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G.R. No.

L-6177

April 29, 1953

GABINO LOZADA and ISIDRO LOZADA, petitioner, vs. HONORABLE FERNANDO HERNANDEZ, ETC., ET AL., respondents. Vicente Abalajon for petitioners. First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Pacifico P. de Castro for respondents. REYES, J.: This is a petition for certiorari to annul an order of the Court of First Instance of Capiz denying petitioner's motion to dismiss an information against them for robbery with homicide. It appears that on July 1, 1952, the provincial fiscal of Capiz filed an information in that court, charging the petitioners with the crime of robbery with homicide, the fiscal certifying under oath that he had conducted a proper preliminary investigation of the case on the 27th of the preceding month. arrested on the strength of this information petitioners asked the court to fix the amount of their bail, and the court did so on July 16. Some three weeks thereafter petitioners were arraigned, and they then pleaded not guilty. This they did with the assistance of counsel. With trial scheduled for August 20 but postponed to September 19 at their own request, petitioners moved to have the case against them dismissed on the grounds that they had been deprived of their right to a preliminary investigation without due process of law, and when this motion was denied, they brought the present action forcertiorari. There is no question that before filing the information the provincial fiscal conducted an investigation as the law requires. But petitioners contended that they were not given the right to participate in that investigation for they were even notified thereof. It has said time and again that a preliminary investigation is not property a trial or any part thereon but is merely preparatory thereto, its only purpose being to determine whether a crime had been committed and whether there is probably cause to believe the accused guilty thereof. (U.S. vs. Yu Tuico, 34 Phil., 209; People vs. Badilla, 48 Phil., 716). The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory. (II Moran, Rules of Court, 1952 ed., p. 673).And rights conferred upon accused persons to participate in preliminary investigation concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of law". (U.S. vs. Grant and Kennedy, 18 Phil., 122). At present the law conferring upon the accused the right to participate in the preliminary investigation is contained in section 1687 of the Revised Administrative Code, as amended by Section 2 of Republic Act No. 732, approved on June 18, 1952. It says: SEC. 1687. Authority of Fiscal to conduct investigation in criminal matter. A provincial fiscal shall have authority to conduct investigation into the matter of any crime or misdemeanor and have the necessary information or complaint prepared or made against persons charged with the commission of the same. If the offense charged falls

within the original jurisdiction of the Court of First Instance, the defendant shall not be entitled as a matter of right to preliminary investigation in any case where the provincial fiscal himself, after due investigation of the facts made in the presence of the accused if the latter so requested, shall have presented an information against him in proper form and certified under oath by the said provincial fiscal that he conducted a proper preliminary investigation. To this ends he may, with due notice to the accused, summon reputed witnesses and require them to appear before him and testify and be crossexamined under oath by the accused upon the latter's request. The attendance or evidence of absent or recalcitrant witnesses who may be summoned or whose testimony may be required by the provincial fiscal under the authority herein conferred shall be enforced by proper process upon application to be made by the provincial fiscal to any Judge of First Instance of the Judicial Districts. But no witness summoned to testify under this section shall be compelled to give testimony to incriminate himself. The petitioners construe the above provision as requiring the provincial fiscal conducting the preliminary investigation to give notice thereof to the accused so that he could be present thereat. The Solicitor General, on his part, contend that such notice is required only after the accused has requested to be present at the investigation, for "To hold that the provincial fiscal is required to give notice to the accused before conducting the investigation would make it impossible for him to conduct such investigation in cases where the whereabouts of the accused is unknown, since the law has not provided for notice by publication, nor allows him to dispense with such notice in a case similar to that just mentioned." There is weight to this reasoning. And in any event, even supposing that petitioner had aright to be notified of the preliminary investigation so that they could participate", such right was waived when they pleaded not guilty upon arraignment. For it is now settled that the right to preliminary investigation is waived by failure to claim it before the accused pleads not guilty. (People vs. Magpale, 70 Phil., 176; People vs. Solon, 47 Phil., 443.). In view of the foregoing, the petition is denied, with costs against the petitioners. Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor, Jugo, Bautista Angelo and Labrador, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION October 1, 1915 G.R. No. L-10172 THE UNITED STATES, plaintiff-appellee, vs. CASIANO BANZUELA and ANSELMO BANZUELA , defendants-appellants. Ramon Diokno for appellants. Attorney-General Avancea for appellee. Araullo, J.: These proceedings were commenced by a complaint filed by the provincial fiscal in the Court of First Instance of Laguna on February 14, 1914, which was drawn up in the following terms: The undersigned charges Casiano Banzuela and Anselmo Banzuela with the crime of homicide committed as follows: About the 24th of November, 1913, in the municipality of San Pablo, Province of Laguna, the said accused persons, neither of them being the father, mother, legitimate or illegitimate child, ascendant, or spouse of Carlos Violan, did, intentionally, maliciously and criminally, kill the latter with a dagger, pocket knife and monkey wrench an act committed in violation of the law. At the commencement of the hearing of the case, on March 2 of the same year, 1914, counsel for the defendants stated to the court that a preliminary investigation of the matter had been held in the pueblo of San Pablo and that in view of the evidence adduced therein the justice of the peace declared the defendant Anselmo Banzuela to be innocent, or rather that he was probably not guilty of the crime charged; that the said charge freed Anselmo Banzuela from a charge in the Court of First Instance, unless a preliminary investigation be again held with respect to him, and for these reasons the said attorney moved that the name of Anselmo Banzuela be stricken from the complaint. The fiscal, in turn, stated that the defendants had in fact been accused in the justice of the peace court, the information being supported by affidavits which the court had deemed sufficient to order the defend ants arrest; that in the preliminary

