, the amount of P7,000.00 as placement fee for which the accused
did not issue a receipt although he promised to issue one the next day.
However, the following day, when he reminded the accused of the receipt, he
refused saying that he (Desepida) should trust [the accused]. Francisco was
able to give the accused P9,000.00 on 21 February 1986 in the presence of
the other applicants (TSN, 26 Nov. 1990, p. 5). But, the accused again failed
to issue a receipt despite demand. She was told by the accused to trust him
(Ibid., p. 6). However, the accused failed to return their money
notwithstanding. Thus, all of them decided to file a complaint with the POEA
against the accused. There, they executed a joint affidavit (Exh. "A"). 2

During the trial, Duque denied the charges. He controverted the allegation that he had
recruited complainants for overseas employment. He also denied that he had received any
monies in consideration of promised employment. However, he acknowledged that his house
had served as a meeting place for a certain Delfin and one Engr. Acopado who allegedly
were the persons who had promised complainants, work abroad.

On the basis of the positive identification by private complainants of appellant Duque as the
person they had talked to for placement abroad, the person who had collected fees from
them and who had received information from them needed for arranging their departure for
abroad, the trial court concluded that accused Duque was primarily responsible for promising
placement and inducing private complainants to part with their money. The prosecution also
submitted a certification from the licensing branch of the Philippine Overseas Employment
Administration ("POEA") stating that no records existed whatsoever of a grant to the accused
of a license or authority to recruit for overseas employment. The dispositive part of the
decision reads:

Wherefore, this Court finds the accused guilty beyond reasonable doubt, [of]
violation of [Art.] 38 in relation to [Art.] 39 of P.D. 442 otherwise known as the
Labor Code of the Philippines, and hereby sentences the accused to suffer
the penalty of reclusion perpetua and a fine of P100,000.00 without
subsidiary imprisonment in case of insolvency and to indemnify the offended
parties: Agustin Ulat the amount of P20,000.00; Marcelino Desepida the
amount of P7,000.00; Norma Francisco the amount of P9,000.00; and Elmo
Alcaraz the amount of P3,000.00 and the cost of suit. 3

Before this Court, appellant Duque raises only one (1) issue: that of prescription of the
criminal offense for which he was convicted.

The recruitment of persons for overseas employment without the necessary recruiting permit
or authority form the POEA constitutes a crime penalized, not by the Revised Penal Code,
but rather by a special law, i.e., Article 38 in relation to Article 290 of the Labor Code. Article
290 of the Labor Code provides, in relevant part, that:
 Art. 290. Offenses penalized under this Code and the rules and regulations
issued pursuant thereto shall prescribe in three (3) years.

xxx xxx xxx

The Labor Code, however, does not contain any provisions on the mode of computation of
the three-year prescriptive period it established.

The Solicitor General states, and we agree with him, that Act No. 3326, as amended, entitled
"An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and
Municipal Ordinances and to Provide When Prescription Shall Begin to Run" (emphasis
supplied), supplied the applicable norm. 4 Section 2 of Act No. 3326, as amended, reads as
follows:

Section 2: . . .

xxx xxx xxx

Prescription shall begin to run from the day of the commission of the violation
of the law, and if the same be not known at the time, from the discovery
thereof and institution of judicial proceedings for its investigation and
punishment.

Examination of the abovequoted Section 2 shows that there are two (2) rules for determining
the beginning of the prescriptive period: (a) on the day of the commission of the violation, if
such commission be known; and (b) if the commission of the violation was not known at the
time, then from discovery thereof and institution of judicial proceedings for investigation and
punishment. Appellant Duque contends that the prescriptive period in the case at bar
commenced from the time money in consideration of promises for overseas employment was
parted with by complainants. Duque thus contends that the prescriptive period began to run
sometime in January 1986. The information was, however, filed by the Assistant Provincial
Prosecutor of Laguna on 22 May 1990, i.e., more than four (4) years later. Duque concludes
that the offense of illegal recruitment had accordingly prescribed by May 1990.

We are not persuaded. Article 38 of the Labor Code as amended reads as follows:

Art. 38. Illegal Recruitment. — (a) Any recruitment activities, including the
prohibited practices enumerated under Article 34 of this Code, to
be undertaken by non-licensees or non-holders of authority shall be deemed
illegal and punishable under Article 39 of this Code. The Ministry of Labor
and Employment or any law enforcement officer may initiate complaints
under this Article.

(b) Illegal recruitment when committed by a syndicate or in large scale shall

be considered an offense involving economic sabotage and shall be
penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a

group of three (3) or more persons conspiring and/or confederating with one
another in carrying out any unlawful or illegal transaction, enterprise or
scheme defined under the first paragraph hereof. Illegal recruitment is
 deemed committed in large scale if committed against three (3) or more
persons individually or as a group.

(c) The Minister of Labor and Employment or his duly authorized

representatives shall have the power to cause the arrest and detention of
such non-license or non-holder of authority if after investigation it is
determined that his activities constitute a danger to national security and
public order or will lead to further exploitation of job-seekers. The Minister
shall order the search of the office or premises and seizure of documents,
paraphernalia, properties and other implements used in illegal recruitment
activities and the closure of companies, establishments and entities found to
be engaged in the recruitment of workers for overseas employment, without
having been licensed or authorized to do so. (Emphasis supplied)

It will be seen that illegal recruitment has two (2) basic elements, to wit: (a) recruitment
activities as listed in Articles 38 and 34 of the Labor Code; and (b) the lack of the necessary
license or authority from the POEA to engage in such activities. Recruitment for overseas
employment is not in itself necessarily immoral or unlawful. It is the lack of necessary license
or permit that renders such recruitment activities unlawful and criminal. Such lack of
necessary permit or authority, while certainly known to appellant Duque back in January
1986, was not known to private complainants at that time. Indeed, private complainants
discovered that appellant did not possess such authority or permit only when they went to
the offices of the POEA for the purpose of filing a claim for return of the money they had
delivered to appellant Duque. Since good faith is always presumed, the complainants were
entitled to assume the appellant Duque was acting in good faith when he presented himself
as a recruiter for overseas placement. Even if it be assumed arguendo that ordinary
prudence required that a person seeking overseas employment ought to check the authority
or status of persons pretending to be authorized or to speak for a recruitment or placement
agency, the offended parties' failure to do so did not start the running of the prescriptive
period. In the nature of things, acts made criminal by special laws are frequently not immoral
or obviously criminal in themselves; for this reason, the applicable statute requires that if the
violation of the special law is not known at the time, then prescription begins to run only from
the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.

Appellant Duque assails Section 2 of Act No. 3326 as illogical or absurd. A literal reading of
Section 2 appears to suggest that two (2) elements must coincide for the beginning of the
running of the prescriptive period: first, the element of discovery of the commission of the
violation of the special law; and second, the "institution of judicial proceedings for its
investigation and punishment." It is then argued by appellant that because the co-existence
of these two (2) requirements is necessary under Section 2 of Act No. 3326, the relevant
prescriptive period would never begin to run.

Here appellant has a point. However, it should be noted, firstly, that the literal reading that
appellant suggests, does not benefit appellant, for the prescriptive period in the case at bar
had not in any case been exhausted since prosecution of appellant commenced only a few
months after the POEA and the complainants had discovered that appellant had no
governmental authority to recruit for overseas work and was merely pretending to recruit
workers for overseas employment and to receive money therefor, i.e., that appellant did not
even attempt to locate employment abroad for complainants. Secondly, we do not think there
is any real need for such a literal reading of Section 2. As is well-known, initiation of
proceedings for preliminary investigation of the offense normally marks the interruption of the
period of prescription. Under appellant Duque's literal reading, the prescription period would
both begin and be interrupted by the same occurrence; the net effect would be that the
prescription period would not have effectively begun, having been rendered academic by the
simultaneous interruption of that same period. A statute providing for prescription of defined
criminal offenses is more than a statute of repose and constitutes an act of grace by which
the State, after the lapse of a certain period of time, surrenders its sovereign power to
prosecute the criminal act. A statute on prescription of crimes is an act of liberality on the
part of the State in favor of the offender. 5 The applicable well-known principles of statutory
interpretation are that statutes must be construed in such a way as to give effect to the
intention of the legislative authority, 6 and so as to give a sensible meaning to the language
of the statute and thus avoid nonsensical or absurd results, 7 departing to the extent
unavoidable from the literal language of the statute. Appellant's literal reading would make
nonsense of Section 2 of Act No. 3326.

In our view, the phrase "institution of judicial proceedings for its investigation and
punishment" may be either disregarded as surplusage or should be deemed preceded by the
word "until." Thus, Section 2 may be read as:

Prescription shall begin to run from the day of the commission of the violation
of the law; and if the same be not known at the time, from the discovery
thereof;

or as:

Prescription shall begin to run from the day of the commission of the violation
of the law, and if the same be not known at the time, from the discovery
thereof and until institution of judicial proceedings for its investigation and
punishment. (Emphasis supplied)

We believe and so hold that the applicable prescriptive period in the case at bar began to run
from the time the recruitment activities of appellant Duque were ascertained by the
complainants and by the POEA to have been carried out without any license or authority
from the government. The discovery by the complainants and by the POEA was, as a
practical matter, simultaneous in character and occurred sometime in December 1989 when
the complainants went to the POEA with the complaint for recovery of the placement fees
and expenses they had paid to appellant Duque, and the POEA, acting upon that complaint,
discovered and informed the private complainants that Duque had operated as a recruiter
without the essential government license or authority. Accordingly, the offense of illegal
recruitment had not prescribed when the complaint was filed with the Provincial Prosecutor's
Office in April 1990 and when the information was filed in court in May 1990.

It is relevant to note that the same result would be reached by giving supplemental effect to
provisions of the Revised Penal Code in the application of Article 290 of the Labor
Code. 8 Article 91 of the Revised Penal Code reads as follows:

Art. 91. Computation of the prescription of offenses. — The period of

prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall
be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.
 The term of prescription shall not run when the offender is absent from the
Philippine Archipelago. (Emphasis supplied)

Under the above-quoted Article 91, the prescriptive period in respect of the offense of illegal
recruitment began to run on the date of discovery thereof by the private complainants and
the authorities concerned (POEA) sometime in December 1989 and was interrupted on 16
April 1990 when the affidavit-sworn complaint was filed before the Office of the Provincial
Prosecutor, 9 and certainly by May 1990 when the criminal information was filed in court by
the Assistant Provincial Prosecutor of Laguna. Once more, the appellant's defense of
prescription must fail.

Under Section 39 of the Labor Code as amended, the penalty of life imprisonment is properly
imposable where the illegal recruitment is committed "in large scale," i.e., where it is
"committed against three (3) or more persons individually or as a group." 10 In the case at bar,
private complainants are more than three (3) in number. Moreover, appellant Duque had
represented to the public at large, including private complainants, that he was a licensed
recruiter.11 Duque's house served as his business office and he asked the private
complainants to see him in his house. 12 There, complainants were "briefed" as to the
requirements for overseas employment before their supposed departure and were each
required to secure a clearance from the National Bureau of Investigation. 13Considerable
sums were collected from each of the complainants supposedly to "facilitate" the processing
of passports, medical certificates and other working papers. 14 Complainants were, in
addition, shown documents which purported to be job placement orders. This
organized modus operandi was repeated in respect of each of the complainants and
presumably in respect of other persons who were similarly victimized by appellant. There is
no question that the recruitment activities of Duque were organized and "large scale" in
nature. 15

WHEREFORE, the judgment of conviction rendered by the trial court is hereby AFFIRMED,
with the solemodification that the penalty properly imposable and hereby imposed is life
imprisonment and not reclusion perpetua. Costs against appellant.

SO ORDERED.

G.R. No. 177763 July 3, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
GARY VERGARA y ORIEL and JOSEPH INOCENCIO1 y PAULINO, Accused-Appellants.

DECISION

LEONARDO-DE CASTRO, J.:

Before this Court is an appeal of the March 30, 2007 Decision2 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 023873 affirming with modification the December 29, 2001
Decision4 of the Regional Trial Court (RTC), Branch 116, Pasay City in Crim. Case No. 01-
0275, entitled People of the Philippines v. Gary Vergara y Oriel alias "Gary" and Joseph
Inocencio y Paulino alias "Joseph, " finding accused-appellants Gary Vergara (Vergara) and
Joseph Inocencio (Inocencio) guilty beyond reasonable doubt of murder as principal and
accomplice, respectively.
On February 13, 2001, an Information for the crime of murder qualified by treachery was filed
against accused-appellants.

On March 12, 2001, upon arraignment, accused-appellants pleaded not guilty to the crime
charged.5 Trial on the merits ensued.

The prosecution established that at around midnight of February 10, 2001, accused-
appellants were causing a ruckus on Libertad-Colayco Streets, Pasay City by throwing water
bottles at passers-by. At around 2:00 a.m., the victim, Miguelito Alfante, who was seemingly
drunk, walked down the street. Vergara approached Alfante and told him: "Pare, mukhang
high na high ka." Alfante retorted: "Anong pakialam mo?" At this juncture, Vergara threw his
arm around Alfante’s shoulder, received a knife from Inocencio, and suddenly stabbed
Alfante. Vergara then said "Taga rito ako." Thereafter, Vergara and Inocencio ran from the
scene but were pursued by several witnesses. Alfante, meanwhile, was brought to the Pasay
City General Hospital where he died.6

The autopsy report conducted on the cadaver of the victim revealed that Alfante sustained
eight stab wounds: five located on the chest area and three on the left forearm. The victim
sustained two fatal wounds: one which severed the left ventricle of the heart and another
wound puncturing the lower lobe of the left lung. The Autopsy Report N-01-1517 signed by
Dr. Dominic Agbuda, medico-legal officer of the National Bureau of Investigation who
conducted the autopsy, stated that:

CAUSE OF DEATH: MULTIPLE STAB WOUNDS, CHEST, LEFT ARM.

The common-law wife of the victim, Gina Alfante,8 testified that she incurred the following
expenses in connection with the death and burial of Alfante:

a) ₱17,000.00 for the coffin

b) ₱3,000.00 for the nicho

c) ₱250.00 for the mass

d) ₱15,000.00 for food and drinks for the wake; and

e) ₱16,000.00 for the burial lot.

