G.R. No.
172716 November 17, 2010 Relying on the arrest order against petitioner, respondent
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge
of the Metropolitan Trial Court, Branch 71, Pasig City, and
EVANGELINE PONCE, Respondents.
The Case
The petition seeks the review1 of the Orders2 of the Regional
Trial Court of Pasig City affirming sub-silencio a lower court’s
ruling finding inapplicable the Double Jeopardy Clause to bar a
second prosecution for Reckless Imprudence Resulting in
Homicide and Damage to Property. This, despite the accused’s
previous conviction for Reckless Imprudence Resulting in
Slight Physical Injuries arising from the same incident
grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner
Jason Ivler (petitioner) was charged before the Metropolitan
Trial Court of Pasig City, Branch 71 (MeTC), with two separate
offenses: (1) Reckless Imprudence Resulting in Slight Physical
Injuries (Criminal Case No. 82367) for injuries sustained by
respondent Evangeline L. Ponce (respondent Ponce); and (2)
Reckless Imprudence Resulting in Homicide and Damage to
Property (Criminal Case No. 82366) for the death of
respondent Ponce’s husband Nestor C. Ponce and damage to
the spouses Ponce’s vehicle. Petitioner posted bail for his
temporary release in both cases.
On 7 September 2004, petitioner pleaded guilty to the charge
in Criminal Case No. 82367 and was meted out the penalty of
public censure. Invoking this conviction, petitioner moved to
quash the Information in Criminal Case No. 82366 for placing
him in jeopardy of second punishment for the same offense of
reckless imprudence.
The MeTC refused quashal, finding no identity of offenses in
the two cases.3
After unsuccessfully seeking reconsideration, petitioner
elevated the matter to the Regional Trial Court of Pasig City,
Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803).
Meanwhile, petitioner sought from the MeTC the suspension of
proceedings in Criminal Case No. 82366, including the
arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a
prejudicial question. Without acting on petitioner’s motion, the
MeTC proceeded with the arraignment and, because of
petitioner’s absence, cancelled his bail and ordered his arrest.4
Seven days later, the MeTC issued a resolution denying
petitioner’s motion to suspend proceedings and postponing his
arraignment until after his arrest.5 Petitioner sought
reconsideration but as of the filing of this petition, the motion
remained unresolved.
Ponce sought in the RTC the dismissal of S.C.A. No. 2803 for
petitioner’s loss of standing to maintain the suit. Petitioner
contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A.
No. 2803, narrowly grounding its ruling on petitioner’s
forfeiture of standing to maintain S.C.A. No. 2803 arising from
the MeTC’s order to arrest petitioner for his non-appearance at
the arraignment in Criminal Case No. 82366. Thus, without
reaching the merits of S.C.A. No. 2803, the RTC effectively
affirmed the MeTC. Petitioner sought reconsideration but this
proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in
S.C.A. No. 2803 constrained him to forego participation in the
proceedings in Criminal Case No. 82366. Petitioner
distinguishes his case from the line of jurisprudence
sanctioning dismissal of appeals for absconding appellants
because his appeal before the RTC was a special civil action
seeking a pre-trial relief, not a post-trial appeal of a judgment
of conviction.7
Petitioner laments the RTC’s failure to reach the merits of his
petition in S.C.A. 2803. Invoking jurisprudence, petitioner
argues that his constitutional right not to be placed twice in
jeopardy of punishment for the same offense bars his
prosecution in Criminal Case No. 82366, having been
previously convicted in Criminal Case No. 82367 for the same
offense of reckless imprudence charged in Criminal Case No.
82366. Petitioner submits that the multiple consequences of
such crime are material only to determine his penalty.
Respondent Ponce finds no reason for the Court to disturb the
RTC’s decision forfeiting petitioner’s standing to maintain his
petition in S.C.A. 2803. On the merits, respondent Ponce calls
the Court’s attention to jurisprudence holding that light
offenses (e.g. slight physical injuries) cannot be complexed
under Article 48 of the Revised Penal Code with grave or less
grave felonies (e.g. homicide). Hence, the prosecution was
obliged to separate the charge in Criminal Case No. 82366 for
the slight physical injuries from Criminal Case No. 82367 for
the homicide and damage to property.
In the Resolution of 6 June 2007, we granted the Office of the
Solicitor General’s motion not to file a comment to the petition
as the public respondent judge is merely a nominal party and
private respondent is represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether
petitioner forfeited his standing to seek relief in S.C.A. 2803
when the MeTC ordered his arrest following his non-
appearance at the arraignment in Criminal Case No. 82366;
and (2) if in the negative, whether petitioner’s constitutional
right under the Double Jeopardy Clause bars further
proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the
arraignment in Criminal Case No. 82366 did not divest him of
personality to maintain the petition in S.C.A. 2803; and (2) the
protection afforded by the Constitution shielding petitioner
from prosecutions placing him in jeopardy of second
punishment for the same offense bars further proceedings in
Criminal Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s escape from
custody or violation of the terms of his bail bond are governed
by the second paragraph of Section 8, Rule 124,8 in relation to
Section 1, Rule 125, of the Revised Rules on Criminal Procedure
authorizing this Court or the Court of Appeals to "also, upon
motion of the appellee or motu proprio, dismiss the appeal if
the appellant escapes from prison or confinement, jumps bail
or flees to a foreign country during the pendency of the
appeal." The "appeal" contemplated in Section 8 of Rule 124 is
a suit to review judgments of convictions.
The RTC’s dismissal of petitioner’s special civil action for
certiorari to review a pre-arraignment ancillary question on the
applicability of the Due Process Clause to bar proceedings in
Criminal Case No. 82366 finds no basis under procedural rules
and jurisprudence. The RTC’s reliance on People v. Esparas9
undercuts the cogency of its ruling because Esparas stands for
a proposition contrary to the RTC’s ruling. There, the Court
granted review to an appeal by an accused who was sentenced
to death for importing prohibited drugs even though she
jumped bail pending trial and was thus tried and convicted in
absentia. The Court in Esparas treated the mandatory review of
death sentences under Republic Act No. 7659 as an exception
to Section 8 of Rule 124.10
The mischief in the RTC’s treatment of petitioner’s non-
appearance at his arraignment in Criminal Case No. 82366 as
proof of his loss of standing becomes more evident when one
considers the Rules of Court’s treatment of a defendant who
absents himself from post-arraignment hearings. Under
Section 21, Rule 11411 of the Revised Rules of Criminal
Procedure, the defendant’s absence merely renders his
bondsman potentially liable on its bond (subject to cancellation
should the bondsman fail to produce the accused within 30
days); the defendant retains his standing and, should he fail to
surrender, will be tried in absentia and could be convicted or
acquitted. Indeed, the 30-day period granted to the bondsman
to produce the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s status to
that of a fugitive without standing.
Further, the RTC’s observation that petitioner provided "no
explanation why he failed to attend the scheduled
proceeding"12 at the MeTC is belied by the records. Days
before the arraignment, petitioner sought the suspension of the
MeTC’s proceedings in Criminal Case No. 82366 in light of his
petition with the RTC in S.C.A. No. 2803. Following the
MeTC’s refusal to defer arraignment (the order for which was
released days after the MeTC ordered petitioner’s arrest),
petitioner sought reconsideration. His motion remained
unresolved as of the filing of this petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put
in jeopardy of punishment for the same offense"13 protects
him from, among others, post-conviction prosecution for the
same offense, with the prior verdict rendered by a court of
competent jurisdiction upon a valid information.14 It is not
disputed that petitioner’s conviction in Criminal Case No.
82367 was rendered by a court of competent jurisdiction upon
a valid charge. Thus, the case turns on the question whether
Criminal Case No. 82366 and Criminal Case No. 82367 involve
the "same offense." Petitioner adopts the affirmative view,
submitting that the two cases concern the same offense of
reckless imprudence. The MeTC ruled otherwise, finding that
Reckless Imprudence Resulting in Slight Physical Injuries is an
entirely separate offense from Reckless Imprudence Resulting
in Homicide and Damage to Property "as the [latter] requires
proof of an additional fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime, its Consequences on
Persons and Property are Material Only to Determine the
Penalty
The two charges against petitioner, arising from the same facts,
were prosecuted under the same provision of the Revised Penal
Code, as amended, namely, Article 365 defining and penalizing
quasi-offenses. The text of the provision reads:
Imprudence and negligence. — Any person who, by reckless
imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the
penalty of arresto mayor in its maximum period to prision
correccional in its medium period; if it would have constituted
a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed; if it would
have constituted a light felony, the penalty of arresto menor in
its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony,
shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period
shall be imposed.
When the execution of the act covered by this article shall have
only resulted in damage to the property of another, the
offender shall be punished by a fine ranging from an amount
equal to the value of said damages to three times such value,
but which shall in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be
imposed upon any person who, by simple imprudence or
negligence, shall cause some wrong which, if done maliciously,
would have constituted a light felony.
In the imposition of these penalties, the court shall exercise
their sound discretion, without regard to the rules prescribed
in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or
lower than those provided in the first two paragraphs of this
article, in which case the court shall impose the penalty next
lower in degree than that which should be imposed in the
period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the
Automobile Law, to death of a person shall be caused, in which
case the defendant shall be punished by prision correccional in
its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice,
doing or failing to do an act from which material damage
results by reason of inexcusable lack of precaution on the part
of the person performing or failing to perform such act, taking
into consideration his employment or occupation, degree of
intelligence, physical condition and other circumstances
regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed
in those cases in which the damage impending to be caused is
not immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this
article shall be imposed upon the offender who fails to lend on
the spot to the injured parties such help as may be in this hand
to give.
Structurally, these nine paragraphs are collapsible into four
sub-groupings relating to (1) the penalties attached to the
quasi-offenses of "imprudence" and "negligence" (paragraphs
1-2); (2) a modified penalty scheme for either or both quasi-
offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial
courts in imposing penalties (paragraph 5); and (4) the
definition of "reckless imprudence" and "simple imprudence"
(paragraphs 7-8). Conceptually, quasi-offenses penalize "the
mental attitude or condition behind the act, the dangerous
recklessness, lack of care or foresight, the imprudencia
punible,"16 unlike willful offenses which punish the intentional
criminal act. These structural and conceptual features of quasi-
