G.R. No.

80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch
XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a
criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what
hitherto appears to be an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard
Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the
Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in
Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto
between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a
divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that
there was failure of their marriage and that they had been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional
Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of
divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records
show that under German law said court was locally and internationally competent for the divorce proceeding and that the
dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints
for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner "had an affair with
a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal
Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground
of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8,
1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were accordingly filed and
were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines
vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by
the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as
Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent
fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in
Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions
and directed the respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned and
if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his office for
review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings
thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other
hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before
such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said
Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of
Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was
denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused
to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel
were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary
restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored
on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense
that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended
spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the
aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on
March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints
against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot
be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory
proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the
complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first
four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in
default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage.
In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is
a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil
cases, is determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement
and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally
and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the
complaining witness therein. However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and
the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right
to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather
than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal
Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for,
adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed
offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be
definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates
the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to
the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent
to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party
bringing suit at the very time when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the
status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one
who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the
inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds
between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former
against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the
offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for
adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section
4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed,
he had ceased to be such when the prosecution was begun; and appellant insists that his status was not
such as to entitle him to make the complaint. We have repeatedly said that the offense is against the
unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we
are of the opinion that the unoffending spouse must be such when the prosecution is commenced.
(Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory
law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis
the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case
must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of
the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany,
is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is
concerned 23 in view of the nationality principle in our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between
Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business
concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the
right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance,
thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the United States.
The decree is binding on private respondent as an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public policy and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have
no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal
assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal
standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce
proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of
the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be
one of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each
other, hence the actuations of one would not affect or cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article
433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery
"although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare
adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled
to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to
that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of
nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being
no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg
to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the
situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of
its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected,
as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant.
Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order
issued in this case on October 21, 1987 is hereby made permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany
can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another,
because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling
would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity
are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the
validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National
law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as
the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still
married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an
injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on
the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her
national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988)
the divorce should be considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an
American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned
was NEVER put in issue.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany
can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another,
because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling
would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity
are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the
validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National
law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as
the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still
married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an
injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on
the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her
national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988)
the divorce should be considered void both with respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an
American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned
was NEVER put in issue.
G.R. No. 127107 October 12, 1998

PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,

vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of Pampanga, Branch
54; HON. TEOFISTO GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO YABUT,
SERVILLANO YABUT, MARTIN YABUT and FORTUNATO MALLARI, respondents.

DAVIDE, JR., J.:

The issues raised by petitioners in their Memorandum 1 and by the Office of the Solicitor General in its Comment 2 in this
special civil action for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court filed by petitioners, children
of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol, Pampanga, may be summarized as follows:

A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR COMMITTED GRAVE

ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO THE MOTION FOR
REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF
ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN BROUGHT INTO THE
CUSTODY Of THE LAW; and (2) FILING THE INFORMATION FOR HOMICIDE DESPITE
KNOWLEDGE OF THE APPEAL FROM SAID PROSECUTOR'S RESOLUTION TO THE
OFFICE OF THE SECRETARY OF JUSTICE.

B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION

IN PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING PETITIONERS'
MOTIONS TO SET ASIDE ARRAIGNMENT AND RECONSIDERATION THEREOF
DESPITE HIS KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND THE
SUBMISSION OF VITAL EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE
WAS COMMITTED BY THE ACCUSED.

C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED GRAVE

ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING THAT THE
CRIME COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL
PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE TO MURDER.

The records and the pleadings of the parties disclose the antecedents.

On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas, Masantol,
Pampanga.

On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC) of Macabebe-
Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the Masantol Police Station against private respondents
Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino Mandap, Casti David, Francisco Yambao,
Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano
Magnaye, Vladimir Yumul, a certain "Danny," and a certain "Koyang/Arding." The complaint was docketed as Criminal Case
No. 95-360. After conducting a preliminary examination in the form of searching questions and answers, and finding
probable cause, Judge Designate Serafin B. David of the MCTC issued warrants for the arrest of the accused and directed
them to file their counter-affidavits.

Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were arrested; while only Francisco
Yambao submitted his counter affidavit.3

On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution4 in Criminal Case No. 95-360 finding
reasonable ground to believe that the crime of murder had been committed and that the accused were probably guilty
thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the leadership of Mayor Santiago "Docsay"
Yabut, including two John Does identified only as Dan/Danny and Koyang/Arding, went to Masantol,
Pampanga for the purpose of looking for a certain PO3 Virgilio Dimatulac.

At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol, Pampanga inquiring
about PO3 Virgilio Dimatulac. Thereafter, they went to the house of Mayor Lacap for the purpose of inquiring
[about] the [the location of the] house of PO3 Virgilio Dimatulac, until finally, they were able to reach the
house of said Virgilio Dimatulac at San Nicolas, Masantol, Pampanga.

Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all riding, stopped and
parked in front of the house of said PO3 Virgilio Dimatulac, some of the accused descended from the truck
and positioned themselves around the house while others stood by the truck and the Mayor stayed [in] the
truck with a bodyguard.

Accused Billy Yabut, Kati Yabut and Francisco Yambao, went inside the house of Virgilio Dimatulac [and]
were even offered coffee.

[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go down to see the
Mayor outside in front of his house to say sorry.

[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun shot was heard and then, the son of
Virgilio Dimatulac, Peter Paul, started to shout the following words: "What did you do to my father?!"

One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac, and as a consequence, he died; and
before he expired, he left a dying declaration pointing to the group of Mayor "Docsay" Yabut as the one
responsible.

That right after Virgilio Dimatulac was shot, accused "Docsay" Yabut ordered his men to go on board the
truck and immediately left away leaving Virgilio Dimatulac bleeding and asking for help.

On their way home to Minalin, accused Santiago "Docsay" Yabut gave money to accused John Doe
Dan/Danny and Francisco "Boy" Yambao was asked to bring the accused John Doe to Nueva Ecija which
he did.

Further, accused Santiago "Docsay" Yabut told his group to deny that they ever went to Masantol.

The court, after having conducted preliminary examination on the complainant and the witnesses
presented, [is] satisfied that there is a [sic] reasonable ground to believe that the crime of murder was
committed and that the accused in conspiring and confederating with one another are probably guilty
thereof.

Circumstantial evidence strongly shows the presence of conspiracy.

That in order not to frustrate the ends of justice, warrants of arrest were issued against Santiago Yabut,
Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino David, Casti David, Catoy Naguit, Fortunato
Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with no bail recommended.

However, with respect to accused Dan/Danny and Koyang/Arding, the court directed the police authorities
to furnish the court [a] description personae of the accused for the purpose of issuing the needed warrant
of arrest.

The accused were furnish [sic] copies of the complaint and affidavits of witnesses for them to file their
counter-affidavits in accordance to [sic] law.

As of this date, only accused Francisco "Boy" Yambao filed his counter-affidavit and all the others waived
the filing of the same.

A close evaluation of the evidence submitted by the accused Francisco Yambao which the court finds it
[sic] straightforward and more or less credible and seems to be consistent with truth, human nature and
 [the] natural course of things and lack of motives [sic], the evidence of guilt against him is rather weak
[compared to] the others, which [is why] the court recommends a cash bond of P50,000.00 for his
provisional liberty, and the court's previous order of no bail for said accused is hereby reconsidered.

WHEREFORE, premises considered, the Clerk of Court is directed to forward he entire records of the case
to the Office of the Provincial Prosecutor of Pampanga for further action, together with the bodies of accused
Francisco Yambao and Juan Magat to be remanded to the provincial Jail of Pampanga. 5 (emphasis
supplied)

In a sworn statement,6 petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut, accompanied by a number of
bodyguards, went to the residence of PO3 Virgilio Dimatulac to talk about a problem between the Mayor and Peter Paul's
uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even prepared coffee for them. Servillano and Martin Yabut
told Virgilio to come down from his house and apologize to the Mayor, but hardly had Virgilio descended when Peter Paul
heard a gunshot. While Peter Paul did not see who fired the shot, he was sure it was one of Mayor Yabut's companions.
Peter Paul opined that his father was killed because the latter spoke to the people of Minalin, Pampanga, against the Mayor,
Peter Paul added in a supplemental statement (Susog na Salaysay) 7 that he heard Mayor Yabut order Virgilio killed.

It his Sinumpaang Salaysay,8 Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in Masantol,
Pampanga, declared that on 3 November 1995, between 3:30 and 4:00 p.m., while he was at the polite station, three men
approached him and asked for directions to the house of Mayor Epifanio Lacap. Soriano recognized one of the men as
SPO1 Labet Malabanan of Minalin, Pampanga. The group left after Soriano gave them directions, but one of the three
returned to ask whether PO3 Virgilio Dimatulac was on duty, to which Soriano replied that Dimatulac was at home. The
group left on board a military truck headed for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray
received a telephone call at the police station reporting that someone had shot Virgilio Dimatulac.

Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a reinvestigation. However, it is
not clear from the record whether she conducted the same motu proprio or upon motion of private respondents Santiago
Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of the accused who had not submitted their counter-
affidavits before the MCTC, except accused "Danny" and "Koyang/Arding," submitted their counter-affidavits to Assistant
Provincial Prosecutor Alfonso Flores.

In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor Alfonso-Flores found that the YABUTs and the
assailant Danny, to the exclusion of the other accused, were in conspiracy with one another, but that the offense committed
was only homicide, not murder. In support of such finding, Alfonso-Flores reasoned thus:

The complainant in this case charges the crime of Murder qualified by treachery. It must be noted that to
constitute treachery, two conditions must be present, to wit, 1) the employment of the [sic] means of
execution were give [sic] the person attacked no opportunity to defend himself or to retaliate; and 2) the
means of execution were deliberately or consciously adopted . . . .

In the instant case, the presence of the first requisite was clearly established by the evidence, such that the
attack upon the victim while descending the stairs was so sudden and unexpected as to render him no
opportunity to defend himself or to retaliate. However, the circumstances, as portrayed by witness Peter
Paul Dimatulac, negate the presence of the second requisite. According to the said witness, the victim was
already descending when Mayor Yabut commanded the assailant to shoot him, and immediately thereafter,
he heard the gunshot. This would therefore show that the assailant did not consciously adopt the position
of the victim at the time he fired the fatal shot. The command of Mayor Yabut to shoot came so sudden as
to afford no opportunity for the assailant to choose the means or method of attack. The act of Mayor Yabut
in giving the command to shoot further bolster[s] the fact that the conspirator did not concert the means and
method of attack nor the manner thereof. Otherwise there would have been no necessity for him to give the
order to the assailant. The method and manner of attack was adopted by the assailant at the spur of the
moment and the vulnerable position of the victim was not deliberately and consciously adopted. Treachery
therefore could not be appreciated and the crime reasonably believe[d] to have been committed is Homicide
as no circumstance would qualify the killing to murder.

Alfonso-Flores then ruled:

WHEREFORE, in view of the foregoing, it is hereby recommended that:

 1. An information be filed with the proper court charging Santiago,
Servillano and Martin all surnamed Yabut, and one John Doe alias Danny
as conspirators in the crime of Homicide;

2. The case be dismissed against accused Evelino David, Justino Mandap

a.k.a. Casti David, Francisco Yambao, Juan Magat, Arturo Naguit,
Bladimir Dimatulac, Fortunato Mallari, Aniano Magnaye, Gilberto
Malabanan, Jesus dela Cruz and Joselito Miranda.

Bail of P20,000.00 for each of the accused is likewise recommended.

The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory questions were
propounded only to Peter Paul Dimatulac.

On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners, appealed the
resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ). 10 They alleged in their appeal that:

1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN RULING THAT

THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO MURDER, BUT LIKEWISE
ERRED IN NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING
CIRCUMSTANCES, TO WIT:

(A) THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF
ARMED MEN AND WITH THE USE OF A PERSON TO INSURE OR
AFFORD IMPUNITY;

(B) THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A

PRICE, REWARD, OR PROMISE;

(C) THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A

DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON "ROSING"
WAS RAGING ON NOVEMBER 3, 1995;

(D) THAT THE CRIME WAS COMMITTED WITH EVIDENT

PREMEDITATION;

2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR ERRED IN

DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND FRANCISCO
YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS AS AGAINST
FORTUNATO MALLARI AND NOT CHARGING FRANCISCO YAMBAO AS AN
ACCESSORY TO MURDER.

To refute Alfonso-Flores' finding that the means of execution were not deliberately adopted, petitioners asserted that the
meeting of the accused and the victim was not accidental as the former purposely searched for the victim at the height of a
typhoon, while accused Mayor Santiago Yabut even remarked to his co-accused "Danny," "Dikitan mo lang, alam mo na
kung ano ang gagawin mo, bahala ka na" (Just stay close to him, you know what to do). Thus, Danny positioned himself
near the stairs to goad the victim to come out of his house, while Fortunato Mallari represented to the deceased that the
latter was being invited by a certain General Ventura. When the victim declined the invitation by claiming he was sick,
accused Servillano Yabut persuaded the victim to come down by saying, "[T]o settle this matter, just apologize to the Mayor
who is in the truck." In view of that enticement, the victim came down, while Danny waited in ambush. To emphasize the
accused's resolve to kill the deceased, petitioners further narrated that when the deceased ran away after the first shot, the
gunman still pursued him, while Mayor Santiago Yabut, who was a doctor, kept away at a safe distance and told everyone
in the truck, "Tama na, bilisan ninyo," (That's enough, move quickly) without giving medical assistance to the deceased and
without exerting any effort to arrest the gunman.

The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution 11 ordering the release of accused
Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then detained) in view of the aforementioned
resolution of Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor approved "on February 7, 1996."

On 28 February 1996, an Information 12 for Homicide, signed by Assistant Provincial Prosecutor Flores and Provincial
Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe, Pampanga,
against the YABUTs and John Doe alias "Danny Manalili" and docketed as Criminal Case No. 96-1667(M). The accusatory
portion of the information read as follows:

That on or about the 3rd day of November, 1995, in the municipality of Masantol, province of Pampanga,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, with deliberate intent to take the life of PO3
Virgilio A. Dimatulac, did then and there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio A.
Dimatulac on his abdomen with the use of a handgun, thereby inflicting, upon him a gunshot wound which
cause[d] the death of the said victim.

All contrary to law.

The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang on "2/27/96", i.e., a day
before its filing in court.

On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds of the YABUTs,
each in the amount of P20,000.00, and recalled the warrants for their arrest. 13

On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed two (2) motions
with the trial court: (1) a Motion to Issue Hold Departure Order Against All Accuseds 14 [sic]; and an (2) Urgent Motion to
Defer Proceedings, 15 copies of which were furnished the Office of the Provincial Prosecutor of Pampanga. The second
motion was grounded on the pendency of the appeal before the Secretary of Justice and a copy thereof was attached to
the motion. Judge Roura set the motions for hearing on 8 March 1996. 16

On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili. 17

On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue Hold Departure Order and the Motion to Defer
Proceedings. The YABUTs asserted that, as to the first, by posting bail bonds, they submitted to the jurisdiction of the trial
court and were bound by the condition therein to "surrender themselves whenever so required by the court, and to seek
permission from the court should any one of them desire to travel;" and, as to the second, the pendency of the appeal before
the Secretary of Justice was not a ground to defer arraignment; moreover, the trial court had to consider their right to a
speedy trial, especially since there was no definite date for the resolution of the appeal. Then invoking this Court's rulings
in Crespo v. Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that petitioners should have filed a
motion to defer the filing of the information for homicide with the Office of the Provincial Prosecutor, or sought, from the
Secretary of Justice, an order directing the Provincial Prosecutor to defer the filing of the information in court.

In a Reply 21 to the opposition, the private prosecution, citing Section 20 of Rule 114 of the Rules of Court, insisted on the
need for a hold-departure order against the accused; argued that the accused's right to a speedy trial would not be impaired
because the appeal to the Secretary of Justice was filed pursuant to Department Order No. 223 of the DOJ and there was
clear and convincing proof that the killing was committed with treachery and other qualifying circumstances not absorbed in
treachery; and contended that the accused's invocation of the right to a speedy trial was inconsistent with their filing of
various dilatory motions during the preliminary investigation. The YABUTs filed a Rejoinder 22 to this Opposition.

On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until "such time that all
the accused who are out on bail are arraigned," but denied the Motion to Defer Proceedings as he found no compelling
reason therefor, considering that although the appeal was filed on 23 February 1996, "the private prosecution has not shown
any indication that [the] appeal was given due course by the Secretary of Justice." Judge Roura also set the arraignment of
the accused on 12 April 1996. 23

It would appear that the private prosecution moved to reconsider the order denying the Motion to Defer Proceedings since,
on 12 April 1996, Judge Roura issued an Order 24 giving the private prosecutor "ten (10) days from today within which to
file a petition for certiorari questioning the order of the Court denying his motion for reconsideration of the order of March
26, 1996." Arraignment was then reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from hearing Criminal Case No. 96-1667(M) on the
ground that he: (a) hastily set the case for arraignment while the former's appeal in the DOJ was still pending evaluation;
and (b) prejudged the matter, having remarked in open court that there was "nothing in the records of the case that would
qualify the case into Murder." At the same time, petitioners filed a petition for prohibition 26 with the Court of Appeals
docketed therein as CA-G.R. SP No. 40393, to enjoin Judge Roura from proceeding with the arraignment in Criminal Case
No. 96-1667(M).

On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment 27 with the trial court wherein he
opposed the motion to inhibit Judge Roura; manifested that "there is nothing in the record . . . which shows that the subject
killing is qualified into murder;" and announced that he "will no longer allow the private prosecutor to participate or handle
the prosecution of [the] case" in view of the latter's petition to inhibit Judge Roura.

On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch 54 of the RTC,
presided over by herein public respondent Judge Sesinando Villon. 28

On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal Case No. 96-1667(M). 29

On 30 April 1996, petitioners filed with the trial court a Manifestation 30 submitting, in connection with their Motion to Defer
Proceedings and Motion to Inhibit Judge Roura, documentary evidence to support their contention that the offense
committed was murder, not homicide. The documents which they claimed were not earlier submitted by the public
prosecution were the following:

a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.

b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.

c. Counter-Affidavit of Francisco I. Yambao.

d. Counter-Affidavit of SPO2 Fortunato Mallari.

e. Sinumpaang Salaysay of Aniano Magnaye.

f. Sinumpaang Salaysay of Leopoldo Soriano.

g. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal Case No.