Gina further testified that Alfante had been working as a mason prior to his death earning
₱500.00 a day.9

In his defense, Vergara denied the version of the prosecution. He testified that on February
10, 2001, at around midnight, he and Inocencio went to a convenience store to buy salted
eggs for "baon" the following day. When they passed by Libertad corner Colayco Streets in
Pasay City to go to the 7-11 convenience store, they saw Alfante together with nine other
persons. Contrary to the testimony of prosecution witnesses, it was Alfante who approached
Vergara, knife in hand and proceeded to stab him. He was able to evade the attack and
grappled with Alfante for possession of the knife and, in the course of their struggle, Alfante
sustained his injuries. Inocencio stood by his side for the duration of the
incident.10 Thereafter, he fled the scene. He went to the nearest police station and was
subsequently brought to the Ospital ng Maynila for treatment for the injury on his right palm
sustained during the tussle.11

Dr. Oliver Leyson, Medical Officer III of the Ospital ng Maynila, testified to his medical
examination and treatment of Vergara’s injury caused by a bladed weapon which he
sustained on February 11, 2001.12

After evaluating the respective evidence of the contending parties, on December 29, 2001,
the RTC found accused-appellants guilty beyond reasonable doubt of the crime of murder as
defined under Article 248 of the Revised Penal Code. The decretal portion of the Decision
stated:

WHEREFORE, in the light of the foregoing premises and considerations, this Court hereby
renders judgment finding the accused GARY VERGARA Y ORIEL alias GARY and JOSEPH
INOCENCIO Y PAULINO alias JOSEPH both GUILTY as principal and accomplice,
respectively, for the crime of Murder, as this felony is defined and penalized by Article 248 of
the Revised Penal Code, as amended by R.A. 7659, and appreciating in favor of the
accused Gary Vergara y Oriel alias Gary the mitigating circumstance of voluntary surrender
without any aggravating circumstance to offset the same, the Court hereby sentences said
accused Gary Vergara y Oriel alias Gary to suffer the penalty of reclusion perpetua and the
other accused Joseph Inocencio y Paulino alias Joseph to suffer an indeterminate penalty of
imprisonment ranging from Eight (8) Years and One (1) Day of Prision Mayor, as minimum,
to Fourteen (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal, as
maximum, and for them to pay, jointly and severally the Heirs of the deceased Miguelito
Alfante the sums of Php51,250.00, as actual damages, Php1,020,000.00, as indemnity for
loss of earnings of the same deceased, Php250,00.00 as moral damages, plus costs (sic).13

Accused-appellants filed their notice of appeal on February 5, 2002 to the Supreme

Court.14 The appeal was accepted by this Court in its Resolution15 dated September 4, 2002
but was subsequently transferred to the Court of Appeals pursuant to People v. Mateo.16

As in the Court of Appeals, accused-appellants challenge the court a quo’s finding of guilt
beyond reasonable doubt. They averred that the elements of the crime of murder were not
proven.17 On March 30, 2007, the Court of Appeals affirmed with modification as to the
award of damages the Decision of the RTC. The Court of Appeals thus disposed of the
appeal in the following manner:

WHEREFORE, premises considered the Decision dated December 29, 2001, of the
Regional Trial Court (RTC), National Capital Judicial Region, Branch 116, Pasay City is
AFFIRMED with

MODIFICATION in that the accused-appellants are jointly and severally held liable to pay the
heirs of the victim, to the exclusion of his common-law-wife, the following amount, to wit:

a. ₱50,000.00 as civil indemnification;

b. ₱50,000.00 as moral damages; and

c. ₱51,250.00 as actual damages.18

Hence, this appeal.19 Accused-appellants’ confinement was confirmed by the Bureau of
Corrections on April 11, 2007.20

The appellee21 manifested that it would not file a supplemental brief.

On May 13, 2008, accused-appellant Joseph P. Inocencio filed a motion to withdraw his
appeal stating that he is no longer interested to pursue an appeal.22 This Court, in a
Resolution dated June 25, 2008, granted the motion of appellant Inocencio and declared the
case terminated as far as he is concerned.23

Due to the failure of accused-appellant Vergara’s counsel to file a supplemental brief, the
Court, in a Resolution dated November 19, 2008, resolved to dispense with its filing.24

We affirm the March 30, 2007 decision of the Court of Appeals with modification respecting
the award of damages.

The pertinent provision in this case is Article 248 of the Revised Penal Code, to wit:

Article 248. Murder. - Any person who, not falling within the provisions of Article 246, shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua to death if
committed with any of the following attendant circumstances:

1) With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford impunity.
(Emphasis added.)

Jurisprudence is consistent in reiterating that the trial court is in a better position to adjudge
the credibility of witnesses especially if it is affirmed by the Court of Appeals.25 People v.
Clores26 reminds us that:

When it comes to the matter of credibility of a witness, settled are the guiding rules some of
which are that (1) the Appellate court will not disturb the factual findings of the lower Court,
unless there is a showing that it had overlooked, misunderstood or misapplied some fact or
circumstance of weight and substance that would have affected the result of the case, which
showing is absent herein; (2) the findings of the Trial Court pertaining to the credibility of a
witness is entitled to great respect since it had the opportunity to examine his demeanor as
he testified on the witness stand, and, therefore, can discern if such witness is telling the
truth or not; and (3) a witness who testifies in a categorical, straightforward, spontaneous
and frank manner and remains consistent on cross-examination is a credible witness.
(Citations omitted.)

The rationale for these guidelines is that, having heard the witnesses themselves and having
observed firsthand their deportment and manner of testifying under grueling examination, the
trial courts are in a better position to decide the question of credibility.27 On the other hand,
this Court is far detached from the details and drama during trial and relies only on the
records of the case in its review. On the matter of credence and credibility of witnesses,
therefore, this Court admits to its limitations and acknowledges the advantage of the trial
court whose findings we give due deference.

We see no need to depart from the aforestated rules. A careful review of the records reveals
that accused-appellant Vergara failed to negate the findings of the trial court with concrete
evidence that it had overlooked, misconstrued or misapplied some fact or circumstance of
weight and substance that would have affected the result of the case. We agree with the
Court of Appeals when it stated that:

The death of the victim, Miguelito Alfante, is directly caused by the stab wounds inflicted by
[appellant Vergara] when he placed his left arm on the shoulder of the victim and stabbed
him repeatedly in his chest and left forearm with a knife handed to him by [appellant
Inocencio]. This is an overwhelming evidence, and in stark contrast, all [appellant Vergara]
could offer are denial and self-defense. Denial is an intrinsically weak defense, which the
accused must buttress with strong evidence of non-culpability to merit credibility. Having
failed to satisfy, the denial must necessarily fail.28 (Citation omitted.)

Anent accused-appellant Vergara’s claim of self-defense, the following essential elements

had to be proved: (1) unlawful aggression on the part of the victim; (2) reasonable necessity
of the means employed to prevent or repel such aggression; and (3) lack of sufficient
provocation on the part of the person resorting to self-defense.29 A person who invokes self-
defense has the burden of proof. He must prove all the elements of self-defense. However,
the most important of all the elements is unlawful aggression on the part of the victim.
Unlawful aggression must be proved first in order for self-defense to be successfully
pleaded, whether complete or incomplete.30

Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent
injury, upon a person. In case of threat, it must be offensive and strong, positively showing
the wrongful intent to cause injury. It "presupposes actual, sudden, unexpected or imminent
danger - not merely threatening and intimidating action." It is present "only when the one
attacked faces real and immediate threat to one’s life."31

In the present case, the element of unlawful aggression is absent. By the testimonies of all
the witnesses, the victim’s actuations did not constitute unlawful aggression to warrant the
use of force employed by accused-appellant Vergara. The records reveal that the victim had
been walking home albeit drunk when he passed by accused-appellants. However, there is
no indication of any untoward action from him to warrant the treatment that he had by
accused-appellant Vergara’s hands. As succinctly stated by the RTC:

The victim was just walking, he was neither uttering invectives words nor provoking the
appellants into a fight. Appellant Vergara was the unlawful aggressor. He was the one who
put the life of the victim in actual peril. This can be inferred from the wounds sustained by the
victim."32

It is thus clear that there being no unlawful aggression on the part of the victim, the act of
accused-appellant Vergara of taking a knife and stabbing the victim was not made in lawful
self-defense.

We also agree with the RTC and the Court of Appeals that the acts of accused-appellant
Vergara constituted treachery qualifying the crime committed to murder. As we have
previously ruled upon, treachery is present when the offender commits any of the crimes
against persons, employing means, methods, or forms in the execution, which tend directly
and specially to insure its execution, without risk to the offender arising from the defense
which the offended party might make.33

Here, accused-appellant Vergara after exchanging words with the victim, threw his arm
around the victim’s shoulder and proceeded to stab him. The victim was totally unaware of
the evil that would befall him. The number and severity of the wounds received by the victim
indicated that he was rendered immobile and without any real opportunity to defend himself
other than feebly raising his arm to ward off the attack. We, thus, sustain the trial court and
the Court of Appeals in finding that the qualifying circumstance of treachery is present in the
commission of the crime.

Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, provides for
the penalty of reclusion perpetua to death for the crime of murder. Though there was an
appreciation of voluntary surrender as a mitigating circumstance, following the Indeterminate
Sentence Law, the RTC, as affirmed by the Court of Appeals, properly imposed the penalty
of reclusion perpetua, pursuant to Article 63, paragraph 2, of the Revised Penal Code.34

However, to conform to existing jurisprudence the Court must modify the amount of
indemnity for death and exemplary damages awarded by the courts a quo.

Anent the award of damages, when death occurs due to a crime, the following may be
recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney’s fees
and expenses of litigation; and (6) interest, in proper cases.35

We agree with the Court of Appeals that the heirs of the victim was able to prove before the
trial court, actual damages in the amount of ₱51,250.00 based on the receipts36 they
submitted to the trial court.
1âwphi1

We also agree with the Court of Appeals when it removed the RTC’s award respecting the
indemnity for the loss of earning capacity. As we have already previously ruled that:

Damages for loss of earning capacity is in the nature of actual damages, which as a rule
must be duly proven by documentary evidence, not merely by the self-serving testimony of
the widow.

By way of exception, damages for loss of earning capacity may be awarded despite the
absence of documentary evidence when (1) the deceased is self-employed earning less than
the minimum wage under current labor laws, and judicial notice may be taken of the fact that
in the deceased’s line of work no documentary evidence is available; or (2) the deceased is
employed as a daily wage worker earning less than the minimum wage under current labor
laws.37 (Citations and emphasis omitted.)

In this case, we are constrained to uphold the ruling of the Court of Appeals since no
documentary evidence was presented to buttress the claim for the loss of earning capacity of
the victim as claimed by his common-law wife. Neither was it shown that the victim was
covered by the exceptions mentioned in the above-quoted case. The Court of Appeals
stated:

Settled is the rule that actual damages, inclusive of expected earnings lost caused by the
crime, must be proved with a reasonable degree of certainty and on the best evidence to
prove obtainable by the injured party. The prosecution failed to meet this criteria, no witness
was presented to support the contention of the common-law-wife of the victim that the latter
is a self-employed mason earning ₱500.00 a day. Hence, this Court cannot rely on the
uncorroborated testimony of the common-law-wife of the victim which lacks specific details or
particulars on the claimed loss earnings.38 (Citation omitted.)
Moreover, we deem it proper that an award for exemplary damages be made. We have ruled
as follows:

Unlike the criminal liability which is basically a State concern, the award of damages,
however, is likewise, if not primarily, intended for the offended party who suffers thereby. It
would make little sense for an award of exemplary damages to be due the private offended
party when the aggravating circumstance is ordinary but to be withheld when it is qualifying.
Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that
should only be of consequence to the criminal, rather than to the civil, liability of the offender.
In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary
or qualifying, should entitle the offended party to an award of exemplary damages within the
unbridled meaning of Article 2230 of the Civil Code.39(Emphasis omitted.)

We, thus, award exemplary damages in the amount of ₱30,000.00 to conform to existing
jurisprudence.40

We increase the award for mandatory civil indemnity to ₱75,000.00 to conform to recent
jurisprudence.41

Lastly, we sustain the RTC’s award for moral damages in the amount of ₱50,000.00 even in
the absence of proof of mental and emotional suffering of the victim’s heirs.42 As borne out
by human nature and experience, a violent death invariably and necessarily brings about
emotional pain and anguish on the part of the victim’s family.43 While no amount of damages
may totally compensate the sudden and tragic loss of a loved one it is nonetheless awarded
to the heirs of the deceased to at least assuage them.

In addition, and in conformity with current policy, we also impose on all the monetary awards
for damages interest at the legal rate of 6% per annum from date of finality of this Decision
until fully paid.44

WHEREFORE, the March 30, 2007 Decision of the Court of Appeals in CA-G.R. CR.-H.C.
No. 02387 is AFFIRMED with MODIFICATION. Appellant Gary Vergara y Oriel alias "Gary"
is found GUILTY beyond reasonable doubt of murder, and is sentenced to suffer the penalty
of reclusion perpetua. Appellant is further ordered to pay the heirs of Miguelito Alfante the
amounts of ₱51 ,250.00 as actual damages, ₱75,000.00 as civil indemnity, ₱50,000.00 as
moral damages, and ₱30,000.00 as exemplary damages. All monetary awards for damages
shall earn interest at the legal rate of 6o/o per annum from date of finality of this Decision
until fully paid.

No pronouncement as to costs.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, G.R. No. 175781

Plaintiff-Appellee,
Present:

CORONA, C.J.,
CARPIO,
- versus VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
FRANCISCA TALARO,*GREGORIO DEL CASTILLO,****
TALARO,**NORBERTO (JUN) ABAD,
ADVIENTO, RENATO RAMOS, VILLARAMA, JR.,
***
RODOLFO DUZON, RAYMUNDO PEREZ,
ZAMORA** and LOLITO AQUINO, MENDOZA,
Accused. SERENO,
REYES, and
NORBERTO (JUN) ADVIENTO, PERLAS-BERNABE, JJ.
RENATO RAMOS and LOLITO
AQUINO, Promulgated:
Accused-Appellants. March 20, 2012
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

This is an automatic review of the Decision[1] of the Court of Appeals (CA)

promulgated on December, 15, 2005, in accordance with Section 2 of Rule
125, in relation to Section 3 of Rule 56, of the Rules of Court. The CA
affirmed with modification the judgment rendered by the Regional Trial
Court (RTC), Branch 38 of Lingayen, Pangasinan, thereby finding accused-
appellants Norberto (Jun) Adviento, Renato Ramos and Lolito Aquino,
guilty beyond reasonable doubt of the crime of Murder and sentencing them
to death, but acquitting accused Rodolfo Duzon.

Accused-appellants were charged before the RTC of Urdaneta, Pangasinan,

with the crime of murder under an Information reading as follows:

That on or about the 26th day of April 1994, in the Poblacion of

the Municipality of Laoac, Province of Pangasinan, and within the
 jurisdiction of this Honorable Court, the said accused, conspiring ,
confederating with each other, with intent to kill, and with treachery, and evident
premeditation, in consideration of a price, and by means of motor vehicle, did
then and there, willfully, unlawfully and feloniously attack and shoot one
MELVIN ALIPIO, with a handgun hitting the latter in the different parts of his
body and the wounds being mortal caused directly the death of said MELVIN
ALIPIO, to the damage and prejudice of his heirs.

CONTRARY to Article 248, Revised Penal Code.[2]

The testimonies of prosecution witnesses showed the sequence of events

shortly before and after the killing of victim Melvin Alipio to be as follows.