offenses set them apart from the mass of intentional crimes
under the first 13 Titles of Book II of the Revised Penal Code, as
amended.
Indeed, the notion that quasi-offenses, whether reckless or
simple, are distinct species of crime, separately defined and
penalized under the framework of our penal laws, is nothing
new. As early as the middle of the last century, we already
sought to bring clarity to this field by rejecting in Quizon v.
Justice of the Peace of Pampanga the proposition that "reckless
imprudence is not a crime in itself but simply a way of
committing it x x x"17 on three points of analysis: (1) the object
of punishment in quasi-crimes (as opposed to intentional
crimes); (2) the legislative intent to treat quasi-crimes as
distinct offenses (as opposed to subsuming them under the
mitigating circumstance of minimal intent) and; (3) the
different penalty structures for quasi-crimes and intentional
crimes:
The proposition (inferred from Art. 3 of the Revised Penal
Code) that "reckless imprudence" is not a crime in itself but
simply a way of committing it and merely determines a lower
degree of criminal liability is too broad to deserve unqualified
assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery,
malicious mischief, etc. In truth, criminal negligence in our
Revised Penal Code is treated as a mere quasi offense, and
dealt with separately from willful offenses. It is not a mere
question of classification or terminology. In intentional crimes,
the act itself is punished; in negligence or imprudence, what is
principally penalized is the mental attitude or condition behind
the act, the dangerous recklessness, lack of care or foresight,
the imprudencia punible. x x x x
Were criminal negligence but a modality in the commission of
felonies, operating only to reduce the penalty therefor, then it
would be absorbed in the mitigating circumstances of Art. 13,
specially the lack of intent to commit so grave a wrong as the
one actually committed. Furthermore, the theory would require
that the corresponding penalty should be fixed in proportion to
the penalty prescribed for each crime when committed
willfully. For each penalty for the willful offense, there would
then be a corresponding penalty for the negligent variety. But
instead, our Revised Penal Code (Art. 365) fixes the penalty for
reckless imprudence at arresto mayor maximum, to prision
correccional [medium], if the willful act would constitute a
grave felony, notwithstanding that the penalty for the latter
could range all the way from prision mayor to death, according
to the case. It can be seen that the actual penalty for criminal
negligence bears no relation to the individual willful crime, but
is set in relation to a whole class, or series, of crimes.18
(Emphasis supplied)
This explains why the technically correct way to allege quasi-
crimes is to state that their commission results in damage,
either to person or property.19
Accordingly, we found the Justice of the Peace in Quizon
without jurisdiction to hear a case for "Damage to Property
through Reckless Imprudence," its jurisdiction being limited to
trying charges for Malicious Mischief, an intentional crime
conceptually incompatible with the element of imprudence
obtaining in quasi-crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of
our present day penal code) and since repeatedly reiterated,21
stands on solid conceptual foundation. The contrary doctrinal
pronouncement in People v. Faller22 that "[r]eckless
impudence is not a crime in itself x x x [but] simply a way of
committing it x x x,"23 has long been abandoned when the
Court en banc promulgated Quizon in 1955 nearly two decades
after the Court decided Faller in 1939. Quizon rejected Faller’s
conceptualization of quasi-crimes by holding that quasi-crimes
under Article 365 are distinct species of crimes and not merely
methods of committing crimes. Faller found expression in
post-Quizon jurisprudence24 only by dint of lingering doctrinal
confusion arising from an indiscriminate fusion of criminal law
rules defining Article 365 crimes and the complexing of
intentional crimes under Article 48 of the Revised Penal Code
which, as will be shown shortly, rests on erroneous conception
of quasi-crimes. Indeed, the Quizonian conception of quasi-
crimes undergirded a related branch of jurisprudence applying
the Double Jeopardy Clause to quasi-offenses, barring second
prosecutions for a quasi-offense alleging one resulting act after
a prior conviction or acquittal of a quasi-offense alleging
another resulting act but arising from the same reckless act or
omission upon which the second prosecution was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a
single quasi-offense by itself and not merely a means to commit
other crimes such that conviction or acquittal of such quasi-
offense bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts, undergirded
this Court’s unbroken chain of jurisprudence on double
jeopardy as applied to Article 365 starting with People v.
Diaz,25 decided in 1954. There, a full Court, speaking through
Mr. Justice Montemayor, ordered the dismissal of a case for
"damage to property thru reckless imprudence" because a prior
case against the same accused for "reckless driving," arising
from the same act upon which the first prosecution was based,
had been dismissed earlier. Since then, whenever the same
legal question was brought before the Court, that is, whether
prior conviction or acquittal of reckless imprudence bars
subsequent prosecution for the same quasi-offense, regardless
of the consequences alleged for both charges, the Court
unfailingly and consistently answered in the affirmative in
People v. Belga26 (promulgated in 1957 by the Court en banc,
per Reyes, J.), Yap v. Lutero27 (promulgated in 1959,
unreported, per Concepcion, J.), People v. Narvas28
(promulgated in 1960 by the Court en banc, per Bengzon J.),
People v. Silva29 (promulgated in 1962 by the Court en banc,
per Paredes, J.), People v. Macabuhay30 (promulgated in 1966
by the Court en banc, per Makalintal, J.), People v. Buan31
(promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C. J.), Buerano v. Court of Appeals32 (promulgated in
1982 by the Court en banc, per Relova, J.), and People v. City
Court of Manila33 (promulgated in 1983 by the First Division,
per Relova, J.). These cases uniformly barred the second
prosecutions as constitutionally impermissible under the
Double Jeopardy Clause.
The reason for this consistent stance of extending the
constitutional protection under the Double Jeopardy Clause to
quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes
in Buan, where, in barring a subsequent prosecution for
"serious physical injuries and damage to property thru reckless
imprudence" because of the accused’s prior acquittal of "slight
physical injuries thru reckless imprudence," with both charges
grounded on the same act, the Court explained:34
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused
may not be prosecuted again for that same act. For the essence
of the quasi offense of criminal negligence under article 365 of
the Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as
a felony. The law penalizes thus the negligent or careless act,
not the result thereof. The gravity of the consequence is only
taken into account to determine the penalty, it does not qualify
the substance of the offense. And, as the careless act is single,
whether the injurious result should affect one person or several
persons, the offense (criminal negligence) remains one and the
same, and can not be split into different crimes and
prosecutions.35 x x x (Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy
merely extended to its logical conclusion the reasoning of
Quizon.
There is in our jurisprudence only one ruling going against this
unbroken line of authority. Preceding Diaz by more than a
decade, El Pueblo de Filipinas v. Estipona,36 decided by the
pre-war colonial Court in November 1940, allowed the
subsequent prosecution of an accused for reckless imprudence
resulting in damage to property despite his previous conviction
for multiple physical injuries arising from the same reckless
operation of a motor vehicle upon which the second
prosecution was based. Estipona’s inconsistency with the post-
war Diaz chain of jurisprudence suffices to impliedly overrule
it. At any rate, all doubts on this matter were laid to rest in
1982 in Buerano.37 There, we reviewed the Court of Appeals’
conviction of an accused for "damage to property for reckless
imprudence" despite his prior conviction for "slight and less
serious physical injuries thru reckless imprudence," arising
from the same act upon which the second charge was based.
The Court of Appeals had relied on Estipona. We reversed on
the strength of Buan:38
Th[e] view of the Court of Appeals was inspired by the ruling of
this Court in the pre-war case of People vs. Estipona decided
on November 14, 1940. However, in the case of People vs.
Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking
thru Justice J. B. L. Reyes, held that –
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused
may not be prosecuted again for that same act. For the essence
of the quasi offense of criminal negligence under Article 365 of
the Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as
a felony. The law penalizes thus the negligent or careless act,
not the result thereof. The gravity of the consequence is only
taken into account to determine the penalty, it does not qualify
the substance of the offense. And, as the careless act is single,
whether the injurious result should affect one person or several
persons, the offense (criminal negligence) remains one and the
same, and can not be split into different crimes and
prosecutions.
. . . the exoneration of this appellant, Jose Buan, by the Justice
of the Peace (now Municipal) Court of Guiguinto, Bulacan, of
the charge of slight physical injuries through reckless
imprudence, prevents his being prosecuted for serious physical
injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from
the consequences of one and the same vehicular accident,
because the second accusation places the appellant in second
jeopardy for the same offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively
overruled Estipona.
It is noteworthy that the Solicitor General in Buerano, in a
reversal of his earlier stance in Silva, joined causes with the
accused, a fact which did not escape the Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his
MANIFESTATION dated December 12, 1969 (page 82 of the
Rollo) admits that the Court of Appeals erred in not sustaining
petitioner’s plea of double jeopardy and submits that "its
affirmatory decision dated January 28, 1969, in Criminal Case
No. 05123-CR finding petitioner guilty of damage to property
through reckless imprudence should be set aside, without
costs." He stressed that "if double jeopardy exists where the
reckless act resulted into homicide and physical injuries. then
the same consequence must perforce follow where the same
reckless act caused merely damage to property-not death-and
physical injuries. Verily, the value of a human life lost as a
result of a vehicular collision cannot be equated with any
amount of damages caused to a motors vehicle arising from the
same mishap."40 (Emphasis supplied)
Hence, we find merit in petitioner’s submission that the lower
courts erred in refusing to extend in his favor the mantle of
protection afforded by the Double Jeopardy Clause. A more
fitting jurisprudence could not be tailored to petitioner’s case
than People v. Silva, 41 a Diaz progeny. There, the accused,
who was also involved in a vehicular collision, was charged in
two separate Informations with "Slight Physical Injuries thru
Reckless Imprudence" and "Homicide with Serious Physical
Injuries thru Reckless Imprudence." Following his acquittal of
the former, the accused sought the quashal of the latter,
invoking the Double Jeopardy Clause. The trial court initially
denied relief, but, on reconsideration, found merit in the
accused’s claim and dismissed the second case. In affirming the
trial court, we quoted with approval its analysis of the issue
following Diaz and its progeny People v. Belga:42
On June 26, 1959, the lower court reconsidered its Order of
May 2, 1959 and dismissed the case, holding: —
[T]he Court believes that the case falls squarely within the
doctrine of double jeopardy enunciated in People v. Belga, x x x