investigation, which he attended, he did not believe it advisable for the prosecution to exhibit all its evidence, wherefore he presented only one witness, and the justice of the peace stated it to be his opinion that Anselmo Banzuela was innocent; but that such expressions of opinion could not warrant the exclusion of defendant from the proceedings nor free him from the complaint, inasmuch as a preliminary investigation had already been held. He added, furthermore, that he objected to a new investigation being made with respect to this defendant. After again bearing counsel for the defendant, who insisted that, in conformity with the provisions of section 2 of Act No. 194, the accused Anselmo Banzuela was entitled to a preliminary investigation, the court denied the said attorneys motion to exclude. Immediately thereafter the latter excepted to this ruling and moved the court to hold a preliminary investigation, previous to determining whether there was probable cause for the prosecution of his client. This petition was denied by the court, on the ground that it had just declared that such investigation had already been held .An exception to this ruling was also taken by counsel for the said accused. Thereupon the said attorney announced that the two accused waived arraignment and pleaded not guilty. After due trial the Court of First Instance, on March 7, 1914, rendered judgment in which it held that the said Casiano Banzuela and Anselmo Banzuela were guilty of the crime of homicide as charged in the complaint, with no extenuating or aggravating circumstances, and sentenced each of them to 14 years, 8 months and 1 day of reclusion temporal, with the corresponding accessory penalties, to indemnify jointly and severally the family of the deceased in the sum of P1,000, and to pay each one-half of the costs. From this judgment the defendants appealed, and their counsel has alleged in this instance that the lower court erred: 1. In continuing these proceedings against Anselmo Banzuela, inasmuch as in the preliminary investigation they were dismissed with respect to him. 2. In denying his petition that a preliminary investigation first be held before compelling him to answer the complaint. 3. In subjecting him to trial in criminal proceedings without previous judicial declaration of probable cause. 4. In sentencing him without due process of law. 5. In finding the appellant Casiano Banzuela guilty and not allowing in his favor the exempting circumstance of lawful defense. 6. In sentencing the appellant Anselmo Banzuela, notwithstanding that the evidence shows his entire innocence.

7. I not allowing the defendants the benefit of reasonable doubt. The general provision contained in section 13 of General Orders No. 58 is explicit. It provides that when a complaint is laid before a magistrate, he must examine, on oath, the informant or prosecutor and the witnesses, and if he be satisfied that the crime complained of has been committed, and that there is reasonable ground to believe that the party charged has committed it, he must issue an order for his arrest and admit him to bail if the offense is bailable. Very explicit also are the general provisions contained in section 14 of the same General Orders, pursuant to which, if the magistrate believes from the evidence submitted, either that the crime complained of was not committed, or that, if committed, the person charged did not commit it, he must set the person at liberty; but such release shall not prevent the filing of a new complaint or information and the arrest of the accused thereon at any time before the prosecution of the offense shall be barred by the statute. With respect to the procedure which must be followed when the crimes charged are alleged to have been committed in the provinces of the Philippine Islands, with the exception of the city of Manila, that is, within the limits of the respective municipalities of such provinces, the provisions of section 1 of Act No. 194 of the Philippine Commission are also very clear and precise. They prescribe that every justice of the peace in the Philippine Islands is vested with authority to make a preliminary investigation of any crime alleged to have been committed within his municipality, jurisdiction to hear and determine which was vested in the judges or Courts of First Instance; and, further; that it shall be the duty of every justice of the peace, when written complaint under oath has been made to him that a crime has been committed within his municipality and there is no reason to believe that any person has committed the same which complaint the justice believes to be well founded, to issue an order for the arrest of the accused and have him brought before the justice of the peace for such preliminary examination. In connection with the provisions of said section 1 of Act no. 194, those of section 2 of the same Act are also clear and precise, according to which, when the accused is brought before the justice of the peace, it shall be his duty to inform the accused person of the charge, to give him an opportunity to examine the complaint and the affidavits, if any, of all the witnesses in support thereof, to make a preliminary investigation of the charge, in the manner and from provided in this section, and upon the conclusion of the preliminary investigation, if the justice of the peace is of the opinion that there is reasonable cause to believe that an offense has been committed and that the accused is guilty thereof, he shall so declare and shall adjudge that the accused be remanded to jail for safekeeping to await the action of the judge or the Court of First Instance, unless he give bail for his appearance; but,