Raymundo Zamora is the nephew of Gregorio Talaro, the husband of

Francisca Talaro. In the morning of April 24, 1994, when Zamora went
home for breakfast after driving his tricycle, he found Francisca Talaro,
Lolito Aquino, Renato Atong Ramos, and Norberto Jun Adviento conversing
among themselves under a santol tree in front of his (Zamora's) house. He
went near the group to find out what they were talking about and he learned
that his aunt, Francisca Talaro, was transacting with the other three accused-
appellants for the killing of Atty. Melvin Alipio. He was merely a meter
away from the group so he heard the group's conversation. He learned that
Francisca Talaro would give the three accused-appellants an advance
payment of P30,000.00 and then another P30,000.00 after Atty. Melvin
Alipio is killed, with said last payment to be delivered in Barangay (Brgy.)
Bactad. The three accused-appellants then nodded their heads in
agreement. After learning of the group's plan, Zamora got scared and stayed
away from the group, but three days after that meeting in front of his house,
he was asked by Francisca Talaro to drive her and her husband Gregorio
to Brgy. Bactad. The Talaro spouses alighted at a place in Brgy. Bactad,
while Zamora stayed in his tricycle and merely waited for them. He assumed
that the couple delivered the payment of P30,000.00 to someone in Brgy.
Bactad.[3]

Accused-appellant Lolito Aquino, when questioned during preliminary

investigation, admitted that he and co-accused Renato Ramos conducted a
surveillance on Atty. Alipio in the afternoon of April 25, 1994.[4]
Around 6 o'clock in the morning of April 26, 1994, tricycle driver Rodolfo
Duzon was at the parking area in the poblacion of Urdaneta waiting for
passengers, when accused-appellant Renato Ramos approached
him. Accused-appellant Ramos offered to pay Rodolfo Duzon P200.00 for
the latter to drive Ramos' motorcycle to Laoac, Pangasinan to take some
onions and turnips there. Duzon agreed, so after bringing his own tricycle
home to his house in Bactad, Urdaneta, he then drove Ramos' motorcycle to
the poblacion of Urdaneta. At the poblacion, Ramos bought a basket where
he placed the onions and turnips. Ramos then told Duzon to drive the
motorcycle to Laoac, but they first passed by Garcia Street in Urdaneta. At a
house along Garcia Street, Ramos alighted and talked to someone whom
Rodolfo Duzon later came to know as accused-appellant Lolito
Aquino. Ramos then told Duzon that after coming from Laoac, Duzon
should leave the motorcycle at that house on Garcia Street with Lolito
Aquino. Ramos and Duzon then proceeded to Laoac, stopping at a gas
station where they fueled up. Ramos alighted from the motorcycle at the gas
station and, taking along the basket of onions and turnips, walked towards
Guardian Angel Hospital (the clinic owned by the Alipios). Five minutes
after Ramos alighted, Duzon heard three gunshots coming from the west,
and moments later, he saw Ramos, who was coming toward him, being
chased by another man.When Ramos got to the motorcycle, he ordered
Duzon to immediately drive away, and poked a gun at Duzon's back. Ramos
then instructed Duzon as to the route they should take until they reached
Urdaneta where Ramos alighted, leaving Duzon with instructions to bring
the motorcycle to Garcia Street, leave it with Lolito Aquino, then meet him
(Ramos) again at the poblacion where he (Duzon) will be paid P200.00 for
his services. Duzon did as he was told, but when he met with Ramos at
the poblacion and asked for the P200.00, Ramos got mad and shouted
invectives at him. A few days later, he again ran into Ramos who warned
him to keep his silence, threatening to kill him (Duzon) too if he tells anyone
about the killing. Accused-appellant Norberto (Jun) Adviento also
threatened him not to reveal to anyone whatever he knows about the
crime. That was why Duzon decided to keep quiet. Later, however, he
revealed the matter to his brother, Victoriano Duzon, who accompanied him
to the Criminal Investigation Services (CIS) Office in Urdaneta so he could
give his statement. He executed affidavits, assisted by a lawyer from the
Public Attorneys Office (PAO), attesting to what he knew about the crime,
in his desire to be a state witness.[5]

Witness Rene Balanga, who was the helper of the spouses Atty. Melvin and
Dr. Lina Alipio, was cleaning the windows at the clinic of Dr. Alipio around
8 o'clock in the morning of April 26, 1994. He heard three gunshots coming
from the garage of the clinic, which was around ten meters away from where
he was. Immediately after the gunshots, he saw a man quickly walking out
from the garage, going towards the main gate, but he was not able to clearly
see the face of the man. He merely observed that the man was around 5'4 to
5'5 in height, medium-built, wearing a blue jacket and faded maong (denim)
pants. He ran towards the garage and there, he saw Atty. Melvin Alipio lying
dead. He then chased after the man so he could identify him better but he did
not succeed in doing so because the driver of the motorcycle that the
gunman was boarding was already drawing something out from the rear
portion of the motorcycle. After the assailant sped off, Balanga went to the
police station in Laoac to report the crime and give his statement before the
CIS. Sometime later, at the CIS Office, he identified Rodolfo Duzon as the
driver of the motorcycle used by the gunman to get away.[6]

Another eyewitness, Eusebio Hidalgo, whose son was confined at the clinic,
was sitting at a bench in the garage of the clinic on the morning of April 26,
1994. Two other women who were looking for Atty. Alipio also sat at the
bench with him after he told them that Atty. Alipio was still having his
breakfast. After a few minutes, a man arrived looking for Dr. Alipio, and
also sat at the bench. Thereafter, Atty. Alipio came out to the garage and
talked to the two women. When Atty. Alipio finished talking to them, the
man sitting with them on the bench suddenly stood up and shot Atty. Alipio
three times. Atty. Alipio was merely one meter away from the assailant
when the latter shot him. After the shooting, the assailant walked
away. Hidalgo then saw the helper at the clinic, Reny Balanga, run after the
assailant, but the latter had whistled to his companion who was waiting on
his motorcycle and the two were able to speed away aboard said
vehicle. Hidalgo identified the assailant from a picture[7] shown to
him.[8] The picture was that of Renato Ramos.[9]
A few weeks after Atty. Melvin Alipio had been killed, Zamora was in the
parking lot in Sta. Maria Norte in Binalonan, when accused-appellant
Aquino approached him and told him to remind Francisca Talaro that she
still has to pay him (Aquino) P10,000.00. Zamora then immediately told his
uncle Gregorio Talaro about Aquino's message and the very next day,
Gregorio went to Zamora's house with the P10,000.00. Gregorio could no
longer wait for Aquino so he just left the money with Zamora, instructing
him to hand it over to Aquino when the latter arrives. Later that day, Zamora
saw Aquino so he told him (Aquino) to just get the money from his
house. About three weeks later, Aquino again went to Zamora's house, this
time saying he needs another P5,000.00 just in case he needs to
escape. Zamora then contacted Francisca Talaro and conveyed Aquino's
message to her. The following day, Gregorio again went to Zamora's house
and left the P3,000.00 for Aquino. That afternoon, Zamora again told
Aquino to just pick up the money from his house. Zamora observed that
Aquino seemed happy enough with the P3,000.00 he received.[10]

Zamora said that he thinks the Talaros had Atty. Alipio killed because the
latter was not able to comply with his contractual obligations to the Talaros
to complete the construction of a building. Dr. Lina Alipio, the wife of the
victim Atty. Melvin Alipio, confirmed that indeed, the victim entered into an
agreement with Rodolfo Talaro, the Talaro spouses' son, for the construction
of a building, but the construction was not finished within the agreed one-
year period because of the sudden rise of prices for materials. Atty. Alipio
asked Rodolfo for additional payment so he could finish construction, but
the latter refused to pay more. Dr. Alipio stated that eventually, Atty. Alipio
and Rodolfo agreed that Atty. Alipio would return all the money he received
from Rodolfo and the whole property would, in turn, be turned over to Atty.
Alipio. Atty. Alipio was unable to return the money despite several demands
made by Rodolfo, and Dr. Alipio believes this is the reason why the Talaros
had her husband killed. Dr. Alipio further testified on matters regarding
expenses for the wake and burial, and the earnings of her husband.[11]

Dr. Arnulfo Bacarro conducted the autopsy on the victim and stated that
three slugs were taken from the body of the victim, and the cause of death
was internal hemorrhage.[12] Police officers testified on how they conducted
the investigation, stating that accused-appellant Aquino and Zamora's
statements were taken in the presence of their respective lawyers. They
maintain that no bodily harm was inflicted on the accused-appellants while
they were being investigated.[13]
On the other hand, accused-appellant Lolito Aquino stated that he was taken
by CIS men without a warrant of arrest; that he was mauled by police
authorities while under detention, but could not undergo a medical check-up
due to fear from threats that he would be killed by police authorities if he did
so; that he was assisted by a PAO lawyer when he made his confession, but
he did not read the contents of the document, Sgt. Tomelden just ordered
him to sign the same; that the PAO lawyer is not his own choice; that he
does not know Rodolfo Duzon and Raymundo Zamora; and that he was not
present at the meeting held in Raymundo Zamora's yard. He admitted,
however, that the motorcycle used by the gunman belongs to him; and that
he first agreed to be a state witness because he was promised to be paid
P20,000.00 and that he would be placed in the witness protection
program.[14]

Accused-appellant Norberto (Jun) Adviento's defense is denial and alibi. He

claimed that he was not present during the April 24, 1994 meeting held to
plan the killing of Atty. Alipio, because on said date and time, he was in the
house of Congressman Amadito Perez, for whom he works as driver-
messenger, and that morning, he also drove the Congressman's family to
church to hear mass. On April 26, 1994, he also reported for work at the
house of the Congressman from 8 o'clock in the morning until 5 o'clock in
the afternoon. He likewise denied personally knowing any of his co-accused
except for Duzon whose face is familiar to him.[15]

After trial, the RTC rendered judgment as follows:

Wherefore, in the light of all the considerations discussed above,

this court hereby finds and holds the accused Francisca Talaro,
Norberto (Jun) Adviento, Renato Ramos, Rodolfo Duzon and
Lolito Aquino, guilty beyond reasonable doubt of the crime of
Murder defined and penalized under the provisions of Article 248
of the Revised Penal Code as amended by Republic Act No. 7659
 and conformable thereto, pursuant to law, hereby imposes on each
of the accused the death penalty and to pay proportionately the
costs of the proceedings.

The court further orders the accused to indemnify, jointly and

severally, the heirs of the deceased the sum of P83,000.00 as actual
damages; P100,000.00 as moral damages; P50,000.00 as death
indemnity; P10,000.00 as [attorney's fees] paid to their private
prosecutor and P2,400,000.00 as loss in the earning capacity of the
deceased without subsidiary imprisonment in case of insolvency.

Taking into consideration that accused Francisca Talaro is already

75 years old, the death penalty meted upon her shall be commuted
to reclusion perpetua with the accessory penalties provided in
Article 40 of the Revised Penal Code.

And considering that the evidence adduced by the prosecution

against the accused Gregorio Talaro is not sufficient to sustain his
conviction of the offense filed against him, the court hereby
declares accused Gregorio Talaro not guilty. The court likewise
declares Raymundo Zamora acquitted of the offense filed against
him.

Let an order of arrest be issued against accused Renato Ramos who

escaped from jail during the pendency of this case, to be served by
the NBI, CIC and PNP of Urdaneta, Pangasinan.

SO ORDERED.[16]

The case was then brought to this Court for automatic review in view of the
penalty of death imposed on accused-appellants. However, in accordance
with the ruling in People v. Mateo,[17] and the amendments made to Sections
3 and 10 of Rule 122, Section 13 of Rule 124, and Section 3 of Rule 125 of
the Revised Rules on Criminal Procedure, the Court transferred this case to
the CA for intermediate review.

On December 15, 2005, the CA rendered its Decision, the dispositive

portion of which reads as follows:
 WHEREFORE, in view of the foregoing, the decision of the
Regional Trial Court, Branch 38 of Lingayen, Pangasinan in
Criminal Case No. U-8239, is hereby AFFIRMED with the
MODIFICATION that accused-appellant Rodolfo Duzon is
ACQUITTED on reasonable doubt and his release is hereby
ordered unless he is being held for some other legal cause.
Further, in lieu of the awards made by the trial court in favor of the
heirs of deceased Atty. Melvin Alipio, accused-appellants are
ordered to pay, jointly and severally, the heirs of the victim the
following amounts: (1) P25,000.00 as temperate damages;
(2) P75,000.00 as civil indemnity; (3) P50,000.00 as moral
damages; and (4) P25,000.00 as exemplary damages;

SO ORDERED.[18]

The case is now before this Court on automatic review. The prosecution
opted not to file a supplemental brief with this Court. Accused-appellants
Lolito Aquino and Renato Ramos jointly filed their supplemental brief
where it is argued that the two should be acquitted because (1) the
prosecution evidence is insufficient to prove that Lolito Aquino was part of
the conspiracy to kill Atty. Melvin Alipio; and (2) the identity of Renato
Ramos was never established. Accused-appellant Noberto (Jun) Adviento
argued in his Appellant's Brief filed with the CA, that the prosecution's
evidence is insufficient to establish conspiracy, and there are no aggravating
circumstances to justify the imposition of the death penalty.

The Court agrees with the CA's conclusion that the evidence on record
proves beyond reasonable doubt that accused-appellants Lolito Aquino,
Renato Ramos, and Norberto (Jun) Adviento, together with Francisca
Talaro, conspired to kill Atty. Melvin Alipio.
Murder under Article 248 of the Revised Penal Code is defined as the
unlawful killing of a person, which is not parricide or infanticide, attended
by circumstances such as treachery or evident premeditation. The presence
of any one of the circumstances enumerated in Article 248 of the Code is
sufficient to qualify a killing as murder.[19]
In People v. Sanchez,[20] the Court held that [t]he essence of treachery is the
sudden attack by an aggressor without the slightest provocation on the part
of the victim, depriving the latter of any real chance to defend himself,
thereby ensuring the commission of the crime without risk to the
aggressor. There can be no cavil that the evidence on record shows treachery
in the killing of Atty. Alipio, thus qualifying the crime as murder. The
assailant, identified as accused-appellant Renato Ramos, just suddenly fired
upon Atty. Alipio at a very close distance, without any provocation from
said unarmed victim, who was then just conversing with some other people.
There is also evident premeditation because the evidence shows that a
couple of days before the actual shooting of Atty. Alipio, Raymundo Zamora
already saw and heard accused-appellants Norberto (Jun) Adviento, Renato
Ramos, and Lolito Aquino, talking to Francisca Talaro and coming to an
agreement to kill Atty. Alipio.
Pitted against the prosecution evidence, accused-appellants' only defense is
that the evidence is insufficient to prove they are part of the
conspiracy to commit the murder. Said defense is sorely wanting when
pitted against the prosecution evidence.
In People v. Bautista,[21] the Court reiterated the hornbook principle of
conspiracy, to wit:

Conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and decide
to commit it. Where all the accused acted in concert at the time of
the commission of the offense, and it is shown by such acts that
they had the same purpose or common design and were united in
its execution, conspiracy is sufficiently established. It must be
shown that all participants performed specific acts which such
closeness and coordination as to indicate a common purpose or
design to commit the felony.

xxxx

Each conspirator is responsible for everything

done by his confederates which follows
incidentally in the execution of a common design as
one of its probable and natural consequences even
 though it was not intended as part of the original
design. x x x[22] (Emphasis supplied)
In this case, the existence of a conspiracy has been established by the
testimony of Raymundo Zamora, positively identifying all three accused-
appellants as the ones he saw and heard transacting with Francisca Talaro on
April 24, 1994 to kill Atty. Melvin Alipio for the price of P60,000.00, and
pointing to Lolito Aquino as the one who demanded and received part of the
payment after Atty. Alipio had been killed. The credibility of Raymundo
Zamora's testimony is further bolstered by Lolito Aquino's admission [23] that
he and Renato Ramos even conducted surveillance on the victim a day
before Renato Ramos carried out the shooting, and that the motorcycle used
as a getaway vehicle belonged to him. Rodolfo Duzon also pointed to
Renato Ramos as the gunman; he also pointed to Renato Ramos and
Norberto (Jun) Adviento as the ones who threatened to kill him if he talks to
anyone about the shooting. All the proven circumstances point to the
conclusion that accused-appellants acted in concert to assure the success of
the execution of the crime; hence, the existence of a conspiracy is firmly
established.

Lolito Aquino's admission, and accused-appellants' positive identification of

Raymundo Zamora and Rodolfo Duzon cannot be belied by accused-
appellants' mere denial. It is established jurisprudence that denial and alibi
cannot prevail over the witness' positive identification of the accused-
appellants.[24] Moreover, accused-appellants could not give any plausible
reason why Raymundo Zamora would testify falsely against them. In People
v. Molina,[25] the Court expounded, thus:

In light of the positive identification of appellant by the

prosecution witnesses and since no ill motive on their part or
on that of their families was shown that could have made
either of them institute the case against the appellant and
falsely implicate him in a serious crime he did not commit,
appellant's defense of alibi must necessarily fail. It is settled in
this jurisdiction that the defense of alibi, being inherently
weak, cannot prevail over the clear and positive identification
of the accused as the perpetrator of the crime. x x
x[26] (Emphasis supplied)
Accused-appellant Lolito Aquino claimed he merely admitted his
participation in the crime out of fear of the police authorities who allegedly
manhandled him, however, the trial court did not find his story
convincing. The trial court's evaluation of the credibility of witnesses and
their testimonies is conclusive on this Court as it is the trial court which had
the opportunity to closely observe the demeanor of witnesses. [27] The Court
again explained the rationale for this principle in Molina,[28] to wit:

As oft repeated by this Court, the trial court's evaluation of the

credibility of witnesses is viewed as correct and entitled to the
highest respect because it is more competent to so conclude,
having had the opportunity to observe the witnesses' demeanor
and deportment on the stand, and the manner in which they gave
their testimonies. The trial judge therefore can better determine if
such witnesses were telling the truth, being in the ideal position to
weigh conflicting testimonies. Further, factual findings of the trial
court as regards its assessment of the witnesses' credibility are
entitled to great weight and respect by this Court, particularly
when the Court of Appeals affirms the said findings, and will not
be disturbed absent any showing that the trial court overlooked
certain facts and circumstances which could substantially affect
the outcome of the case.[29]

The Court cannot find anything on record to justify deviation from said rule.