95-360, containing the testimony of:

a. Peter Paul Dimatulac

b. Vladimir D. Yumul

c. SPO1 Gilberto Malabanan

d. PO3 Alfonso Canilao

h. Investigation Report-dated November 4, 1995.

i. Dying declaration of Virgilio Dimatulac.

j. Sketch

k. Unscaled Sketch

Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a Resolution 31 directing
respondent therein to file his comment to the petition within ten days from notice and to show cause within the same period
"why no writ of preliminary injunction should be issued as prayed for in the petition." However, the Court of Appeals "deferred
action" on the prayer for a temporary restraining order "until after the required comment [was] submitted."
On 3 May 1996, petitioners filed an Ex-Parte Manifestation 32 with the RTC, furnishing the trial court with a copy of the
aforementioned resolution of the Court of Appeals and drawing the attention of the trial court to the rulings of this Court in
"Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and Eternal Gardens Memorial Park Corp. vs. Court
of Appeals . . . as well as the decision in Paul G. Roberts vs. The Court of Appeals."

On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May 1996. 33 On the latter date,
the YABUTs each entered a plea of not guilty. 34

Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion to Set Aside
Arraignment,35 citing the resolution of 30 April 1996 of the Court of Appeals in CA-G.R. SP No. 40393 which, inter alia,
deferred resolution on the application for a temporary restraining order "until after the required comment is submitted by the
respondent;" stressed that the filing of the information for the lesser offense of homicide was "clearly unjust and contrary to
law in view of the unquestionable attendance of circumstances qualifying the killing to murder;" and asserted that a number
of Supreme Court decisions supported suspension of the proceedings in view of the pendency of their appeal before the
DOJ.

On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file their comment on the Urgent Motion to Set
Aside Arraignment within fifteen days from notice.

In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public respondent Secretary Teofisto Guingona of
the DOJ resolved the appeal in favor of petitioners. Secretary Guingona ruled that treachery was present and directed the
Provincial Prosecutor of San Fernando, Pampanga "to amend the information filed against the accused from homicide to
murder," and to include Fortunato Mallari as accused in the amended information. The findings and conclusions of Secretary
Guingona read as follows:

Contrary to your findings, we find that there is treachery that attended the killing of PO3 Dimatulac.
Undisputedly, the victim was suddenly shot while he was descending the stairs. The attack was unexpected
as the victim was unarmed and on his way to make peace with Mayor Yabut, he was unsuspecting so to
speak. From the circumstances surrounding his killing, PO3 Dimatulac was indeed deprived of an
opportunity to defend himself or to retaliate.

Corollarily, we are also convinced that such mode of attack was consciously and deliberately adopted by
the respondents to ensure the accomplishment of their criminal objective. The admission of respondent
Malabanan is replete with details on how the principal respondent, Mayor Yabut, in conspiracy with the
assailant and others, had consciously and deliberately adopted means to ensure the execution of the crime.
According to him, while they were on their way to the victim's house, Mayor Yabut already instructed Danny,
the assailant, that, "Dikitan mo lang, alam no na king ano ang gagawin mo, bahala ka na" This explains
why Danny positioned himself near the stairs of the victim's house armed with a handgun, such positioning
was precisely adopted as a means to ensure the accomplishment of their evil design and Mayor Yabut
ordered nobody else but Danny to shoot the victim while descending the stairs as his position was very
strategic to ensure the killing of the victim.

As has been repeatedly held, to constitute treachery, two conditions must be present, to wit: (1) employment
of means of execution that gives the person [attacked] no opportunity to defend himself or retaliate; and (2)
the means of execution were deliberately or consciously adopted (People vs. Talaver, 230 SCRA 281
[1994]). In the case at bar, these two (2) requisites are present as established from the foregoing discussion.
Hence, there being a qualifying circumstance of treachery, the crime committed herein is murder, not
homicide (People vs. Gapasin, 231 SCRA 728 [1994]).

Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao, we find sufficient
evidence against Mallari as part of the conspiracy but not against Yambao. As can be gleaned from the
sworn-statement of Yambao, which appears to be credible, Mallari tried also to persuade the victim to go
with them, using as a reason that he (victim) was being invited by General Ventura. He was also seen trying
to fix the gun which was used in killing the victim. These actuations are inconsistent with the claim that his
presence at the crime scene was merely passive.

On the other hand, we find credible the version and explanation of Yambao. Indeed, under the obtaining
circumstances, Yambao had no other option but to accede to the request of Mayor Yabut to provide
transportation to the assailant. There being an actual danger to his life then, and having acted under the
impulse of an uncontrollable fear, reason dictates that he should be freed from criminal liability. 38
The YABUTs moved to reconsider the resolution, 39 citing Section 4 of "Administrative/Administration Order No. 223 of the
DOJ." 40

In an Ex-Parte Manifestation 41 dated 21 June 1996, petitioners called the trial court's attention to the resolution of the
Secretary of Justice, a copy of which was attached thereto. Later, in a Manifestation and Motion 42 dated 1 July 1996,
petitioners asked the trial court to grant their motion to set aside arraignment. Attached thereto was a copy of the
Manifestation and Motion 43 of the Solicitor General dated 18 June 1996 filed with the Court of Appeals in CA-G.R. SP No.
40393 wherein the Solicitor General joined cause with petitioners and prayed that "in the better interest of justice, [the]
Petition for Prohibition be GRANTED and a writ of prohibition be ISSUED forthwith." In support of said prayer, the Solicitor
General argued:

2. There is merit to the cause of petitioners. If the Secretary of Justice would find their
Appeal meritorious, the Provincial Prosecutor would be directed to upgrade the Information
to Murder and extreme prejudice if not gross injustice would thereby have been avoided.

3. Consequently, the undersigned counsel interpose no objection to the issuance of a writ

of prohibition enjoining respondent Judge from holding further proceedings in Criminal
Case No. 96-1667-M, particularly in holding the arraignment of the accused, pending
resolution of the Appeals with the Secretary of Justice.

The YABUTs opposed 44 petitioner's Manifestation and Motion dated 1 July 1996 because they had already been
arraigned and, therefore, would be placed in double jeopardy; and that the public prosecutor — not the private
prosecutor — had control of the prosecution of the case.

In his letter 45 dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the Secretary of Justice set aside
his order to amend the information from homicide to murder considering that the appeal was rendered moot and academic
by the arraignment of the accused for homicide and their having entered their pleas of not guilty. The Secretary stated:

Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already been arraigned on May
20, 1996 and had pleaded not guilty to the charge of homicide, as shown by a copy of the court order dated
May 20, 1996, the petition for review insofar as the respondents-Yabut are concerned has been rendered
moot and academic.

However, the Secretary reiterated that Fortunato Mallari should be included in the information for homicide.

On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to Admit Amended
Information.46 The Amended Information 47 merely impleaded Fortunato Mallari as one of the accused.

In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set aside arraignment, citing Section 4, DOJ
Department Order No. 223, and the letter of the Secretary of Justice of 1 July 1996. Petitioners forthwith moved for
reconsideration 49 of the order, arguing that the Motion to Defer the Proceedings filed by petitioners was meritorious and did
not violate the accused's right to speedy trial; and that the DOJ had ruled that the proper offense to be charged was murder
and did not reverse such finding. Petitioners also cited the Solicitor General's stand 50 in CA-G.R. SP No. 40393 that holding
accused's arraignment in abeyance was proper under the circumstances. Finally, petitioners contended that in proceeding
with the arraignment despite knowledge of a petition for prohibition pending before the Court of Appeals, the trial court
violated Section 3(d), Rule 71 of the Rules of Court on indirect contempt. The YABUTs opposed the motion on the ground
that it raised no argument which had not yet been resolved. 51

On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari, 52 which the trial court
granted in view of petitioners' motion for reconsideration of the court's order denying petitioners' motion to set aside private
respondents' arraignment. 53 As expected, Mallari moved to reconsider the trial court's order and clamored for consistency
in the trial court's rulings. 54

In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of the order denying petitioners' motion to set
aside arraignment, citing the YABUTs' right to a speedy trial and explaining that the prosecution of an offense should be
under the control of the public prosecutor, whereas petitioners did not obtain the conformity of the prosecutor before they
filed various motions to defer proceedings. Considering said order, Judge Villon deemed accused Mallari's motion for
reconsideration moot and academic. 56
On 16 October 1996, the Court of Appeals promulgated its decision 57 in CA-G.R. SP No. 40393 dismissing the petition
therein for having become moot and academic in view of Judge Roura's voluntary inhibition, the arraignment of the YABUTs
and the dismissal, by the Secretary of Justice, of petitioners' appeal as it had been mooted by said arraignment.

Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge Roura was ordered by the
Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of Macabebe, Pampanga, which
was previously presided over by Judge Villon. 58 Judge Roura informed the Office of the Court Administrator and this Court
that he had already inhibited himself from hearing Criminal Case No. 96-1667(M). 59

On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition and Mandamus. They urge this Court
to reverse the order of respondent Judge denying their Motion to Set Aside Arraignment; set aside arraignment of private
respondents; order that no further action be taken by any court in Criminal Case No. 96-1667(M) until this petition is resolved;
and order respondents Secretary of Justice and the prosecutors concerned to amend the information from homicide to
murder.

Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private respondents tricked the
victim into coming out of his house and then shot him while he was going down the stairs. There was, petitioners claim, "an
orchestrated effort on the part of [private respondents] to manipulate the rules on administrative appeals with the end in
view of evading prosecution for the [non-bailable] offense of murder," as shown by the following events or circumstances:

(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of the crime
committed to homicide, a bailable offense, on strength of a motion for reinvestigation filed
by the YABUTs who had not yet been arrested.

(2) Respondent Mayor and his companions returned to Minalin after the killing and went
into hiding for four (4) months until the offense charged was downgraded.

(3) The information for homicide was nevertheless filed despite notice to the Office of the
Provincial Prosecutor of the appeal filed with the Secretary of Justice and request to defer
any action on the case.

(4) The Office of the Public Prosecutor of Pampanga disallowed the private prosecutor
from further participating in the case.

(5) Judge Roura denied the motion to defer proceedings and declared in open court that
there was no prima facie case for murder, notwithstanding the pendency of petitioners'
appeal with respondent Secretary of Justice.

(6) Even before receipt by petitioners of Judge Roura's order inhibiting himself and the
order regarding the transfer of the case to Branch 54, public respondent Judge Villon set
the case for arraignment and, without notice to petitioners, forthwith arraigned the accused
on the information for homicide on 20 May 1996, despite the pendency of the petition for
prohibition before the Court of Appeals and of the appeal before the DOJ.

(7) The Pampanga Provincial Prosecutor's Office did not object to the arraignment nor take
any action to prevent further proceedings on the case despite knowledge of the pendency
of the appeal.

(8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996 of the
Secretary of Justice directing the amendment of the information to charge the crime of
murder.

Petitioners argue that in light of Roberts, Jr., v. Court of Appeals, 60 respondent Judge acted in excess of his jurisdiction in
proceeding with private respondents' arraignment for homicide and denying petitioners' motion to set aside arraignment.
Moreover, although respondent Judge Villon was not the respondent in CA-G.R. SP No. 40393; he should have deferred
the proceedings just the same as the very issue in said case was whether or not the RTC could proceed with the arraignment
despite the pending review of the case by respondent Secretary of Justice. Further, Judge Villon unjustly invoked private
respondents' right to a speedy trial, after a lapse of barely three (3) months from the filing of the information on 23 February
1996; overlooked that private respondents were estopped from invoking said right as they went into hiding after the killing,
only to resurface when the charge was reduced to homicide; and failed to detect the Provincial Prosecutor's bias in favor of
private respondents. Judge Villon should have been more circumspect as he knew that by proceeding with the arraignment,
the appeal with the DOJ would be rendered technically nugatory.

Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the Secretary of Justice
once the accused had already been arraigned applies only to instances where the appellants are the accused, since by
submitting to arraignment, they voluntarily abandon their appeal.

In their comment, private respondents contend that no sufficient legal justification exists to set aside private respondents'
arraignment, it having already been reset twice from 12 April 1996 to 3 may 1996, due to petitioners' pending appeals with
the DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of this case to Branch 54. Moreover, as of the latter
date, the DOJ had not yet resolved petitioners' appeal and the DOJ did not request that arraignment be held in abeyance,
despite the fact that petitioners' appeal had been filed as early as 23 February 1996, at least 86 days prior to private
respondents' arraignment. They point out that petitioners did not move to reconsider the RTC's 26 March 1996 denial of the
Motion to Defer, opting instead for Judge Roura's recusal and recourse to the Court of Appeals, and as no restraining order
was issued by the Court of Appeals, it was but proper for respondent Judge to proceed with the arraignment of private
respondent, to which the public and private prosecutors did not object.

Private respondents further argue that the decision of respondent Secretary, involving as it did the exercise of discretionary
powers, is not subject to judicial review. Under the principle of separation of powers, petitioners' recourse should have been
to the President. While as regards petitioners' plea that the Secretary be compelled to amend the information from homicide
to murder, private respondents submit that mandamus does not lie, as the determination as to what offense was committed
is a prerogative of the DOJ, subject only to the control of the President.

As regards DOJ Department Order No. 223, private respondents theorize that appeal by complainants is allowed only if the
complaint is dismissed by the prosecutor and not when there is a finding of probable cause, in which case, only the accused
can appeal. Hence, petitioners' appeal was improper.

Finally, private respondents stress the fact that petitioners never appealed the withdrawal by the public prosecutor of the
private prosecutor's authority to handle the case.

In its comment for the public respondents, the Office of the Solicitor General (OSG) prays that the petition be denied
because: (a) in accordance with Section 4 of DOJ Order No. 223, upon arraignment of the accused, the appeal to the
Secretary of Justice shall be dismissed motu proprio; (b) the filing of the information for homicide was in compliance with
the directive under Section 4(2), D.O. No. 223, i.e., an appeal or motion for reinvestigation from a resolution finding probable
cause shall not hold the filing of the information in court; (c) the trial court even accommodated petitioners by initially
deferring arraignment pending resolution by the Court of Appeals of the petition for prohibition, and since said Court did not
issue any restraining order, arraignment was properly had; and (d) reliance on Roberts is misplaced, as there, accused
Roberts and others had not been arraigned and respondent Judge had ordered the indefinite postponement of the
arraignment pending resolution of their petitions before the Court of Appeals and the Supreme Court.

We now consider the issues enumerated at the outset of this ponencia.

Plainly, the proceedings below were replete with procedural irregularities which lead us to conclude that something had
gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in manifest advantage to the accused, more
particularly the YABUTs, and grave prejudice to the State and to private complainants, herein petitioners.

First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail recommended for their temporary liberty.
However, for one reason or another undisclosed in the record, the YABUTs were not arrested; neither did they surrender.
Hence, they were never brought into the custody of the law. Yet, Asst. Provincial Fiscal Alfonso Reyes, either motu proprio or
upon motion of the YABUTs, conducted a reinvestigation. Since said accused were at large, Alfonso-Reyes should not have
done so. While it may be true that under the second paragraph of Section 5, Rule 112 of the Rules of Court, the provincial
prosecutor may disagree with the findings of the judge who conducted the preliminary investigation, as here, this difference
of opinion must be on the basis of the review of the record and evidence transmitted by the judge. Were that all she did, as
she had no other option under the circumstance, she was without any other choice but to sustain the MCTC since the
YABUTs and all other accused, except Francisco Yambao, waived the filing of their counter-affidavits. Then, further
stretching her magnanimity in favor of the accused, Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits
without first demanding that they surrender because of the standing warrants of arrest against them. In short, Alfonso-Reyes
allowed the YABUTs to make a mockery of the law in order that they gain their provisional liberty pending trial and be
charged with the lesser offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-accused "Danny," despite the
fact that they were charged with homicide and they were, at the time, fugitives from justice for having avoided service of the
warrant of arrest issued by the MCTC and having failed to voluntarily surrender.

Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the DOJ from her resolution. She could not have
been ignorant of the fact that the appeal vigorously assailed her finding that there was no qualifying circumstance attending
the killing, and that the private prosecution had convincing arguments to support the appeal. The subsequent resolution of
the Secretary of Justice confirmed the correctness of the private prosecution's stand and exposed the blatant errors of
Alfonso-Reyes.

Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide on 28 February 1996. It is
interesting to note that while the information was dated 29 January 1996, it was approved by the Provincial Prosecutor only
on 27 February 1996. This simply means that the Office of the Prosecutor was not, initially, in a hurry to file the Information.
No undue prejudice could have been caused to the YABUTs if it were filed even later for the YABUTs were still at large; in
fact, they filed their bonds of P20,000.00 each only after the filing of the Information. If Alfonso-Flores was extremely
generous to the YABUTs, no compelling reason existed why she could not afford the offended parties the same courtesy
by at least waiting for instructions from the Secretary of Justice in view of the appeal, if she were unwilling to voluntarily ask
the latter for instructions. Clearly, under the circumstances, the latter course of action would have been the most prudent
thing to do.

Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor of Pampanga did not even
bother to motu proprio, inform the trial court that the private prosecution had appealed from the resolution of Alfonso-Flores
and had sought, with all the vigour it could muster, the filing of an information for murder, as found by the MCTC and
established by the evidence before it.

Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the Provincial Prosecutor did not
even have the decency to agree to defer arraignment despite its continuing knowledge of the pendency of the appeal. This
amounted to defiance of the DOJ's power of control and supervision over prosecutors, a matter which we shall later
elaborate on. Moreover, in an unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity, if not arrogance,
to announce that "he will no longer allow the private prosecutor to participate or handle the prosecution of [the] case" simply
because the private prosecution had asked for the inhibition of Judge Roura. Said prosecutor forgot that since the offended
parties here had not waived the civil action nor expressly reserved their right to institute it separately from the criminal action,
then they had the right to intervene in the criminal case pursuant to Section 16 of Rule 1l0 of the Rules of Court.

It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of Alfonso-Flores. The last paragraph
of Section 4 of Rule 112 of the Rules of Court provides:

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city
fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information
without conducting another preliminary investigation or to dismiss or move for the dismissal of the complaint
or information.

It is clear from the above, that the proper party referred to therein could be either the offended party or the accused.

More importantly, an appeal to the DOJ is an invocation of the Secretary's power of control over prosecutors. Thus,
in Ledesma v. Court of Appeals, 16 we emphatically held:

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the
Revised Administrative Code, 62 exercises the power of direct control and supervision over said
prosecutors; and who, may thus affirm, nullify, reverse or modify their rulings.

Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the Code gives the
secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and
City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38,
paragraph 1, Chapter 7, Book IV of the Code:

(1) Supervision and Control. — Supervision and control shall include authority to act
directly whenever a specific function is entrusted by law or regulation to a subordinate;
direct the performance of duty; restrain the commission of acts; review, approve, reverse
or modify acts and decisions of subordinate officials or units; . . . .
 Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which
read:

Sec. 3. . . .

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall . . . perform such other duties as may be
assigned to them by the Secretary of Justice in the interest of public service.

xxx xxx xxx

Sec. 37. The provisions of the existing law to the contrary notwithstanding, whenever a
specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office,
division or service, the same shall be understood as also conferred upon the proper
Department Head who shall have authority to act directly in pursuance thereof, or to review,
modify, or revoke any decision or action of said chief of bureau, office, division or service.

"Supervision" and "control" of a department head over his subordinates have been defined in administrative
law as follows:

In administrative law, supervision means overseeing or the power or authority of an officer

to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them,
the former may take such action or step as prescribed by law to make them perform such
duties. Control, on the other hand, means the power of an officer to alter or modify or nullify
or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.

Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds
basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or
negligence committed in the initial steps of an administrative activity or by an administrative agency should
be corrected by higher administrative authorities, and not directly by courts. As a rule, only after
administrative remedies are exhausted may judicial recourse be allowed.

DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to appeal from
resolutions in preliminary investigations or reinvestigations, as provided for in Section 1 and Section 4, respectively. Section
1 thereof provides, thus:

Sec. 1. What May Be Appealed. — Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Prosecutor or City Prosecutor dismissing a criminal complaint may be the subject of an appeal
to the Secretary of Justice except as otherwise provided in Section 4 hereof.

While the section speaks of resolutions dismissing a criminal complaint, petitioners herein were not barred from appealing
from the resolution holding that only homicide was committed, considering that their complaint was for murder. By holding
that only homicide was committed, the Provincial Prosecutor's Office of Pampanga effectively "dismissed" the complaint for
murder. Accordingly, petitioners could file an appeal under said Section 1. To rule otherwise would be to forever bar redress
of a valid grievance, especially where the investigating prosecutor, as in this case, demonstrated what unquestionably
appeared to be unmitigated bias in favor of the accused. Section 1 is not to be literally applied in the sense that appeals by
the offended parties are allowed only in cases of dismissal of the complaint, otherwise the last paragraph of Section 4, Rule
112, Rules of Court would be meaningless.

We cannot accept the view of the Office of the Solicitor General and private respondents that Section 1 of DOJ Department
Order No. 223 is the controlling rule; hence, pursuant to the second paragraph thereof the appeal of petitioners did not hold
the filing of the information. As stated above, Section 4 applies even to appeals by the respondents or accused. The
provision reads:

Sec. 4. Non-appealable cases. Exceptions. — No appeal may be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon a
showing of manifest error or grave abuse of discretion. Notwithstanding the showing of minifest error or
grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned.
 If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu
proprio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the
filing of the information in court. (emphasis supplied)

The underlined portion indisputably shows that the section refers to appeals by respondents or accused. So we held
in Marcelo v. Court of
Appeals, 63 that nothing in the ruling in Crespo v. Mogul, 64 reiterated in Roberts v. Court of Appeals, 65 forecloses the power
of authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases despite an information
already having been filed in court. The Secretary of Justice is only enjoined to refrain, as far as practicable, from entertaining
a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case,
the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed
resolution, is subject to the discretion of the court. In Roberts we went further by saying that Crespo could not have
foreclosed said power or authority of the Secretary of Justice "without doing violence to, or repealing, the last paragraph of
Section 4, Rule 112 of the Rules of Court" which is quoted above.

Indubitably then, there was on the part of the public prosecution, indecent haste in the filing of the information for homicide,
depriving the State and the offended parties of due process.

As to the second issue, we likewise hold that Judge Roura acted with grave abuse of discretion when, in his order of 26
March l996, 66 he deferred resolution on the motion for a hold departure order until "such time that all the accused who are
out on bail are arraigned" and denied the motion to defer proceedings for the reason that the "private prosecution has not
shown any indication that [the] appeal was given due course by the Secretary of Justice." Neither rhyme nor reason or even
logic, supports the ground for the deferment of the first motion. Precisely, immediate action thereon was called for as the
accused were out on bail and, perforce, had all the opportunity to leave the country if they wanted to. To hold that
arraignment is a prerequisite to the issuance of a hold departure order could obviously defeat the purpose of said order. As
to the second motion, Judge Roura was fully aware of the pendency of petitioner's appeal with the DOJ, which was filed as
early as 23 February 1996. In fact, he must have taken that into consideration when he set arraignment of the accused only
on 12 April 1996, and on that date, after denying petitioners' motion to reconsider the denial of the motion to defer
proceedings, he further reset arraignment to 3 May 1996 and gave petitioners ten (10) days within which to file a petition
for certiorari to question his denial of the motion to defer and of the order denying the reconsideration. In any event, the
better part of wisdom suggested that, at the very least, he should have asked petitioners as regards the status of the appeal
or warned them that if the DOJ would not decide the appeal within a certain period, then arraignment would proceed.

Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the same time, moved to inhibit
Judge Roura. These twin moves prompted Judge Roura to "voluntarily" inhibit himself from the case on 29 April 1996 67 and
to transfer the case to the branch presided by public respondent Judge Villon. The latter received the records of the case
on 30 April 1996. From that time on, however, the offended parties did not receive any better deal. Acting with deliberate
dispatch, Judge Villon issued an order on 3 May 1996 setting arraignment of the accused on 20 May 1996. If Judge Villon
only perused the record of the case with due diligence, as should be done by anyone who has just taken over a new case,
he could not have helped but notice: (a) the motion to defer further proceedings; (2) the order of Judge Roura giving
petitioners ten days within which to file a petition with the Court of Appeals; (3) the fact of the filling of such petition in CA-
G.R. SP No. 40393; (4) the resolution of the Court of Appeals directing respondents to comment on the petition and show
cause why the application for a writ of preliminary injunction should not be granted and deferring resolution of the application
for a temporary restraining order until after the required comment was filed, which indicated a prima facie showing of merit;
(5) the motion to inhibit Judge Roura precisely because of his prejudgment that the crime committed was merely homicide;
(6) Judge Roura's subsequent inhibition; (7) various pieces of documentary evidence submitted by petitioners on 30 April
1996 supporting a charge of murder, not homicide; and (8) most importantly , the pending appeal with the DOJ.

All the foregoing demanded from any impartial mind, especially that of Judge Villon, a cautious attitude as these were
unmistakable indicia of the probability of a miscarriage of justice should arraignment be precipitately held. However, Judge
Villon cursorily ignored all this. While it may be true that he was not bound to await the DOJ's resolution of the appeal, as
he had, procedurally speaking, complete control over the case and any disposition thereof rested on his sound
discretion, 68 his judicial instinct should have led him to peruse the documents submitted on 30 April 1996 and to initially
determine, for his own enlightenment with serving the ends of justice as the ultimate goal, if indeed murder was the offense
committed; or, he could have directed the private prosecutor to secure a resolution on the appeal within a specified time.
Given the totality of circumstances, Judge Villon should have heeded our statement in Marcelo 69 that prudence, if not
wisdom, or at least, respect for the authority of the prosecution agency, dictated that he should have waited for the resolution
of the appeal then pending before the DOJ. All told, Judge Villon should not have merely acquiesced to the findings of the
public prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the arraignment of the
YABUTs on the assailed information for homicide. Again, the State and the offended parties were deprived of due process.

Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this case to function in a manner
consistent with the principle of accountability inherent in the public trust character of a public office. Judges Roura and Villon
and prosecutors Alfonso-Flores and Datu need be reminded that it is in the public interest that every crime should be
punished 70 and judges and prosecutors play a crucial role in this regard for theirs is the delicate duty to see justice done, i.e.,
not to allow the guilty to escape nor the innocent to
suffer. 71

Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they are the representatives not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall win every case but that justice be done. As
such, they are in a peculiar and every definite sense the servants of the law, whose two-fold aim is that guilt shall not escape
or innocence suffer.

Prosecutors are charged with the defense of the community aggrieved by a crime, and are expected to prosecute the public
action with such zeal and vigor as if they were the ones personally aggrieved, but at all times cautious that they refrain from
improper methods designed to secure a wrongful conviction. 73 With them lies the duty to lay before the court the pertinent
facts at the judge's disposal with strict attention to punctilios, thereby clarifying contradictions and sealing all gaps in the
evidence, with a view to erasing all doubt from the court's mind as to the accused's innocence or guilt.

The judge, on the other hand, "should always be imbued with a high sense of duty and responsibility in the discharge of his
obligation to promptly and properly administer justice." 74 He must view himself as a priest, for the administration of justice
is akin to a religious crusade. Thus, exerting the same devotion as a priest "in the performance of the most sacred
ceremonies of religious liturgy," the judge must render service with impartiality commensurate with the public trust and
confidence reposed in him. 75 Although the determination of a criminal case before a judge lies within his exclusive
jurisdiction and competence, 76 his discretion is not unfettered, but rather must be exercised within reasonable
confines. 77 The judge's action must not impair the substantial rights of the accused, nor the right of the State and offended
party to due process of law. 78

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of
society and the offended parties which have been wronged must be equally considered. Verily, a verdict of conviction is not
necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended and the
party wronged, it could also mean injustice. 79 Justice then must be rendered even-handedly to both the accused, on one
hand, and the State and offended party, on the other.

In this case, the abuse of discretion on the part of the public prosecution and Judges Roura and Villon was gross, grave
and palpable, denying, the State and the offended parties their day in court, or in a constitutional sense, due process. As to
said judges, such amounted to lack or excess of jurisdiction, or that their court was ousted of the jurisdiction in respect
thereto, thereby nullifying as having been done without jurisdiction, the denial of the motion to defer further hearings, the
denial of the motion to reconsider such denial, the arraignment of the YABUTs and their plea of not guilty.

These lapses by both the judges and prosecutors concerned cannot be taken lightly. We must remedy the situation before
the onset of any irreversible effects. We thus have no other recourse, for as Chief Justice Claudio Teehankee pronounced
in Galman v. Sandiganbayan: 80

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified.
The courts of the land under its aegis are courts of law and justice and equity. They would have no reason
to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and
suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to
render impartial justice to all alike who seek the enforcement or protection of a right or the prevention of
redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice.

We remind all members of the pillars of the criminal justice system that theirs is not a mere ministerial task to
process each accused in and out of prison, but a noble duty to preserve our democratic society under a rule of law.

Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution, holding that murder
was committed and directing the Provincial Prosecutor to accordingly amend the information, solely on the basis of the
information that the YABUTs had already been arraigned. In so doing, the DOJ relinquished its power of control and
supervision over the Provincial Prosecutor and the Assistant Provincial Prosecutors of Pampanga; and meekly surrendered
to the latter's inappropriate conductor even hostile attitude, which amounted to neglect of duty or conduct prejudicial to the
best interest of the service, as well as to the undue haste of Judge Roura and Villon in respect of the arraignment of the
YABUTs. The sins of omission or commission of said prosecutors and judges resulted, in light of the finding of the DOJ that
the crime committed was murder, in unwarranted benefit to the YABUTs and gross prejudice to the State and the offended
parties. The DOJ should have courageously exercised its power of control by taking bolder steps to rectify the shocking
"mistakes" so far committed and, in the final analysis, to prevent further injustice and fully serve the ends of justice. The
DOJ could have, even if belatedly, joined cause with petitioners to set aside arraignment. Further, in the exercise of its
disciplinary powers over its personnel, the DOJ could have directed the public prosecutors concerned to show cause why
no disciplinary action should be taken against them for neglect of duty or conduct prejudicial to the best interest of the
service in not, inter alia, even asking the trial court to defer arraignment in view of the pendency of the appeal, informing
the DOJ, from time to time, of the status of the case, and, insofar as prosecutor Datu was concerned, in disallowing the
private prosecutor from further participating in the case.

Finally, the DOJ should have further inquired into the vicissitudes of the case below to determine the regularity of
arraignment, considering that the appeal was received by the DOJ as early as 23 February 1996.

We then rule that the equally hasty motu proprio "reconsideration" of the 7 June 1996 resolution of the DOJ was attended
with grave abuse of discretion.

It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of discretion on the
part of the trial court, the acquittal of the accused 81 or the dismissal of the case 82 is void, hence double jeopardy cannot be
invoked by the accused. If this is so in those cases, so must it be where the arraignment and plea of not guilty are void, as
in this case as above discussed.

WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March 1996 denying the Motion to
Defer Proceeding and of 12 April 1996 denying the motion to reconsider the denial of said Motion to Defer Proceedings,
and the orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the arraignment to 20 May 1998 and of 25
October 1996 denying the Motion to Set Aside Arraignment in Criminal Case No. 96-1667(M) are declared VOID and SET
ASIDE. The arraignment of private respondents Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and their
separate pleas of not guilty are likewise declared VOID and SET ASIDE. Furthermore, the order of public respondent
Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED.

The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the Secretary of
Justice of 7 June 1996 by forthwith filing with the trial court the amended information for murder. Thereafter the trial court
shall proceed in said case with all reasonable dispatch.

No pronouncement as to costs.

SO ORDERED.
G.R. No. L-53373

MARIO FL. CRESPO, petitioner,

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

GANCAYCO, J.:

The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial
Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the
motion and insist on the arraignment and trial on the merits.

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for
estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No.
CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the
ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the
Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario
L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the
arraignment was deferred to August 18, 1977 to afford time for petitioner to elevate the matter to the appellate court. 3

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court
of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained
Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was
filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was
rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel
the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed
the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information
filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April
10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2,
1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the
motion and set the arraigniment stating:

ORDER

For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as
suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the
Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of
a pre-existing obligation the Hability of the drawer can only be civil and not criminal.

The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but
on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due
process but also erodes the Court's independence and integrity, the motion is considered as without merit and
therefore hereby DENIED.

WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming.

SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ
of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On
January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the
accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition
and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused
was denied in a resolution of February 19, 1980. 15
Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed
and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial
of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering
respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16

In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the
respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment
filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent
through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed.
In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc.
In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition.

Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief
reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to
dismiss the information.

It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under
the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal.
He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to
whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The
reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded
prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested
in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received
from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally
the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient
to establish a prima facie case. 22

It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that
would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal
prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated
by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the
Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere
with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for
insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-
investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is
innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who
did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's
should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be
issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to
do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and
vindictive manner. 30

However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval
of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the
Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the
Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed
in Court. 31

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the
case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant
for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or
was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists
warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as
above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After
such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate
action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should
be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be
proper in the rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the
action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of
law. 36a

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the
Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may
grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the
Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly
be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be
expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice.

The answer is simple.1âwphi1 The role of the fiscal or prosecutor as We all know is to see that justice is done and not
necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary,
it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to
arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not
shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should
he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will
be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over
the presentation of the evidence to the private prosecutor but still under his direction and control. 38

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as
its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot
impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The
determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or
after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary
of Justice who reviewed the records of the investigation.

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

WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs.

SO ORDERED.

G.R. No. 103102 March 6, 1992

CLAUDIO J. TEEHANKEE, JR., petitioner,

vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.:

In this special civil action for certiorari, prohibition and mandamus, petitioner principally seeks: (1) to nullify the order 1 of
respondent judge admitting the amended information for murder filed in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered by order of respondent judge when petitioner
refused to be arraigned on the amended information for lack of preliminary investigation therefor; (3) to nullify the
appointment of a counsel de oficio/PAO lawyer to represent petitioner; (4) to prohibit respondent judge from "over-speedy
and preferential scheduling of the trial of the aforementioned criminal case;" and (5) to compel respondent judge to order
preliminary investigation of the crime charged in the amended information.

Petitioner was originally charged on July 19, 1991 in an information 2 for the crime of frustrated murder allegedly committed
as follows:

That on or about the 13th day of July 1991, in the Municipality of Makati, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with
intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully, and feloniously
attack, assault and shoot one Maureen Navarro Hultman on the head, thereby inflicting gunshot wounds,
which ordinarily would have caused the death of said Maureen Navarro Hultman, thereby performing all the
acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did
not produce it by reason of cause or causes independent of her will, that is, due to the timely and able
medical assistance rendered to said Maureen Navarro Hultman which prevented her death.

After the prosecution had rested its case, petitioner was allowed to file a motion for leave to file a demurrer to evidence.
However, before the said motion could be filed, Maureen Navarro Hultman died.

Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus motion 3 for leave of court to file an amended
information and to admit said amended information. The amended information, 4 filed on October 31, 1991, reads:

That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y. Javier, armed with a
handgun, with intent to kill and evident premeditation and by means of treachery, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who
was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen
Hultman.

Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply 7 of the prosecution. On November 13, 1991, the
trial court issued the questioned order admitting the amended information.

At the scheduled arraignment on November 26, 1991, petitioner refused to be arraigned on the amended information for
lack of a preliminary investigation thereon. By reason of such refusal, respondent judge ordered that a plea of "not guilty"
be entered for petitioner.

Thereafter, respondent judge ordered the prosecution to present its evidence. When petitioner's counsel manifested that
he would not take part in the proceedings because of the legal issue raised, the trial court appointed a counsel de oficio to
represent herein petitioner.

Petitioner now raises the following issues before us:

(a) Whether or not an amended information involving a substantial amendment, without preliminary
investigation, after the prosecution has rested on the original information, may legally and validly be
admitted;

(b) Whether or not a counsel de oficio may legally and validly be appointed to represent an accused who is
represented by counsel of choice who refuses to participate in the proceedings because of a perceived
denial of due process and after a plea for appellate remedies within a short period is denied by the trial
court; and

(c) Whether or not a particular criminal case may legally and validly be rushed and preferentially scheduled
for trial over and at the expense and sacrifice of other, specially older, criminal cases. 8

In our resolution of January 14, 1992, we required the Solicitor General to file a comment to the basic petition. It appearing
from a further review of the record that the operative facts and determinant issues involved in this case are sufficiently
presented in the petition and the annexes thereto, both in regard to the respective positions of petitioner and respondents,
the Court has decided to dispense with the aforesaid comment to obviate needless delay in fairness to petitioner.
I. Petitioner avers that the additional allegation in the amended information, as herein underscored, that the accused ". . .
did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro
Hultman who was hit in the head, thereby inflicting mortal wounds which directly caused the death of said Maureen
Hultman . . ." constitutes a substantial amendment since it involves a change in the nature of the offense charged, that is,
from frustrated to consummated murder. Petitioner further submits that "(t)here is a need then to establish that the same
mortal wounds, which were initially frustrated (sic) by timely and able medical assistance, ultimately caused the death of
the victim, because it could have been caused by a supervening act or fact which is not imputable to the offender." 9 From
this, he argues that there being a substantial amendment, the same may no longer be allowed after arraignment and during
the trial.