In the case cited, Ciriaco Belga and Jose Belga were charged in
the Justice of the Peace Court of Malilipot, Albay, with the
crime of physical injuries through reckless imprudence arising
from a collision between the two automobiles driven by them
(Crim. Case No. 88). Without the aforesaid complaint having
been dismissed or otherwise disposed of, two other criminal
complaints were filed in the same justice of the peace court, in
connection with the same collision one for damage to property
through reckless imprudence (Crim. Case No. 95) signed by the
owner of one of the vehicles involved in the collision, and
another for multiple physical injuries through reckless
imprudence (Crim. Case No. 96) signed by the passengers
injured in the accident. Both of these two complaints were filed
against Jose Belga only. After trial, both defendants were
acquitted of the charge against them in Crim. Case No. 88.
Following his acquittal, Jose Belga moved to quash the
complaint for multiple physical injuries through reckless
imprudence filed against him by the injured passengers,
contending that the case was just a duplication of the one filed
by the Chief of Police wherein he had just been acquitted. The
motion to quash was denied and after trial Jose Belga was
convicted, whereupon he appealed to the Court of First
Instance of Albay. In the meantime, the case for damage to
property through reckless imprudence filed by one of the
owners of the vehicles involved in the collision had been
remanded to the Court of First Instance of Albay after Jose
Belga had waived the second stage of the preliminary
investigation. After such remand, the Provincial Fiscal filed in
the Court of First Instance two informations against Jose
Belga, one for physical injuries through reckless imprudence,
and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First
Instance, upon motion of the defendant Jose Belga who alleged
double jeopardy in a motion to quash. On appeal by the Prov.
Fiscal, the order of dismissal was affirmed by the Supreme
Court in the following language: .
The question for determination is whether the acquittal of Jose
Belga in the case filed by the chief of police constitutes a bar to
his subsequent prosecution for multiple physical injuries and
damage to property through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom.
March 30, 1954, the accused was charged in the municipal
court of Pasay City with reckless driving under sec. 52 of the
Revised Motor Vehicle Law, for having driven an automobile in
a ῾fast and reckless manner ... thereby causing an accident.’
After the accused had pleaded not guilty the case was dismissed
in that court ῾for failure of the Government to prosecute’. But
some time thereafter the city attorney filed an information in
the Court of First Instance of Rizal, charging the same accused
with damage to property thru reckless imprudence. The
amount of the damage was alleged to be ₱249.50. Pleading
double jeopardy, the accused filed a motion, and on appeal by
the Government we affirmed the ruling. Among other things
we there said through Mr. Justice Montemayor —
The next question to determine is the relation between the first
offense of violation of the Motor Vehicle Law prosecuted before
the Pasay City Municipal Court and the offense of damage to
property thru reckless imprudence charged in the Rizal Court
of First Instance. One of the tests of double jeopardy is whether
or not the second offense charged necessarily includes or is
necessarily included in the offense charged in the former
complaint or information (Rule 113, Sec. 9). Another test is
whether the evidence which proves one would prove the other
that is to say whether the facts alleged in the first charge if
proven, would have been sufficient to support the second
charge and vice versa; or whether one crime is an ingredient of
the other. x x x
The foregoing language of the Supreme Court also disposes of
the contention of the prosecuting attorney that the charge for
slight physical injuries through reckless imprudence could not
have been joined with the charge for homicide with serious
physical injuries through reckless imprudence in this case, in
view of the provisions of Art. 48 of the Revised Penal Code, as
amended. The prosecution’s contention might be true. But
neither was the prosecution obliged to first prosecute the
accused for slight physical injuries through reckless
imprudence before pressing the more serious charge of
homicide with serious physical injuries through reckless
imprudence. Having first prosecuted the defendant for the
lesser offense in the Justice of the Peace Court of Meycauayan,
Bulacan, which acquitted the defendant, the prosecuting
attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same
alleged reckless imprudence of which the defendant have been
previously cleared by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to
reexamine Belga (and hence, Diaz) "for the purpose of
delimiting or clarifying its application."44 We declined the
invitation, thus:
The State in its appeal claims that the lower court erred in
dismissing the case, on the ground of double jeopardy, upon
the basis of the acquittal of the accused in the JP court for
Slight Physical Injuries, thru Reckless Imprudence. In the same
breath said State, thru the Solicitor General, admits that the
facts of the case at bar, fall squarely on the ruling of the Belga
case x x x, upon which the order of dismissal of the lower court
was anchored. The Solicitor General, however, urges a re-
examination of said ruling, upon certain considerations for the
purpose of delimiting or clarifying its application. We find,
nevertheless, that further elucidation or disquisition on the
ruling in the Belga case, the facts of which are analogous or
similar to those in the present case, will yield no practical
advantage to the government. On one hand, there is nothing
which would warrant a delimitation or clarification of the
applicability of the Belga case. It was clear. On the other, this
Court has reiterated the views expressed in the Belga case, in
the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30,
1959.45 (Emphasis supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to
which the MeTC succumbed, stems from persistent but
awkward attempts to harmonize conceptually incompatible
substantive and procedural rules in criminal law, namely,
Article 365 defining and penalizing quasi-offenses and Article
48 on complexing of crimes, both under the Revised Penal
Code. Article 48 is a procedural device allowing single
prosecution of multiple felonies falling under either of two
categories: (1) when a single act constitutes two or more grave
or less grave felonies (thus excluding from its operation light
felonies46); and (2) when an offense is a necessary means for
committing the other. The legislature crafted this procedural
tool to benefit the accused who, in lieu of serving multiple
penalties, will only serve the maximum of the penalty for the
most serious crime.
In contrast, Article 365 is a substantive rule penalizing not an
act defined as a felony but "the mental attitude x x x behind the
act, the dangerous recklessness, lack of care or foresight x x
x,"47 a single mental attitude regardless of the resulting
consequences. Thus, Article 365 was crafted as one quasi-crime
resulting in one or more consequences.
Ordinarily, these two provisions will operate smoothly. Article
48 works to combine in a single prosecution multiple
intentional crimes falling under Titles 1-13, Book II of the
Revised Penal Code, when proper; Article 365 governs the
prosecution of imprudent acts and their consequences.
However, the complexities of human interaction can produce a
hybrid quasi-offense not falling under either models – that of a
single criminal negligence resulting in multiple non-crime
damages to persons and property with varying penalties
corresponding to light, less grave or grave offenses. The
ensuing prosecutorial dilemma is obvious: how should such a
quasi-crime be prosecuted? Should Article 48’s framework
apply to "complex" the single quasi-offense with its multiple
(non-criminal) consequences (excluding those amounting to
light offenses which will be tried separately)? Or should the
prosecution proceed under a single charge, collectively alleging
all the consequences of the single quasi-crime, to be penalized
separately following the scheme of penalties under Article 365?
Jurisprudence adopts both approaches. Thus, one line of
rulings (none of which involved the issue of double jeopardy)
applied Article 48 by "complexing" one quasi-crime with its
multiple consequences48 unless one consequence amounts to a
light felony, in which case charges were split by grouping, on
the one hand, resulting acts amounting to grave or less grave
felonies and filing the charge with the second level courts and,
on the other hand, resulting acts amounting to light felonies
and filing the charge with the first level courts.49 Expectedly,
this is the approach the MeTC impliedly sanctioned (and
respondent Ponce invokes), even though under Republic Act
No. 7691,50 the MeTC has now exclusive original jurisdiction
to impose the most serious penalty under Article 365 which is
prision correccional in its medium period.
Under this approach, the issue of double jeopardy will not arise
if the "complexing" of acts penalized under Article 365 involves
only resulting acts penalized as grave or less grave felonies
because there will be a single prosecution of all the resulting
acts. The issue of double jeopardy arises if one of the resulting
acts is penalized as a light offense and the other acts are
penalized as grave or less grave offenses, in which case Article
48 is not deemed to apply and the act penalized as a light
offense is tried separately from the resulting acts penalized as
grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions
a single prosecution of all the effects of the quasi-crime
collectively alleged in one charge, regardless of their number or
severity,51 penalizing each consequence separately. Thus, in
Angeles v. Jose,52 we interpreted paragraph three of Article
365, in relation to a charge alleging "reckless imprudence
resulting in damage to property and less serious physical
injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have
only resulted in damage to the property of another, the
offender shall be punished by a fine ranging from an amount
equal to the value of said damage to three times such value, but
which shall in no case be less than 25 pesos.
The above-quoted provision simply means that if there is only
damage to property the amount fixed therein shall be imposed,
but if there are also physical injuries there should be an
additional penalty for the latter. The information cannot be
split into two; one for the physical injuries, and another for the
damage to property, x x x.53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty
scheme under Article 365.
Evidently, these approaches, while parallel, are irreconcilable.
Coherence in this field demands choosing one framework over
the other. Either (1) we allow the "complexing" of a single
quasi-crime by breaking its resulting acts into separate offenses
(except for light felonies), thus re-conceptualize a quasi-crime,
abandon its present framing under Article 365, discard its
conception under the Quizon and Diaz lines of cases, and treat
the multiple consequences of a quasi-crime as separate
intentional felonies defined under Titles 1-13, Book II under
the penal code; or (2) we forbid the application of Article 48 in
the prosecution and sentencing of quasi-crimes, require single
prosecution of all the resulting acts regardless of their number
and severity, separately penalize each as provided in Article
365, and thus maintain the distinct concept of quasi-crimes as
crafted under Article 365, articulated in Quizon and applied to
double jeopardy adjudication in the Diaz line of cases.1avvphi1
A becoming regard of this Court’s place in our scheme of
government denying it the power to make laws constrains us to
keep inviolate the conceptual distinction between quasi-crimes
and intentional felonies under our penal code. Article 48 is
incongruent to the notion of quasi-crimes under Article 365. It
is conceptually impossible for a quasi-offense to stand for (1) a
single act constituting two or more grave or less grave felonies;
or (2) an offense which is a necessary means for committing