Accused-appellant Renato Ramos insisted that he was not properly identified

in open court, and considering that there are so many persons named Renato
Ramos, then there can be some confusion regarding his identity. There is no
truth to this claim. Ramos was properly identified in open court by
Raymundo Zamora, as one of the men he saw and heard transacting with
Francisca Talaro for the killing of Atty. Alipio.[30] Hence, there can be no
doubt as to which Renato Ramos is being convicted for the murder of Atty.
Alipio.

Another strong indication of Lolito Aquino's and Renato Ramos' guilt is the
fact that they escaped from detention while the case was pending with the
trial court.Renato Ramos escaped from prison on December 20,
1994,[31] while Lolito Aquino escaped on May 5, 1996.[32] It has been
repeatedly held that flight betrays a desire to evade responsibility and is,
therefore, a strong indication of guilt.[33] Thus, this Court finds no reason to
overturn their conviction.

Nevertheless, this Court must modify the penalty imposed on accused-

appellants Norberto (Jun) Adviento, Lolito Aquino, and Renato
Ramos. In People v. Tinsay,[34]the Court explained that:
On June 30, 2006, Republic Act No. 9346 (R.A. 9346), entitled An
Act Prohibiting the Imposition of Death Penalty in the
Philippines, took effect. Pertinent provisions thereof provide as
follows:

Section 1. The imposition of the penalty of death is hereby

prohibited. Accordingly, Republic Act No. Eight Thousand One
Hundred Seventy-Seven (R.A. No. 8177), otherwise known as
the Act Designating Death by Lethal Injection is hereby
repealed. Republic Act No. Seven Thousand Six Hundred Fifty-
Nine (R.A. No. 7659) otherwise known as the Death Penalty
Law and all other laws, executive orders and decrees insofar as
they impose the death penalty are hereby repealed or
amended accordingly.

Section 2. In lieu of the death penalty, the following

shall be imposed:

(a) the penalty of reclusion perpetua, when the law

violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or

xxxx

SECTION 3. Persons convicted of offenses punished

with reclusion perpetua, or whose sentences will be
reduced to reclusion perpetua, by reason of this Act,
shall not be eligible for parole under Act No. 4103,
otherwise known as the Indeterminate Sentence
Law, as amended.
 It has also been held in People vs. Quiachon that R.A. No. 9346
has retroactive effect, to wit:

The aforequoted provision of R.A. No. 9346 is

applicable in this case pursuant to the principle in
criminal law, favorabilia sunt amplianda adiosa
restrigenda. Penal laws which are favorable to
accused are given retroactive effect. This principle is
embodied under Article 22 of the Revised Penal
Code, which provides as follows:

Retroactive effect of penal laws. - Penal laws shall

have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5 of Article
62 of this Code, although at the time of the
publication of such laws, a final sentence has been
pronounced and the convict is serving the same.

However, appellant is not eligible for parole because

Section 3 of R.A. No. 9346 provides that persons
convicted of offenses pushed with reclusion
perpetua, or whose sentences will be reduced
to reclusion perpetua by reason of the law, shall not
be eligible for parole.

Hence, in accordance with the foregoing, appellant should

only be sentenced to suffer reclusion perpetua without
eligibility for parole.[35]

The awards for damages also need to be modified. In People v. Alberto

Anticamara y Cabillo, et al.,[36] the Court held that in accordance with
prevailing jurisprudence on heinous crimes where the imposable penalty is
death but reduced to reclusion perpetua pursuant to R.A. No. 9346, the
award of moral damages should be increased from P50,000.00
to P75,000.00, while the award for exemplary damages, in view of the
presence of aggravating circumstances, should be P30,000.00.
WHEREFORE, the Decision of the Court of Appeals dated December 15,
2005 in CA-G.R. CR-H.C. No. 00071 is hereby AFFIRMED with
the MODIFICATIONthat the penalty of death imposed on accused-
appellants is REDUCED to reclusion perpetua without possibility of parole
in accordance with R.A. No. 9346; and INCREASING the award of moral
damages from P50,000.00 to P75,000.00, and the award of exemplary
damages from P25,000.00 to P30,000.00. The rest of the award of the Court
of Appeals is hereby maintained.

SO ORDERED.

SECOND DIVISION
JEFFREY RESO DAYAP, G.R. No. 177960
Petitioner,
Present:

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

DECISION

TINGA, J.:

Before us is a petition for review[1] on certiorari of the Decision[2] dated 17

August 2006 and Resolution[3] dated 25 April 2007 by the Court of Appeals
in CA-G.R. SP No. 01179 entitled, Pretzy-Lou P. Sendiong, Genesa R.
Sendiong, Elvie H. Sy and Dexie Duran v. Hon. Judge Cresencio Tan and
Jeffrey Reso Dayap.

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

2004 by the Provincial Prosecutors Office, Sibulan, Negros Oriental,
charging herein petitioner Jeffrey Reso Dayap with the crime of Reckless
Imprudence resulting to Homicide, Less Serious Physical Injuries, and
Damage to Property. The pertinent portion of the information reads:

That at about 11:55 oclock in the evening of 28 December

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

An act defined and penalized by Article 365 of the Revised Penal Code.

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

Negros Oriental, petitioner was arraigned and he pleaded not guilty to the
charge.[5]

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

and Dexie Duran filed a motion for leave of court to file an amended
information.[6]They sought to add the allegation of abandonment of the
victims by petitioner, thus: The driver of the 10-wheeler cargo truck
abandoned the victims, at a time when said [Lou-Gene] R. Sendiong was
still alive inside the car; he was only extracted from the car by the by-
standers.[7]

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

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

Pre-trial and trial of the case proceeded. Respondents testified for the
prosecution. After the prosecution had rested its case, petitioner sought leave
to file a demurrer to evidence which was granted. Petitioner filed his
Demurrer to Evidence[10] dated 15 April 2005 grounded on the prosecutions
failure to prove beyond reasonable doubt that he is criminally liable for
reckless imprudence, to which respondents filed a Comment[11] dated 25
April 2005.

In the Order[12] dated 16 May 2005, the MTC granted the demurrer
and acquitted petitioner of the crime of reckless imprudence. The MTC
found that the evidence presented by respondents failed to establish the
allegations in the Information. Pertinent portions of the order state:

An examination of the allegations in the information and comparing the

same with the evidence presented by the prosecution would reveal that
the evidence presented has not established said allegations. The facts and
circumstances constituting the allegations charged have not been
proven. It is elementary in the rules of evidence that a party must prove
his own affirmative allegations.
xxxx

Nowhere in the evidence of the prosecution can this Court find that it
was the accused who committed the crime as charged. Its witnesses have
never identified the accused as the one who has committed the
crime. The prosecution never bothered to establish if indeed it was the
accused who committed the crime or asked questions which would have
proved the elements of the crime. The prosecution did not even establish
if indeed it was the accused who was driving the truck at the time of the
incident. The Court simply cannot find any evidence which would prove
that a crime has been committed and that the accused is the person
responsible for it. There was no evidence on the allegation of the death
of Lou Gene R. Sendiong as there was no death certificate that was
offered in evidence. The alleged less serious physical injuries on the
bodies of Dexie Duran and Elvie Sy were not also proven as no medical
certificate was presented to state the same nor was a doctor presented to
establish such injuries. The alleged damage to the [C]olt [G]alant was
also not established in any manner as no witness ever testified on this
aspect and no documentary evidence was also presented to state the
damage. The prosecution therefore failed to establish if indeed it was the
accused who was responsible for the death of Lou Gene R. Sendiong and
the injuries to Dexie Duran and Elvie Sy, including the damage to the
Colt Galant. The mother of the victim testified only on the expenses she
incurred and the shock she and her family have suffered as a result of the
incident. But sad to say, she could not also pinpoint if it was the accused
who committed the crime and be held responsible for it. This Court
could only say that the prosecution has practically bungled this case from
its inception.

xxxx

The defense furthermore argued that on the contrary, the

prosecutions [evidence] conclusively show that the swerving of vehicle 1
[the Colt Galant] to the lane of vehicle 2 [the cargo truck] is the
proximate cause of the accident. The court again is inclined to agree with
this argument of the defense. It has looked carefully into the sketch of
the accident as indicated in the police blotter and can only conclude that
the logical explanation of the accident is that vehicle 1 swerved into the
lane of vehicle 2, thus hitting the latters inner fender and tires. Exhibit 7
which is a picture of vehicle 2 shows the extent of its damage which was
the effect of vehicle 1s ramming into the rear left portion of vehicle 2
causing the differential guide of vehicle 2 to be cut, its tires busted and
pulled out together with their axle. The cutting of the differential guide
cause[d] the entire housing connecting the tires to the truck body to
collapse, thus causing vehicle 2 to tilt to its left side and swerve towards
the lane of vehicle 1. It was this accident that caused the swerving, not of
[sic] any negligent act of the accused.

xxxx

Every criminal conviction requires of the prosecution to prove

two thingsthe fact of the crime, i.e., the presence of all the elements of
the crime for which the accused stands charged, and the fact that the
accused is the perpetrator of the crime. Sad to say, the prosecution has
 miserably failed to prove these two things. When the prosecution fails to
discharge its burden of establishing the guilt of the accused, an accused
need not even offer evidence in his behalf.

xxxx

WHEREFORE, premises considered, the demurrer is granted and the

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

SO ORDERED.[13]

Respondents thereafter filed a petition for certiorari under Rule

65,[14] alleging that the MTCs dismissal of the case was done without
considering the evidence adduced by the prosecution. Respondents added
that the MTC failed to observe the manner the trial of the case should
proceed as provided in Sec. 11, Rule 119 of the Rules of Court as well as
failed to rule on the civil liability of the accused in spite of the evidence
presented. The case was raffled to the Regional Trial Court (RTC) of Negros
Oriental, Br. 32.

In the order[15] dated 23 August 2005, the RTC affirmed the acquittal
of petitioner but ordered the remand of the case to the MTC for further
proceedings on the civil aspect of the case. The RTC ruled that the MTCs
recital of every fact in arriving at its conclusions disproved the allegation
that it failed to consider the evidence presented by the prosecution. The
records also demonstrated that the MTC conducted the trial of the case in the
manner dictated by Sec. 11, Rule 119 of the Rules of Court, except that the
defense no longer presented its evidence after the MTC gave due course to
the accuseds demurrer to evidence, the filing of which is allowed under Sec.
23, Rule 119. The RTC however agreed that the MTC failed to rule on the
accuseds civil liability, especially since the judgment of acquittal did not
include a declaration that the facts from which the civil liability might arise
did not exist. Thus, the RTC declared that the aspect of civil liability was not
passed upon and resolved to remand the issue to the MTC. The dispositive
portion of the decision states:

WHEREFORE, the questioned order of the Municipal Trial

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

SO ORDERED.[16]

Both parties filed their motions for reconsideration of the RTC order,
but these were denied for lack of merit in the order[17] dated 12 September
2005.

Respondents then filed a petition for review with the Court of Appeals under
Rule 42, docketed as CA-G.R. SP. No. 01179. The appellate court
subsequently rendered the assailed decision and resolution. The Court of
Appeals ruled that there being no proof of the total value of the properties
damaged, the criminal case falls under the jurisdiction of the RTC and the
proceedings before the MTC are

null and void. In so ruling, the appellate court cited Tulor v. Garcia (correct
title of the case is Cuyos v. Garcia)[18] which ruled that in complex crimes
involving reckless imprudence resulting in homicide or physical injuries and
damage to property, the jurisdiction of the court to take cognizance of the
case is determined by the fine imposable for the damage to property
resulting from the reckless imprudence, not by the corresponding penalty for
the physical injuries charged. It also found support in Sec. 36 of the
Judiciary Reorganization Act of 1980 and the 1991 Rule 8 on Summary
Procedure, which govern the summary procedure in first-level courts in
offenses involving damage to property through criminal negligence where
the imposable fine does not exceed P10,000.00. As there was no proof of the
total value of the property damaged and respondents were claiming the
amount of P1,500,000.00 as civil damages, the case falls within the RTCs
jurisdiction. The dispositive portion of the Decision dated 17 August
2006 reads:

WHEREFORE, premises considered, judgment is hereby rendered by Us

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

SO ORDERED.[19]

Petitioner moved for reconsideration of the Court of Appeals

decision,[20] arguing that jurisdiction over the case is determined by the
allegations in the information, and that neither the 1991 Rule on Summary
Procedure nor Sec. 36 of the Judiciary Reorganization Act of 1980 can be
the basis of the RTCs jurisdiction over the case.However, the Court of
Appeals denied the motion for reconsideration for lack of merit in the
Resolution dated 25 April 2007.[21] It reiterated that it is the RTC that has
proper jurisdiction considering that the information alleged a willful,
unlawful, felonious killing as well as abandonment of the victims.

In the present petition for review, petitioner argues that the MTC had
jurisdiction to hear the criminal case for reckless imprudence, owing to the
enactment of Republic Act (R.A.) No. 7691,[22] which confers jurisdiction to
first-level courts on offenses involving damage to property through criminal
negligence. He asserts that the RTC could not have acquired jurisdiction on
the basis of a legally unfiled and officially withdrawn amended information
alleging abandonment. Respondents are also faulted for challenging the
MTCs order acquitting petitioner through a special civil action for certiorari
under Rule 65 in lieu of an ordinary appeal under Rule 42.
The petition has merit. It should be granted.

The first issue is whether the Court of Appeals erred in ruling that
jurisdiction over the offense charged pertained to the RTC.

Both the MTC and the RTC proceeded with the case on the basis of
the Information dated 29 December 2004 charging petitioner only with the
complex crime of reckless imprudence resulting to homicide, less serious
physical injuries and damage to property. The Court of Appeals however
declared in its decision that petitioner should have been charged with the
same offense but aggravated by the circumstance of abandonment of the
victims. It appears from the records however that respondents attempt to
amend the information by charging the aggravated offense was unsuccessful
as the MTC had approved the Provincial Prosecutors motion to withdraw
their motion to amend the information. The information filed before the trial
court had remained unamended.[23] Thus, petitioner is deemed to have been
charged only with the offense alleged in the original Information without
any aggravating circumstance.

Article 365 of the Revised Penal Code punishes any person who, by reckless
imprudence, commits any act which, had it been intentional, would
constitute a grave felony, with the penalty of arresto mayor in its maximum
period to prision correccional in its medium period. When such reckless
imprudence the use of a motor vehicle, resulting in the death of a person
attended the same article imposes upon the defendant the penalty of prision
correccional in its medium and maximum periods.

The offense with which petitioner was charged is reckless imprudence

resulting in homicide, less serious physical injuries and damage to property,
a complex crime. Where a reckless, imprudent, or negligent act results in
two or more grave or less grave felonies, a complex crime is
committed.[24] Article 48 of the Revised Penal Code provides that when the
single act constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same to be applied in its maximum
period. Since Article 48 speaks of felonies, it is applicable to crimes through
negligence in view of the definition of felonies in Article 3 as acts or
omissions punishable by law committed either by means of deceit (dolo) or
fault (culpa).[25] Thus, the penalty imposable upon petitioner, were he to be
found guilty, is prision correccional in its medium period (2 years, 4 months
and 1 day to 4 years) and maximum period (4 years, 2 months and 1 day to 6
years).