if the justice of the peace be of the opinion that no crime has been committed, or that there is no reasonable ground to believe the accused guilty thereof, the justice of the peace shall order the discharge of the accused. This same section further provides however, that such discharge shall not operate as a final acquittal of the accused, but he may be again arrested and prosecuted for the same offense. The legal provisions above cited recognize and affirm the right of every person charged with the commission of a crime to a preliminary investigation, or to have preliminary proceedings conducted such as shall tend to show whether the crime charged was committed and whether there is reasonable ground to believe that the accused committed it, before he be imprisoned and subjected to trial. Such preliminary investigation, which in general terms is prescribed in the said General Orders No. 58, or the law of criminal procedure now in force, may, pursuant to section 39 of Act No. 183, as amended by section 2 of Act No. 612, be made by the prosecuting attorney of the city of Manila, in cases triable in the courts of the other provinces of the Archipelago, when the crime was committed within their respective jurisdiction, and shall be conducted subject to the provisions of the said Act No. 194, as amended by Acts Nos. 1450 and 1627. Section 37 of this last Act amended section 1 of Act No. 194 in the sense that the Court of First Instance of the province, or the justice of the peace of the provincial capital or of the municipality in which the provincial jail is located, when directed by an order from the judge of the first instance, shall have jurisdiction to conduct such investigations at the expense of the municipality wherein the crime or offense was committed, though alleged to have been committed anywhere within the province. The diligent foresight of the legislator in granting jurisdiction for the conduction of preliminary investigations of proceedings not only to the justice of the peace courts, within whose jurisdiction the crime complained of was committed, but also to any justice of the peace of the province, to the justice of the peace of the provincial capital and to the Court of First Instance itself, shows the purpose of the law to be that no person charged with the commission of any crime shall be deprived of that right. The preliminary investigation which must be conducted by the justice of the peace, is, pursuant to the provisions of Act No. 194, the necessary and indispensable commencement of the proceedings against the accused, for its purpose is to determine whether there is reasonable cause to believe that the crime complained of has been committed; whether the accused is guilty thereof and whether there is reasonable ground for believing that he committed it, before depriving him of his liberty and subjecting him to trial. It such determination be in the affirmative and in conformity with the provisions of section 2 of the same Act, the justice of the peace

orders the imprisonment of the accused or his release on bail and places him at the disposition of the Court of First Instance for such action as the latter may deem proper, then beyond all doubt the proceedings must be continued against the accused, after the filing of the requisite complaint by the provincial fiscal. But where such determination be in the negative, or what amounts to the same thing, when the justice of the peace, as this same section 2 prescribes, is of the opinion that no crime has been committed, or that there is no reasonable ground to believe the accused guilty thereof, the justice of the peace, by imperative mandate of the law, must order the discharge of the accused, and this having been done and the accused, consequently, not having been placed at the disposition of the Court of First Instance for such action as might be proper in the premises, as in the above case, it is unquestionable that the proceedings initiated by the justice of the peace court, or to put it better, the commencement off the proceedings against the accused had in the justice of the peace court, was terminated and can not serve as a basis for the prosecution or trial of the accused in the Court of First Instance. The fact, then, that a preliminary investigation was made before the justice of the peace of San Pablo with respect to Anselmo Banzuela in the matter of the crime of which he was charged in these proceedings an investigation which, as the provincial fiscal stated at the opening of the trial, resulted in the finding that the said accused was innocent and, consequently, in his being ordered released, could not serve as a bar, as the provincial fiscal and the lower court understood, to another preliminary investigation with respect to the same accused by virtue of the complaint filed against him by the said fiscal. There was no need to base or ground the same, because it could have no such basis or grounds, on the previous preliminary investigation conducted in the said justice of the peace court with respect to the same accused, Anselmo Banzuela, which investigation, as aforesaid, terminated with the declaration that there was no reasonable ground for believing that he was guilty of the crime of which he had been charged. It differed from the information filed against the other accused, Casiano Banzuela, who had been placed at the disposition of the Court of First Instance by the justice of the peace court, and whose arrest had already been ordered by the latter precisely for the purpose definitely intended by the law, that is, the filing of the required complaint against him by the provincial fiscal. If the preliminary investigation conducted with regard to Anselmo Banzuela could be or could have been lawfully utilized by the provincial fiscal for the purpose of filing the complaint against the said accused and of prosecuting the action against him wherein he was sentenced, in the same manner that the said fiscal utilized the preliminary investigation had respect to the other accused, Casiano Banzuela, who also was tried and sentenced by virtue of the aforementioned complaint, to the provisions of which we have just referred, the precept of said section 2 of Act No.