Corollary thereto, petitioner then postulates that since the amended information for murder charges an entirely different
offense, involving as it does a new fact, that is, the fact of death whose cause has to be established, it is essential that
another preliminary investigation on the new charge be conducted before the new information can be admitted.

We find no merit in the petition. There are sufficient legal and jurisprudential moorings for the orders of the trial court.

Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:

Sec. 14. Amendment. — The information or complaint may be amended, in substance or form, without
leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters
of form, by leave and at the discretion of the court, when the same can be done without prejudice to the
rights of the accused.

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the
court shall dismiss the original complaint or information upon the filing of a new one charging the proper
offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in
double jeopardy and may also require the witnesses to give bail for their appearance at the trial.

The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to
the substitution of the information or complaint.

It may accordingly be posited that both amendment and substitution of the information may be made before or after the
defendant pleaded, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change
from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be
with leave of court as the original information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the
plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead
anew to the new information; and

4. An amended information refers to the same offense charged in the original information or to an offense which necessarily
includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea
has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the
accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information
involves a different offense which does not include or is not necessarily included in the original charge, hence the accused
cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a
substitution of information under the second paragraph thereof, the rule is that where the second information involves the
same offense, or an offense which necessarily includes or is necessarily included in the first information, and amendment
of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from
that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to
warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense
is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged
in the first information. In this connection, an offense may be said to necessarily include another when some of the essential
elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense
may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of
those constituting the latter. 10

Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the crime of murder,
hence the former is necessarily included in the latter. It is indispensable that the essential element of intent to kill, as well
as qualifying circumstances such as treachery or evident premeditation, be alleged in both an information for frustrated
murder and for murder, thereby meaning and proving that the same material allegations are essential to the sufficiency of
the informations filed for both. This is because, except for the death of the victim, the essential elements of consummated
murder likewise constitute the essential ingredients to convict herein petitioner for the offense of frustrated murder.

In the present case, therefore, there is an identity of offenses charged in both the original and the amended information.
What is involved here is not a variance in the nature of different offenses charged, but only a change in the stage of execution
of the same offense from frustrated to consummated murder. This is being the case, we hold that an amendment of the
original information will suffice and, consequent thereto, the filing of the amended information for murder is proper.

Petitioner would insist, however, that the additional allegation on the fact of death of the victim Maureen Navarro Hultman
constitutes a substantial amendment which may no longer be allowed after a plea has been entered. The proposition is
erroneous and untenable.

As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or substance, may be made at any
time before the accused enters a plea to the charge and, thereafter, as to all matters of form with leave of court.

A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction
of the court. All other matters are merely of form. 11 Thus, the following have been held to be merely formal amendments, viz:
(1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; 12 (2)
an amendment which does not charge another offense different or distinct from that charged in the original one; 13 (3)
additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume; and (4) an amendment which does not adversely affect any substantial
right of the accused, such as his right to invoke prescription. 14

We repeat that after arraignment and during the trial, amendments are allowed, but only as to matters of form
and provided that no prejudice is caused to the rights of the accused. 15 The test of whether an amendment is only of form
and an accused is not prejudiced by such amendment has been said to be whether or not a defense under the information
as it originally stood would be equally available after the amendment is made, and whether or not any evidence the accused
might have would be equally applicable to the information in the one form as in the other; if the answer is in the affirmative,
the amendment is one of form and not of substance. 16

Now, an objective appraisal of the amended information for murder filed against herein petitioner will readily show that the
nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening
fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime. That
the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory. There is no
question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally
applies to the amended information for murder. Under the circumstances thus obtaining, it is irremissible that the amended
information for murder is, at most, an amendment as to form which is allowed even during the trial of the case.

It consequently follows that since only a formal amendment was involved and introduced in the second information, a
preliminary investigation is unnecessary and cannot be demanded by the accused. The filing of the amended information
without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty, malicious and
oppressive prosecutions, and to be protected from an open and public accusation of a crime, as well as from the trouble,
expenses and anxiety of a public trial. The amended information could not conceivably have come as a surprise to petitioner
for the simple and obvious reason that it charges essentially the same offense as that charged under the original information.
Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an
inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary
investigation is not necessary. 17

We find nothing irregular in the appointment by the trial court of a counsel de oficio for herein petitioner whose counsel of
record refused to participate in the proceedings because of an alleged legal issue. Such issue having been demonstrated
herein as baseless, we apprehend his refusal to participate in the trial as causative of or contributive to the delay in the
disposition of the case. And, finally, for as long as the substantial rights of herein petitioner and other persons charged in
court are not prejudiced, the scheduling of cases should be left to the sound discretion of the trial court.

WHEREFORE, it being clearly apparent that respondent judge did not commit the errors speciously attributed to him, the
extraordinary writs prayed for are hereby DENIED and the instant petition is DISMISSED for lack of merit.

SO ORDERED.

G.R. No. 172716 November 17, 2010

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.

DECISION

CARPIO, J.:

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.

Relying on the arrest order against petitioner, respondent 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 114 11 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. Faller 22 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. Lutero 27 (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. Macabuhay 30 (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.

xxxx

. . . 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

xxxx

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 felonies 46);
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.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives.

SO ORDERED.
G.R. No. 175939 April 3, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
CHAD MANANSALA y LAGMAN, Accused-Appellant.

DECISION

BERSAMIN, J.:

The due recognition of the constitutional right of an accused to be informed of the nature and cause of the accusation
through the criminal complaint or information is decisive of whether his prosecution for a crime stands or not. The right is
not transgressed if the information sufficiently alleges facts and omissions constituting an offense that includes the offense
established to have been committed by the accused.

The Case

Chad Manansala y Lagman seeks to reverse the decision promulgated on July 26, 2006, whereby the Court of Appeals
(CA)1 affirmed .with modification his conviction for the illegal possession and control of 750 grams of dried marijuana leaves
in violation of Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972) that the Regional Trial Court (RTC),
Branch 74, Olongapo City had handed down through its decision dated February 1, 2000, 2 sentencing him to suffer the
penalties of "reclusion perpetua maximum or imprisonment from thirty (30) years and one (1) day to forty (40) years and to
pay the fine of Seven Hundred Fifty (₱750,000.00) Thousand Pesos, with subsidiary imprisonment."

Antecedents

The information filed on October 20, 1994 alleged:

That on or about the nineteenth (19th) day of October, 1994, in the City of Olongapo, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, without being lawfully authorized did then and there willfully, unlawfully
and knowingly engage in selling, delivering, giving away to another and distributing more or less 750 grams or 3/4 kilo of
marijuana dried leaves placed in a small wooden box inside the cabinet, which are prohibited drugs, found in his possession
and control.

CONTRARY TO LAW.3

To substantiate the charge, the Prosecution showed the following.

On October 18, 1994 the Philippine National Police in Olongapo City (PNP) conducted a test-buy operation against
Manansala, a suspected dealer of marijuana. On the same date, following the test-buy, the PNP applied for and obtained a
search warrant from the RTC, Branch 72, Olongapo City (Search Warrant No. 8-94) to authorize the search for and seizure
of prohibited drugs in Manansala’s residence located at No. 55 Johnson Extension, Barangay East Bajac Bajac, Olongapo
City.4 SPO4 Felipe P. Bolina and other elements of the PNP, accompanied by Barangay Chairman Reynaldo Manalang of
Barangay East Bajac Bajac, conducted the search of Manansala’s house at around 5:30 a.m. on October 19, 1994. The
search yielded the 750 grams of dried marijuana leaves subject of the information, which the search team recovered from
a wooden box placed inside a cabinet. Also seized was the amount of ₱655.00 that included the two marked ₱50.00 bills
bearing serial numbers SNKJ812018 and SNMN426747 used during the test buy. 5

All the seized articles were inventoried, and Manansala himself signed the certification to that effect, along with his father,
Jose Manansala, and Barangay Captain Manalang.6 The certification listed the following seized articles, to wit: (a) one kilo,
more or less, of suspected dried marijuana leaves; (b) rolling paper; and (c) money amounting to ₱655.00.

SPO4 Bolina and his team brought Manansala to Camp Cabal in Olongapo City, where they turned over the seized articles
to the evidence custodian, SPO2 Marcelino R. Sapad. At around 8:20 a.m. of October 20, 1994, the seized articles were
submitted to the PNP Crime Laboratory in Camp Olivas, San Fernando, Pampanga for qualitative examination.

The PNP Crime Laboratory later issued Technical Report No. D-396-94,7 to wit:
SPECIMEN SUBMITTED:

Spmn "A" – One (1) big transparent plastic bag containing two (2) rectangular bricks of dried suspected
MARIJUANA fruiting tops having a total weight of seven hundred fifty five (755) grams.

Spmn "B" – One (1) medium size plastic bag containing dried suspected MARIJUANA fruiting tops weighing 9.045
grams. x x x.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of any prohibited and/or regulated drug in the above-stated specimen. x x x.

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result for MARIJUANA, a
prohibited drug. x x x.

CONCLUSION:

Spmns "A" and "B" – contain MARIJUANA, a prohibited drug.8

Manansala pleaded not guilty on November 22, 1994.9

On January 4, 1995, First Asst. City Prosecutor Mario F. Manalansan filed a motion for the admission of an amended
information, ostensibly to modify the offense charged from illegal sale of prohibited drugs under Section 4 of Republic Act
No. 6425 to illegal possession of prohibited drugs under Section 8 of the same law. 10 But the RTC did not act on the motion.

Nonetheless, the trial proceeded, with the Prosecution establishing the matters earlier summarized.

In his turn, Manansala denied the charge, alleging that he had been the victim of a frame-up. His version follows.

On October 19, 1994, military men clad in civilian attire arrived at his house and arrested him without any warrant, and
brought him to an office he referred to simply as S2, then to a club located on Magsaysay Street in Olongapo City known
as Dorris 2. His captors mugged and then detained him when he refused to admit the sale and possession of marijuana.
They turned down his request to be brought to a hospital for the treatment of the injuries he thereby sustained. As of the
time of his testimony, he conceded that he could not identify his captors and whoever had maltreated him, except SPO4
Bolina whom he recognized in court when the latter testified at the trial. 11

Decision of the RTC

As stated, the RTC convicted Manansala for illegal possession of marijuana in violation of Section 8 of Republic Act No.
6425, holding thus:

The Information to which accused pleaded "not guilty" charges that accused willfully, unlawfully and knowingly x x x engage
in selling, delivering, giving away to another and distributing x x x falling under the more embracing term known as "drug
pushing". The alleged act of allegedly knowingly selling or pushing prohibited drugs by the accused was however, not
sufficiently proven. The member of the team who is alleged to have acted as a poseur-buyer of the illegal stuff from the
accused was not presented as a witness, hence, the testimony of SPO4 Felipe Bolina, to the effect that during the
surveillance conducted prior to the application of the search warrant, a member of the team acting as poseur buyer was
able to buy marijuana from the accused, cannot be given weight, being hearsay.

However, the fact that the enforcing team where witness Bolina is a member, was able to find marijuana leaves in the
custody, possession and control of the accused, in the course of the enforcement of the search warrant and has been
established by the prosecution beyond reasonable doubt, without controversion but the denial of the accused, which like
alibi, is the weakest defense, this Court is convinced that accused is guilty instead of violating Section 8, Article II of the
Dangerous Drugs Act as amended, a crime that is necessarily included in the crime of drug pushing or dealing, for which
the accused have been charged with. In light of these circumstances, this Court has no option that to find accused guilty
and liable for the crime proved. Since the date of the commission of the crime as proved is October 19, 1994, the provisions
of Republic Act No. 7659, in so far as the imposable penalty is concerned, will find application.

WHEREFORE, finding accused Chad Manansala y Lagman, GUILTY of Violation of Section 8, Article II of Republic Act No.
6425 as amended by Republic Act No. 7659, he is hereby sentenced to suffer the penalty of reclusion perpetua maximum
or imprisonment from thirty (30) years and one (1) day to forty (40) years and to pay the fine of Seven Hundred Fifty
(₱750,000.00) Thousand Pesos, with subsidiary imprisonment.

Costs de oficio.

SO ORDERED.12

Ruling of the CA

On intermediate appeal, the CA reviewed the conviction upon the following issues, namely:

1. That the conviction, being anchored on evidence procured by virtue of an invalid warrant, was erroneous;

2. That the RTC erred in convicting the accused for illegal possession of prohibited drug on the misplaced and
inaccurate theory that the offense in violation of Section 8 of Republic Act No. 6425 was necessarily included in the
offense in violation of Section 4 of Republic Act No. 6425; and

3. That the RTC overlooked, misinterpreted, misapplied and misrepresented facts and evidences of substance and
importance that, if weighed, assayed and considered were enough to acquit the accused. 13

On July 26, 2006, the CA promulgated its assailed decision, affirming the conviction subject to modification, viz:

WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the assailed Decision AFFIRMED with
MODIFICATION that the accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of
seven hundred fifty thousand pesos (₱750,000.00) with subsidiary imprisonment.

Accordingly, the prohibited drugs confiscated from the appellant are hereby ordered transmitted to the Philippine Drug
Enforcement Agency (PDEA) through the Dangerous Drugs Board for proper disposition. Without pronouncement as to
costs.

SO ORDERED.14

Hence, this appeal, in which Manansala reiterates the errors he already assigned before the CA.

Ruling

The appeal lacks merit.

The information alleged that "on or about the nineteenth (19th) day of October, 1994, in the City of Olongapo, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, without being lawfully authorized did then
and there willfully, unlawfully and knowingly engage in selling, delivering, giving away to another and distributing more or
less 750 grams or 3/4 kilo of marijuana dried leaves placed in a small wooden box inside the cabinet, which are prohibited
drugs, found in his possession and control."

The crime thereby charged was a violation of Section 4 of Republic Act No. 6425, as amended by Republic Act No.
7659,15 which provides:

Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon an y
person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any such transactions.
Arraigned under such information, Manansala pleaded not guilty to it. But instead of finding him guilty of the crime charged
after trial, the RTC convicted him for a violation of Section 8, of Republic Act No. 6425, as amended by Republic Act No.
7659, which states:

Section 8. Possession or Use of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall
possess or use any prohibited drug subject to the provisions of Section 20 hereof.

On appeal, Manansala assigned as one of the reversible errors committed by the RTC that the trial court had erred in
convicting him for illegal possession of prohibited drugs on the misplaced and inaccurate theory that the offense of illegal
possession of marijuana in violation of Section 8 was necessarily included in the offense of illegal sale of marijuana in
violation of Section 4.

The CA disagreed with Manansala, however, and held that his conviction for the illegal possession of marijuana in violation
of Section 8 under the information that had alleged the illegal sale of marijuana under Section 4 was proper, giving its
reasons as follows:

xxxx

Indispensable in every prosecution for the illegal sale of marijuana, a prohibited drug, is the submission of proof that the
sale of the illicit drug took place between the poseur-buyer and the seller thereof, coupled with the presentation in court of
the corpus delicti as evidence. The element of sale must be unequivocally established in order to sustain a conviction. In
the case before Us, the trial court correctly held that the prosecution failed to establish, much less adduce proof, that
accused-appellant was indeed guilty of the offense of illegal sale of marijuana. But it is beyond doubt that he was found in
possession of the same.

While no conviction for the unlawful sale of prohibited drugs may be had under the present circumstances, the
established principle is that possession of marijuana is absorbed in the sale thereof, except where the seller is
further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the
sale and which are probably intended for some future dealings or use by the seller. In the case before Us, it has
been satisfactorily ascertained that the bricks of marijuana confiscated from accused-appellant were the same
prohibited drugs subject of the original Information. In this light, We find that the court a quo committed no
reversible error in convicting the accused-appellant of illegal possession of dangerous drugs under Section 8,
Article II of the Dangerous Drugs Act of 1972, as amended.

Again, it should be stressed that the crime of unlawful sale of marijuana penalized under Section 4 of RA 6425
necessarily includes the crime of unlawful possession thereof. As borne by the records, it has been sufficiently proven
beyond any doubt that the lawful search conducted at the house of the accused yielded a total of 764.045 grams marijuana
dried leaves as verified by the PNP Forensic Chemist. Thus, on the face of the positive testimony of the prosecution witness
and the presentation of the corpus delicti, it is indubitable that a crime had in fact been committed and that accused-appellant
was the author of the same.16

xxxx

To properly resolve the appeal, therefore, it is necessary to determine whether the conviction of Manansala for a violation
of Section 8, which the information did not allege, instead of for a violation of Section 4, which the information alleged, was
not in violation of his constitutional right to be informed of the nature and cause of the accusation brought against him.

For sure, there have been many occasions in which the Court has found an accused charged with the illegal sale of
marijuana in violation of Section 4 guilty instead of the illegal possession of marijuana in violation of Section 8. In the oft-
cited case of People v. Lacerna,17 the Court held as prevailing the doctrine that the illegal sale of marijuana absorbs the
illegal possession of marijuana, except if the seller was also apprehended in the illegal possession of another quantity of
marijuana not covered by or not included in the illegal sale, and the other quantity of marijuana was probably intended for
some future dealings or use by the accused. The premise used in Lacerna was that the illegal possession, being an element
of the illegal sale, was necessarily included in the illegal sale. The Court observed thusly:

In People vs. Manzano, the Court identified the elements of illegal sale of prohibited drugs, as follows: (1) the accused sold
and delivered a prohibited drug to another, and (2) he knew that what he had sold and delivered was a dangerous drug.
Although it did not expressly state it, the Court stressed delivery, which implies prior possession of the prohibited drugs.
Sale of a prohibited drug can never be proven without seizure and identification of the prohibited drug, affirming that
possession is a condition sine qua non.

It being established that illegal possession is an element of and is necessarily included in the illegal sale of prohibited drugs,
the Court will thus determine appellant’s culpability under Section 8.