Applicable as well is the familiar rule that the jurisdiction of the court
to hear and decide a case is conferred by the law in force at the time of the
institution of the action, unless such statute provides for a retroactive
application thereof.[26] When this case was filed on 29 December 2004,
Section 32(2) of Batas Pambansa Bilang 129 had already been amended by
R.A. No. 7691. R.A. No. 7691 extended the jurisdiction of the first-level
courts over criminal cases to include all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of fine,
and regardless of other imposable accessory or other penalties including
those for civil liability. It explicitly states
that in offenses involving damage to property
through criminal negligence, they shall have exclusive original
jurisdiction thereof. It follows that criminal cases for reckless
imprudence punishable with prision correccional in its medium and
maximum periods should fall within the jurisdiction of the MTC and not the
RTC. Clearly, therefore, jurisdiction to hear and try the same pertained to the
MTC and the RTC did not have original jurisdiction over the criminal
case.[27] Consequently, the MTC of Sibulan, Negros Oriental had properly
taken cognizance of the case and the proceedings before it were valid and
legal.
 As the records show, the MTC granted petitioners demurrer to
evidence and acquitted him of the offense on the ground of insufficiency of
evidence. The demurrer to evidence in criminal cases, such as the one at bar,
is filed after the prosecution had rested its case, and when the same is
granted, it calls for an appreciation of the evidence adduced by the
prosecution and its sufficiency to warrant conviction beyond reasonable
doubt, resulting in a dismissal of the case on the merits, tantamount to an
acquittal of the accused.[28] Such dismissal of a criminal case by the grant of
demurrer to evidence may not be appealed, for to do so would be to place
the accused in double jeopardy.[29] But while the dismissal order consequent
to a demurrer to evidence is not subject to appeal, the same is still
reviewable but only by certiorari under Rule 65 of the Rules of Court. Thus,
in such case, the factual findings of the trial court are conclusive upon the
reviewing court, and the only legal basis to reverse and set aside the order of
dismissal upon demurrer to evidence is by a clear showing that the trial
court, in acquitting the accused, committed grave abuse of discretion
amounting to lack or excess of jurisdiction or a denial of due process, thus
rendering the assailed judgment void.[30]

Accordingly, respondents filed before the RTC the petition for

certiorari alleging that the MTC gravely abused its discretion in dismissing
the case and failing to consider the evidence of the prosecution in resolving
the same, and in allegedly failing to follow the proper procedure as
mandated by the Rules of Court. The RTC correctly ruled that the MTC did
not abuse its discretion in dismissing the criminal complaint. The MTCs
conclusions were based on facts diligently recited in the order thereby
disproving that the MTC failed to consider the evidence presented by the
prosecution. The records also show that the MTC correctly followed the
procedure set forth in the Rules of Court.

The second issue is whether the Court of Appeals erred in ordering the
remand of the case of the matter of civil liability for the reception of
evidence.
 We disagree with the Court of Appeals on directing the remand of the
case to the RTC for further proceedings on the civil aspect, as well as with
the RTC in directing a similar remand to the MTC.

The acquittal of the accused does not automatically preclude a

judgment against him on the civil aspect of the case. The extinction of the
penal action does not carry with it the extinction of the civil liability where:
(a) the acquittal is based on reasonable doubt as only preponderance of
evidence is required; (b) the court declares that the liability of the accused is
only civil; and (c) the civil liability of the accused does not arise from or is
not based upon the crime of which the accused is acquitted. [31] However, the
civil action based on delict may be deemed extinguished if there is a finding
on the final judgment in the criminal action that the act or omission from
which the civil liability may arise did not exist[32] or where the accused did
not commit the acts or omission imputed to him.[33]

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

the accused has the right to adduce evidence on the civil aspect of the case
unless the court also declares that the act or omission from which the civil
liability may arise did not exist.[34] This is because when the accused files a
demurrer to evidence, he has not yet adduced evidence both on the criminal
and civil aspects of the case. The only evidence on record is the evidence for
the prosecution. What the trial court should do is issue an order or partial
judgment granting the demurrer to evidence and acquitting the accused, and
set the case for continuation of trial for the accused to adduce evidence on
the civil aspect of the case and for the private complainant to adduce
evidence by way of rebuttal. Thereafter, the court shall render judgment on
the civil aspect of the case.
 A scrutiny of the MTCs decision supports the conclusion that the
acquittal was based on the findings that the act or omission from which the
civil liability may arise did not exist and that petitioner did not commit the
acts or omission imputed to him; hence, petitioners civil liability has been
extinguished by his acquittal. It should be noted that the MTC categorically
stated that it cannot find any evidence which would prove that a crime had
been committed and that accused was the person responsible for it. It added
that the prosecution failed to establish that it was petitioner who committed
the crime as charged since its witnesses never identified petitioner as the one
who was driving the cargo truck at the time of the incident. Furthermore, the
MTC found that the proximate cause of the accident is the damage to the
rear portion of the truck caused by the swerving of the Colt Galant into the
rear left portion of the cargo truck and not the reckless driving of the truck
by petitioner, clearly establishing that petitioner is not guilty of reckless
imprudence. Consequently, there is no more need to remand the case to the
trial court for proceedings on the civil aspect of the case, since petitioners
acquittal has extinguished his civil liability.

WHEREFORE, the petition is GRANTED. The Court of Appeals

Decision dated 17 August 2006 and Resolution dated 25 April 2007 in CA-
G.R. SP. No. 01179 are REVERSED and SET ASIDE. The Order dated 16
May 2005 of the Municipal Trial Court of Sibulan, Negros Oriental in
Criminal Case No. 3016-04 granting the Demurrer to Evidence and
acquitting petitioner Jeffrey Reso Dayap of the offense charged therein is
REINSTATED and AFFIRMED.

SO ORDERED.
EN BANC

PEOPLE OF THE PHILIPPINES, G.R. No. 174659

Plaintiff-appellee,
Present:
 PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- v e r s u s - CORONA,
CARPIO MORALES,
AZCUNA,*
TINGA,*
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,**
REYES,***
LEONARDO-DE CASTRO and
BRION, JJ.

RAGA SARAPIDA MAMANTAK

and LIKAD SARAPIDA TAURAK,
Accused-appellants. Promulgated:

July 28, 2008

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

DECISION
CORONA, J.:

There are people who are simply incapable of feeling pity or

compassion for others.
Ma. Teresa Basario must have felt a dagger deep in her heart when
she lost her two-year old son, Christopher, two weeks before Christmas on
December 13, 1999. And again upon being reunited with him some 16
months later when he could neither recognize her nor remember who he was.
 Justice demands that those responsible for this cruel and agonizing
separation of mother and child be punished to the full extent of the law.
At about 3:00 p.m. on December 13, 1999, Teresa went with
Christopher and her elder sister Zenaida to a McDonalds outlet in the KP
Tower in Juan Luna St., Binondo, Manila. Teresa and Christopher looked for
a vacant table while Zenaida proceeded to order their food. Shortly after
Teresa took her seat, Christopher followed Zenaida to the counter. Barely
had Christopher gone from his mothers sight when she realized that he had
disappeared. She and her sister frantically looked for him inside and outside
the premises of the fastfood outlet, to no avail. As their continued search for
the child was futile, they reported him missing to the nearest police
detachment.

The following day, Teresa went to several TV and radio stations to

inform the public of the loss of Christopher and to appeal for help and
information. Despite the publicity, however, Teresa received no word about
Christophers whereabouts. Worse, pranksters were gleefully having a field
day aggravating her misery.
On February 25, 2001, Teresa received a call from a woman who
sounded like a muslim. The caller claimed to have custody of Christopher
and asked for P30,000 in exchange for the boy.

On March 27, 2001, the same muslim-sounding woman called and

instructed Teresa to get a recent photo of her son from the Jalal Restaurant at
the Muslim Center in Quiapo, Manila. True enough, when Teresa went
there, someone gave her a recent picture of Christopher. She then contacted
the mysterious woman through the cellphone number the latter had
previously given her. When the woman instructed her to immediately board
a ship for Mindanao, Teresa reasoned that she had not raised the ransom
money yet. They then agreed to conduct the pay off in the morning of April
7, 2001 at Pitangs Carinderia in Kapatagan, Lanao del Norte.
Teresa sought the help of the Presidential Anti-Organized Crime Task Force
(PAOCTF). A team was formed and Police Officer (PO)3[1] Juliet Palafox
was designated to act as Teresas niece.

Together with the PAOCTF team, Teresa left for Mindanao on April
4, 2001. On April 7, 2001, they arrived in Iligan City and proceeded to the
designated meeting place.
At around 8:30 a.m., while Teresa and PO3 Palafox were waiting at
Pitangs Carinderia, two women came. They were Raga Sarapida Mamantak
and Likad Sarapida Taurak. Mamantak approached Teresa and PO3 Palafox
and asked who they were waiting for. Teresa replied that they were waiting
for a certain Rocma Bato, the name written at the back of the picture she
received in Jalal Restaurant in Manila. She showed the photo to Mamantak
who stated that she knew Bato. Mamantak then told Teresa that she would
ask a cousin of Bato if the latter was already in Kapatagan. Mamantak
turned to Taurak, supposedly the cousin of Bato. Taurak came near Teresa
and PO3 Palafox and informed them that she had Christopher. Taurak asked
Teresa and PO3 Palafox to come with her but they refused. Taurak
reluctantly agreed to leave Mamantak with them while she fetched
Christopher.

Several hours later, in the afternoon of the same day, Taurak returned
and told Teresa that Christopher was in a nearby ice plant. She asked Teresa
to go with her but the latter insisted on their agreement that the boy be
handed over at the carinderia. Taurak relented, left and came back after
several minutes with Christopher.
Upon seeing her son, Teresa cried and embraced him. However, the
child was unmoved. He no longer recognized nor understood her for he
could only speak in the muslim dialect. When asked who he was, the boy
gave a muslim name with Taurak as surname.
Mamantak and Taurak interrupted Teresa and demanded the ransom
money. She answered that her niece had it and pointed to PO3 Palafox.
Thereafter, Mamantak and PO3 Palafox boarded a jeepney which was
parked outside, under Tauraks watchful eyes. Inside the jeepney, PO3
Palafox handed the ransom money to Mamantak. At this juncture, PO3
Palafox gave the pre-agreed signal and the PAOCTF team then closed in and
arrested Mamantak and Taurak.
Christopher relearned Tagalog after a month and gradually began to
forget the incident. On the other hand, Teresa almost lost her sanity. At the
time Christopher was kidnapped, she was pregnant with her third child. The
child, born very sickly, eventually died.
The sisters Mamantak and Taurak were charged with kidnapping for
ransom under the following Information:

That on December 13, 1999 in Binondo, Manila and within the

jurisdiction of this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one another and
grouping themselves together, did then and there, willfully,
unlawfully and feloniously take, carry away and deprive
Christopher Basario, a two-year old minor of his liberty against
his will for the purpose of extorting ransom as in fact a demand
for ransom was made as a condition for his release amounting to
THIRTY THOUSAND PESOS (P30,000.00) to the damage and
 prejudice of Christopher Basario in said amount and such other
amount as maybe awarded to him under the provisions of the
Civil Code.

CONTRARY TO LAW.

Mamantak and Taurak pleaded not guilty when arraigned. After pre-
trial, trial ensued and the parties presented their respective evidence.

In defense, Mamantak and Taurak denied the charges against them.

Taurak testified that at the time and date of the alleged kidnapping, she was
peddling wares in Divisoria market, Manila. When she saw Christopher
wandering about aimlessly, she talked to him but he did not seem to
understand her. She took the boy under her care and waited for someone to
come for him. No one did. As it was already 7:00 p.m., she brought the boy
home with her to the Muslim Center in Quiapo.

The next day, she and her husband took the boy to the nearest police
outpost but no one was there so they just brought the boy to their stall. They
opted to keep the boy until his parents could claim him.

On February 17, 2001, Taurak brought the child to Maganding, Sultan

Kumander, Lanao del Sur. Sometime later, Teresa contacted her and asked
for Christophers picture for confirmation. It was at this point that Taurak
arranged a meeting at Pitangs Carinderia in Kapatagan, Lanao del Norte on
April 7, 2001. She did not bring the boy at first as a precautionary measure.
Only after confirming that Teresa was the boys mother did she relinquish
custody to her. However, she was shocked when members of the PAOCTF
suddenly arrested her. She protested because she was innocent. There were
no charges against her nor was there a warrant for her arrest.
Mamantak corroborated her sister Tauraks testimony. She claimed
that she was at Nunungan, Lanao del Norte on December 13, 1999. At that
time, she did not know the exact whereabouts of Taurak who was in Manila
and whom she had not seen for some time. They met again on April 7, 2001
at Pitangs Carinderia but only by chance. She happened to be there when
Taurak came. When Teresa arrived later, Taurak talked to her and then left,
returning after a few hours with Christopher whom Mamantak saw for the
first time. Taurak told her that she had found the boy and was returning him
to his mother. Mamantak stayed in the carinderia all the while, waiting for
her ride home at 4:00 p.m. She was stunned when PAOCTF members
suddenly arrested her and her sister as she had not committed any crime and
there was no warrant for her arrest.
After evaluating the respective evidence of the parties, the trial court
rendered a decision[2] on November 30, 2004 finding Taurak and Mamantak
guilty as charged:

WHEREFORE, judgment is hereby rendered finding both

accused LIKAD SARAPIDA TAURAK and accused RAGA
SARAPIDA [MAMANTAK] GUILTY beyond reasonable doubt
of the crime of Kidnapping for Ransom as amended by RA No.
7659 and both are hereby sentenced to suffer the penalty
of RECLUSION PERPETUA. Both accused are hereby jointly
and severally ordered to pay the Christopher Basario represented
by the mother, [Ma.] Teresa Basario the amount of PHP50,000.00
as compensatory damages and PHP50,000.00 as moral
damages. With costs against the accused.

Both accused are given credit for the preventive imprisonment

undergone by them during the pendency of this case.
 SO ORDERED.[3]
Taurak and Mamantak appealed to the Court of Appeals. In a
decision[4] dated March 31, 2006, the appellate court ruled that the trial court
erred in not considering the demand for P30,000 as a demand for ransom.
Such circumstance required the imposition of the death penalty. Thus, the
appellate court affirmed the conviction of Taurak and Mamantak with
modification amending the penalty from reclusion perpetua to
death.[5] Pursuant to Section 13, Rule 124 as amended by Administrative
Matter No. 00-5-03-SC, the appellate court certified the case to this Court
and accordingly ordered the elevation of the records.[6]

We affirm the Court of Appeals, with a modification of penalty.

Kidnapping is defined and punished under Article 267 of the Revised

Penal Code, as amended by Republic Act (RA) 7659:
ART. 267. Kidnapping and serious illegal detention. Any private
individual who shall kidnap or detain another, or in any other
manner deprive him of his liberty, shall suffer the penalty
of reclusion perpetua to death.

1. If the kidnapping or detention shall have lasted more

than three days.

2. If it shall have been committed simulating public

authority.

3. If any serious physical injuries shall have been inflicted

upon the person kidnapped or detained; or if threats to
kill him shall have been made.

4. If the person kidnapped or detained shall be a minor,

except when the accused is any of the parents, female or
a public officer.
 The penalty shall be death where the kidnapping or
detention was committed for the purpose of extorting ransom
from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission
of the offense.

When the victim is killed or dies as a consequence of the

detention or is raped, or is subjected to torture or dehumanizing
acts, the maximum penalty shall be imposed.

The crime has the following elements:

(1) the offender is a private individual; not either of the parents
of the victim[7] or a public officer who has a duty under
the law to detain a person;[8]
(2) he kidnaps or detains another, or in any manner deprives the
latter of his liberty;
(3) the act of detention or kidnapping must be illegal and
(4) in the commission of the offense, any of the following
circumstances is present: (a) the kidnapping or detention
lasts for more than three days; (b) it is committed by
simulating public authority; (c) any serious physical
injuries are inflicted upon the person kidnapped or
detained or threats to kill him are made or (d) the person
kidnapped or detained is a minor, female or a public
official.

If the victim is a minor, the duration of his detention is immaterial.