194 would be entirely useless, for there would be no difference whatever between the action of the justice of the peace in ordering the arrest of an accused person and placing him at the disposition of the Court of First Instance, because in his opinion reasonable grounds existed for believing that the accused was guilty of the crime charged in the information, and in the justice ordering the release of an accused person and not placing him at the disposition of the Court of First Instance, because of his opinion that there were no grounds for believing that the said accused was guilty of the crime charged against him. In brief, the declarations and determinations which, in such a contrary sense, the justice of the peace as a result of the preliminary investigation would have made and adopted in accordance with the provisions of the law, would produce the same effect for the provincial fiscal, for the Court of First Instance and upon the rights of the person charged with a crime. That would be a downright absurdity. Precisely that which shows that the Court of First Instance cannot avail itself of the preliminary investigation held by the justice of the peace, in accordance with the provisions of Act No. 194, for the purpose of ordering the arrest of the accused and subjecting him to a criminal action in which a judgment of conviction may be pronounced upon him, when, as a result of the said preliminary investigation, the justice of the peace who made it had ordered the release of the accused because of said courts opinion that no reasonable grounds existed to believe the accused guilty or that he committed the crime, is that both General Orders No. 58, in its section 14, and Act No. 194, in its section 2, explicitly provide that in such an event the release ordered by the magistrate or justice of the peace who made the investigations shall not be understood to operate as a final acquittal of the accused, shall not prevent the filing of a new information or complaint and the arrest of the accused thereon at any time before the prosecution of the offense if barred by the statute. It is in this sense that it may be understood, as stated by the Court of First Instance in deciding the motion in question presented by counsel for Anselmo Banzuela, that the opinion of the justice of the peace with regard to the result of the preliminary investigation is not res judicata; but this does not mean that the Court of First Instance, as understood and stated by the trial court in ruling on the said motion, in authorized to review the preliminary investigation made by the justice of the peace court and may, if he finds that the latter erred in finding that there were no reasonable grounds to justify the prosecution of the accused, utilize the preliminary investigation for the purpose of ordering the temporary imprisonment of the accused and subjecting him to trial, notwithstanding that the justice of the peace who made the investigation ordered his release. Preliminary proceedings are not brought up before the Court of First Instance either in consultation or on appeal, but their result serves the fiscal as a basis on which to

file the complaint, the accused, meanwhile, whom the justice of the peace has found guilty and for this reason has been temporarily imprisoned awaiting trial or has been released on bail, being at the disposition of the Court of First Instance. For this same reason the fiscal cannot file a complaint against an accused person on the strength of the preliminary investigation, or by submitting the latter to the consideration of the Court of First Instance, when the justice of the peace court has found the accused not guilty of the crime complained of, has consequently ordered his release and has not placed him at the disposition of the said Court of First Instance. The trial court, therefore, erred in holding that, inasmuch as the transcript of the testimony given by Jeremias Villanueva in the preliminary investigation conducted by the justice of the peace of San Pablo with respect to Anselmo Banzuela showed there were reasonable grounds to warrant this defendants prosecution, the said trial court could consider the preliminary investigation requested with such insistency by Anselmo Banzuelas attorney to be unnecessary because that investigation had already been held before the justice of the peace of San Pablo. It being unquestionable that the said investigation had was absolutely worthless as a basis for the complaint filed by the provincial fiscal against Anselmo Banzuela, and the law having explicitly recognized and established the right of any person, accused of a crime, not to be deprived of his liberty or subjected to trial until after a preliminary investigation has been made from which it is shown that there are reasonable grounds to believe him guilty of the crime charged against him, it is beyond all question that the defendant Anselmo Banzuela was deprived of his liberty, tried and sentenced in this cause by virtue of a complaint filed against him by the provincial fiscal of Laguna on February 14, without due process of law, that is, without the holding of the proper preliminary investigation with respect to him as requested by his attorney at the commencement of the hearing in this cause. Consequently, the Court of First Instance of Laguna incurred the first four assignments of error specified by the defense in its brief, errors which nullify the judgment rendered against the said defendant and all the proceedings had with respect to him in the said trial. The order to release the accused, Anselmo Banzuela, given by the justice of the peace court of San Pablo in that preliminary investigation, must not, however, be understood to operate as a final acquittal, nor does that order prevent the filing of a new complaint against him, for the crime has not yet prescribed; and after the complaint has been filed by the provincial fiscal of Laguna the proper investigation must be held and the Court of First Instance must take such action as the law requires upon the termination of the proceedings. With respect to the defendant Casiano Banzuela, the defense contends in its brief that he should be exempted from all criminal liability for the death of Carlos Violan