another. This is why, way back in 1968 in Buan, we rejected the
Solicitor General’s argument that double jeopardy does not bar
a second prosecution for slight physical injuries through
reckless imprudence allegedly because the charge for that
offense could not be joined with the other charge for serious
physical injuries through reckless imprudence following Article
48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for
slight physical injuries through reckless imprudence could not
be joined with the accusation for serious physical injuries
through reckless imprudence, because Article 48 of the Revised
Penal Code allows only the complexing of grave or less grave
felonies. This same argument was considered and rejected by
this Court in the case of People vs. [Silva] x x x:
[T]he prosecution’s contention might be true. But neither was
the prosecution obliged to first prosecute the accused for slight
physical injuries through reckless imprudence before pressing
the more serious charge of homicide with serious physical
injuries through reckless imprudence. Having first prosecuted
the defendant for the lesser offense in the Justice of the Peace
Court of Meycauayan, Bulacan, which acquitted the defendant,
the prosecuting attorney is not now in a position to press in
this case the more serious charge of homicide with serious
physical injuries through reckless imprudence which arose out
of the same alleged reckless imprudence of which the
defendant has been previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x
x x by the Justice of the Peace x x x of the charge of slight
physical injuries through reckless imprudence, prevents his
being prosecuted for serious physical injuries through reckless
imprudence in the Court of First Instance of the province,
where both charges are derived from the consequences of one
and the same vehicular accident, because the second
accusation places the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By
prohibiting the splitting of charges under Article 365,
irrespective of the number and severity of the resulting acts,
rampant occasions of constitutionally impermissible second
prosecutions are avoided, not to mention that scarce state
resources are conserved and diverted to proper use.
Hence, we hold that prosecutions under Article 365 should
proceed from a single charge regardless of the number or
severity of the consequences. In imposing penalties, the judge
will do no more than apply the penalties under Article 365 for
each consequence alleged and proven. In short, there shall be
no splitting of charges under Article 365, and only one
information shall be filed in the same first level court.55
Our ruling today secures for the accused facing an Article 365
charge a stronger and simpler protection of their constitutional
right under the Double Jeopardy Clause. True, they are thereby
denied the beneficent effect of the favorable sentencing
formula under Article 48, but any disadvantage thus caused is
more than compensated by the certainty of non-prosecution for
quasi-crime effects qualifying as "light offenses" (or, as here,
for the more serious consequence prosecuted belatedly). If it is
so minded, Congress can re-craft Article 365 by extending to
quasi-crimes the sentencing formula of Article 48 so that only
the most severe penalty shall be imposed under a single
prosecution of all resulting acts, whether penalized as grave,
less grave or light offenses. This will still keep intact the
distinct concept of quasi-offenses. Meanwhile, the lenient
schedule of penalties under Article 365, befitting crimes
occupying a lower rung of culpability, should cushion the effect
of this ruling.
WHEREFORE, we GRANT the petition. We REVERSE the
Orders dated 2 February 2006 and 2 May 2006 of the Regional
Trial Court of Pasig City, Branch 157. We DISMISS the
Information in Criminal Case No. 82366 against petitioner
Jason Ivler y Aguilar pending with the Metropolitan Trial Court
of Pasig City, Branch 71 on the ground of double jeopardy.
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V.
PELAYO, Presiding Judge, Branch 168, Regional Trial Court,
NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES,
respondents.
According to the findings of the San Juan Police in their
Investigation Report, 1 on 2 July 1991, Eldon Maguan was
driving his car along Wilson St., San Juan, Metro Manila,
heading towards P. Guevarra St. Petitioner entered Wilson St.,
where it is a one-way street and started travelling in the
opposite or "wrong" direction. At the corner of Wilson and J.
Abad Santos Sts., petitioner's and Maguan's cars nearly
bumped each other. Petitioner alighted from his car, walked
over and shot Maguan inside his car. Petitioner then boarded
his car and left the scene. A security guard at a nearby
restaurant was able to take down petitioner's car plate number.
The police arrived shortly thereafter at the scene of the
shooting and there retrieved an empty shell and one round of
live ammunition for a 9 mm caliber pistol. Verification at the
Land Transportation Office showed that the car was registered
to one Elsa Ang Go.
The following day, the police returned to the scene of the
shooting to find out where the suspect had come from; they
were informed that petitioner had dined at Cravings Bake Shop
shortly before the shooting. The police obtained a facsimile or
impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop
was shown a picture of petitioner and he positively identified
him as the same person who had shot Maguan. Having
established that the assailant was probably the petitioner, the
police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San
Juan Police Station to verify news reports that he was being
hunted by the police; he was accompanied by two (2) lawyers.
The police forthwith detained him. An eyewitness to the
shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police
promptly filed a complaint for frustrated homicide 2 against
petitioner with the Office of the Provincial Prosecutor of Rizal.
First Assistant Provincial Prosecutor Dennis Villa Ignacio
("Prosecutor") informed petitioner, in the presence of his
lawyers, that he could avail himself of his right to preliminary
investigation but that he must first sign a waiver of the
provisions of Article 125 of the Revised Penal Code. Petitioner
refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the
Prosecutor, and before an information could be filed in court,
the victim, Eldon Maguan, died of his gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing
an information for frustrated homicide, filed an information
for murder 3 before the Regional Trial Court. No bail was
recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been
conducted because the accused did not execute and sign a
waiver of the provisions of Article 125 of the Revised Penal
Code.
In the afternoon of the same day, 11 July 1991, counsel for
petitioner filed with the Prosecutor an omnibus motion for
immediate release and proper preliminary investigation,4
alleging that the warrantless arrest of petitioner was unlawful
and that no preliminary investigation had been conducted
before the information was filed. Petitioner also prayed that he
be released on recognizance or on bail. Provincial Prosecutor
Mauro Castro, acting on the omnibus motion, wrote on the last
page of the motion itself that he interposed no objection to
petitioner being granted provisional liberty on a cash bond of
P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for
special raffle 5 in order to expedite action on the Prosecutor's
bail recommendation. The case was raffled to the sala of
respondent Judge, who, on the same date, approved the cash
bond 6 posted by petitioner and ordered his release. 7
Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial
Court a motion for leave to conduct preliminary investigation8
and prayed that in the meantime all proceedings in the court be
suspended. He stated that petitioner had filed before the Office
of the Provincial Prosecutor of Rizal an omnibus motion for
immediate release and preliminary investigation, which motion
had been granted by Provincial Prosecutor Mauro Castro, who
also agreed to recommend cash bail of P100,000.00. The
Prosecutor attached to the motion for leave a copy of
petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting
leave to conduct preliminary investigation and cancelling the
arraignment set for 15 August 1991 until after the prosecution
shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio
issued an Order, 10 embodying the following: (1) the 12 July
1991 Order which granted bail was recalled; petitioner was
given 48 hours from receipt of the Order to surrender himself;
(2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled
and cancelled; (3) petitioner's omnibus motion for immediate
release and preliminary investigation dated 11 July 1991 was
treated as a petition for bail and set for hearing on 23 July
1991.
On 19 July 1991, petitioner filed a petition for certiorari,
prohibition and mandamus before the Supreme Court assailing
the 17 July 1991 Order, contending that the information was
null and void because no preliminary investigation had been
previously conducted, in violation of his right to due process.
Petitioner also moved for suspension of all proceedings in the
case pending resolution by the Supreme Court of his petition;
this motion was, however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the
petition for certiorari, prohibition and mandamus to the Court
of Appeals.
On 16 August 1991, respondent Judge issued an order in open
court setting the arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a
motion to restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment
Order directing the Provincial Warden of Rizal to admit
petitioner into his custody at the Rizal Provincial Jail. On the
same date, petitioner was arraigned. In view, however, of his
refusal to enter a plea, the trial court entered for him a plea of
not guilty. The Trial court then set the criminal case for
continuous hearings on 19, 24 and 26 September; on 2, 3, 11
and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991.
11
On 27 August 1991, petitioner filed a petition for habeas corpus
12 in the Court of Appeals. He alleged that in view of public
respondent's failure to join issues in the petition for certiorari
earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on
habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of
habeas corpus. 13 The petition for certiorari, prohibition and
mandamus, on the one hand, and the petition for habeas
corpus, upon the other, were subsequently consolidated in the
Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution
denying petitioner's motion to restrain his arraignment on the
ground that that motion had become moot and academic.
On 19 September 1991, trial of the criminal case commenced
and the prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a
consolidated decision 14 dismissing the two (2) petitions, on
the following grounds:
a. Petitioner's warrantless arrest was valid because the
offense for which he was arrested and charged had been
"freshly committed." His identity had been established through
investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the
confrontation at the San Juan Police Station, one witness
positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of
any irregularity attending his arrest. He waived his right to
preliminary investigation by not invoking it properly and
seasonably under the Rules.
c. The trial court did not abuse its discretion when it
issued the 17 July 1991 Order because the trial court had the
inherent power to amend and control its processes so as to
make them conformable to law and justice.
d. Since there was a valid information for murder
against petitioner and a valid commitment order (issued by the
trial judge after petitioner surrendered to the authorities
whereby petitioner was given to the custody of the Provincial
Warden), the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more
witnesses at the trial. Counsel for petitioner also filed a
"Withdrawal of Appearance" 15 with the trial court, with
petitioner's conformity.
On 4 October 1991, the present Petition for Review on
Certiorari was filed. On 14 October 1991, the Court issued a
Resolution directing respondent Judge to hold in abeyance the
hearing of the criminal case below until further orders from
this Court.