Likewise, if the victim is kidnapped and illegally detained for the purpose of
extorting ransom, the duration of his detention becomes
inconsequential. The crime is qualified and becomes punishable by death
even if none of the circumstances mentioned in paragraphs 1 to 4 of Article
267 of the Revised Penal Code is present.[9]

The essence of the crime of kidnapping is the actual deprivation of the

victims liberty coupled with the intent of the accused to effect it. [10] It
includes not only the imprisonment of a person but also the deprivation of
his liberty in whatever form and for whatever length of time. [11] And liberty
is not limited to mere physical restraint but embraces ones right to enjoy his
God-given faculties subject only to such restraints necessary for the common
welfare.[12]

The two-year-old Christopher suddenly disappeared in Binondo,

Manila and was recovered only after almost 16 months from Taurak and
Mamantak (both of them private individuals) in Kapatagan, Lanao del Norte.
During the entire time the boy was kept away from his mother, he was
certainly deprived or restrained of his liberty. He had no means, opportunity
or capacity to leave appellants custody and return to his family on his
own. He had no choice but to stay with total strangers, go with them to a far
away place and learn a culture and dialect alien to him. At such a very tender
age, he was deprived of the liberty to enjoy the company and care of his
family, specially his mother.

Taurak unlawfully kept the child under her control and custody and
even brought him to Lanao del Norte. She demanded P30,000 in exchange
for his return to his mother. On the other hand, Mamantaks actions (e.g., her
presence in the carinderia and her acceptance of the ransom) showed
without doubt that she was aiding her sister and was acting in concert with
her. These were the identical factual findings of both the trial and appellate
courts. There is no reason to disturb them as they are sufficiently supported
by evidence.

Tauraks story that she merely gave Christopher refuge was incredible.
It was like the apocryphal tale of a man accused of theft of large cattle; his
excuse was that he saw a piece of rope and brought it home not knowing that
there was a cow tied to the other end. She never even tried to bring the boy
to the proper authorities or surrender him to the Department of Social
Welfare and Developments social workers in her barangay or in the city hall
at any time during the 16 months he was with her. And how could Teresa
have initiated her phone conversations with Taurak when they were total
strangers to each other?

Similarly, Mamantak’s account that she was at Pitangs Carinderia

only by coincidence and that it was only there that she first saw Christopher
invites nothing but disbelief. The unequivocal testimonies of the prosecution
witnesses on her role in arranging for the payment of ransom and the release
of the kidnap victim (e.g., confirming the identity of Teresa and demanding
and receiving the ransom money) showed otherwise. The evidence clearly
established that Mamantak was a principal in the kidnapping of Christopher.

Evidence to be believed must not only proceed from the mouth of a

credible witness but must be credible in itself.[13] The trial and appellate
courts correctly ruled that the statements of Taurak and Mamantak did not
deserve credence. Moreover, factual findings of the trial court, including its
assessment of the credibility of the witnesses and the probative weight
thereof, are accorded great, if not conclusive, value when affirmed by the
Court of Appeals.[14]

The Court of Appeals considered the demand for P30,000 as a

qualifying circumstance which necessitated the imposition of the death
penalty. On the other hand, the trial court deemed the amount as too measly,
compared to what must have been actually spent for the care and subsistence
of Christopher for almost two years. It therefore treated the amount not as
ransom but as a reimbursement of expenses incurred for taking care of the
child. (Kidnappers in Mindanao today call it reimbursement for board-and-
lodging.)

Ransom means money, price or consideration paid or demanded for

the redemption of a captured person that will release him from
captivity.[15] No specific form of ransom is required to consummate the
felony of kidnapping for ransom as long as the ransom is intended as a
bargaining chip in exchange for the victims freedom.[16] The amount of and
purpose for the ransom is immaterial.

In this case, the payment of P30,000 was demanded as a condition for

the release of Christopher to his mother. Thus, the Court of Appeals
correctly considered it as a demand for ransom.

One final point of law. While the penalty for kidnapping for the
purpose of extorting ransom from the victim or any other person under
Article 267 of the Revised Penal Code[17] is death, RA 9346[18] has banned
the death penalty and reduced all death sentences to reclusion
perpetua without eligibility for parole. Pursuant to this law, we reduce the
penalty imposed on appellants from death to reclusion perpetua, without
eligibility for parole.

In line with prevailing jurisprudence, the award of P50,000 civil

indemnity[19] was proper. Pursuant to People v. Garalde,[20] the award
of P50,000[21] moral damages is increased to P200,000 considering the
minority of Christopher. Moreover, since the crime was attended by a
demand for ransom, and by way of example or correction, Christopher is
entitled to P100,000 exemplary damages.[22]
WHEREFORE, the appeal is hereby DENIED. The March 31, 2006
decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00729
is AFFIRMED with MODIFICATION. Appellants Raga Sarapida
Mamantak and Likad Sarapida Taurak are hereby found guilty beyond
reasonable doubt of the crime of kidnapping for ransom for which they are
sentenced to suffer the penalty of reclusion perpetua without eligibility for
parole. They are further ordered to pay, jointly and severally, P50,000 civil
indemnity, P200,000 moral damages and P100,000 exemplary damages to
their young victim Christopher Basario.

Costs against appellants.

SO ORDERED.

FIRST DIVISION

SAFEGUARD SECURITY G.R. NO. 165732

AGENCY, INC., and ADMER
PAJARILLO,
Petitioners,
Present:

PANGANIBAN, C.J.
YNARES-SANTIAGO, (Working Chairperson)
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

LAURO TANGCO, VAL TANGCO,

VERN LARRY TANGCO, VAN
LAURO TANGCO, VON LARRIE
TANGCO, VIEN LARI TANGCO
and VIVIEN LAURIZ TANGCO, Promulgated:
Respondents. December 14, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari filed by Safeguard

Security Agency, Inc. (Safeguard) and Admer Pajarillo (Pajarillo) assailing
the Decision[1]dated July 16, 2004 and the Resolution[2] dated October 20,
2004 issued by the Court of Appeals (CA) in CA-G.R. CV No. 77462.
On November 3, 1997, at about 2:50 p.m.,
Evangeline Tangco (Evangeline) went to Ecology
Bank, Katipunan Branch, Quezon City, to renew her time deposit per advise
of the banks cashier as she would sign a specimen card. Evangeline, a duly
licensed firearm holder with corresponding permit to carry the same outside
her residence, approached security guard Pajarillo, who was stationed
outside the bank, and pulled out her firearm from her bag to deposit the same
for safekeeping. Suddenly, Pajarillo shot Evangeline with his service
shotgun hitting her in the abdomen instantly causing her death.
Lauro Tangco, Evangelines husband, together with his six minor children
(respondents) filed with the Regional Trial Court (RTC) of Quezon City, a
criminal case of Homicide against Pajarillo, docketed as Criminal Case No.
0-97-73806 and assigned to Branch 78. Respondents reserved their right to
file a separate civil action in the said criminal case. The RTC of Quezon City
subsequently convicted Pajarillo of Homicide in its Decision dated January
19, 2000.[3] On appeal to the CA, the RTC decision was affirmed with
modification as to the penalty in a Decision[4] dated July 31, 2000. Entry of
Judgment was made on August 25, 2001.

Meanwhile, on January 14, 1998, respondents filed with RTC, Branch

273, Marikina City, a complaint[5] for damages against Pajarillo for
negligently shooting Evangeline and against Safeguard for failing to observe
the diligence of a good father of a family to prevent the damage committed
by its security guard. Respondents prayed for actual, moral and exemplary
damages and attorneys fees.

In their Answer,[6] petitioners denied the material allegations in the

complaint and alleged that Safeguard exercised the diligence of a good
father of a family in the selection and supervision of Pajarillo; that
Evangelines death was not due to Pajarillos negligence as the latter acted
only in self-defense. Petitioners set up a compulsory counterclaim for moral
damages and attorneys fees.

Trial thereafter ensued. On January 10, 2003, the RTC rendered its
Decision,[7] the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the

plaintiffs, the heirs of Evangeline Tangco, and against
defendants Admer Pajarillo and Safeguard Security Agency, Inc.
ordering said defendants to pay the plaintiffs, jointly and
severally, the following:

1. ONE HUNDRED FIFTY SEVEN THOUSAND

FOUR HUNDRED THIRTY PESOS (P157,430.00),
as actual damages
 2. FIFTY THOUSAND PESOS (P50,000.00) as death
indemnity;
3. ONE MILLION PESOS (P1,000,000.00), as moral
damages;
4. THREE HUNDRED THOUSAND PESOS
(P300,000.00), as exemplary damages;
5. THIRTY THOUSAND PESOS (P30,000.00), as
attorneys fees; and
6. costs of suit.

For lack of merit, defendants counterclaim is hereby

DISMISSED.

SO ORDERED. [8]

The RTC found respondents to be entitled to damages. It

rejected Pajarillos claim that he merely acted in self-defense. It gave no
credence to Pajarillos bare claim that Evangeline was seen roaming around
the area prior to the shooting incident since Pajarillo had not made such
report to the head office and the police authorities. The RTC further ruled
that being the guard on duty, the situation demanded that he should have
exercised proper prudence and necessary care by asking Evangeline for him
to ascertain the matter instead of shooting her instantly; that Pajarillo had
already been convicted of Homicide in Criminal Case No. 0-97-73806; and
that he also failed to proffer proof negating liability in the instant case.

The RTC also found Safeguard as employer of Pajarillo to be jointly

and severally liable with Pajarillo. It ruled that while it may be conceded that
Safeguard had perhaps exercised care in the selection of its employees,
particularly of Pajarillo, there was no sufficient evidence to show that
Safeguard exercised the diligence of a good father of a family in the
supervision of its employee; that Safeguards evidence simply showed that it
required its guards to attend trainings and seminars which is not the
supervision contemplated under the law; that supervision includes not only
the issuance of regulations and instructions designed for the protection of
persons and property, for the guidance of their servants and employees, but
also the duty to see to it that such regulations and instructions are faithfully
complied with.
 Petitioners appealed the RTC decision to the CA. On July 16, 2004,
the CA issued its assailed Decision, the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, the appealed

decision is hereby AFFIRMED, with the modification that
Safeguard Security Agency, Inc.s civil liability in this case is only
subsidiary under Art. 103 of the Revised Penal Code. No
pronouncement as to costs.[9]

In finding that Safeguard is only subsidiarily liable, the CA held that

the applicable provisions are not Article 2180 in relation to Article 2176 of
the Civil Code, on quasi-delicts, but the provisions on civil liability arising
from felonies under the Revised Penal Code; that since Pajarillo had been
found guilty of Homicide in a final and executory judgment and is said to be
serving sentence in Muntinlupa, he must be adjudged civilly liable under the
provisions of Article 100 of the Revised Penal Code since the civil liability
recoverable in the criminal action is one solely dependent upon conviction,
because said liability arises from the offense charged and no other; that this
is also the civil liability that is deemed extinguished with the extinction
of the penal liability with a pronouncement that the fact from which the civil
action might proceed does not exist; that unlike in civil liability arising
from quasi-delict, the defense of diligence of a good father of a family in the
employment and supervision of employees is inapplicable and irrelevant in
civil liabilities based on crimes or ex-delicto; that Article 103 of the Revised
Penal Code provides that the liability of an employer for the civil liability of
their employees is only subsidiary, not joint or solidary.

Petitioners filed their Motion for Reconsideration which the CA

denied in a Resolution dated October 20, 2004.

Hence, the instant Petition for Review on Certiorari with the

following assignment of errors, to wit:
 The Honorable Court of Appeals gravely erred in finding
petitioner Pajarillo liable to respondents for the payment of
damages and other money claims.

The Honorable Court of Appeals gravely erred when it

applied Article 103 of the Revised Penal Code in holding
petitioner Safeguard solidarily [sic] liable with
petitioner Pajarillo for the payment of damages and other money
claims.

The Honorable Court of Appeals gravely erred in failing to

find that petitioner Safeguard Security Agency, Inc. exercised due
diligence in the selection and supervision of its employees, hence,
should be excused from any liability.[10]

The issues for resolution are whether (1) Pajarillo is guilty of

negligence in shooting Evangeline; and (2) Safeguard should be
held solidarily liable for the damages awarded to respondents.
Safeguard insists that the claim for damages by respondents is based
on culpa aquiliana under Article 2176[11] of the Civil Code, in which case, its
liability is jointly and severally with Pajarillo. However, since it has
established that it had exercised due diligence in the selection and
supervision of Pajarillo, it should be exonerated from civil liability.

We will first resolve whether the CA correctly held that respondents,

in filing a separate civil action against petitioners are limited to the recovery
of damages arising from a crime or delict, in which case the liability of
Safeguard as employer under Articles 102 and 103 of the Revised Penal
Code[12] is subsidiary and the defense of due diligence in the selection and
supervision of employee is not available to it.

The CA erred in ruling that the liability of Safeguard is only

subsidiary.

The law at the time the complaint for damages was filed is Rule 111
of the 1985 Rules on Criminal Procedure, as amended, to wit:
 SECTION 1. Institution of criminal and civil actions. -
When a
criminal action is instituted, the civil action for the recovery of civ
il liability is impliedly instituted with the criminal action, unless
the offended party waives the civil action, reserves his right to
institute it separately, or institutes the civil action prior to the
criminal action.
Such civil action includes recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34, and
2176 of the Civil Code of the Philippinesarising from the same act
or omission of the accused.

Respondents reserved the right to file a separate civil action and in

fact filed the same on January 14, 1998.

The CA found that the source of damages in the instant case must be
the crime of homicide, for which he had already been found guilty of and
serving sentence thereof, thus must be governed by the Revised Penal Code.

We do not agree.

An act or omission causing damage to another may give rise to two

separate civil liabilities on the part of the offender, i.e., (1) civil
liability ex delicto, under Article 100 of the Revised Penal Code; and (2)
independent civil liabilities, such as those (a) not arising from an act or
omission complained of as a felony, e.g., culpacontractual or obligations
arising from law under Article 31 of the Civil Code, intentional torts under
Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil
Code; or (b) where the injured party is granted a right to file an action
independent and distinct from the criminal action under Article 33 of the
Civil Code.Either of these liabilities may be enforced against the offender
subject to the caveat under Article 2177 of the Civil Code that the offended
party cannot recover damages twice for the same act or omission or under
both causes.[13]
 It is important to determine the nature of respondents cause of action.
The nature of a cause of action is determined by the facts alleged in the
complaint as constituting the cause of action.[14] The purpose of an action or
suit and the law to govern it is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the complaint
itself, its allegations and prayer for relief.[15]

The pertinent portions of the complaint read:

7. That Defendant Admer A. Pajarillo was the guard

assigned and posted in the Ecology
Bank Katipunan Branch, Quezon City, who was employed and
under employment of Safeguard Security Agency, Inc. hence
there is employer-employee relationship between co-defendants.

The Safeguard Security Agency, Inc. failed to observe the

diligence of a good father of a family to prevent damage to herein
plaintiffs.

8. That defendant Admer Pajarillo upon seeing

Evangeline Tangco, who brought her firearm out of her bag,
suddenly without exercising necessary caution/care, and in idiotic
manner, with the use of his shotgun, fired and burst bullets upon
Evangeline M. Tangco, killing her instantly. x x x

xxxx

16. That defendants, being employer and the employee are

jointly and severally liable for the death of Evangeline
M. Tangco.[16]

Thus, a reading of respondents complaint shows that the latter are invoking
their right to recover damages against Safeguard for their vicarious
responsibility for the injury caused by Pajarillos act of shooting and killing
Evangeline under Article 2176, Civil Code which provides:

ARTICLE 2176. Whoever by act or omission causes

damage to another, there being fault or negligence, is obliged to
 pay for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties is called a
quasi-delict and is governed by the provisions of this Chapter.