because this defendant acted in lawful self-defense, the three requisites such exemption which are required in article 8, No. 4, of the Penal Code having concurred. In support of his theory, the defense admits that there was a struggle between the defendant Casiano Banzuela and Carlos Violan and that the latter died as a result of the wounds inflicted upon him during that struggle. In relating what occurred between these two men the defense, in fact, says in its brief: The struggle reached such a pitch that the assailant and the assaulted party approached very near each other, and it was then that Casiano Banzuela was able to use his weapon and stab the deceased a number of times in the breast, in the stomach and, finally, once in the neck, thus piercing the spinal cord, and upon striking this blow not only Carlos Violan, but also Casiano Banzuela fell down. Carlos Violan fell never to rise again, for he felt that he was dying from the wounds he had received. It was proved at trial that the struggle to which the defense refers and which took place between defendant Casiano Banzuela and Carlos Violan, occurred a little after 4 oclock of the afternoon of the 24th of November, 1913, on one side of the main street of the barrio of Balanga, pueblo of San Pablo, Province of Laguna; that Carlos Violan died a few moments after he had fallen, as a result of the wounds he received in that struggle, his inert body remaining stretched out at full length near the gate of a fence until after dark when the lieutenant of the barrio and other agents of the authorities appeared at the place, picked up the corpse and carried it to the pueblo; that in the meantime the defendant, Casiano Banzuela, who had started to flee as soon as Carlos Violan fell mortally wounded, disappeared from the sight of the many person who had witnessed the struggle, and kept in hiding that night in a deserted part of the neighboring barrios and afterwards in a shack belonging to a relative of his, and that the police who went to find and arrest him did not discover him during the time that elapsed from the afternoon of the 24th of November, when the crime was committed, to the 23rd of the following month of December, when the defendant gave himself up to the municipal president of the pueblo of Alaminos of the aforesaid province. On the morning of the day following the commission of the crime the corpse of Carlos Violan was examined by Doctors Jose M. Delgado and Justiniano Jaojoco, and was found the present eight wounds, all of them produced by a stabbing instrument except one, which was inflicted by a stabbing and cutting instrument. The first wound was on a line between the two sternal and mammary lines, on a level with the fourth left intercostal space, and reached and made a deep incision in the heart; the second, in the fifth intercostal space of the right side, half a centimeter above the right nipple, injuring the lung on the same side; the third, in

left side of the umbilical region, affecting the peritoneum and the intestines; the fourth, in the abdominal cavity, on a level with the eleventh rib, also injuring the peritoneum and the intestines; the fifth, in the lower part of the left mastoid region, injuring the spinal cord; the sixth, in the left lateral part of the region of the left hypochondrium, and which affected only the muscular sheath; the seventh, in the posterior part of the middle axillar line, on a level with the eighth rib of the left side; and the eighth, in the outer side of the first joint of the thumb of the right side. The first five of these wounds were necessarily mortal; the sixth was slight, and the last two were of minor importance. The physician and president of the municipal board of health Doctor Jaojoco, having also examined the defendant Casiano Banzuela, on January 20 of the following year, 1914, (for, as aforesaid, this defendant had disappeared and his whereabouts were not discovered until the 23rd of December of the previous year 1913), it was found that he had eight healed wounds apparently caused by a cutting instrument. The first wound was in the upper right side of the occipito-parietal region; the second, in the lower portion of the antero-lateral part of the neck; the third, in the lower part of the outer side of the right arm; the fourth, in lower third of the back of the right forearm; the fifth, in the lower part of the back of the same forearm; the sixth, appearing to be a continuation of the fourth and fifth wounds, in the back of the right hand; the seventh and the eighth, in the right upper side of the epigastric region, and, as a continuation of this wound, a scar two and a half centimeters long of a wound that only injured the skin. As stated by the said physician in his certificate, Exhibit 1 of the defense, these wounds were apparently caused by a cutting instrument, the second, fourth, fifth, sixth and eighth of them superficial. It was also proved at the trial that before 4 oclock in the said afternoon of the 24th of November, 1913, Casiano Banzuela and Carlos Violan were gambling at monte in the barrio of Balanga; that because Banzuela would not trust Violan for a bet of half a peso which the latter had made on a card, a quarrel arose between them during which Violan struck Banzuela a blow on the neck with his bolo, the same weapon which produced the cicatrized superficial wound found by Doctor Jaojoco when he examined this defendant on January 20, 1914, and one of those mentioned in the certificate, Exhibit 1. It is likewise proved that that dispute was settled and the two disputant were separated by the efforts of Francisco Munda, a resident of the said barrio of Balanga, who, on seeing that they were wrangling and that Casiano Banzuela was wounded in the neck, said to them, after learning the cause of the dispute, that it was not worth while for them to continue to act that way; that he took hold of Carlos Violan and led him toward the street to a point about 250 meters away from the scene of the quarrel; that meanwhile the defendant Casiano had withdrawn; that witness did not continue to accompany Violan, because his

(Mundas) wife did not allow him and obliged witness left Casiano at the side of the street, advising him to take a carromata or the train and withdraw. The defendant Casiano Banzuela took the stand in his own behalf, and in relating what occurred after Francisco Munda had separated him from Carlos Violan, said that he, Casiano, continued on his way in the direction of Tiaong for then purpose of boarding the train there; that just as he had started he heard a voice say: Wait, Casiano; that he then turned his head and saw that it was Carlos Violan who was calling him; that he thereupon quickened his steps and almost ran, but that Violan pursued and overtook him and struck him a blow on the head which made him stagger, and afterwards, another cut on his right arm; that defendant then drew out his pocket knife and Violan thrust him with the bolo he, Violan, was carrying; that defendant fell sideways against the fence to avoid the blow, and, while in this position, Violan struck another blow which he parried with his left hand, for it was aimed at his neck; that Violan struck him another blow and he defendant himself with his right hand in which he held the pocket knife, and believed it was this weapon that he wounded his assailant; that Violan continued to strike him while he defended himself and fell back; that, as he saw that his life was in danger because his assailant wished to kill him, he grappled with Violan, caught him but the neck and struck him on the breast and the stomach, wounding him when they were near the fence; that the struggle ended by their falling down together; and that when they fell defendant saw that his pocket knife was sticking in Carlos neck and he drew it out. Victorino Montecillo, a witness for the defense, testified that he saw Carlos Violan, who was carrying a bolo, pursue the defendant and strike him a blow on the head. He related what then occurred between these two men and his story was the same as that told by the defendant. He further stated that when Carlos saw that his blows were not effective, on account of the nearness of Casiano to Carlos, he rushed upon Casiano and seized him by the throat, notwithstanding which Casiano struck him a blow in the direction of his shoulder, and it was then I saw that they both fell. This witness finally added that when he was going away, frightened by what he had seen, he turned his head and saw that Casiano was getting up. No other witness testified at the trial that, after Francisco Munda had separated Casiano Banzuela and Carlos Violan, the former already having the wound in his neck inflicted by the latter with his bolo, Violan pursued this defendant, and that as result of pursuing and overtaking him the struggle between them took place which resulted in the death of Carlos Violan. On the contrary, when Francisco Munda, who was obliged by his wife to retire to his house with her and leave Carlos Violan in the street, was already separated from the defendant and at some distance from him, in front of and about to enter his