In this Petition for Review, two (2) principal issues need to be
addressed: first, whether or not a lawful warrantless arrest had
been effected by the San Juan Police in respect of petitioner
Go; and second, whether petitioner had effectively waived his
right to preliminary investigation. We consider these issues
seriatim.
In respect of the first issue, the Solicitor General argues that
under the facts of the case, petitioner had been validly arrested
without warrant. Since petitioner's identity as the gunman who
had shot Eldon Maguan on 2 July 1991 had been sufficiently
established by police work, petitioner was validly arrested six
(6) days later at the San Juan Police Station. The Solicitor
General invokes Nazareno v. Station Commander, etc., et al., 16
one of the seven (7) cases consolidated with In the Matter of
the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos,
et al. 17 where a majority of the Court upheld a warrantees
arrest as valid although effected fourteen (14) days after the
killing in connection with which Nazareno had been arrested.
Accordingly, in the view of the Solicitor General, the provisions
of Section 7, Rule 112 of the Rules of Court were applicable and
because petitioner had declined to waive the provisions of
Article 125 of the Revised Penal Code, the Prosecutor was
legally justified in filing the information for murder even
without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully
arrested without warrant because he went to the police station
six (6) days after the shooting which he had allegedly
perpetrated. Thus, petitioner argues, the crime had not been
"just committed" at the time that he was arrested. Moreover,
none of the police officers who arrested him had been an
eyewitness to the shooting of Maguan and accordingly none
had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless
arrest. Section 7, Rule 112 of the Rules of Court which
establishes the only exception to the right to preliminary
investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon
Umil v. Ramos is, in the circumstances of this case, misplaced.
In Umil v. Ramos, by an eight-to-six vote, the Court sustained
the legality of the warrantless arrests of petitioners made from
one (1) to fourteen days after the actual commission of the
offenses, upon the ground that such offenses constituted
"continuing crimes." Those offenses were subversion,
membership in an outlawed organization like the New People's
Army, etc. In the instant case, the offense for which petitioner
was arrested was murder, an offense which was obviously
commenced and completed at one definite location in time and
space. No one had pretended that the fatal shooting of Maguan
was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or
detention of petitioner in the instant case falls within the terms
of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. — A peace
officer or a private person may, without warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and
he has personal knowledge of facts indicating that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in
accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of
Maguan. The "arresting" officers obviously were not present,
within the meaning of Section 5(a), at the time petitioner had
allegedly shot Maguan. Neither could the "arrest" effected six
(6) days after the shooting be reasonably regarded as effected
"when [the shooting had] in fact just been committed" within
the meaning of Section 5(b). Moreover, none of the "arresting"
officers had any "personal knowledge" of facts indicating that
petitioner was the gunman who had shot Maguan. The
information upon which the police acted had been derived
from statements made by alleged eyewitnesses to the shooting
— one stated that petitioner was the gunman; another was able
to take down the alleged gunman's car's plate number which
turned out to be registered in petitioner's wife's name. That
information did not, however, constitute "personal knowledge."
18
It is thus clear to the Court that there was no lawful warrantless
arrest of petitioner within the meaning of Section 5 of Rule 113.
It is clear too that Section 7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. —
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or
arresting office or person
However, before the filing of such complaint or information,
the person arrested may ask for a preliminary investigation by
a proper officer in accordance with this Rule, but he must sign
a waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case
of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must
be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same
right to adduce evidence in his favor in the manner prescribed
in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all.
When he walked into San Juan Police Station, accompanied by
two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering"
himself, in all probability to avoid the implication he was
admitting that he had slain Eldon Maguan or that he was
otherwise guilty of a crime. When the police filed a complaint
for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to
determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as
noted earlier, the Prosecutor proceed under the erroneous
supposition that Section 7 of Rule 112 was applicable and
required petitioner to waive the provisions of Article 125 of the
Revised Penal Code as a condition for carrying out a
preliminary investigation. This was substantive error, for
petitioner was entitled to a preliminary investigation and that
right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or
without a warrant, he was also entitled to be released forthwith
subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had
waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a
preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with
the Regional Trial Court, petitioner filed with the Prosecutor an
omnibus motion for immediate release and preliminary
investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with
the Prosecutor, and that the petitioner should accordingly be
held to have waived his right to preliminary investigation. We
do not believe that waiver of petitioner's statutory right to
preliminary investigation may be predicated on such a slim
basis. The preliminary investigation was to be conducted by the
Prosecutor, not by the Regional Trial Court. It is true that at
the time of filing of petitioner's omnibus motion, the
information for murder had already been filed with the
Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus
motion was actually filed with the Prosecutor. In Crespo v.
Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists to
warranting the prosecution of the accused is terminated upon
the filing of the information in the proper court. In turn, as
above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal
should be submitted to the Court for appropriate action. While
it is true that the fiscal has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in
court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of the
Court. The only qualification is that the action of the Court
must not impair the substantial rights of the accused., or the
right of the People to due process of law.
The rule therefore in this jurisdiction is that once a complaint
or information is filed in Court any disposition of the case
[such] as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the
fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot
impose his opinion on the trial court. The Court is the best and
sole judge on what to do with the case before it. . . . 20
(Citations omitted; emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was
asking for preliminary investigation and not for a re-
investigation (Crespo v. Mogul involved a re-investigation),
and since the Prosecutor himself did file with the trial court, on
the 5th day after filing the information for murder, a motion
for leave to conduct preliminary investigation (attaching to his
motion a copy of petitioner's omnibus motion), we conclude
that petitioner's omnibus motion was in effect filed with the
trial court. What was crystal clear was that petitioner did ask
for a preliminary investigation on the very day that the
information was filed without such preliminary investigation,
and that the trial court was five (5) days later apprised of the
desire of the petitioner for such preliminary investigation.
Finally, the trial court did in fact grant the Prosecutor's prayer
for leave to conduct preliminary investigation. Thus, even on
the (mistaken) supposition apparently made by the Prosecutor
that Section 7 of Rule 112 of the Revised Court was applicable,
the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to
a preliminary investigation. While that right is statutory rather
than constitutional in its fundament, since it has in fact been
established by statute, it is a component part of due process in
criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or
some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably
exposed to prolonged anxiety, aggravation, humiliation, not to
speak of expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a
valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him the full measure of his
right to due process.
The question may be raised whether petitioner still retains his
right to a preliminary investigation in the instant case
considering that he was already arraigned on 23 August 1991.
The rule is that the right to preliminary investigation is waived
when the accused fails to invoke it before or at the time of
entering a plea at arraignment. 22 In the instant case,
petitioner Go had vigorously insisted on his right to
preliminary investigation before his arraignment. At the time
of his arraignment, petitioner was already before the Court of
Appeals on certiorari, prohibition and mandamus precisely
asking for a preliminary investigation before being forced to
stand trial.
Again, in the circumstances of this case, we do not believe that
by posting bail petitioner had waived his right to preliminary
investigation. In People v. Selfaison, 23 we did hold that
appellants there had waived their right to preliminary
investigation because immediately after their arrest, they filed
bail and proceeded to trial "without previously claiming that
they did not have the benefit of a preliminary investigation." 24
In the instant case, petitioner Go asked for release on
recognizance or on bail and for preliminary investigation in
one omnibus motion. He had thus claimed his right to
preliminary investigation before respondent Judge approved
the cash bond posted by petitioner and ordered his release on
12 July 1991. Accordingly, we cannot reasonably imply waiver
of preliminary investigation on the part of petitioner. In fact,
when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly
recognized that petitioner's claim to preliminary investigation
was a legitimate one.
We would clarify, however, that contrary to petitioner's
contention the failure to accord preliminary investigation,
while constituting a denial of the appropriate and full measure
of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the
jurisdiction of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed
that petitioner was entitled to bail. This was equivalent to an
acknowledgment on the part of the Prosecutor that the
evidence of guilt then in his hands was not strong. Accordingly,
we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner
to surrender himself within forty-eight (48) hours from notice,
was plainly arbitrary considering that no evidence at all — and
certainly no new or additional evidence — had been submitted
to respondent Judge that could have justified the recall of his
order issued just five (5) days before. It follows that petitioner
was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does
the fact that, in the instant case, trial on the merits has already
commenced, the Prosecutor having already presented four (4)
witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and, secondly, petitioner's right to be
released on bail? Does he continue to be entitled to have a
preliminary investigation conducted in respect of the charge
against him? Does petitioner remain entitled to be released on
bail?
Turning first to the matter of preliminary investigation, we
consider that petitioner remains entitled to a preliminary
investigation although trial on the merits has already began.