The scope of Article 2176 is not limited to acts or omissions resulting

from negligence. In Dulay v. Court of Appeals,[17] we held:
x x x Well-entrenched is the doctrine that Article 2176
covers not only acts committed with negligence, but also acts
which are voluntary and intentional. As far back as the definitive
case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already
held that:
"x x x Article 2176, where it refers to "fault or
negligence," covers not only acts "not punishable by law" but
also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that
the offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In other words,
the extinction of civil liability referred to in Par. (e) of Section 3,
Rule 111, refers exclusively to civil liability founded on Article
100 of the Revised Penal Code, whereas the civil liability for the
same act considered as quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been committed
by the accused. Briefly stated, We here hold, in reiteration of
Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law." (Emphasis supplied)

The civil action filed by respondents was not derived from the
criminal liability of Pajarillo in the criminal case but one based
on culpa aquiliana or quasi-delictwhich is separate and distinct from the
civil liability arising from crime.[18] The source of the obligation sought to be
enforced in the civil case is a quasi-delict not an act or omission punishable
by law.
 In Bermudez v. Melencio-Herrera,[19] where the issue involved was
whether the civil action filed by plaintiff-appellants is founded on crime or
on quasi-delict, we held:

x x x The trial court treated the case as an action based on a

crime in view of the reservation made by the offended party in the
criminal case (Criminal Case No. 92944), also pending before the
court, to file a separate civil action. Said the trial court:

It would appear that plaintiffs instituted this action on the

assumption that defendant Pontino's negligence in the accident
of May 10, 1969 constituted a quasi-delict. The Court cannot
accept the validity of that assumption. In Criminal Case No.
92944 of this Court, plaintiffs had already appeared as
complainants. While that case was pending, the offended parties
reserved the right to institute a separate civil action. If, in a
criminal case, the right to file a separate civil action for damages
is reserved, such civil action is to be based on crime and not on
tort. That was the ruling in Joaquin vs. Aniceto, L-18719, Oct. 31,
1964.

We do not agree. The doctrine in the case cited by the trial

court is inapplicable to the instant case x x x.
xxxx
In cases of negligence, the injured party or his heirs has the
choice between an action to enforce the civil liability arising from
crime under Article 100 of the Revised Penal Code and an action
for quasi-delict under Article 2176-2194 of the Civil Code. If a
party chooses the latter, he may hold the
employer solidarily liable for the negligent act of his employee,
subject to the employer's defense of exercise of the diligence of a
good father of the family.
In the case at bar, the action filed by appellant was an
action for damages based on quasi-delict. The fact that
appellants reserved their right in the criminal case to file an
independent civil action did not preclude them from choosing
to file a civil action for quasi-delict.[20] (Emphasis supplied)
 Although the judgment in the criminal case finding Pajarillo guilty of
Homicide is already final and executory, such judgment has no relevance or
importance to this case.[21] It would have been entirely different if
respondents cause of action was for damages arising from a delict, in which
case the CA is correct in finding Safeguard to be only subsidiary liable
pursuant to Article 103 of the Revised Penal Code.[22]

As clearly shown by the allegations in the complaint, respondents

cause of action is based on quasi-delict. Under Article 2180 of the Civil
Code, when the injury is caused by the negligence of the employee, there
instantly arises a presumption of law that there was negligence on the part of
the master or the employer either in the selection of the servant or employee,
or in the supervision over him after selection or both. The liability of the
employer under Article 2180 is direct and immediate. Therefore, it is
incumbent upon petitioners to prove that they exercised the diligence of a
good father of a family in the selection and supervision of their employee.

We must first resolve the issue of whether Pajarillo was negligent in

shooting Evangeline.

The issue of negligence is factual in nature. Whether a person is

negligent or not is a question of fact, which, as a general rule, we cannot
pass upon in a petition for review on certiorari, as our jurisdiction is limited
to reviewing errors of law.[23] Generally, factual findings of the trial court,
affirmed by the CA, are final and conclusive and may not be reviewed on
appeal. The established exceptions are: (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is grave abuse of
discretion; (3) when the findings are grounded entirely on speculations,
surmises or conjectures; (4) when the judgment of the CA is based on
misapprehension of facts; (5) when the findings of fact are conflicting; (6)
when the CA, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant and appellee; (7)
when the findings of fact are conclusions without citation of specific
evidence on which they are based; (8) when the CA manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly
considered, would justify a different conclusion; and (9) when the findings
of fact of the CA are premised on the absence of evidence and are
contradicted by the evidence on record. [24]

A thorough review of the records of the case fails to show any cogent
reason for us to deviate from the factual finding of the trial court and
affirmed by the CA that petitioner Pajarillo was guilty of negligence in
shooting Evangeline.

Respondents evidence established that Evangelines purpose in going

to the bank was to renew her time deposit.[25] On the other
hand, Pajarillo claims that Evangeline drew a gun from her bag and aimed
the same at him, thus, acting instinctively, he shot her in self-defense.

Pajarillo testified that when Evangeline aimed the gun at him at a

distance of about one meter or one arms length[26] he stepped backward,
loaded the chamber of his gun and shot her.[27] It is however unimaginable
that petitioner Pajarillo could still make such movements if indeed the gun
was already pointed at him. Any movement could have prompted
Evangeline to pull the trigger to shoot him.

Petitioner Pajarillo would like to justify his action in shooting

Evangeline on his mere apprehension that Evangeline will stage a bank
robbery. However, such claim is befuddled by his
own testimony. Pajarillo testified that prior to the incident, he saw
Evangeline roaming under the fly over which was about 10 meters away
from the bank[28] and saw her talking to a man thereat;[29] that she left the man
under the fly-over, crossed the street and approached the bank. However,
except for the bare testimony of Pajarillo, the records do not show that
indeed Evangeline was seen roaming near the vicinity of the bank and acting
suspiciously prior to the shooting incident. In fact, there is no evidence
that Pajarillo called the attention of his head guard or the banks branch
manager regarding his concerns or that he reported the same to the police
authorities whose outpost is just about 15 meters from the bank.
Moreover, if Evangeline was already roaming the vicinity of the bank,
she could have already apprised herself that Pajarillo, who was posted
outside the bank, was armed with a shotgun; that there were two guards
inside the bank[30] manning the entrance door. Thus, it is quite incredible that
if she really had a companion, she would leave him under the fly-over which
is 10 meters far from the bank and stage a bank robbery all by herself
without a back-up. In fact, she would have known, after surveying the area,
that aiming her gun at Pajarillo would not ensure entrance to the bank as
there were guards manning the entrance door.

Evidence, to be believed, must not only proceed from the mouth of a

credible witness, but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except its
conformity to our knowledge, observation and experience. Whatever is
repugnant to these belongs to the miraculous and is outside judicial
cognizance.[31]

That Evangeline just wanted to deposit her gun before entering the
bank and was actually in the act of pulling her gun from her bag when
petitioner Pajarillo recklessly shot her, finds support from the contentions
raised in petitioners petition for review where they argued that when
Evangeline approached the bank, she was seen pulling a gun from inside her
bag and petitioner Pajarillo who was suddenly beset by fear and perceived
the act as a dangerous threat, shot and killed the deceased out of pure
instinct;[32] that the act of drawing a gun is a threatening act, regardless of
whether or not the gun was intended to be used against
petitioner Pajarillo;[33]that the fear that was created in the mind of
petitioner Pajarillo as he saw Evangeline Tangco drawing a gun from her
purse was suddenly very real and the former merely reacted out of pure self-
preservation.[34]

Considering that unlawful aggression on the part of Evangeline is

absent, Pajarillos claim of self-defense cannot be accepted specially when
such claim was uncorroborated by any separate competent evidence other
than his testimony which was even doubtful. Pajarillos apprehension that
Evangeline will shoot him to stage a bank robbery has no basis at all. It is
therefore clear that the alleged threat of bank robbery was just a figment
of Pajarillos imagination which caused such unfounded unlawful aggression
on his part.

Petitioners argue that Evangeline was guilty of contributory

negligence. Although she was a licensed firearm holder, she had no business
bringing the gun in such establishment where people would react
instinctively upon seeing the gun; that had Evangeline been prudent, she
could have warned Pajarillo before drawing the gun and did not conduct
herself with suspicion by roaming outside the vicinity of the bank; that she
should not have held the gun with the nozzle pointed at Pajarillowho
mistook the act as hold up or robbery.

We are not persuaded.

As we have earlier held, Pajarillo failed to substantiate his claim that

Evangeline was seen roaming outside the vicinity of the bank and acting
suspiciously prior to the shooting incident. Evangelines death was merely
due to Pajarillos negligence in shooting her on his imagined threat that
Evangeline will rob the bank.

Safeguard contends that it cannot be jointly held liable since it had

adequately shown that it had exercised the diligence required in the selection
and supervision of its employees. It claims that it had required the guards to
undergo the necessary training and to submit the requisite qualifications and
credentials which even the RTC found to have been complied with; that the
RTC erroneously found that it did not exercise the diligence required in the
supervision of its employee. Safeguard further claims that it conducts
monitoring of the activities of its personnel, wherein supervisors are
assigned to routinely check the activities of the security guards which
include among others, whether or not they are in their proper post and with
proper equipment, as well as regular evaluations of the employees
performances; that the fact that Pajarillo loaded his firearm contrary to
Safeguards operating procedure is not sufficient basis to say that Safeguard
had failed its duty of proper supervision; that it was likewise error to say that
Safeguard was negligent in seeing to it that the procedures and policies were
not properly implemented by reason ofone unfortunate event.
 We are not convinced.

Article 2180 of the Civil Code provides:

Art. 2180. The obligation imposed by Article 2176 is

demandable not only for ones own acts or omissions, but also for
those of persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their

employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.

xxxx

The responsibility treated of in this article shall cease when

the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.

As the employer of Pajarillo, Safeguard is primarily

and solidarily liable for the quasi-delict committed by the former. Safeguard
is presumed to be negligent in the selection and supervision of his employee
by operation of law. This presumption may be overcome only by
satisfactorily showing that the employer exercised the care and the diligence
of a good father of a family in the selection and the supervision of its
employee.

In the selection of prospective employees, employers are required to

examine them as to their qualifications, experience, and service
records.[35] On the other hand, due diligence in the supervision of employees
includes the formulation of suitable rules and regulations for the guidance of
employees and the issuance of proper instructions intended for the protection
of the public and persons with whom the employer has relations through his
or its employees and the imposition of necessary disciplinary measures upon
employees in case of breach or as may be warranted to ensure the
performance of acts indispensable to the business of and beneficial to their
employer. To this, we add that actual implementation and monitoring of
consistent compliance with said rules should be the constant concern of the
employer, acting through dependable supervisors who should regularly
report on their supervisory functions.[36] To establish these factors in a trial
involving the issue of vicarious liability, employers must submit concrete
proof, including documentary evidence.

We agree with the RTCs finding that Safeguard had exercised the
diligence in the selection of Pajarillo since the record shows
that Pajarillo underwent a psychological and neuro-psychiatric evaluation
conducted by the St. Martin de Porres Center where no psychoses ideations
were noted, submitted a certification on the Pre-licensing training course for
security guards, as well as police and NBI clearances.

The RTC did not err in ruling that Safeguard fell short of the diligence
required in the supervision of its employee, particularly Pajarillo. In this
case, while Safeguard presented Capt. James Camero, its Director for
Operations, who testified on the issuance of company rules and regulations,
such as the Guidelines of Guards Who Will Be Assigned To
Banks,[37] Weapons Training,[38] Safeguard Training Center Marksmanship
Training Lesson Plan,[39] Disciplinary/Corrective Sanctions,[40] it had also
been established during Cameros cross-examination that Pajarillo was not
aware of such rules and
[41]
regulations. Notwithstanding Camerosclarification on his re-direct
examination that these company rules and regulations are lesson plans as a
basis of guidelines of the instructors during classroom instructions and not
necessary to give students copy of the same,[42] the records do not show
that Pajarillo had attended such classroom instructions.
The records also failed to show that there was adequate training and
continuous evaluation of the security guards performance. Pajarillo had only
attended an in-service training on March 1, 1997 conducted by Toyota Sta.
Rosa, his first assignment as security guard of Safeguard, which was in
collaboration with Safeguard. It was established that the concept of such
training was purely on security of equipments to be guarded and protection
of the life of the employees.[43]
 It had not been established that after Pajarillos training in Toyota,
Safeguard had ever conducted further training of Pajarillo when he was later
assigned to guard a bank which has a different nature of business with that
of Toyota. In fact, Pajarillo testified that being on duty in a bank is different
from being on duty in a factory since a bank is a very sensitive area.[44]

Moreover, considering his reactions to Evangelines act of just

depositing her firearm for safekeeping, i.e., of immediately shooting her,
confirms that there was no training or seminar given on how to handle bank
clients and on human psychology.

Furthermore, while Safeguard would like to show that there were

inspectors who go around the bank two times a day to see the daily
performance of the security guards assigned therein, there was no record
ever presented of such daily inspections. In fact, if there was really such
inspection made, the alleged suspicious act of Evangeline could have been
taken noticed and reported.

Turning now to the award of damages, we find that the award of

actual damages in the amount P157,430.00 which were the expenses
incurred by respondents in connection with the burial of Evangeline were
supported by receipts. The award of P50,000.00 as civil indemnity for the
death of Evangeline is likewise in order.

As to the award of moral damages, Article 2206 of the Civil Code

provides that the spouse, legitimate children and illegitimate descendants
and ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased. Moral damages are awarded
to enable the injured party to obtain means, diversions or amusements that
will serve to alleviate the moral suffering he/she has undergone, by reason of
the defendants culpable action. Its award is aimed at restoration, as much as
possible, of the spiritual status quo ante; thus it must be proportionate to the
suffering inflicted.[45] The intensity of the pain experienced by the relatives
of the victim is proportionate to the intensity of affection for him and bears
no relation whatsoever with the wealth or means of the offender.[46]
 In this case, respondents testified as to their moral suffering caused by
Evangelines death was so sudden causing respondent Lauro to lose a wife
and a mother to six children who were all minors at the time of her death.
In People v. Teehankee, Jr.,[47] we awarded one million pesos as moral
damages to the heirs of a seventeen-year-old girl who was
murdered. In Metro Manila Transit Corporation v. Court of Appeals,[48] we
likewise awarded the amount of one million pesos as moral damages to the
parents of a third year high school student and who was also their youngest
child who died in a vehicular accident since the girls death left a void in their
lives. Hence, we hold that the respondents are also entitled to the amount of
one million pesos as Evangelines death left a void in the lives of her husband
and minor children as they were deprived of her love and care by her
untimely demise.

We likewise uphold the award of exemplary damages in the amount

of P300,000.00. Under Article 2229 of the Civil Code, exemplary damages
are imposed by way of example or correction for the public good, in addition
to moral, temperate, liquidated or compensatory damages.[49] It is awarded as
a deterrent to socially deleterious actions. In quasi-delict, exemplary
damages may be granted if the defendant acted with gross negligence.[50]

Pursuant to Article 2208 of the Civil Code, attorney's fees may be

recovered when, as in the instant case, exemplary damages are
awarded. Hence, we affirm the award of attorney's fees in the amount
of P30,000.00.
WHEREFORE, the petition for review is DENIED. The Decision
dated July 16, 2004 of the Court of Appeals
is AFFIRMED with MODIFICATION that the civil liability of petitioner
Safeguard Security Agency, Inc. is SOLIDARY and PRIMARY under
Article 2180 of the Civil Code.

SO ORDERED.
G.R. No. 178115 July 28, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
JOJO SUMILHIG, RICARDO SUMILHIG alias CARDING SUMILHIG, PASOT SALOLI,
ERIC ENOC, WARLITO MONTEBON,* and CIO LIMAMA, Accused,

JOJO SUMILHIG, RICARDO SUMILHIG alias CARDING SUMILHIG, and PASOT

SALOLI, Accused-Appellants.

DECISION

DEL CASTILLO, J.:

This is an appeal from the Decision1 dated July 28, 2006 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 00187-MIN, which affirmed with modifications the Regional Trial Court's
(RTC) conviction2 of appellants Jojo Sumilhig (Jojo), Ricardo Sumilhig alias Carding Sumilhig
(Carding), and Pasot Saloli (Pasot) in Criminal Case No. 3(99).

Factual Antecedents

Appellants, together with the accused Eric Enoc, Warlito Montibon and Cio Limama, were
charged with double murder and double frustrated murder in an Amended Information,3 the
accusatory portion of which reads:

That on or about October 31, 1998, inthe Municipality of Kiblawan, Province of Davao del
Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one another, armed with assortedfirearms,
with intent to kill with treachery and evident premeditation, did, then and there willfully,
unlawfully and feloniously, simultaneously strafe the house of Eugenio Santander resulting to
death of [Cresjoy] Santander and RollySantander and seriously wounding Marissa
Santander and Micel Santander, which would have caused their death had there been no
timely and able medical assistance rendered to them, to the damage and prejudice of the
offended parties.