From the penal provision under consideration and from the cases adjudicated, the elements of illegal possession of
prohibited drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a prohibited
drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the prohibited
drug.18

In all the convictions premised on the situation described in Lacerna, however, the involvement of a single object in both
the illegal sale as the crime charged and the illegal possession as the crime proved is indispensable, such that only the
prohibited drugs alleged in the information to be the subject of the illegal sale is considered competent evidence to support
the conviction of the accused for the illegal possession. As such, the illegal possession is either deemed absorbed by or is
considered a necessary element of the illegal sale. On the other hand, any other illegal substance found in the possession
of the accused that is not part of the subject of the illegal sale should be prosecuted under a distinct and separate information
charging illegal possession; otherwise, the fundamental right of the accused to be informed of the nature and cause of the
accusation against him would be flagrantly violated.

It is true that there was an error in the information’s statement of the facts essential to properly describe the offense being
charged against Manansala as that of illegal possession of marijuana; and that the error became known to the Prosecution,
leading Prosecutor Manalansan to himself file the motion for the admission of the amended information dated January 3,
1995.19 In the motion, Prosecutor Manalansan manifested that the information as filed charged a violation of Section 4; and
that during the preliminary investigation, he had concluded that Manansala should have been charged with a violation of
Section 8 instead of a violation of Section 4 as far as the 750 grams of dried marijuana leaves seized from his possession
during the implementation of Search Warrant No. 8-94 was concerned. The distinct and separate nature of the 750 grams
of marijuana leaves from the quantity of marijuana worth ₱100.00 that was the object of the test buy became all the more
evident in Prosecutor Manalansan’s letter dated December 28, 1994 addressed to City Prosecutor Prudencio B. Jalandoni. 20

There, Prosecutor Manalansan stated that the 750 grams of marijuana dried leaves had been seized from the possession
Manansala on October 19, 1994 by virtue of the search warrant, while the attributed illegal sale of marijuana had happened
on October 18, 1994 during the test buy conducted to support the application of the search warrant. The letter specifically
stated:

xxxx

3. The two incidents, the sale on 18 October 1994 and the seizure on 19 October 1994 are separate incidents giving
rise to two distinct offenses;

4. We cannot assume that the accused was engaged in the "sale of prohibited drugs" on 19 October 1994 because
he was engaged in it before.1âwphi1 There is no evidence to show that the accused was engaged in the sale,
administration, delivery, distribution and transportation of drugs as provided under Section 4;

5. The two (2) ₱50.00 bills are not enough to prove that the accused was engaged in selling the 750 grams of
marijuana leaves. They can prove the sale on 18 October 1994 but cannot qualify his possession of the 750 grams
of the drugs.

xxxx

Nonetheless, the conviction of Manansala stands.

The CA correctly declared that the illegal possession of marijuana was "a crime that is necessarily included in the crime of
drug pushing or dealing, for which the accused have been charged with." The right of Manansala to be informed of the
nature and cause of the accusation against him enunciated in Section 14(2), Article III of the 1987 Constitution 21 was not
violated simply because the information had precisely charged him with selling, delivering, giving away and distributing more
or less 750 grams of dried marijuana leaves. Thereby, he was being sufficiently given notice that he was also to be held to
account for possessing more or less 750 grams of dried marijuana leaves. As Lacerna and similar rulings have explained,
the crime of illegal sale of marijuana defined and punished under Section 4 of Republic Act No. 6425, as amended, implied
the prior possession of the marijuana. As such, the crime of illegal sale included or absorbed the crime of illegal possession.
The rule is that when there is a variance between the offense charged in the complaint or information, and that proved or
established by the evidence, and the offense as charged necessarily includes the offense proved, the accused shall be
convicted of the offense proved included in that which is charged. 22 According to Section 5, Rule 120, Rules of Court (1985),
the rule then applicable, an offense charged necessarily includes that which is proved, when some of the essential elements
or ingredients of the former, as this is alleged in the complaint or information, constitute the latter.

WHEREFORE, the Court AFFIRMS the decision promulgated on July 26, 2006; and ORDERS accused CHAD
MANANSALA y LAGMAN to pay the costs of suit.

SO ORDERED.

G.R. No. 213598

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
MERCELITA1 ARENAS y BONZO @ MERLY, Accused-Appellant

DECISION

PERALTA, J.:

This is an appeal from the Decision2 dated January 22, 2014 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 05533,
which affirmed in toto the Decision dated April 16, 2012 of the Regional Trial Court (RTC) of Lingayen Pangasinan, Branch
38, in Criminal Case No. L-8966. The RTC found appellant guilty beyond reasonable doubt of violating Sections 5 and 11
of Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

In an Information3 dated August 9, 2010, the appellant was charged as follows:

That on or about August 6, 2010 in the evening, in Brgy. Poblacion, Sual, Pangasinan, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully and unlawfully sell two (2) heat-sealed plastic
sachets of Metamphetamine (sic) Hydrochoride (Shabu), a prohibited drug, in exchange for ₱2,000.00 marked money to
PO3 Benedict Julius B. Rimando, acting as poseur-buyer, and was likewise in possession, with intent to sell, one (1) heat-
sealed plastic sachet of methamphetamine Hydrochoride (Shabu) without lawful authority to possess and sell the same.

Contrary to Art. II, Section 5 of RA 9165.4

Upon her arraignment5 on August 25, 2010, she pleaded not guilty to the crimes charged. Pre-trial and trial thereafter
ensued.

The prosecution presented the testimonies of PO3 Benedict Julius B. Rimando (PO3 Rimando), PO2 Alex Aficial, Jr. (PO2
Aficial), Police Senior Inspector Myrna Malojo (PSI Malojo ), PO2 Catherine Viray (PO2 Viray), Barangay Kagawad Dioniso
S. Gulen, Police Inspector Ma. Theresa Amor Manuel, and Police Senior Inspector Leo S. Llamas (PSI Llamas).

The prosecution evidence established that sometime in July 2010, the Chief of Police (COP) of the Sual Police Station,
Sual, Pangasinan, PSI Llamas, started conducting a surveillance on the alleged illegal drug-selling activities of appellant.
At 6:00 p.m. of August 6, 2010, he called on PO3 Rimando, PO2 Aficia1, SPO2 Gulen, POI Viray and SPOl Editha Castro
to an emergency conference and instructed them to conduct a buy-bust operation on appellant who agreed to deliver the
items in front of Las Brisas Subdivision, along the National Highway in Poblacion Sual, Pangasinan. During the briefing, the
appellant was described as a woman of about 4 to 5 feet tall and between 45 to 50 years old. PO3 Rimando was designated
as the poseur-buyer and was given two (2) ₱1000 bills to be used for the operation, which were photocopied and entered
into the police blotter. PO2 Aficial had earlier coordinated with the PDEA of the intended buy bust. 6

At 6:30 p.m., the team walked to the area which was about 150 meters away from their station. PO3 Rimando and PO2
Aficial stood at the side of the highway beside the subdivision as earlier instructed by PSI Llamas while the other team
members were positioned strategically. After 5 minutes of waiting, appellant came near PO3 Rimando who told the former
in Ilocano dialect that he was instructed to pick up the items and asked the appellant whether she had the items to which
the latter answered in the affirmative. PO3 Rimando then handed appellant the two marked ₱1000.00 bills and the latter
gave him the two (2) small plastic sachets containing white crystalline substance. PO3 Rimando signaled PO2 Aficial, who
was two meters away from him, to come over and they introduced themselves as police officers. PO3 Rimando conducted
a routine body search on appellant and he was able to recover from her the marked money and another small plastic sachet
she was holding in her left hand.7

Appellant was brought to the Sual Police Station where PO3 Rimando marked the two plastic sachets subject of the buy-
bust with "BJB-1" and "BJB-2," and the one plastic sachet recovered from appellant with "BJB-3." He prepared and signed
the confiscation receipt of the seized items in the presence of a barangay kagawad, a Department of Justice (DOJ)
Prosecutor, and an ABS-CBN reporter, who all affixed their signatures in the Confiscation Receipt, as well as the
appellant.8 PO2 Viray took pictures of the seized items, marked money as well as the signing of the receipt inside the police
station.9 PO3 Rimando brought the seized items as well as the Request for Laboratory Examination 10 prepared by PSI
Llamas to the PNP Crime Laboratory in Lingayen, Pangasinan.

PSI Myrna Malojo, a forensic chemist, personally received from PO3 Rimando the letter request and the seized items. 11 The
laboratory results showed a positive result for methamphetamine hyrochloride or shabu, and having a weight of 0.08 grams,
0.07 grams and 0.05 grams, respectively, which findings were contained in PSI Malojo’s initial12 and confirmatory13 reports.
PSI Malojo sealed the seized items and placed her own markings thereon and turned them to the evidence custodian. 14 She
identified in court the items she examined as the same items she received from PO3 Rimando15 and the latter also identified
the subject items as the same items he recovered from the appellant during the buy-bust operation.16

Appellant denied the charges alleging that at 7:00 to 8:00 a.m. of August 6, 2010, she was with a certain Mina grilling
barbecue at a video bar in front of Jamaica Sual Subdivision; that after a while, Mina's boyfriend, PSI Llamas, arrived and
talked with Mina. When PSI Llamas left, Mina asked her to deliver a letter to a certain Renee who owed her money. Mina
called on a tricycle driver who would bring her to Renee. When she met Renee, she handed her the letter from Mina and
Renee gave her a sealed envelope. Upon her return to the bar, she gave the envelope to Mina who was drinking beer with
PSI Llamas. She then asked permission to go home as she would still cook dinner but Mina told her to grill more barbecues.
As she insisted in going home, PSI Llamas placed his right arm around her neck and called someone on his cellphone. She
tried to remove PSI Llamas' arm around her neck when a police car arrived and brought her to the police station where she
was forced to say something about the shabu which she had no knowledge of and she was later detained.17

In rebuttal, PSI Llamas denied knowing Mina and going to the videoke bar on August 6, 201 O; that he only met the appellant
at the police station and was not the one who arrested her.18 In her sur-rebuttal, appellant claimed that she had known PSI
Llamas for about 3 weeks prior to her arrest and insisted that he was the one who arrested her.

On April 16, 2012, the RTC rendered a Decision19 finding appellant guilty of the charged offenses, the dispositive portion of
which reads:

WHEREFORE, premises considered, and the prosecution having established to a moial certainty the guilt of accused
MERCILITA ARENAS y BONZO @ ''Merly," this Court hereby renders judgment as follows:

1. For violation of Section 5, Art. II of RA 9165, this Court hereby sentences said accused to LIFE IMPRISONMENT, and to
pay [a] fine of Five Hundred Thousand Pesos (₱500,000.00);

2. For violation of Section 11, Art. II of the same Act, this Court hereby sentences said Accused to a prison term of Twelve
(12) Years and One (1) Day to Twenty (20) Years, and to pay a fine of Three Hundred Thousand Pesos (₱300,000.00).

SO ORDERED.20

The RTC found that PO3 Rimando, who acted as the poseur-buyer during the buy-bust operation, positively identified
appellant as the one who sold and handed him the two plastic sachets of shabu in the amount of ₱2,000.00 and the same
person who received the marked money from him. It was also proven that during appellant's arrest, PO3 Rimando recovered
one more plastic sachet of shabu in her possession, and he marked the three plastic sachets with his initials; and that every
link in the chain of custody of the confiscated plastic sachets was also established. The RTC found that PO3 Rimando
testified in a frank, spontaneous and straightforward manner and his credibility was not crumpled on cross examination, and
it rejected appellant's defenses of denial and frame up.

The CA affirmed the RTC decision. The fallo of its Decision reads:
WHEREFORE, premises considered, the instant appeal is DISMISSED. The decision of the Regional Trial Court of
Lingayen, Pangasinan, Branch 3 8 dated 16 April 2012 is AFFIRMED. 21

Hence, this appeal filed by appellant. Both appellant and the Solicitor General manifested that they are adopting their Briefs
filed with the CA.

Appellant is now before us with the same issues raised before the CA, i.e., that the RTC gravely erred: (1) in giving weight
and credence to the conflicting testimonies of the prosecution witnesses; (2) in holding that there was a legitimate buy-bust
operation; (3) in convicting appellant of the crimes charged despite the failure to prove the elements of the alleged sale
of shabu and the chain of custody and the integrity of the allegedly seized items; and (4) in convicting appellant under an
Information which charges two offenses in violation of Section 13, Rule 110 of the Rules of Court.

We find no merit in the appeal.

For the prosecution of illegal sale of drugs to prosper, the following elements must be proved: (1) the identities of the buyer
and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold and the payment for the
thing. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of
the corpus delicti as evidence.22 We find all the elements necessary for appellant's conviction for illegal sale of shabu clearly
established in this case.

PO3 Rimando, the poseur-buyer, positively identified appellant as the person whom he caught in flagrante delicto selling
white crystalline substance presumed to be shabu in the buy-bust operation conducted by their police team; that upon
appellant's receipt of the ₱2,000.00 buy-bust money from PO3 Rimando, she handed to him the two sachets of white
crystalline substance which when tested yielded positive results for shabu. Appellant's delivery of the shabu to PO3
Rimando and her receipt of the marked money successfully consummated the buy-bust transaction. The seized shabu and
the marked money were presented as evidence before the trial court.

Appellant's reliance on the case of People v. Ong23wherein the Court acquitted the appellants of the charge of illegal sale
of shabu for failure of the prosecution to prove all the elements of the crime charged is misplaced. The Court found therein
that the testimony of SPO1 Gonzales, who acted as the poseur-buyer, showed that he was not privy to the sale transaction
which transpired between the confidential informant, who did not testify, and the appellant.

Here, while it appeared that it was PSI Llamas who initially dealt with appellant regarding the sale of shabu, it also appeared
that PSI Llamas had designated PO3 Rimando as his representative in the sale transaction with appellant. Notably, PO3
Rimando was instructed by PSI Llamas to wait at the specified area where appellant would be the first to approach him for
the sale of shabu,24 which established the fact that appellant was already informed beforehand as to the person she was to
deal with regarding the sale of shabu. Indeed, appellant approached PO3 Rimando who was waiting at the designated area
and upon receipt from him of the payment of ₱2000.00, the former handed to the latter the two sachets of shabu. The
identity of appellant as the seller, as well as the object and consideration for the sale transaction, had been proved by the
testimony of PO3 Rimando, the buyer.

We also find appellant guilty of illegal possession of shabu. The essential requisites to establish illegal possession of
dangerous drugs are: (1) the accused was in p0ssession of the dangerous drug, (2) such possession is not authorized by
law, and (3) the accused freely and consciously possessed the dangerous drug. 25 What must be proved beyond reasonable
doubt is the fact of possession of the prohibited drug itself. This may be done by presenting the police officer who actually
recovered the prohibited drugs as a witness, being the person who has the direct knowledge of the possession. 26

In the instant case, PO3 Rimando, the person who had direct knowledge of the seizure and confiscation of the shabu from
the appellant, testified that he was also able to recover another plastic sachet of shabu which appellant was holding with
her left hand, which testimony was corroborated by PO2 Aficial. 27 As it was proved that appellant had freely and consciously
possessed one (1) plastic sachet of shabu without authority to do so, she can be found guilty of illegal possession of shabu.

The RTC and the CA correctly found that the prosecution was able to establish the chain of custody of the seized shabu from
the time they were recovered from appellant up to the time they were presented in court. Section l(b) of Dangerous Drugs
Board Regulation No. 1, Series of 2002,28 which implements the Comprehensive Dangerous Drugs Act of 2002, defines
chain of custody as follows:

Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of
seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date
and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final
disposition.

It was established that after PO3 Rimando seized the three plastic sachets containing white crystalline substance from
appellant, he was in possession of the same from confiscation up to the police station. 29 He marked the three plastic sachets
at the police station, which was only 150 meters away from the scene, 30 with "BJB-1", "BJB-2" and "BJB-3."31 He prepared
the confiscation receipt in the presence of a barangay kagawad, a DOJ Prosecutor and an ABS-CBN Reporter, who all
affixed their signatures therein, the appellant, PO1 Viray and P02 Aficial. 32 PO1 Viray then took photographs of the seized
items, the preparation and signing of the confiscation receipt. PO3 Rimando then brought the request for laboratory
examination prepared by PSI Llamas of the seized items and personally brought the same to the PNP Crime Laboratory for
examination.33

PSI Malojo, the forensic chemist, personally received the said request and the three small heat-sealed plastic sachets
containing white crystalline substance with markings from PO3 Rimando. 34 After examining the items, PSI Malojo found
them to be positive for the presence of methamphetamine hydrochloride, also known as shabu, which findings were
embodied in her Initial Laboratory Report and eventually, in her Final Chemistry Report. After her examination, PSI Maloj o
sealed the seized items and placed her own markings thereon, and turned them over to the evidence custodian for
safekeeping.35 During her testimony in court, PSI Malojo identified the items she examined as the same items she received
from PO3 Rimando. PO3 Rimando also identified in court the subject items as the same items he recovered from the
possession of appellant during the buy-bust operation.36

We likewise agree with the CA that the alleged inconsistencies in the testimonies of the prosecution witnesses refer to minor
details which did not relate to the crimes charged. The inconsistencies have been sufficiently explained during trial by the
witnesses themselves. We quote with approval what the CA said:

The alleged inconsistencies in the composition of the buy-bust team, in the identity and/or description of accused-appellant,
and in the markings on the seized items are collateral matters and not essential elements of the crimes charged. Moreover,
a scrutiny of these purported inconsistencies would show that the same are not conflicting at all.

Although P02 Viray testified that she was at the office at the time P03 Rimando and P02 Aficial were conducting the buy-
bust operation, it does not necessarily mean that she was not part of the buy-bust team. P02 Viray testified that before the
conduct of the buy-bust operation, she was designated by P03 Rimando to be the official photographer. She was told to
take photographs after the subject operation, a task that she performed when accused-appellant was brought to the police
station. This explains why P03 Rimando included her in his testimony as one of the members of the buy-bust team.