Trial on the merits should be suspended or held in abeyance
and a preliminary investigation forthwith accorded to
petitioner. 26 It is true that the Prosecutor might, in view of the
evidence that he may at this time have on hand, conclude that
probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on
hand does not warrant a finding of probable cause. In any
event, the constitutional point is that petitioner was not
accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and
literally pushed to trial without preliminary investigation, with
extraordinary haste, to the applause from the audience that
filled the courtroom. If he submitted to arraignment at trial,
petitioner did so "kicking and screaming," in a manner of
speaking . During the proceedings held before the trial court on
23 August 1991, the date set for arraignment of petitioner, and
just before arraignment, counsel made very clear petitioner's
vigorous protest and objection to the arraignment precisely
because of the denial of preliminary investigation. 28 So
energetic and determined were petitioner's counsel's protests
and objections that an obviously angered court and prosecutor
dared him to withdraw or walkout, promising to replace him
with counsel de oficio. During the trial, before the prosecution
called its first witness, petitioner through counsel once again
reiterated his objection to going to trial without preliminary
investigation: petitioner's counsel made of record his
"continuing objection." 29 Petitioner had promptly gone to the
appellate court on certiorari and prohibition to challenge the
lawfulness of the procedure he was being forced to undergo
and the lawfulness of his detention.30 If he did not walk out on
the trial, and if he cross-examined the prosecution's witnesses,
it was because he was extremely loath to be represented by
counsel de oficio selected by the trial judge, and to run the risk
of being held to have waived also his right to use what is
frequently the only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold
that petitioner remains entitled to be released on bail as a
matter of right. Should the evidence already of record
concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the
trial court, after a careful and objective assessment of the
evidence on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusions here, that is, to hold that
petitioner's rights to a preliminary investigation and to bail
were effectively obliterated by evidence subsequently admitted
into the record would be to legitimize the deprivation of due
process and to permit the Government to benefit from its own
wrong or culpable omission and effectively to dilute important
rights of accused persons well-nigh to the vanishing point. It
may be that to require the State to accord petitioner his rights
to a preliminary investigation and to bail at this point, could
turn out ultimately to be largely a ceremonial exercise. But the
Court is not compelled to speculate. And, in any case, it would
not be idle ceremony; rather, it would be a celebration by the
State of the rights and liberties of its own people and a re-
affirmation of its obligation and determination to respect those
rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for
Review on Certiorari. The Order of the trial court dated 17 July
1991 is hereby SET ASIDE and NULLIFIED, and the Decision
of the Court of Appeals dated 23 September 1991 hereby
REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to
conduct forthwith a preliminary investigation of the charge of
murder against petitioner Go, and to complete such
preliminary investigation within a period of fifteen (15) days
from commencement thereof. The trial on the merits of the
criminal case in the Regional Trial Court shall be SUSPENDED
to await the conclusion of the preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith
upon posting of a cash bail bond of One Hundred Thousand
Pesos (P100,000.00). This release shall be without prejudice to
any lawful order that the trial court may issue, should the
Office of the Provincial Prosecutor move for cancellation of bail
at the conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately
executory.
SO ORDERED.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur in the majority decision penned by Mr. Justice
Florentino P. Feliciano but am at a loss for reasons why an
experienced Judge should insist on proceeding to trial in a
sensational murder case without preliminary investigation
inspite of the vigorous and continued objection and reservation
of rights of the accused and notwithstanding the
recommendations of the Prosecutor that those rights must be
respected. If the Court had faithfully followed the Rules, trial
would have proceeded smoothly and if the accused is really
guilty, then he may have been convicted by now. As it is, the
case has to go back to square one.
I agree with Justice Isagani Cruz "that the trial court has
(apparently) been moved by a desire to cater to public opinion
to the detriment of the impartial administration of justice."
Mass media has its duty to fearlessly but faithfully inform the
public about events and persons. However, when a case has
received wide and sensational publicity, the trial court should
be doubly careful not only to be fair and impartial but also to
give the appearance of complete objectivity in its handling of
the case.
The need for a trial court to follow the Rules and to be fair,
impartial, and persistent in getting the true facts of a case is
present in all cases but it is particularly important if the
accused is indigent; more so, if he is one of those unfortunates
who seem to spend more time behind bars than outside. Unlike
the accused in this case who enjoys the assistance of competent
counsel, a poor defendant convicted by wide and unfavorable
media coverage may be presumed guilty before trial and be
unable to defend himself properly. Hence, the importance of
the court always following the Rules.
While concurring with Justice Feliciano's ponencia, I am
constrained to add the foregoing observations because I feel
they form an integral part of the Court's decision.
CRUZ, J., concurring:
I was one of the members of the Court who initially felt that the
petitioner had waived the right to preliminary investigation
because he freely participated in his trial and his counsel even
cross-examined the prosecution witnesses. A closer study of the
record, however, particularly of the transcript of the
proceedings footnoted in the ponencia, reveals that he had
from the start demanded a preliminary investigation and that
his counsel had reluctantly participated in the trial only
because the court threatened to replace him with a counsel de
oficio if he did not. Under the circumstances, I am convinced
that there was no waiver. The petitioner was virtually
compelled to go to trial. Such compulsion and unjustified
denial of a clear statutory right of the petitioner vitiated the
proceedings as violative of procedural due process.
It is true that the ruling we lay down here will take the case
back to square one, so to speak, but that is not the petitioner's
fault. He had the right to insist that the procedure prescribed
by the Rules of Court be strictly observed. The delay entailed by
the procedural lapse and the attendant expense imposed on the
Government and the defendant must be laid at the door of the
trial judge for his precipitate and illegal action.
It appears that the trial court has been moved by a desire to
cater to public opinion to the detriment of the impartial
administration of justice. The petitioner as portrayed by the
media is not exactly a popular person. Nevertheless, the trial
court should not have been influenced by this irrelevant
consideration, remembering instead that its only guide was the
mandate of the law.
GRIÑO-AQUINO, J., dissenting:
I regret that I cannot agree with the majority opinion in this
case. At this point, after four (4) prosecution witnesses have
already testified, among them an eyewitness who identified the
accused as the gunman who shot Eldon Maguan inside his car
in cold blood, and a security guard who identified the plate
number of the gunman's car, I do not believe that there is still
need to conduct a preliminary investigation the sole purpose of
which would be to ascertain if there is sufficient ground to
believe that a crime was committed (which the petitioner does
not dispute) and that he (the petitioner) is probably guilty
thereof (which the prosecutor, by filing the information against
him, presumably believed to be so).
In the present stage of the presentation of the prosecution's
evidence, to return the case to the Prosecutor to conduct a
preliminary investigation under Rule 112 of the 1985 Rule on
Criminal Procedure would be supererogatory.
This case did not suffer from a lack of previous investigation.
Diligent police work, with ample media coverage, led to the
identification of the suspect who, seven (7) days after the
shooting, appeared at the San Juan police station to verify
news reports that he was the object of a police manhunt. Upon
entering the station, he was positively identified as the gunman
by an eyewitness who was being interrogated by the police to
ferret more clues and details about the crime. The police
thereupon arrested the petitioner and on the same day, July 8,
1991, promptly filed with the Provincial Prosecutor of Rizal, a
complaint for frustrated homicide against him. As the victim
died the next day, July 9, 1991, before an information could be
filed, the First Assistant Prosecutor, instead of filing an
information for frustrated homicide, filed an information for
murder on July 11, 1991 in the Regional Trial Court, with no
bail recommended.
However, the Provincial Prosecutor, acting on the petitioner's
omnibus motion for preliminary investigation and release on
bail (which was erroneously filed with his office instead of the
court), recommended a cash bond of P100,000 for his release,
and submitted the omnibus motion to the trial court for
resolution.
Respondent Judge Benjamin Pelayo must have realized his
impetuosity shortly after he had issued: (a) his order of July 12,
1991 approving the petitioner's cash bail bond without a
hearing, and (b) his order of July 16, 1991 granting the
Prosecutor leave to conduct a preliminary investigation, for he
motu propio issued on July 17, 1991 another order rescinding
his previous orders and setting for hearing the petitioner's
application for bail.
The cases cited in page 15 of the majority opinion in support of
the view that the trial of the case should be suspended and that
the prosecutor should now conduct a preliminary investigation,
are not on all fours with this case. In Doromal vs.
Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23
SCRA 1024, the trial of the criminal case had not yet
commenced because motions to quash the information were
filed by the accused. Lozada vs. Hernandez, 92 Phil. 1053; U.S.
vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA
110 and People vs. Oandasan, 25 SCRA 277 are also
inapplicable because in those cases preliminary investigations
had in fact been conducted before the informations were filed
in court.
It should be remembered that as important as is the right of the
accused to a preliminary investigation, it is not a constitutional
right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect
the court's jurisdiction, nor impair the validity of the
information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor
constitute an infringement of the right of the accused to
confront witnesses (Bustos vs. Lucero, 81 Phil. 640).
The petitioner's motion for a preliminary investigation is not
more important than his application for release on bail, just as
the conduct of such preliminary investigation is not more
important than the hearing of the application for bail. The
court's hearing of the application for bail should not be
subordinated to the preliminary investigation of the charge.
The hearing should not be suspended, but should be allowed to
proceed for it will accomplish a double purpose. The parties
will have an opportunity to show not only: (1) whether or not
there is probable cause to believe that the petitioner killed
Eldon Maguan, but more importantly (b) whether or not the
evidence of his guilt is strong. The judge's determination that
the evidence of his guilt is strong would naturally foreclose the