CONTRARY TO LAW.4

Only Jojo, Carding and Pasot, who entered separate pleas of "not guilty" during their
arraignment,5 faced trial. The other accused could not be located and remain at-large to this
day.

Factual Antecedents

The prosecution established that onOctober 31, 1998, at around 6:30 p.m., Jerry Masaglang
(Jerry), together with Eugenio Santander (Eugenio) and his son Mario, were in the living
room of Eugenio’s house in SitioOverland, Kimlawis, Kiblawan, Davao del Sur. Suddenly,
they heard gun bursts and saw six persons firing at the kitchen where members of the
Santander family werehaving dinner. Jerry and Mario recognized the assailants to be the
appellants and their co-accused.
The strafing of the kitchen lasted for about two minutes. Before the gunmen dispersed, Jojo
shouted, "At last, I have retaliated!" In the aftermath, the children of Eugenio’s other son
Remegio6 Santander (Remegio), 3-year old Cresjoy,7 8-year old Rolly, and teeners Marissa
and Micel, sustained gunshot wounds. Unfortunately, Cresjoy expired while on the way to the
hospital while Rolly was pronounced dead-on-arrival. Marissa sustained gunshot wounds
atthe right breast area and left wrist, while Micel was wounded inthe left sternal area and
elbow.

Jojo denied involvement in the incident and interposed the defense of alibi. At the time of the
incident, he claimed to be in the house of his parents-in-law in SitioOlogo-o, BarangayTacub,
Kiblawan, Davao del Sur. He further asserted that it was impossible for him to be at the
scene of the crime on October 31, 1998 since he could not walk briskly due to a gunshot
wound he earlier sustained in his left knee and anus. He maintained that it was only in
January 1999 that he was able to walk without the aid of crutches. However, Jojo admitted
harboring ill-will against the Santander clan since he believed that they were the ones
responsible for the massacre of his family in February 1998.

Carding, for his part, claimed to be illiterate and unaware of the incident. He contended that
at the time of the shooting, he was in Dalmandang, Tacub, Kiblawan, Davao del Sur, which
is four-hours walk away from the crime scene. Pasot, on the other hand, maintained that he
was withhis wife at the house of Pablo Mot in Lampara, Balasiao, Kiblawan, Davao atthe
time the crime was committed. Bothclaimed total ignoranceof the incident.

Ruling of the Regional Trial Court

The RTC convicted the appellants ofthe complex crime of double murder and double
frustrated murder and sentenced them to suffer the penalty of death. It further ordered them
to indemnify, jointlyand severally, the heirs of Cresjoy and Rolly the sum of ₱100,000.00 as
civil indemnity, and the surviving victims, Marissa and Micel, the sums of ₱50,000.00 and
₱30,000.00 as moral and exemplary damages, respectively.8

Ruling of the Court of Appeals

On appeal, the CA did not find any reason to disturb the findings of the RTC. However, it
found merit in appellants’ argument that the crime committed could not have been a complex
crime since the death and injuries complained of did not result from a single act but from
several and distinctacts of shooting. And as treachery was alleged in the Amended
Information and sufficiently proven during trial, appellants should be convicted instead of two
counts of murder and two counts of frustrated murder. Thus, in rendering its Decision9 dated
July 28, 2006, the CA disposed ofthe case as follows:

WHEREFORE, the judgment of conviction of appellants Jojo Sumilhig, Alias Carding

Sumilhig and Pasot Saloli is affirmed butmodified as follows –

Appellants Juan "Jojo" Sumilhig, Alias Carding Sumilhig and Pasot Saloli, are found guilty
beyondreasonable doubt of:

a. Murder for killing Crisjoy Santander, and x x x are sentenced to suffer the penalty
of reclusion perpetua;

b. Murder for the killing of Rolly Santander, and x x x are sentenced to suffer the
penalty of reclusion perpetua;
 c. Frustrated Murder for the shooting of Marissa Santander and x x x are sentenced
to suffer an imprisonment ofsix (6) years, four (4) months and [ten] (10) days of
prision mayoras minimum to fourteen (14) years, eight (8) months and twenty (20)
days of reclusion temporalas maximum; d. Frustrated Murder for the shooting of
Micel Santander and x x x are sentenced to suffer an imprisonment ofsix (6) years,
four (4) months and ten (10) days of prision mayoras minimum to fourteen (14)
years, eight (8) months and twenty (20) days of reclusion temporalas maximum. All
accused are ordered to indemnify jointly and severally the heirs of Crisjoy Santander
and Rolly Santander the sum of ₱100,000.00 and the surviving victims Marissa
Santander and Micel Santander ₱50,000.00 as moral damages and ₱30,000.00 as
exemplary damages, without subsidiary imprisonment in case of insolvency.

Costs de officio.

SO ORDERED.10

Hence, this appeal.

Since there is no more dispute that appellants should not have been convicted of the
complex crime of double murder and frustrated murder as the Office of the Solicitor General
(OSG) already concedes to the same,11 the only error left from those raised by appellants in
their brief is as follows:

GRANTING ARGUENDO THAT THE ACCUSED-APPELLANTS ARE GUILTY, THE COURT

A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY WAS PRESENT AND
INFINDING THAT THE CRIMES COMMITTED WERE MURDER AND FRUSTRATED
MURDER.12

It must be noted at the outset that Carding diedon June 24, 2011 during the pendency of this
appeal.13 "[I]n view of [this] supervening event, it is unnecessary for the Court to rule on
[Carding’s] appeal. Whether x x x he was guilty of the [crimes] charged has becomeirrelevant
since, following Article 89(1) of the Revised Penal Code, x x x, even assuming [that Carding]
had incurred any criminal liability, it was totally extinguished by his death. Moreover, because
[the] appeal was still pending and no final judgment of conviction had been rendered against
him [before] he died, his civil liability arising from the crime, being civil liability ex delicto,was
likewise extinguished by his death."14

Appellants’ Arguments

Appellants claim that the RTC erred in relying heavily on the ill-feelings and vendetta Jojo
harbored against the Santander family. They contend that this motive for committing the
crime is not a substitute for proof beyond reasonable doubt. Moreover, Jojo’salibi that it was
impossible for him to be at the crime scene due to the gunshot wounds in his knee and anus
is amply corroborated by a medical prognosis.

Anent Pasot, appellants argue that although the trial court found his claim of total ignorance
on almost about everything to beincredulous, still, his conviction must not rest on the
weakness of his defense but on the strength of the prosecution’s evidence.

Appellants likewise question the finding of conspiracyand treachery.

 Our Ruling

The appeal has no merit.

Appellants’ conviction was based on
their positive identification by the
prosecution witnesses.

True, the RTC noted in its Decision the existence of motive on the part of Jojo for committing
the crime as well as Pasot’s incredulous claim of ignorance on almost about everything. It is
well to note, however, that the said court neither based the appellants’ conviction on the
existence of such motive nor on Pasot’s weak defense of ignorance alone, but upon the
prosecution witnesses’ identification of appellants as the assailants, viz:

Assessing the evidence presented by both [P]rosecution and defense, we see a less than
glaring hint of vendetta. As part of his defense, the accused Jojo Sumilhig narrated that his
family was massacred by Jerry Santander, brother of Remigio Santander [in] February 1998.
Short of admitting the crime, Sumilhig stated that because of this, he harbored ill feelings not
only against Jerry and Carlos Santander but also against their family. Thus a clear motive for
killing the Santander family has been established giving credence to prosecution witnesses’
allegation that after the strafing Jojo Sumilhig shouted"Nakabalos na ko!" The likelihood of
his intention to wipe out the said family became even more apparent.

Despite his positive assertion that it was the Santanders that killed his family, he did not file
any case against them. It was only after he was arrested that he filed a complaint against
Jerry and Carlos Santander.

His alibi likewise failed to meet the stringent requisites of the Rules. Even as Dr. Quirapas
appeared determined to rule out the possibility that he could walk without crutches five
months after his discharge, the same was based on general medical prognosis. Such
prognostication admits certain exception[s], as could be gleaned from the testimony of the
doctor himself that the healing period may vary depending on the age and physical condition
of the patient. Notably Jojo Sumilhig was then 23 years old.

What was certain was the positive identification made by Jerry Masaglang and Remegio
Santander of all of the accused.

The "overkill" by which the accused Pasot Saloli and Carding Sumilhig claimed total
ignorance of almost anything only served to arouse incredulity. Both accused claimed they
could not read, write, tell time, day, month or year. Neither could [they] allegedly speak [or]
understand Visayan, which is of common knowledge to be widely spoken in almost every
part of Mindanao. Saloli claimed he did not know what day [it] was when he was testifying, or
the day before and after that. Both claimed they did not know the complainants or of the
massacre that took place.

xxxx

More importantly, these claims [of] utter ignorance are belied by the evasiveness by which all
three accused answered in obvious effort to avoid criminal responsibility. Behind the façade
of ignorance and lack of education lurks a calculating mind. We find [it] difficult to ascribe
innocence to the accused when traces of ingenuity and craftiness characterize their
testimonies.
All these observations however become insignificant in the face of the positive and
spontaneous identification of the assailants/accused by credible witnesses Jerry Masaglang
and Remigio Santander.15

There is no reason to doubt Jerry and Mario’s identification of the appellants considering that
(1) Jerry was just six meters away from them;16 (2) the moon was bright and Jerry was
familiar with all the accused as most of them are his relatives;17 and, (3) Mario knows
Jojoever since he was small.18 Besides, "[t]ime-tested is the rulethat between the positive
assertions of prosecution witnesses and the negative averments of the accused, the former
undisputedly [deserve] more credence and [are] entitled to greater evidentiary weight."19

Anent the respective alibis interposed by appellants, suffice it to say that "[a]libi cannot
prevail over the positive identification of a credible witness."20

There was conspiracy among the accused.

"[C]onspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it."21 It is not necessary to adduce evidence of a
previous agreement to commit a crime.22"Conspiracy may be shown through circumstantial
evidence, deduced from the mode and manner in which the offense was perpetrated, or
inferred from the acts of the accused themselves when such leadto a joint purpose and
design, concerted action, and community of interest."23

Here, there is no proof of a previous agreement among the accused but there is a series of
events that clearly established conspiracy among them. First, they were all armed with
firearms. Second, they surreptitiously approached the crime scene. Third, when they were
within close range of the intended victims, they simultaneously discharged their firearms.
Fourth, they ceased firing at the same time and fled together. Undoubtedly, their acts before,
during and immediately after strafing the house of Eugenio evince their unanimity in design,
intent and execution.24 Treachery attended the commission of the crime.

"There is treachery whenthe offender commits any of the crimes against the person,
employing means, methods orforms in the execution thereof which tend directly and specially
to insure the execution, without risk to himself arising from [any] defense which the offended
party might make."25

Treachery is evident in this case as the suddenness and unexpectedness of the assault
deprived the victims of an opportunity to resist it or offer any defense of their persons. This is
considering that the victims were unaware that they would be attacked by appellants with a
hailof bullets from their firearms fired at close range. Indeed, "[t]he suddenness of the attack,
without the slightest forewarning thereof, placed the [victims] x x x in such a position that
they could not have defended themselvesfrom the aggression x x x."26

The crime committed is two counts of

murder and two counts of frustrated
murder.

As earlier discussed, treachery attendedthe commission of the crime. This qualifies the killing
of Cresjoy and Rolly to murder.

With regard to Marissa and Micel, the Court notes that while the RTC was silent as to the
nature of injuries sustained by them, the CA correctly ruled on the seriousness thereof. The
Medico Legal report of Marissa shows that she suffered multiple gunshot wounds in her right
breast and left wrist27 while the Certificate of Treatment/Confinement of Micel states that she
sustained gunshot wounds in the area of the sternum and elbow.28As aptly found by the CA,
the girls would have died if not for the timely medical attention provided to them. The crimes
committed by the appellants against them were thus frustrated murders.

The Penalty

Under Article 248 of the Revised Penal Code, the penalty for the crime of murder is reclusion
perpetuato death. With both penalties being indivisible and there being no aggravating
1âwphi1

circumstance other than the qualifying circumstance of treachery, the lower of the two
penalties which is reclusion perpetua was properly imposed by the CA on appellants for each
count of murder.29 However, appellants are not eligible for parole.30

As regards the frustrated murders of Marissa and Micel, the penalty lesser by one degree
shall be imposed on appellants.31 Accordingly, the penalty that must be imposed is reclusion
temporalfor each count of frustrated murder. Applying the Indeterminate Sentence Law and
in the absence of modifying circumstances other than the qualifying circumstance of
treachery, the maximum penalty shall be taken from the medium period of reclusion
temporal, which has a range of fourteen (14) years, eight (8) months and one (1) day to
seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty
next lower in degree which is prision mayorin any of its periods, the range of which is from
six (6) years,one (1) day to twelve (12)years. The prison term imposed by the CA on
appellants must therefore be modified to six (6) years and one (1) day of prision mayoras
minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporalas
maximum, which is within these ranges,32 for each count of frustrated murder.

Awards of Damages

For the murders of Cresjoy and Rolly, the CA correctly held that their heirs are entitled to an
award of civil indemnity, however, the amount of the award must be ₱75,000.00 for each
death pursuant to prevailing jurisprudence.33 The awards of moral damages in the amount of
₱50,000.00 each and exemplary damages in the amount of ₱30,000.00 each are proper.34 In
addition, the heirs of the victims are entitled to temperate damages in the sum of ₱25,000.00
for each death in lieu of actual damages.35

For the frustrated murders of Marissa and Micel, the awards of moral and exemplary
damages by the CA must be decreased to ₱40,000.00 and ₱20,000.00, respectively for each
victim.36 They are likewise entitled to temperate damages in the amount of ₱25,000.00 each
in lieu of actual damages.37

All damages awarded shall earn interest at the rate of 6% per annumfrom the date of finality
of thisjudgment until fully paid.38

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CRH.C. No. 00187-MIN
which affirmed withmodification the Decision of the Regional Trial Court of DigosCity, Davao
del Sur, Branch 19, finding appellants Jojo Sumilhig and Pasot Saloli guilty beyond
reasonable doubt of two counts of murder and two counts offrustrated murder is AFFIRMED
with MODIFICATIONSas follows:

For the murders of Cresjoy Santander and Rolly Santander:

 (1) appellants Jojo Sumilhig and Pasot Saloli shall suffer the prison tenn of reclusion
perpetua for each count of murder without eligibility for parole;

(2) appellants Jojo Sumilhig and Pasot Saloli shall pay the heirs of the victims the
amount of ₱5,000.00 as civil indemnity for the death of each victim;

(3) appellants Jojo Sumilhig and Pasot Saloli shall pay the heirs of the victims
₱25,000.00 as temperate damages for each death.

For the frustrated murders of Marissa Santander and Micel Santander:

(1) appellants Jojo Sumilhig and Pasot Saloli are sentenced to suffer the
indeterminate penalty of six ( 6) years and one (1) day of prision mayor, as minimum,
to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as
maximum, for each count of frustrated murder; and,

(2) appellants Jojo Sumilhig and Pasot Saloli are ordered to pay moral damages and
exemplary damages to each of the victims in the reduced amounts of ₱40,000.00
and ₱25,000.00, respectively.

All amounts of damages awarded shall earn interest at the legal rate of 6% per annum
commencing from the date of finality of judgment until fully paid.

Due to the death of Ricardo Swnilhig alias Carding Sumilhig prior to final judgment, his
criminal liability and civil liability ex delicto as found by the Regional Trial Court and affirmed
by the Court of Appeals, are extinguished. Consequently, Criminal Case No. 3(99) is ordered
dismissed insofar as Ricardo Sumilhig alias Carding Sumilhig is concerned.

Costs against appellants Jojo Sumilhig and Pasot Saloli.

SO ORDERED.