Similarly the testimony of P02 Aficial that he was with P03 Rimando during the buy-bust operation is not conflicting with P03
Rimando's enumeration of the member of the buy-bust team. P02 Aficial was asked who was with [him] during the buy-bust
operation and he merely answered the question of the counsel for the defense. P02 Aficial was not asked who were the
other members of the buy-bust team. His answer was consistent with P03 Rimando's statement that when the latter gave
the pre-arranged signal, he approached P03 Rimando and they introduced themselves to accused-appellant as police
officers.

xxxx

As regards the source of the information on the description of accused-appellant which enabled the poseur-buyer to identify
her, the same is a trivial matter.1âwphi1 Whether the information came from PSI Llamas or a confidential informant, the fact
remains that a crime was committed by accused-appellant in the presence of the police officers who were members of the
buy-bust team and who had the duty to immediately arrest her after the consummation of the transaction. The fact also
remains that the description about the seller matched accused-appellant.x x x

As to the alleged discrepancies in the markings of the seized items, the same are clearly typographical errors. The transcript
of PSI Malojo's testimony showed that she identified the markings on the seized plastic sachets as "BJB-1'', "NJN-2" and
"BJB-3." However, the follow-up question of the prosecutor clarified that she was actually referring to "BJB-1 ", "BJB-2" and
"BJB-3", to wit:

Q. I am showing you then Madam Witness three (3) plastic sachet (sic) will you go over the contain (sic) to the one you are
testifying "BJB-1" to "BJB-3" (sic)?

A. Yes, sir.
The universal practice is that exhibits or evidence are marked chronologically. It is highly unlikely that the second sachet
would be marked "NJN-2" when the first one was marked "BJB-1" and the third one was marked "BJB-3". Notably, both
Confiscation Receipt and Request for Laboratory Examination showed that the seized items were marked "BJB-1 ", "BJB-
2" and "BJB-3" consistent with the testimony of P03 Rimando. It should also be noted that in the computer keyboard, the
letters "B" and "N" are beside each other. Hence, the only logical conclusion for the purported discrepancy is that the
stenographer inadvertently pressed the letter "N" instead of the letter "B. "37

Anent the matter of the confiscation receipt bearing the date August 5, 2010 when the buy-bust happened on August 6,
2010, P03 Rimando explained that he committed an error in placing the date August 5 which should be August
6.38 Moreover, it was established by the testimony of Kagawad Gulen that on August 6, 2010, he was called to witness the
items confiscated from appellant and was asked to sit beside P03 Rimando while the latter was preparing the confiscation
receipt.39 Gulen even identified in court the confiscation receipt where his signature appeared. 40

Appellant's contention that the RTC erred in convicting him under an Information that charged two offenses is not
persuasive. Although the Information in this case charged two offenses which is a violation of Section 13, Rule 110 of the
Revised Rules of Criminal Procedure, which provides that "[a] complaint or information must charge only one offense, except
when the law prescribes a single punishment for various offenses," nonetheless, Section 3, Rule 120 of the Revised Rules
of Criminal Procedure also states that "[w]hen two or more offenses are charged in a single complaint or information but the
accused fails to object to it before trial, the court may convict the appellant of as many as are charged and proved, and
impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense."41

Appellant's failure to raise that more than one offense was charged in the Information in a motion to quash 42 before she
pleaded to the same is deemed a waiver.43 As appellant failed to file a motion to quash the Information, she can be convicted
of the crimes charged in the Information if proven.

We also find no merit in appellant's claim that she cannot be convicted of illegal possession of illegal drugs as its possession
is absorbed in the charge of illegal sale.

In People v. Lacerna,44We held:

The prevailing doctrine is that possession of marijuana is absorbed in the sale thereof, except where the seller is further
apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are
probably intended for some future dealings or use by the seller.

Here, it was established that P03 Rimando was able to recover from appellant's possession another plastic sachet
of shabu which was not the subject of the illegal sale; thus, she could be separately charged with illegal possession for the
same.

We find that the RTC correctly imposed on appellant the penalty of life imprisonment and a fine of ₱500,000.00 45 for the
crime of illegal sale of dangerous drugs.

As to the crime of illegal possession, Section 11, Article II of Republic Act No. 9165 provides:

Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (₱500,000.00) to Ten million pesos (₱l0,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity
thereof:

xxxx

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

(1) ...

(2) ... and

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand
pesos (₱300,000.00) to Four hundred thousand pesos (₱400,000.00), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu," or other dangerous drugs such as, but not limited to, MDMA or "ecstasy,"
PMA, TMA, LSD, GHB, and those similarly designed or newly-introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300)
grams of marijuana.

Clear from the foregoing, the quantity of the dangerous drugs is determinative of the penalty to be imposed for the crime of
illegal possession of dangerous drugs. We note, however, that the quantity of shabu found to be in appellant's possession
was not indicated in the Information which is important as the law provides for the graduation of penalties. We cannot just
rely on the quantity established by the prosecution, which the RTC did in imposing the penalty, without violating appellant's
right to be informed of the accusation against her. The RTC imposed the minimum penalty provided by law since the quantity
recovered from appellant's possession was less than 5 grams of shabu; however, it could have been different if the quantity
recovered from appellant was more than 5 grams where the penalty imposable is imprisonment of twenty (20) years and
one (1) day to life imprisonment and a fine ranging from Four hundred thousand pesos (₱400,000.00) to Five hundred
thousand pesos (₱500,000.00), or even the maximum penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (₱500,000.00) to Ten million pesos (₱10,000,000.00), because in this case, the Court could not
impose the penalty provided by law in view of the non-allegation of the true quantity in the information.

By analogy, in theft cases,46 where the penalty is graduated according to the value of the thing stolen, we ruled that when
the prosecution failed to establish the amount of property taken by an independent and reliable estimate, we may fix the
value of the property taken based on attendant circumstances or impose the minimum penalty. Since it was proved that
appellant was in possession of shabu but the quantity was not specified in the Information, the corresponding penalty to be
imposed on her should be the minimum penalty corresponding to illegal possession of less than five grams of
methamphetamine hydrochloride or shabu which is penalized with imprisonment of twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from Three Hundred Thousand Pesos (₱300, 000. 00) to Four Hundred Thousand
Pesos (₱400,000.00).47

Applying the Indeterminate Sentence Law, the minimum period of the imposable penalty shall not fall below the minimum
period set by the law; the maximum period shall not exceed the maximum period allowed under the law; hence, the
imposable penalty should be within the range of twelve (12) years and one (1) day to fourteen (14) years and eight (8)
months.

One final note. Public prosecutors are reminded to carefully prepare the criminal complaint and Information in accordance
with the law so as not to adversely affect the dispensation of justice.

WHEREFORE, premises considered, the appeal is DISMISSED. The Decision dated January 22, 2014 of the Court of
Appeals in CA-G.R. CR-H.C. No. 05533 is AFFIRMED with MODIFICATION only insofar as to the penalty imposable for
the crime of illegal possession so that appellant is sentenced to suffer the indeterminate sentence of twelve (12) years and
one (1) day to fourteen (14) years and eight (8) months.

SO ORDERED.

G.R. No. 157472 September 28, 2007

SSGT. JOSE M. PACOY, Petitioner,

vs.
HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES and OLYMPIO L. ESCUETA, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M. Pacoy1 (petitioner) seeking
to annul and set aside the Orders dated October 25, 2002 2 and December 18, 20023 issued by Presiding Judge Afable E.
Cajigal (respondent judge) of the Regional Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.
On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as follows:

That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of Tarlac, Philippines and within the
jurisdiction of this Honorable Court, the said accused with intent to kill, did then and there wilfully, unlawfully and feloniously
shot his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita
multiple gunshot wounds on his body which caused his instantaneous death.

With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank. 4

On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de parte, pleaded not guilty to the charge
of Homicide. Respondent Judge set the pre-trial conference and trial on October 8, 2002.5

However, on the same day and after the arraignment, the respondent judge issued another Order, 6 likewise dated
September 12, 2002, directing the trial prosecutor to correct and amend the Information to Murder in view of the aggravating
circumstance of disregard of rank alleged in the Information which public respondent registered as having qualified the
crime to Murder.

Acting upon such Order, the prosecutor entered his amendment by crossing out the word "Homicide" and instead wrote the
word "Murder" in the caption and in the opening paragraph of the Information. The accusatory portion remained exactly the
same as that of the original Information for Homicide, with the correction of the spelling of the victim’s name from "Escuita"
to "Escueta."7

On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was to be re-arraigned for the crime of
Murder. Counsel for petitioner objected on the ground that the latter would be placed in double jeopardy, considering that
his Homicide case had been terminated without his express consent, resulting in the dismissal of the case. As petitioner
refused to enter his plea on the amended Information for Murder, the public respondent entered for him a plea of not guilty.8

On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings Pending the Resolution of the
Instant Motion9 on the ground of double jeopardy. Petitioner alleged that in the Information for Homicide, he was validly
indicted and arraigned before a competent court, and the case was terminated without his express consent; that when the
case for Homicide was terminated without his express consent, the subsequent filing of the Information for Murder in lieu of
Homicide placed him in double jeopardy.

In an Order10 dated October 25, 2002,11 the respondent judge denied the Motion to Quash. He ruled that a claim of former
acquittal or conviction does not constitute double jeopardy and cannot be sustained unless judgment was rendered
acquitting or convicting the defendant in the former prosecution; that petitioner was never acquitted or convicted of
Homicide, since the Information for Homicide was merely corrected/or amended before trial commenced and did not
terminate the same; that the Information for Homicide was patently insufficient in substance, so no valid proceedings could
be taken thereon; and that with the allegation of aggravating circumstance of "disregard of rank," the crime of Homicide is
qualified to Murder.

Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion to Inhibit, he alleged that the
respondent judge exercised jurisdiction in an arbitrary, capricious and partial manner in mandating the amendment of the
charge from Homicide to Murder in disregard of the provisions of the law and existing jurisprudence.

In his Motion for Reconsideration, petitioner reiterated that the case against him was dismissed or otherwise terminated
without his express consent, which constitutes a ground to quash the information for murder; and that to try him again for
the same offense constitutes double jeopardy. Petitioner stated that contrary to respondent judge's conclusion that disregard
of rank qualifies the killing to Murder, it is a generic aggravating circumstance which only serves to affect the imposition of
the period of the penalty. Petitioner also argued that the amendment and/or correction ordered by the respondent judge
was substantial; and under Section 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be done, since
petitioner had already been arraigned and he would be placed in double jeopardy.

In his Order dated December 18, 2002,12 the respondent judge denied the Motion to Inhibit and granted the Motion for
Reconsideration, thus:

WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED while the Motion for Reconsideration is
hereby GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge shall continue hearing this case. Further, the Order
dated October 25, 2002 is reconsidered and the original information charging the crime of homicide stands. 13

In granting the Motion for Reconsideration, respondent judge found that a close scrutiny of Article 248 of the Revised Penal
Code shows that "disregard of rank" is merely a generic mitigating14 circumstance which should not elevate the classification
of the crime of homicide to murder.

On April 30, 2003, petitioner filed herein petition for certiorari on the following grounds:

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION IN
ORDERING THE AMENDMENT OF THE INFORMATION FROM HOMICIDE TO MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND VIOLATED THE LAW IN DENYING
THE MOTION TO QUASH THE INFORMATION FOR MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION AND
VIOLATED THE LAW IN ORDERING THE REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH
WAS ALREADY TERMINATED.15

Petitioner alleges that despite having entered his plea of not guilty to the charge of Homicide, the public respondent ordered
the amendment of the Information from Homicide to Murder because of the presence of the aggravating circumstance of
"disregard of rank," which is in violation of Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the public
respondent’s ruling that "disregard of rank" is a qualifying aggravating circumstance which qualified the killing of 2Lt. Escueta
to murder is erroneous since, under paragraph 3, Article 14 of the Revised Penal Code, disregard of rank is only a generic
aggravating circumstance which serves to affect the penalty to be imposed upon the accused and does not qualify the
offense into a more serious crime; that even assuming that disregard of rank is a qualifying aggravating circumstance, such
is a substantial amendment which is not allowed after petitioner has entered his plea.

Petitioner next contends that the respondent judge gravely abused his discretion when he denied the Motion to Quash the
Information for Murder, considering that the original Information for Homicide filed against him was terminated without his
express consent; thus, prosecuting him for the same offense would place him in double jeopardy.

Petitioner further argues that although the respondent judge granted his Motion for Reconsideration, he did not in fact grant
the motion, since petitioner's prayer was for the respondent judge to grant the Motion to Quash the Information for Murder
on the ground of double jeopardy; that his Motion for Reconsideration did not seek the reinstatement of the Information for
Homicide upon the dismissal of the Information for Murder, as he would again be placed in double jeopardy; thus, the
respondent judge committed grave abuse of discretion in reinstating the Homicide case.

In his Comment, the Solicitor General argues that the respondent judge's Order reinstating the Information to Homicide after
initially motu proprio ordering its amendment to Murder renders herein petition moot and academic; that petitioner failed to
establish the fourth element of double jeopardy, i.e., the defendant was acquitted or convicted, or the case against him was
dismissed or otherwise terminated without his consent; that petitioner confuses amendment with substitution of Information;
that the respondent judge's Order dated September 12, 2002 mandated an amendment of the Information as provided
under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and that amendments do not entail dismissal or
termination of the previous case.

Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment alleging that no grave abuse of discretion
was committed by the respondent judge when he denied petitioner's Motion to Quash the Amended Information, as
petitioner was not placed in double jeopardy; that the proceedings under the first Information for homicide has not yet
commenced, and the case was not dismissed or terminated when the Information was amended.

In his Reply, petitioner reiterates his contention that the amendment of the charge of Homicide to Murder after his
arraignment would place him in double jeopardy, considering that said amendment was without his express consent; and
that such amendment was tantamount to a termination of the charge of Homicide.

The parties filed their respective Memoranda.

Generally, a direct resort to us in a petition for certiorari is highly improper, for it violates the established policy of strict
observance of the judicial hierarchy of courts. However, the judicial hierarchy of courts is not an iron-clad rule.16 A strict
application of the rule of hierarchy of courts is not necessary when the cases brought before the appellate courts do not
involve factual but legal questions.17

In the present case, petitioner submits pure questions of law involving the proper legal interpretation of the provisions on
amendment and substitution of information under the Rules of Court. It also involves the issue of double jeopardy, one of
the fundamental rights of the citizens under the Constitution which protects the accused not against the peril of second
punishment but against being tried for the same offense. These important legal questions and in order to prevent further
delay in the trial of the case warrant our relaxation of the policy of strict observance of the judicial hierarchy of courts.

The Court’s Ruling

The petition is not meritorious.

We find no merit in petitioner's contention that the respondent judge committed grave abuse of discretion in amending the
Information after petitioner had already pleaded not guilty to the charge in the Information for Homicide. The argument of
petitioner --

Considering the fact that the case for Homicide against him was already terminated without his express consent, he cannot
anymore be charged and arraigned for Murder which involve the same offense. The petitioner argued that the termination
of the information for Homicide without his express consent is equivalent to his acquittal. Thus, to charge him again, this
time for Murder, is tantamount to placing the petitioner in Double Jeopardy. 18

is not plausible. Petitioner confuses the procedure and effects of amendment or substitution under Section 14, Rule 110 of
the Rules of Court, to wit --

SEC. 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave
of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only
be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

xxx

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with
Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the
witnesses to give bail for their appearance at the trial.

with Section 19, Rule 119 of which provides:

SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest at any time before
judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause
to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original
case upon the filing of the proper information.

First, a distinction shall be made between amendment and substitution under Section 14, Rule 110. For this
purpose, Teehankee v. Madayag19 is instructive, viz:

The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to
the substitution of the information or complaint.

It may accordingly be posited that both amendment and substitution of the information may be made before or after the
defendant pleads, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a
substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution of information
must be with leave of court as the original information has to be dismissed;
 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking
of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the
accused has to plead anew to the new information; and

4. An amended information refers to the same offense charged in the original information or to an offense which
necessarily includes or is necessarily included in the original charge, hence substantial amendments to the
information after the plea has been taken cannot be made over the objection of the accused, for if the original
information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires
or presupposes that the new information involves a different offense which does not include or is not necessarily
included in the original charge, hence the accused cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a
substitution of information under the second paragraph thereof, the rule is that where the second information involves the
same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of
the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from
that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to
warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense
is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged
in the first information. In this connection, an offense may be said to necessarily include another when some of the essential
elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense
may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of
those constituting the latter.20

In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a
substantial amendment or a substitution as defined in Teehankee.

While the amended Information was for Murder, a reading of the Information shows that the only change made was in the
caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word "Homicide"
and its replacement by the word "Murder." There was no change in the recital of facts constituting the offense charged or in
the determination of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the same
as those already alleged in the original Information for Homicide, as there was not at all any change in the act imputed to
petitioner, i.e., the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made in
the caption and preamble from "Homicide" to "Murder" as purely formal. 21

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded,
it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused
are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as
it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might
have would be inapplicable to the complaint or information.22 Since the facts alleged in the accusatory portion of the
amended Information are identical with those of the original Information for Homicide, there could not be any effect on the
prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner.

While the respondent judge erroneously thought that "disrespect on account of rank" qualified the crime to murder, as the
same was only a generic aggravating circumstance,23 we do not find that he committed any grave abuse of discretion in
ordering the amendment of the Information after petitioner had already pleaded not guilty to the charge of Homicide, since
the amendment made was only formal and did not adversely affect any substantial right of petitioner.

Next, we determine whether petitioner was placed in double jeopardy by the change of the charge from Homicide to Murder;
and subsequently, from Murder back to Homicide. Petitioner's claim that the respondent judge committed grave abuse of
discretion in denying his Motion to Quash the Amended Information for Murder on the ground of double jeopardy is not
meritorious.

Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which provides:

SEC. 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:

xxxx
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was
dismissed or otherwise terminated without his express consent.

Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy may prosper, to wit:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case
against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy attached prior to the second;
(2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first. 24

As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the case
was dismissed or otherwise terminated without his express consent.25

It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars further prosecution for
the same offense or any attempt to commit the same or the frustration thereof; or prosecution for any offense which
necessarily includes or is necessarily included in the offense charged in the former complaint or information. 26

Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide without his express consent,
which is tantamount to an acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional dismissal which terminates
the case.27 And for the dismissal to be a bar under the jeopardy clause, it must have the effect of acquittal.1âwphi1

The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and amend the Information
but not to dismiss the same upon the filing of a new Information charging the proper offense as contemplated under the last
paragraph of Section 14, Rule 110 of the Rules of Court -- which, for convenience, we quote again --

If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with
section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to
give bail for their appearance at the trial.

and Section 19, Rule 119, which provides:

SEC. 19.- When mistake has been made in charging the proper offense - When it becomes manifest at any time before
judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause
to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original
case upon the filing of the proper information.

Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is wholly different from the
offense proved, i.e., the accused cannot be convicted of a crime with which he was not charged in the information even if it
be proven, in which case, there must be a dismissal of the charge and a substitution of a new information charging the
proper offense. Section 14 does not apply to a second information, which involves the same offense or an offense which
necessarily includes or is necessarily included in the first information. In this connection, the offense charged necessarily
includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint
or information, constitute the latter. And an offense charged is necessarily included in the offense proved when the essential
ingredients of the former constitute or form a part of those constituting the latter. 28

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the amendment of the
Information and not the dismissal of the original Information. To repeat, it was the same original information that was
amended by merely crossing out the word "Homicide" and writing the word "Murder," instead, which showed that there was
no dismissal of the homicide case.
Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in ordering that the original
Information for Homicide stands after realizing that disregard of rank does not qualify the killing to Murder. That ruling was
again a violation of his right against double jeopardy, as he will be prosecuted anew for a charge of Homicide, which has
already been terminated earlier.

We are not convinced. Respondent judge did not commit any grave abuse of discretion.

A reading of the Order dated December 18, 2002 showed that the respondent judge granted petitioner's motion for
reconsideration, not on the ground that double jeopardy exists, but on his realization that "disregard of rank" is a generic
aggravating circumstance which does not qualify the killing of the victim to murder. Thus, he rightly corrected himself by
reinstating the original Information for Homicide. The requisite of double jeopardy that the first jeopardy must have attached
prior to the second is not present, considering that petitioner was neither convicted nor acquitted; nor was the case against
him dismissed or otherwise terminated without his express consent. 29

WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed by respondent Judge.

SO ORDERED.

G.R. No. 140863 August 22, 2000

SOLAR TEAM ENTERTAINMENT, INC. and PEOPLE OF THE PHILIPPINES, petitioners,

vs.
HON. ROLANDO HOW, in his capacity as Presiding Judge of the Regional Trial Court Branch 257 of
Parañaque and MA. FE F. BARREIRO, respondents.

DECISION

GONZAGA-REYES, J.:

The question raised in this instant petition for certiorari and mandamus is whether or not the trial court can
indefinitely suspend the arraignment of the accused until the petition for review with the Secretary of Justice (SOJ)
has been resolved.

The facts of this case are not disputed.

On May 28, 1999, the City Prosecutor of Parañaque filed an Information1 for estafa against Ma. Fe Barreiro (private
respondent) based on the complaint2 filed by Solar Team Entertainment, Inc. (petitioner). The case was docketed as
Criminal Case No. 99-536 entitled "People of the Philippines vs. Ma. Fe F. Barreiro" before the Regional Trial Court
of Parañaque City, Branch 257, presided by public respondent Judge Rolando G. How.

Before the scheduled arraignment of private respondent on August 5, 1999 could take place, respondent court
issued an Order3 dated June 29, 1999, resetting the arraignment of private respondent on September 2, 1999 on the
ground that private respondent had "filed an appeal with the Department of Justice (DOJ)".4 Private respondent
manifested in the same Order that she would submit a certification from the DOJ granting due course to her appeal
on or before the second scheduled arraignment.5 On September 24, 1999, respondent court issued an
Order6 denying petitioner’s motion for reconsideration of the order that previously reset the arraignment of private
respondent. Said order further rescheduled the arraignment of private respondent to November 18, 1999.

On November 10, 1999, private respondent filed another "Motion to Defer Arraignment".7 On November 15, 1999,
before the scheduled date of the arraignment of private respondent and before the date set for the hearing of private
respondent’s "Motion to Defer Arraignment", respondent court issued an Order8 further deferring the arraignment of
private respondent "until such time that the appeal with the said office (SOJ) is resolved".9 Petitioner’s motion for
reconsideration of the order was denied by respondent court on November 22, 1999.10
Petitioner bewails the fact that six months have elapsed since private respondent appeared or submitted herself to
the jurisdiction of respondent court and up to now she still has to be arraigned.11 Respondent court allegedly violated
due process when it issued the assailed order before petitioner received a copy of the "Motion to Defer Arraignment"
of private respondent and before the hearing for the same motion could be conducted.12 Petitioner points out that
despite the order of respondent court dated September 26, 1999 which stated that the arraignment of private
respondent on November 18, 1999 is "intransferable", respondent court, in utter disregard of its own order, issued
the now assailed order indefinitely suspending the arraignment of private respondent.13

Petitioner is convinced that the twin orders further delaying the arraignment of private respondent and denying the
motion for reconsideration of petitioner violate Section 7, of the Speedy Trial Act of 1998 (RA 8493) and Section 12,
Rule 116 of the Revised Rules on Criminal Procedure.

Petitioner further submits that this instant petition raises "a pure question of law of first impression"14 since "it involves
the application and interpretation of a law of very recent vintage, namely Republic Act No. 8493, otherwise known as
the Speedy Trial Act of 1998".15 Petitioner mainly relies on Section 7 of said law that states that:

"Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and Trial. – The
arraignment of an accused shall be held within thirty (30) days from the filing of the information, or from the date the
accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs.
xxx"

By issuing the assailed order, respondent court allegedly committed grave abuse of discretion amounting to
lack/excess of jurisdiction.16 Hence, this petition for certiorari and mandamus to nullify and set aside the order of
respondent court dated November 15, 1999.

Petitioner limits the issues to the following:

I.

RESPONDENT COURT ERRED IN REFUSING TO ARRAIGN THE PRIVATE RESPONDENT DESPITE

THE LAPSE OF THE TIME LIMIT OF THIRTY (30) DAYS MANDATORILY IMPOSED BY SECTION 7, OF
REPUBLIC ACT NO. 8493, OTHERWISE KNOWN AS "THE SPEEDY TRIAL ACT OF 1998"; AND

II.

RESPONDENT COURT ERRED IN DEFYING SECTION 12, RULE 116, OF THE REVISED RULES ON
CRIMINAL PROCEDURE.17

The instant petition is devoid of merit.

The power of the Secretary of Justice to review resolutions of his subordinates even after the information has
already been filed in court is well settled. In Marcelo vs. Court of Appeals,18 reiterated in Roberts vs. Court of
Appeals,19 we clarified that nothing in Crespo vs. Mogul20 forecloses the power or authority of the Secretary of Justice
to review resolutions of his subordinates in criminal cases despite an information already having been filed in court.21

The nature of the Justice Secretary’s power of control over prosecutors was explained in Ledesma vs. Court of
Appeals 22 in this wise:

"Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised
Administrative Code,23 exercises the power of direct control and supervision over said prosecutors; and who may
thus affirm, nullify, reverse or modify their rulings.

Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the Code gives the
secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City
Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1,
Chapter 7, Book IV of the Code:
‘(1) Supervision and Control. – Supervision and control shall include authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of
acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; x x x x.’

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read:

‘Section 3. x x x x

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State
Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the
interest of public service.’

xxx xxx xxx

Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority,
duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood
as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or
to review, modify, or revoke any decision or action of said chief of bureau, office, division or service."

‘Supervision’ and ‘control’ of a department head over his subordinates have been defined in administrative law as
follows:

‘In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.’

Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in
the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in
the initial steps of an administrative activity or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted
may judicial recourse be allowed."24

Procedurally speaking, after the filing of the information, the court is in complete control of the case and any
disposition therein is subject to its sound discretion.25 The decision to suspend arraignment to await the resolution of
an appeal with the Secretary of Justice is an exercise of such discretion. Consistent with our ruling in Marcelo,26 we
have since then held in a number of cases that a court can defer to the authority of the prosecution arm to resolve,
once and for all, the issue of whether or not sufficient ground existed to file the information.27 This is in line with our
general pronouncement in Crespo28 that courts cannot interfere with the prosecutor’s discretion over criminal
prosecution.29 Thus, public respondent did not act with grave abuse of discretion when it suspended the arraignment
of private respondent to await the resolution of her petition for review with the Secretary of Justice.

In several cases, we have emphatically cautioned judges to refrain from arraigning the accused precipitately to
avoid a miscarriage of justice.30 In Dimatulac vs. Villon,31 the judge in that case hastily arraigned the accused despite
the pending appeal of the accused with the DOJ and notwithstanding the existence of circumstances indicating the
probability of miscarriage of justice. Said judge was reminded that he should have heeded our statement
in Marcelo32 "that prudence, if not wisdom, or at least respect for the authority of the prosecution agency, dictated
that he (respondent judge therein) should have waited for the resolution of the appeal then pending with the DOJ."33

It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the
court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with
the recommendation of the Secretary of Justice.34 Reliance alone on the resolution of the Secretary of Justice would
be an abdication of the trial court’s duty and jurisdiction to determine prima facie case.35

Petitioner insists that in view of the passage of the Speedy Trial Act of 1998, the review authority of the Secretary of
Justice after an information has been already filed in court may possibly transgress the right of a party to a speedy
disposition of his case, in light of the mandatory tenor of the Speedy Trial Act of 1998 requiring that the accused
must be arraigned within thirty (30) days from the filing of an information against him. Petitioner then impresses
upon this Court that there is a need to reconcile the review authority of the Secretary of Justice and the Speedy Trial
Act of 1998, and submits that "the Secretary of Justice must review the appeal and rule thereon within a period of
thirty (30) days from the date the information was filed or from the date the accused appeared in court (surrendered
or arrested)"36 if only to give meaning to the Speedy Trial Act.

We are not persuaded. The authority of the Secretary of Justice to review resolutions of his subordinates even after
an information has already been filed in court does not present an irreconcilable conflict with the thirty-day period
prescribed by Section 7 of the Speedy Trial Act.

Contrary to the urgings of petitioner, Section 7 of the Speedy Trial Act of 1998 prescribing the thirty-day period for
the arraignment of the accused is not absolute. In fact, Section 10 of the same law enumerates periods of delay that
shall be excluded in computing the time within which trial must commence. The pertinent portion thereof provides
that:

"SEC. 10. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial
must commence:

xxx

"(f) Any period of delay resulting from a continuance granted by any justice or judge motu propio or on motion of the
accused or his/her counsel or at the request of the public prosecutor, if the justice or judge granted such
continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance
granted by the court in accordance with this subparagraph shall be excludable under this section unless the court
sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served
by the granting of such continuance outweigh the best interests of the public and the accused in a speedy trial."

Accordingly, the view espoused by petitioner that the thirty-day period prescribed by Section 7 of the Speedy Trial
Act must be strictly observed so as not to violate its right to a speedy trial finds no support in the law itself. The
exceptions provided in the Speedy Trial Act of 1998 reflect the fundamentally recognized principle that the concept
of "speedy trial" is "a relative term and must necessarily be a flexible concept."37 In fact, in implementing the Speedy
Trial Act of 1998, this Court issued SC Circular No. 38-98, Section 2 of which provides that:

"Section 2. Time Limit for Arraignment and Pre-trial. – The arraignment, and the pre-trial if the accused pleads not
guilty to the crime charged, shall be held within thirty (30) days from the date the court acquires jurisdiction over the
person of the accused. The period of the pendency of a motion to quash, or for a bill of particulars, or other causes
justifying suspension of arraignment shall be excluded." (Emphasis ours)

As stated earlier, prudence and wisdom dictate that the court should hold in abeyance the proceedings while the
Secretary of Justice resolves the petition for review questioning the resolution of the prosecutor. The delay in such a
case is justified because the determination of whether the delay is unreasonable, thus amounting to a transgression
of the right to a speedy trial, cannot be simply reduced to a mathematical process. Hence, the length of delay is not
the lone criterion to be considered, several factors must be taken into account in determining whether or not the
constitutional right to a speedy trial has been violated. The factors to consider and balance are the duration of the
delay, reason thereof, assertion of the right or failure to assert it and the prejudice caused by such delay.38

The importance of the review authority of the Secretary of Justice cannot be overemphasized; as earlier pointed out,
it is based on the doctrine of exhaustion of administrative remedies that holds that "mistakes, abuses or negligence
committed in the initial steps of an administrative activity or by an administrative agency should be corrected by
higher administrative authorities, and not directly by courts."39

We are not unmindful of the principle that while the right to a speedy trial secures rights to the defendant, it does not
preclude the rights of public justice.40 However, in this case, petitioner as private complainant in the criminal case,
cannot deprive private respondent, accused therein, of her right to avail of a remedy afforded to an accused in a
criminal case. The immediate arraignment of private respondent would have then proscribed her right as accused to
appeal the resolution of the prosecutor to the Secretary of Justice since Section 4 of DOJ Order No. 223 of June 30,
1993 forestalls an appeal to the Secretary of Justice if the accused/appellant has already been arraigned.41 Hence, in
this case, the order suspending the arraignment of private respondent merely allowed private respondent to exhaust
the administrative remedies available to her as accused in the criminal case before the court could proceed to a full-
blown trial. Conversely, in case the resolution is for the dismissal of the information, the offended party in the
criminal case, herein petitioner, can appeal the adverse resolution to the Secretary of Justice.42 In Marcelo vs. Court
of Appeals, this Court aptly pointed out that:

"the trial court in a criminal case which takes cognizance of an accused’s motion for review of the resolution of the
investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act
on the resolution reversing the investigating prosecutor’s finding or on a motion to dismiss based thereon only upon
proof that such resolution is already final in that no appeal was taken therefrom to the Department of
Justice."43 (Emphasis ours)

The fact that public respondent issued the assailed order suspending the arraignment of private respondent before
the "Motion to Defer Arraignment" of private respondent could be heard is not tantamount to grave abuse of
discretion. It was well within the power of public respondent to grant the continuance since Section 10 (f) of the
Speedy Trial Act of 1998 clearly confers this authority.

Public respondent substantially complied with the requirement of Section 10 (f) of the Speedy Trial Act when it
stated its reasons for the deferment and eventual suspension of the arraignment of private respondent in its orders
dated September 24, 199944 and November 22, 199945 . In said orders, public respondent reasoned that the
suspension of the arraignment of private respondent was to give the opportunity to the accused to exhaust the
procedural remedies available,46 to allow the Secretary of Justice to review the resolution of the City Prosecutor47 so
as not to deprive the former of his power to review the action of the latter by a precipitate trial of the case,48 and
based on the discretionary power of the trial judge to grant or deny the motion to suspend the arraignment of the
accused pending determination of her petition for review at the Department of Justice.49 Despite the absence of a law
or regulation prescribing the period within which the Secretary of Justice must dispose of an appeal, the
presumption still holds true that in the regular performance of his functions, the Secretary of Justice will decide the
appeal in the soonest possible time. Recently, the Department of Justice issued Memorandum Order No. 12 dated
July 3, 2000 mandating that the period for the disposition of appeals/petitions for review shall be 75 days.50 In view of
this memorandum, the indefinite suspension of proceedings in the trial court because of a pending petition for
review with the Secretary of Justice is now unlikely to happen.

Section 16 of Rule 110 of the Rules of Court does entitle the offended party to intervene in the criminal case if he
has not waived the civil action or expressly reserved his right to institute it separately from the criminal action.
However, the prosecution of the criminal case through the private prosecutor is still under the direction and control
of the public prosecutor51 and such intervention must be with the permission of the public prosecutor.52 In this case,
based on the power of control and supervision of the Secretary of Justice over public prosecutors, the pendency of
the appeal of private respondent with the Secretary of Justice should have impelled the public prosecutor to move
for the suspension of the arraignment of private respondent. Considering that private respondent had already
informed the court of her appeal with the Secretary of Justice and had moved for the suspension of her arraignment,
the public prosecutor should have desisted from opposing the abeyance of further proceedings.

Lastly, petitioner’s argument that the suspension of the arraignment in this case was in violation of Section 12, Rule
116 of the Revised Rules on Criminal Procedure is likewise not tenable. Section 12, Rule 116 of the Revised Rules
on Criminal Procedure provides that:

"Section 12. Suspension of Arraignment. – The arraignment shall be suspended, if at the time thereof:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him
unable to fully understand the case against him and to plead intelligently thereto. In such case, the court
shall order his mental examination and, if necessary, his confinement for such purpose.

(b) The court finds the existence of a valid prejudicial question."

There is nothing in the above-quoted provision that expressly or impliedly mandates that the suspension of
arraignment shall be limited to the cases enumerated therein. Moreover, jurisprudence has clearly established that
the suspension of arraignment is not strictly limited to the two situations contemplated in said provision.53 In fine, no
grave abuse of discretion attended the issuance of the assailed order suspending the arraignment of private
respondent until her petition for review with the Secretary of Justice is resolved.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 182677 August 3, 2010

JOSE ANTONIO C. LEVISTE, Petitioner,

vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS OF THE
LATE RAFAEL DE LAS ALAS, Respondents.

DECISION

CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the August 30,
2007 Decision1 and the April 18, 2008 Resolution2 of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed
the trial court’s Orders of January 24, 31, February 7, 8, all in 2007, and denied the motion for reconsideration,
respectively.

Petitioner was, by Information3 of January 16, 2007, charged with homicide for the death of Rafael de las Alas on
January 12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case was raffled,
presided by Judge Elmo Alameda, forthwith issued a commitment order4 against petitioner who was placed under
police custody while confined at the Makati Medical Center.5

After petitioner posted a ₱40,000 cash bond which the trial court approved,6 he was released from detention, and
his arraignment was set on January 24, 2007.

The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an Urgent Omnibus
Motion7 praying, inter alia, for the deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January 24, 20078 deferring petitioner’s arraignment and allowing the
prosecution to conduct a reinvestigation to determine the proper offense and submit a recommendation within 30
days from its inception, inter alia; and (2) Order of January 31, 20079 denying reconsideration of the first order.
Petitioner assailed these orders via certiorari and prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer acting on the
public prosecutor’s recommendation on the proper offense until after the appellate court resolves his application for
injunctive reliefs, or alternatively, to grant him time to comment on the prosecutor’s recommendation and thereafter
set a hearing for the judicial determination of probable cause.10 Petitioner also separately moved for the inhibition of
Judge Alameda with prayer to defer action on the admission of the Amended Information.11
The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7, 200712 that admitted the
Amended Information13 for murder and directed the issuance of a warrant of arrest; and (2) Order of February 8,
200714 which set the arraignment on February 13, 2007. Petitioner questioned these two orders via supplemental
petition before the appellate court.

The appellate court dismissed petitioner’s petition, hence, his present petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF
THE CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE
ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE
RULES OF COURT[;]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE

PROSECUTOR VELASCO’S AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY
AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO
BE RESOLVED BY THIS HONORABLE COURT (sic); [AND]

CONSIDERING THAT PROSECUTOR VELASCO’S FINDINGS IN HIS RESOLUTION DATED 2

FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONER’S MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE.15 (emphasis in the original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitioner refused to
plead, drawing the trial court to enter a plea of "not guilty" for him.

Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex Abundanti
Cautela16 which the trial court, after hearings thereon, granted by Order of May 21, 2007,17 it finding that the
evidence of guilt for the crime of murder is not strong. It accordingly allowed petitioner to post bail in the amount of
₱300,000 for his provisional liberty.

The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner under the
Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of homicide, sentencing
him to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one
day of reclusion temporal as maximum. From the Decision, petitioner filed an appeal to the appellate court,
docketed as CA-G.R. CR No. 32159, during the pendency of which he filed an urgent application for admission to
bail pending appeal. The appellate court denied petitioner’s application which this Court, in G.R. No. 189122,
affirmed by Decision of March 17, 2010.

The Office of the Solicitor General (OSG) later argued that the present petition had been rendered moot since the
presentation of evidence, wherein petitioner actively participated, had been concluded.18

Waiver on the part of the accused must be distinguished from mootness of the petition, for in the present case,
petitioner did not, by his active participation in the trial, waive his stated objections.

Section 26, Rule 114 of the Rules of Court provides:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application
for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of
the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as
early as practicable but not later than the start of the trial of the case.
By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the charge
against him, the validity of the admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior to his arraignment. During the arraignment on March 21,
2007, petitioner refused to enter his plea since the issues he raised were still pending resolution by the appellate
court, thus prompting the trial court to enter a plea of "not guilty" for him.

The principle that the accused is precluded after arraignment from questioning the illegal arrest or the
lack of or irregular preliminary investigation applies "only if he voluntarily enters his plea and
participates during trial, without previously invoking his objections thereto."19 There must be clear and convincing
proof that petitioner had an actual intention to relinquish his right to question the existence of probable cause. When
the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative
of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is
possible.20

From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of petitioner to preclude
him from obtaining a definite resolution of the objections he so timely invoked. Other than its allegation of active
participation, the OSG offered no clear and convincing proof that petitioner’s participation in the trial was
unconditional with the intent to voluntarily and unequivocally abandon his petition. In fact, on January 26, 2010,
petitioner still moved for the early resolution of the present petition.21

Whatever delay arising from petitioner’s availment of remedies against the trial court’s Orders cannot be imputed to
petitioner to operate as a valid waiver on his part. Neither can the non-issuance of a writ of preliminary injunction be
deemed as a voluntary relinquishment of petitioner’s principal prayer. The non-issuance of such injunctive relief only
means that the appellate court did not preliminarily find any exception22 to the long-standing doctrine that injunction
will not lie to enjoin a criminal prosecution.23 Consequently, the trial of the case took its course.

The petition is now moot, however, in view of the trial court’s rendition of judgment.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical use or value.24

The judgment convicting petitioner of homicide under the Amended Information for murder operates as a
supervening event that mooted the present petition. Assuming that there is ground25 to annul the finding of probable
cause for murder, there is no practical use or value in abrogating the concluded proceedings and retrying the case
under the original Information for homicide just to arrive, more likely or even definitely, at the same conviction of
homicide. Mootness would have also set in had petitioner been convicted of murder, for proof beyond reasonable
doubt, which is much higher than probable cause, would have been established in that instance.

Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to resolve the
legal issues in order to formulate controlling principles to guide the bench, bar and public.26 In the present case,
there is compelling reason to clarify the remedies available before and after the filing of an information in cases
subject of inquest.

After going over into the substance of the petition and the assailed issuances, the Court finds no reversible error on
the part of the appellate court in finding no grave abuse of discretion in the issuance of the four trial court Orders.

In his first assignment of error, petitioner posits that the prosecution has no right under the Rules to seek from the
trial court an investigation or reevaluation of the case except through a petition for review before the Department of
Justice (DOJ). In cases when an accused is arrested without a warrant, petitioner contends that the remedy of
preliminary investigation belongs only to the accused.

The contention lacks merit.

Section 6,27 Rule 112 of the Rules of Court reads:

When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation,
the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has
been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the
affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation
must be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within
five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule. (underscoring supplied)

A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without regard to fine.28 As an exception, the rules
provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant29 involving
such type of offense, so long as an inquest, where available, has been conducted.30

Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases
involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose
of determining whether said persons should remain under custody and correspondingly be charged in court.31

It is imperative to first take a closer look at the predicament of both the arrested person and the private complainant
during the brief period of inquest, to grasp the respective remedies available to them before and after the filing of a
complaint or information in court.

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may proceed in
coordinating with the arresting officer and the inquest officer during the latter’s conduct of inquest. Meanwhile, the
arrested person has the option to avail of a 15-day preliminary investigation, provided he duly signs a waiver of any
objection against delay in his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code.
For obvious reasons, this remedy is not available to the private complainant since he cannot waive what he does not
have. The benefit of the provisions of Article 125, which requires the filing of a complaint or information with the
proper judicial authorities within the applicable period,32 belongs to the arrested person.

The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article
125, ends with either the prompt filing of an information in court or the immediate release of the arrested
person.33 Notably, the rules on inquest do not provide for a motion for reconsideration.34

Contrary to petitioner’s position that private complainant should have appealed to the DOJ Secretary, such remedy
is not immediately available in cases subject of inquest.

Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition by a proper party under such rules as
the Department of Justice may prescribe."35 The rule referred to is the 2000 National Prosecution Service Rule on
Appeal,36 Section 1 of which provides that the Rule shall "apply to appeals from resolutions x x x in cases subject of
preliminary investigation/ reinvestigation." In cases subject of inquest, therefore, the private party should first avail of
a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary.

In case the inquest proceedings yield no probable cause, the private complainant may pursue the case through the
regular course of a preliminary investigation.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with another
opportunity to ask for a preliminary investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke, as
respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation.

The Court holds that the private complainant can move for reinvestigation, subject to and in light of the ensuing
disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of
the public prosecutor.37 The private complainant in a criminal case is merely a witness and not a party to the case
and cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court, the
proper party for that being the public prosecutor who has the control of the prosecution of the case.38 Thus, in cases
where the private complainant is allowed to intervene by counsel in the criminal action,39 and is granted the authority
to prosecute,40 the private complainant, by counsel and with the conformity of the public prosecutor, can file a
motion for reinvestigation.

In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must "examine the
Information vis-à-vis the resolution of the investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and substance."41

x x x Since no evidence has been presented at that stage, the error would appear or be discoverable from a review
of the records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himself but,
again, realistically it will be the prosecutor who can initially determine the same. That is why such error need
not be manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be
taken into account. It necessarily follows, therefore, that the prosecutor can and should institute remedial
measures[.]42 (emphasis and underscoring supplied)

The prosecution of crimes appertains to the executive department of the government whose principal power and
responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of
discretion – the discretion of what and whom to charge, the exercise of which depends on a smorgasbord of factors
which are best appreciated by prosecutors.43

The prosecution’s discretion is not boundless or infinite, however.44 The standing principle is that once an
information is filed in court, any remedial measure such as a reinvestigation must be addressed to the sound
discretion of the court. Interestingly, petitioner supports this view.45 Indeed, the Court ruled in one case that:

The rule is now well settled that once a complaint or information is filed in court, any disposition of the case, whether
as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court.
Although the prosecutor retains the direction and control of the prosecution of criminal cases even when the case is
already in court, he cannot impose his opinion upon the tribunal. For while it is true that the prosecutor has the
quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case had
already been brought therein any disposition the prosecutor may deem proper thereafter

should be addressed to the court for its consideration and approval. The only qualification is that the action of the
court must not impair the substantial rights of the accused or the right of the People to due process of law.

xxxx

In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the
permission or consent of the court must be secured. If after such re-investigation the prosecution finds a cogent
basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action may
be taken but shall likewise be addressed to the sound discretion of the court.46 (underscoring supplied)

While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be preferred to a reinvestigation, the Court
therein recognized that a trial court may, where the interest of justice so requires, grant a motion for reinvestigation
of a criminal case pending before it.

Once the trial court grants the prosecution’s motion for reinvestigation, the former is deemed to have deferred to the
authority of the prosecutorial arm of the Government. Having brought the case back to the drawing board, the
prosecution is thus equipped with discretion – wide and far reaching – regarding the disposition thereof,48 subject to
the trial court’s approval of the resulting proposed course of action.
Since a reinvestigation may entail a modification of the criminal information as what happened in the present case,
the Court’s holding is bolstered by the rule on amendment of an information under Section 14, Rule 110 of the Rules
of Court:

A complaint or information may be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any
accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the
offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court
shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in
accordance with section 11, Rule 119, provided the accused would not be placed in double jeopardy. The court may
require the witnesses to give bail for their appearance at the trial. (emphasis supplied)

In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or information may be
made without leave of court.49 After the entry of a plea, only a formal amendment may be made but with leave of
court and only if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the accused.50

It must be clarified though that not all defects in an information are curable by amendment prior to entry of plea. An
information which is void ab initio cannot be amended to obviate a ground for quashal.51 An amendment which
operates to vest jurisdiction upon the trial court is likewise impermissible.52

Considering the general rule that an information may be amended even in substance and even without leave of
court at any time before entry of plea, does it mean that the conduct of a reinvestigation at that stage is a mere
superfluity?

It is not.

Any remedial measure springing from the reinvestigation – be it a complete disposition or an intermediate
modification53 of the charge – is eventually addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial court would ultimately make the
determination on the proposed course of action, it is for the prosecution to consider whether a reinvestigation is
necessary to adduce and review the evidence for purposes of buttressing the appropriate motion to be filed in court.

More importantly, reinvestigation is required in cases involving a substantial amendment of the information. Due
process of law demands that no substantial amendment of an information may be admitted without conducting
another or a new preliminary investigation. In Matalam v. The 2nd Division of the Sandiganbayan,54 the Court ruled
that a substantial amendment in an information entitles an accused to another preliminary investigation, unless the
amended information contains a charge related to or is included in the original Information.

The question to be resolved is whether the amendment of the Information from homicide to murder is considered a
substantial amendment, which would make it not just a right but a duty of the prosecution to ask for a preliminary
investigation.

The Court answers in the affirmative.

A substantial amendment consists of the recital of facts constituting the offense charged and determinative
of the jurisdiction of the court. All other matters are merely of form. The following have been held to be
mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might
impose in the event of conviction; (2) an amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution’s theory of
the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an
amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that
merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts,
and merely states with additional precision something which is already contained in the original information and
which adds nothing essential for conviction for the crime charged.

The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it
originally stood would be available after the amendment is made, and whether any evidence defendant might have
would be equally applicable to the information in the one form as in the other. An amendment to an information
which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause
surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form
and not of substance.55 (emphasis and underscoring supplied)

Matalam adds that the mere fact that the two charges are related does not necessarily or automatically deprive the
accused of his right to another preliminary investigation. Notatu dignum is the fact that both the original Information
and the amended Information in Matalam were similarly charging the accused with violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act.

In one case,56 it was squarely held that the amendment of the Information from homicide to murder is "one of
substance with very serious consequences."57 The amendment involved in the present case consists of additional
averments of the circumstances of treachery, evident premeditation, and cruelty, which qualify the offense charged
from homicide to murder. It being a new and material element of the offense, petitioner should be given the chance
to adduce evidence on the matter. Not being merely clarificatory, the amendment essentially varies the
prosecution’s original theory of the case and certainly affects not just the form but the weight of defense to be
mustered by petitioner.

The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v. Cajigal,59 wherein the amendment of the
caption of the Information from homicide to murder was not considered substantial because there was no real
change in the recital of facts constituting the offense charged as alleged in the body of the Information, as the
allegations of qualifying circumstances were already clearly embedded in the original Information. Buhat pointed out
that the original Information for homicide already alleged the use of superior strength, while Pacoy states that the
averments in the amended Information for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in the present case.

Considering that another or a new preliminary investigation is required, the fact that what was conducted in the
present case was a reinvestigation does not invalidate the substantial amendment of the Information. There is no
substantial distinction between a preliminary investigation and a reinvestigation since both are conducted in the
same manner and for the same objective of determining whether there exists sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for
trial.60 What is essential is that petitioner was placed on guard to defend himself from the charge of murder61 after
the claimed circumstances were made known to him as early as the first motion.

Petitioner did not, however, make much of the opportunity to present countervailing evidence on the proposed
amended charge. Despite notice of hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v. Court of Appeals states that the
rules do not even require, as a condition sine qua non to the validity of a preliminary investigation, the presence of
the respondent as long as efforts to reach him were made and an opportunity to controvert the complainant’s
evidence was accorded him.62

In his second assignment of error, petitioner basically assails the hurried issuance of the last two assailed RTC
Orders despite the pendency before the appellate court of the petition for certiorari challenging the first two trial
court Orders allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the course of the principal case unless a temporary
retraining order or a writ of preliminary injunction has been issued.63 The appellate court, by Resolution of February
15, 2007,64 denied petitioner’s application for a temporary restraining order and writ of preliminary injunction.
Supplementary efforts to seek injunctive reliefs proved futile.65 The appellate court thus did not err in finding no
grave abuse of discretion on the part of the trial court when it proceeded with the case and eventually arraigned the
accused on March 21, 2007, there being no injunction order from the appellate court. Moreover, petitioner opted to
forego appealing to the DOJ Secretary, a post-inquest remedy that was available after the reinvestigation and which
could have suspended the arraignment.66 1avvphi 1

Regarding petitioner’s protestations of haste, suffice to state that the pace in resolving incidents of the case is not
per se an indication of bias. In Santos-Concio v. Department of Justice,67 the Court held:

Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an
injudicious performance of functions. For one’s prompt dispatch may be another’s undue haste. The orderly
administration of justice remains as the paramount and constant consideration, with particular regard of the
circumstances peculiar to each case.

The presumption of regularity includes the public officer’s official actuations in all phases of work. Consistent with
such presumption, it was incumbent upon petitioners to present contradictory evidence other than a mere tallying of
days or numerical calculation. This, petitioners failed to discharge. The swift completion of the Investigating Panel’s
initial task cannot be relegated as shoddy or shady without discounting the presumably regular performance of not
just one but five state prosecutors.68

There is no ground for petitioner’s protestations against the DOJ Secretary’s sudden designation of Senior State
Prosecutor Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case69 and the latter’s
conformity to the motion for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct the
reinvestigation or preliminary investigation.70 There is a hierarchy of officials in the prosecutory arm of the executive
branch headed by the Secretary of Justice71 who is vested with the prerogative to appoint a special prosecutor or
designate an acting prosecutor to handle a particular case, which broad power of control has been recognized by
jurisprudence.72

As for the trial court’s ignoring the DOJ Secretary’s uncontested statements to the media which aired his opinion
that if the assailant merely intended to maim and not to kill the victim, one bullet would have sufficed — the DOJ
Secretary reportedly uttered that "the filing of the case of homicide against ano against Leviste lintek naman eh I
told you to watch over that case… there should be a report about the ballistics, about the paraffin, etc., then that’s
not a complete investigation, that’s why you should use that as a ground" — no abuse of discretion, much less a
grave one, can be imputed to it.

The statements of the DOJ Secretary do not evince a "determination to file the Information even in the absence of
probable cause."73 On the contrary, the remarks merely underscored the importance of securing basic investigative
reports to support a finding of probable cause. The original Resolution even recognized that probable cause for the
crime of murder cannot be determined based on the evidence obtained "[u]nless and until a more thorough
investigation is conducted and eyewitness/es [is/]are presented in evidence[.]"74

The trial court concluded that "the wound sustained by the victim at the back of his head, the absence of paraffin
test and ballistic examination, and the handling of physical evidence,"75 as rationalized by the prosecution in its
motion, are sufficient circumstances that require further inquiry.

That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not affect the prior
determination of probable cause because, as the appellate court correctly stated, the standard of strong evidence of
guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial probable cause
which is sufficient to initiate a criminal case.76

In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a hearing for
judicial determination of probable cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.

Petitioner’s argument is specious.

There are two kinds of determination of probable cause: executive and judicial. The executive determination of
probable cause is one made during preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom
he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such
official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether
that function has been correctly discharged by the public prosecutor, i.e., whether he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may
not be compelled to pass upon.77

The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest
should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is
necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no
probable cause, the judge cannot be forced to issue the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112 of the
Rules of Court outlines the procedure to be followed by the RTC.

To move the court to conduct a judicial determination of probable cause is a mere superfluity, for with or without
such motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor and the
supporting evidence. In fact, the task of the presiding judge when the Information is filed with the court
is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.80

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. But the judge is not required to personally examine the complainant and
his witnesses. Following established doctrine and procedure, he shall (1) personally evaluate the report and the
supporting documents submitted by the prosecutor regarding the existence of probable cause, and on the basis
thereof, he may already make a personal determination of the existence of probable cause; and (2) if he is not
satisfied that probable cause exists, he may disregard the prosecutor’s report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.81 (emphasis and underscoring supplied)

The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of
arrest of the accused before any warrant may be issued.82 Petitioner thus cannot, as a matter of right, insist on a
hearing for judicial determination of probable cause. Certainly, petitioner "cannot determine beforehand how cursory
or exhaustive the [judge's] examination of the records should be [since t]he extent of the judge’s examination
depends on the exercise of his sound discretion as the circumstances of the case require."83 In one case, the Court
emphatically stated:

The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must
determine the presence or absence of probable cause within such periods. The Sandiganbayan’s determination of
probable cause is made ex parte and is summary in nature, not adversarial. The Judge should not be stymied
and distracted from his determination of probable cause by needless motions for determination of probable
cause filed by the accused.84 (emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that would qualify
the crime from homicide to murder.

The allegation of lack of substantial or material new evidence deserves no credence, because new pieces of
evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that no new matter or evidence
was presented during the reinvestigation of the case. It should be stressed that reinvestigation, as the word itself
implies, is merely a repeat investigation of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and re-evaluate its findings and the evidence
already submitted.85

Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a petition
for review on certiorari since this Court is not a trier of facts. The Court cannot thus review the evidence adduced by
the parties on the issue of the absence or presence of probable cause, as there exists no exceptional circumstances
to warrant a factual review.86

In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the court is narrow
in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and resolve questions and issues
1avv phi 1

beyond its competence, such as an error of judgment.87 The court’s duty in the pertinent case is confined to
determining whether the executive and judicial determination of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion. Although it is possible that error may be committed in the discharge of
lawful functions, this does not render the act amenable to correction and annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.88

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R.
SP No. 97761 are AFFIRMED.

SO ORDERED.