house, he glanced down the street and saw these men fighting at a distance of about 120 meters from him. It is therefore strange that he should not then have seen Carlos Violan pursue the defendant. Leon de Silva, who was also that afternoon in the vicinity of the place where the struggle took place, for he had gone there to gamble, and saw Francisco Munda accompanying Violan, testified that after a little while Munda left the latter; that a moment later the defendant appeared and, on approaching Violan, unsheathed his weapon, as the latter did his, and the tow men began to fight, so witness said, when they were about 20 meters distant from him. It is also strange that at that moment this witness should not have seen Carlos Violan pursue the defendant. On the courts endeavoring to ascertain which of the two combatants struck the first blow, this witness answered the questions which were put to him in the following manner: Court: Do you know who struck first? A. Both of them struck at the same time. Q. Who are the two who struck each other at the same time? A. Carlos and Casiano. Q. Whom did Carlos strike? A. One struck the other and at the same time the other stabbed in return. Victor Cobel, who that afternoon passed along the same road on his way from his rice field in Tiaong to the barrio of Santa Cruz, and was, as he himself stated, in the crowd of spectators, who numbered more than thirty, and at a distance of 20 meters from the combatants, saw that Carlos Violan and the defendant were fighting, and that the latter had a dagger and the former a bolo. He also saw the defendant snatch away the bolo carried by his opponent, and saw the latter fall with his blood on his breast. He then left the place. Neither did this witness, in relating what he saw, make a mention of having seen Carlos Violan pursue the defendant. It cannot be denied that the fact of Carlos Violan having struck the defendant a cut on the neck with his bolo when the altercation arose between them, caused by this defendants refusal to loan Violan half a peso for a bet in the game, was an unlawful assault; but as the two disputants had already been separated by Francisco Munda, as the one had already gone away from the other, and as a considerable time elapsed between the moment the defendant was wounded by Carlos Violan with his bolo and the time when the armed men fought in a place other than that where they had the altercation, though in the same barrio, the said unlawful assault can not be held to be sufficient to exempt the defendant from criminal liability, nor can the act performed by the latter in killing Carlos Violan be considered an act of lawful self-defense against then assault, as claimed by his attorney, because, in order that

an unlawful assault may be set up as a defense for the purpose of such exemption from liability in accordance with the provisions of article 8, No. 4 of the Penal Code, it is necessary that the assault be immediate, imminent, and that the person who defends himself therefrom find himself attacked or threatened by a danger which may be visited upon him in the very moment he acts in self-defense. The harm caused by one person to another who offended or caused him injury, some time after he suffered such offense or such injury, does not constitute an act of selfdefense, but an act of revenge which can find no justification whatever in the eyes of the law, even though the harm or the offense inflicted upon him be an aggression which is considered by the statute to be unlawful. Although the defendant stated at the trial, and his testimony was corroborated by a witness, that after he had already been separated by Francisco Munda from Carlos Violan and was going toward Tiaong there to take the train, he was pursued and overtaken by Violan who struck him with his bolo, a statement used by the defense as a ground for maintaining that for the second time the defendant was unlawfully assaulted by Violan and found it necessary to employ the means he did employ, which under those circumstances were reasonable, to repel the assault by wounding Violan, who was not provoked by the defendant, no credence can be given to such testimony in view of that produced by the witnesses for the prosecution who were there present and saw what then occurred between Violan and the defendant. The truth of their testimony can not be doubted, for there is not an iota of evidence in the record to induce the belief that these witnesses for the prosecution had any interest whatever in making the criminal act performed by Casiano Banzuela appear to be more serious than it actual was. On the other hand, it is more likely that the defendant Casiano Banzuela would try to obtain revenge for the ill-treatment inflicted upon him by Carlos Violan and to return evil for evil when the two men found themselves in the same road, now free from all intervention on the part of the Francisco Munda, and that he should pursue and attack Carlos Violan, than that the latter, who must already have been satisfied, because a few moments before, he had wounded the defendant, should have again attacked and assaulted him. Moreover, the location and number of the cicatrized wounds found on Casiano Banzuela one month and a half after the occurrence, the greater part of them superficial and the rest of very slight importance, show that he could not have been pursued and attacked by Carlos Violan with a bolo, as related by the defendant himself and his witness Montecillo, before this defendant attacked Violan with his dagger, which, besides a monkey wrench, he carried out with him since the morning of the day of the crime, according to the testimony of Vicente Luistro, because he would have been rendered incapable of making such a furious assault upon Carlos Violan and causing him so many and such serious wounds as he did, leaving him almost dead on the edge of the road and fleeing, not again to