need for a preliminary investigation to ascertain the probability
of his guilt.
The bail hearing may not be suspended because upon the filing
of an application for bail by one accused of a capital offense,
"the judge is under a legal obligation to receive evidence with
the view of determining whether evidence of guilt is so strong
as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210;
Hadhirul Tahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and
Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121
SCRA 472; Ilagan vs. Ponce Enrile, 139 SCRA 349; People vs.
Albofera, 152 SCRA 123)
The abolition of the death penalty did not make the right to bail
absolute, for persons charged with offenses punishable by
reclusion perpetua, when evidence of guilt is strong, are not
bailable (Sec. 3, Art. III, 1987 Constitution). In People vs.
Dacudao, 170 SCRA 489, we called down the trial court for
having granted the motion for bail in a murder case without
any hearing and without giving the prosecution an opportunity
to comment or file objections thereto.
Similarly this Court held in People vs. Bocar, 27 SCRA 512:
. . . due process also demands that in the matter of bail the
prosecution should be afforded full opportunity to present
proof of the guilt of the accused. Thus, if it were true that the
prosecution in this case was deprived of the right to present its
evidence against the bail petition, or that the order granting
such petition was issued upon incomplete evidence, then the
issuance of the order would really constitute abuse of
discretion that would call for the remedy of certiorari.
(Emphasis supplied.)
The petitioner may not be released pending the hearing of his
petition for bail for it would be incongruous to grant bail to one
who is not in the custody of the law (Feliciano vs. Pasicolan, 2
SCRA 888).
I respectfully take exception to the statements in the ponencia
that the "petitioner was not arrested at all" (p. 12) and that
"petitioner had not been arrested, with or without a warrant"
(p. 130). Arrest is the taking of the person into the custody in
order that he may be bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by
an actual restraint of the person to be arrested, or by his
submission to the custody of the person making the arrest (Sec.
2, Rule 113, Rules of Court). When Go walked into the San Juan
Police Station on July 8, 1991, and placed himself at the
disposal of the police authorities who clamped him in jail after
he was identified by an eyewitness as the person who shot
Maguan, he was actually and effectively arrested. His filing of a
petition to be released on bail was a waiver of any irregularity
attending his arrest and estops him from questioning its
validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs.
Villaraza, 120 SCRA 525).
I vote to dismiss the petition and affirm the trial court's order
of July 17, 1991.
Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr.,
JJ., concur.
G.R. No. L-4427 4 January 22, 1980
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUISITO SAN PEDRO, et al., accused, ARTEMIO
BANASIHAN, defendant-appellant.
Haydee B. Yorac for appellant.
Office of the Solicitor General for appellee.
PER CURIAM:
Automatic review of the death penalty imposed on appellant by
the Court of First Instance of Laguna, for the crime of robbery
with homicide, committed, according to the evidence, and as
stated in the appellant's brief, which We quote, as follows:
In the afternoon of June 2, 1970, the lifeless body of a person
was found somewhere between the barrios of Masaya and
Paciano Rizal Municipality of Bay, Laguna. The body was
brought to the municipal building of Bay for autopsy. Dr. Fe
Manansala-Pantas, in her autopsy report, Exh. B, noted that
the deceased died of profuse hemorrhage due to 23 lacerated
and stab wounds and multiple abrasions found on the different
parts of the body of the deceased.
The deceased was identified to be Felimon Rivera, a driver of a
passenger jeep belonging to Pablito delos Reyes, a fruit vendor.
Earlier in the day, Rivera was out driving the jeep. But that was
to be the last time for him to drive the jeep for on that same
day, he was killed, and his jeep was no longer found or
recovered.
It was not until June 11, 1971, that the police authorities found
a concrete lead to the solution of the case. Rodrigo Esguerra,
when apprehended and interviewed by the police, admitted his
participation and named his companions. He gave a written
statement, Exh. F. Soon the police began rounding up the other
suspects.
Artemio Banasihan was apprehended sometime in 1972. On
March 3 of said year, he was investigated by Sgt. Juan
Tolentino of the Philippine Constabulary. He gave a statement
which was sworn to before the Acting Municipal Judge of Los
Baños, Laguna, confessing his participation in the robbery and
killing of Felimon Rivera (Exh. H). In said statement,
Banasihan recounted that four days before June 2, 1970, he
and his co-accused met and planned to get the jeep driven by
the deceased. Carrying out their plan, he and Luisito San Pedro
approached Rivera in the afternoon of June 2, 1970 and on the
pretext of hiring Rivera's jeep to haul coconuts, they proceeded
to Bo. Puypuy in Bay, Laguna, where they were joined by
Salvador Litan and Rodrigo Esguerra. Esguerra was then
carrying a water pipe wrapped in paper. Upon reaching a river
between the barrios of Mainit and Puypuy San Pedro ordered
Rivera to stop. Whereupon, at Esguerra's signal, Litan hit
Rivera at the nape with the water pipe. Rivera jumped out of
the jeep but was chased by San Pedro and Litan who stabbed
him at the back several times with a dagger. Esguerra then
drove the jeep and the group proceeded to Makati, Rizal, He
then joined Nelson Piso and Antonio Borja. The jeep was
brought to Cavite City where it was sold for P2,000.00. Four
days later, Piso went to Los Baños and gave San Pedro, Litan
and Banasihan P50.00 each, with the promise that the balance
would be given later. However, the promised balance was not
given them.
As synthesized above, the facts of the instant case are as also
found by the trial court, which appellant, through counsel de
oficio, confesses inability to dispute. Admitting thus the
accuracy of the factual finding of the court a quo, appellant
raises only questions of law, particularly in the appreciation of
the modifying circumstances proven by the evidence, with a
view to reducing the penalty of death as imposed, to reclusion
perpetua as prayed for. This notwithstanding, We did not
relieve ourselves of the duty of reviewing the evidence, for the
purpose of the proceedings before Us is to discover any
possible error, specifically in the appreciation of the evidence,
that might have been committed by the trial court that led to an
improper imposition of the supreme penalty. After undertaking
the task, We express complete agreement that no reversible
error has been committed by the trial court as to the culpable
participation of the appellant as one of the perpetrators of the
capital offense charged.
Specifically, the legal questions raised affecting the degree of
culpability of appellant is whether the aggravating
circumstance of craft is absorbed by treachery, and whether the
resulting single aggravating circumstance of treachery should
be offset by the mitigating circumstance of lack of instruction,
as appellant claims should be appreciated in his favor, thereby
calling for the reduction of the death penalty to that of life
imprisonment.
We cannot subscribe to the theory of craft being absorbed by
treachery, as nighttime and abuse of superior strength may be
so absorbed, as held in numerous decisions of this Court.' In
the instant case, craft was employed not with a view to making
treachery more effective as nighttime and abuse of superior
strength would in the killing of the victim. It was directed
actually towards facilitating the taking of the jeep in the
robbery scheme as planned by the culprits. From the definition
of treachery, it is manifest that the element of defense against
bodily injury makes treachery proper for consideration only in
crimes against person as so explicitly provided by the Revised
Penal Code (Art. 14[16]).
Aside from the foregoing observation, decisional rulings argue
against appellant's submission. Thus in the case of U.S. vs.
Gampona, et al., 36 Phil. 817 (1917) where the crime charged
was murder, qualified by treachery, craft was considered
separately to aggravate the killing. Note that in this cited case,
the crime was killing alone, which has a weightier rationale.
for, merging the two aggravating circumstances, than when, as
in crime of robbery with homicide, craft has a very distinct
application to the crime of robbery, separate and independent
of the homicide. Yet, it was held that craft and treachery were
separate and distinct aggravating circumstances. The same
ruling was announced in People vs. Sakam, et al., 61 Phil. 27
(1934).
In People v. Malig, 83 Phil. 804, (1949) craft which consisted in
luring the victim to another barrio, was considered absorbed by
treachery. This may be so because craft enhanced the
effectiveness of the means, method or form adopted in the
execution of the crime, one against persons, "which tend
directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party
might make." Even so, the Court was divided in the inclusion or
absorption of craft by treachery. And again, the offense charged
was one solely against persons.
With the presence of two aggravating circumstances, craft and
treachery, it would make no difference even if the mitigating
circumstance of lack of instruction were appreciated in
appellant's favor which is even doubtful from the fact alone, as
was allegedly proven by the testimony of appellant that he
cannot read and write but can only sign his name (P. 9, t. s. n.
Sept. 1, 1975). This, apart from the fact that as held
categorically in the case of People vs. Enot, 6 SCRA 325 (1962)
lack of instruction is not applicable to crimes of theft and
robbery, much less to the crime of homicide. The reason is that
robbery and killing are, by their nature, wrongful acts, and are
manifestly so to the enlightened, equally as to the ignorant
(People vs. Salip Manla et al., 30 SCRA 389 [1969]).
As recently held by this Court, speaking through Justice
Hermogenes Concepcion, Jr., the "criteria in determining lack
of instruction is not illiteracy alone, but rather lack of sufficient
intelligence." It is significant that neither to the trial court nor
to the appellant's counsel has the mitigating circumstance of
lack of instruction entered the mind. No attempt was made to
prove it, as direct proof, not mere inference, is required, and
must be invoked in the court below (People vs. Mongado, et al.,
28 SCRA 642, [1969]), the reason being that the trial court can
best gauge a person's level of intelligence from his manner of
answering questions in court (People v. Manuel, 29 SCRA 337
[1969]). If the trial court did not consider the mitigating
circumstance invoked for the first time here on appeal, it must
be because from appellant's testimony, and even more so from
his given occupation as a merchant (T.S.N., p. 3, Sept. 1, 1975),
his alleged lack of intelligence never suggested itself to the trial
court or to his lawyer, as entitling him to the mitigating
circumstance of lack of instruction.
WHEREFORE, there being no error committed by the trial
court, its decision imposing the death penalty, together with
the indemnity awarded, has to be, as it is hereby, affirmed.
SO ORDERED.
Teehankee, Barredo, Makasiar, Antonio, Concepcion, Jr.,
Santos, Fernandez, Guerrero, Abad Santos, De Castro and
Melencio Herrera, JJ., concur.
I think despoblado should also be considered aggravating. The
malefactors used the victim's jeep to bring him to an
uninhabited place where he was killed with impunity. Hence,
the death penalty was properly imposed.
Separate Opinions
AQUINO, J., concurring:
I concur in the result. Although Luisito San Pedro, Artemio
Banasihan, Rodrigo Esguerra, Nelson Piso and Antonio Borja
were charged with robbery with homicide in the lower court
(Salvador Litan was not included in the charge), only
Banasihan and Piso were arrested and brought to trial.
Banasihan was convicted of robbery with homicide and was
sentenced to death. Piso was convicted as an accessory. His
case is not under automatic review.
Esguerra was later apprehended. He pleaded guilty and was
sentenced to reclusion perpetua.