appear for more than a month. This latter detail indicates also that he did not consider himself free from responsibility for the act performed by him, for otherwise he would immediately have surrendered himself to the authorities and under their protection would have had nothing to fear from the relatives of the deceased. It was the persecution of the latter, he claimed, that forced him to keep in hiding during that period of time. That Carlos Violan was not the first to attack the defendant Casiano Banzuela, but that these two men, on meeting each other on the road as soon as they were free from Francisco Mundas interference, attacked and wounded each other, is shown in a positive and conclusive manner by the testimony of Leon de Silva who virtually corroborated these facts, for he saw Carlos Violan while the latter was still accompanied by Francisco Munda; he also saw that after a while Munda left Violan, and he likewise saw that shortly afterwards the defendant Casiano Banzuela appeared and on approaching Violan unsheathed his weapon, as Carlos likewise did, according to the language of this witness, and they began to fight. This witness also testified that the weapon the defendant carried was a dagger while that carried by Carlos Violan was a bolo. Witness stated that he saw all this while he was at a distance of only twenty meters from the complainants. Consequently, the struggle or the duel to the death between the defendant Casiano Banzuela and Carlos Violan took place without prior unlawful aggression on the part of the deceased. Two men meeting each other on the road, attacked one another reciprocally, one of them with a bolo and the other with a dagger; they both cut each other, according to the language used by the witness Francisco Munda, and they both struck each other at the same time, as stated by Leon de Silva, nor did either of them relax his obstinate determination to cause the greatest possible harm to the other, as shown by the number of wounds they both were found to have received, nor did either try to escape or free himself from the attacks of the other, as either of them could have done, being as they were surrounded by a large number of persons among whom they could have found some protection or help, although these onlookers, terror-stricken at the sight of such a bloody spectacle, did not venture to interpose themselves between the combatants. As unlawful aggression by the offended party is an essential and primal element of just defense and a requisite prescribed in No. 4 of article 8 of the Penal Code, as the first and most fundamental condition necessary to work exemption from criminal liability in self-defense; and as the killing of Carlos Violan by the defendant Casiano Banzuela was the result of a struggle between them, with no unlawful did not err in not allowing in behalf of this defendant the said circumstance of exemption from liability, and in finding him guilty of the crime of homicide, provided for and punished by article 404 of the Penal Code, without any

circumstance modifying such liability, and, finally, in imposing upon him, as was done in the judgment appealed from, the penalty fixed for the said crime in its medium degree, with the accessory and other penalties therein specified. For the foregoing reasons, we affirm the judgment appealed from, with respect to the defendant Casiano Banzuela, with one-half of the costs of both instances; provided, however, that the indemnity in the sum of P1,000 to the family of the deceased, to the payment of which the said defendant was sentenced, shall not be satisfied jointly and severally with the other defendant, Anselmo Banzuela. We set aside the judgment appealed from and declare null and void all the proceedings had at trial, excepting the complaint, with respect to the defendant Anselmo Banzuela, with one-half of the costs de oficio, and after the proper preliminary investigation has been held by virtue of the said complaint, the lower court shall proceed in accordance with law as regards this defendant. So ordered. Torres, Carson and Trent, JJ., concur. Johnson, J., dissents.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION October 1, 1923 G.R. No. L-21236 AURELIA CONDE, petitioner, vs. THE HONORABLE JUDGE OF FIRST INSTANCE OF TAYABAS, Fourteenth Judicial District, and THE PROVINCIAL FISCAL OF TAYABAS, respondents. Godofredo Reyes for petitioner. Attorney-General Villa-Real for respondents. , J.: The facts which this complaint in certiorari and prohibition disclose, as admitted by the Attorney-General, are not exactly complimentary to the administration of justice in the Philippine Islands. A case which, apparently, is simple in its nature, has been so managed by the prosecution as to deprive the accused of the constitutional right of a speedy trial and to at least give the appearance of having degenerated into a persecution of a poor midwife. On December 28, 1922, Aurelia Conde is charged in an information filed in the justice of the peace court of Lucena, Tayabas, with the misdemeanor denominated lesiones leves. When the accused appears before the justice of the peace of Lucena accompanied by her lawyer on the day set for the trial, the fiscal changes the information so as to charge the accused with the crime of attempted murder. The new crime not being within the jurisdiction of the justice of the peace, the case is set for preliminary hearing. But at the date named, the fiscal does not appear, and the complaint is dismissed. In the meantime, however, upon the recommendation of the fiscal, the municipal council of Lucena, Tayabas, suspends the accused from her humble position. Two days after the complaint has been dismissed, the fiscal again becomes active and charges the accused a new with the crime of attempted murder. A new arrest, the filing of a new bond, and a preliminary hearing follow, and the case is transmitted to the Court of First Instance, where the fiscal files an information for the same crime, attempted murder. Six months later, or to be precise as to the date, on August 30, 1923, the case is called for trial. The accused is present with her lawyer. and with her witnesses, some of whom have come from the neighboring Province of Marinduque. But the fiscal claims that he is not yet ready and obtains a postponement until then afternoon of the same day. The case