Fernando, C.J., took no part. I think despoblado should also be considered aggravating. The
malefactors used the victim's jeep to bring him to an
Separate Opinions uninhabited place where he was killed with impunity. Hence,
the death penalty was properly imposed.
AQUINO, J., concurring:

I concur in the result. Although Luisito San Pedro, Artemio

Banasihan, Rodrigo Esguerra, Nelson Piso and Antonio Borja
were charged with robbery with homicide in the lower court
(Salvador Litan was not included in the charge), only
Banasihan and Piso were arrested and brought to trial.

Banasihan was convicted of robbery with homicide and was

sentenced to death. Piso was convicted as an accessory. His
case is not under automatic review.

Esguerra was later apprehended. He pleaded guilty and was

sentenced to reclusion perpetua.

I think despoblado should also be considered aggravating. The

malefactors used the victim's jeep to bring him to an
uninhabited place where he was killed with impunity. Hence,
the death penalty was properly imposed.

Separate Opinions

AQUINO, J., concurring:

I concur in the result. Although Luisito San Pedro, Artemio

Banasihan, Rodrigo Esguerra, Nelson Piso and Antonio Borja
were charged with robbery with homicide in the lower court
(Salvador Litan was not included in the charge), only
Banasihan and Piso were arrested and brought to trial.

Banasihan was convicted of robbery with homicide and was

sentenced to death. Piso was convicted as an accessory. His
case is not under automatic review.

Esguerra was later apprehended. He pleaded guilty and was

sentenced to reclusion perpetua.