is again called at the time named, the defendant is again ready to proceed, but the fiscal again desires further postponement. Three days later, on September 3, 1923, the accused once more appears with her attorney and witnesses, only to be met with the renewed petition of the fiscal for a few minutes of postponement. When the few minutes have grown into hours, he comes into court and informs the presiding judge that he has no evidence to sustain the charge of attempted murder, and, therefore, under his power to amend the information, charges the defendant with the new crimes of illegal detention and lesiones graves. When the revised charge is presented, the counsel for the accused asks for a preliminary investigation, which is denied. Thereupon the accused is arraigned and ordered to plead to the information. But she remains silent, and notwithstanding the directions of the trial judge, refuses either to plead guilty or not guilty. The trial proceeds no further, because at this moment counsel gives notice of his desire to elevate the proceedings to the Supreme Court. The Code of Criminal Procedure contains provisions directly applicable to the above state of facts. Section 9 of the Code provides that the information or complaint may be amended in substance or form without leave of court at any time before the defendant pleads. This section, as the Attorney-General properly argues, lodges a discretionary power in the prosecuting officer. Ordinarily, the presentation of one information or complaint would be sufficient, or at the most one amended information or complaint is all that should be expected. Otherwise, if, as in this case, the provincial fiscal can constantly shift his attack, the accused would become the victim of official vacillation and procrastination. The following sections of the Code of Criminal Procedure contain the well-known provisions providing for preliminary investigations. The right of an accused person not to be brought to trial except when remanded therefor as a result of a preliminary examination before a committing megistrate, it has been held, is a substantial one. Its denial over the objections of the accused is prejudicial error, in that it subjects the accused to the loss of life, liberty, or property without due process of law. (U. S. vs. Marfori [1916], 35 Phil., 666.) The Code Criminal Procedure further provides in its section 24 that the court must require the defendant to plead. If he refuses, a plea of not guilty shall be entered for him. This provision is so plain that no construction is necessary. Applied to the facts before us, it means that since the accused refused to plead, a plea of not guilty should have been entered for her. In brief, the facts and the law show an accused woman who has been subjected to various investigations for different crimes, who has seen the prosecuting officer

taking advantage of the authority granted him, file one information only to withdraw it, and present another, who notwithstanding her insistence on trial, has been made to wait for a long period of time, and who is finally forced to trial without a preliminary investigation and forced to plead to the information in direct contravention of our criminal law. All this Attorney-General practically admits in his return, which he calls an answer. without attempting to deny the facts, the contention of the law officer of the government is, that the trial judge had jurisdiction of the proceedings, and consequently said jurisdiction should not be interfered with. What was said by this Court in the case of Herrera vs. Barreto and Joaquin ([1913]), 25 Phil., 245), to the effect that the appellate court will not issue a writ of certiorari unless it clearly appears that the court to which it was directed acted without or in excess of jurisdiction, is a good rule. In one sense, it is likewise correct to say that the Court of First Instance of Tayabas had jurisdiction of this case. In another sense, it is likewise correct to say that the writ of certiorari and prohibition will issue when necessary to the accomplishment of justice in the particular case. There is here more than mere error in procedure. There is an abuse of discretion in the application of the law. The discretion vested in the fiscal and trial judge is not an arbitrary power and must be exercised wisely and impartially in accordance with the law. Errors in the proceedings prejudicial to defendants substantial rights which would, if the case were to proceed and appeal were to be taken, constitute ground for reversal, exist in this case. We are of the opinion that the relief sought by the petitioner in these case proceedings should be granted. Indeed, if the petition was for habeas corpus rather certiorari and prohibition, we might deem it just to issue the former writ, on account of the accused having been denied the right to the speedy trial, which is secured to accused persons by our organic and criminal law. The remedy prayed for is granted. In accordance therewith, the petitioner shall be given a preliminary examination of the crime charged in the last amended information; the order of the trial judge requiring the petitioner to plead guilty or not guilty notwithstanding her desire not to do so is annulled, and the Court expects the provincial fiscal, as a quasi-judicial officer, to abstain from further harassing the accused with new and vacillating informations. Without special finding as to costs, it is so ordered. Araullo, C.J., Johnson, Street, Avancea, Villamor, Johns and Romualdez, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-52230 December 15, 1986 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VENANCIO RAMILO Y SANGALANG, accused-appellant.

GUTIERREZ, JR., J.: This is an appeal from the decision of the then Court of First Instance of Batangas, Branch IV finding appellant Venancio Ramilo y Sangalang guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the offended party, Hilaria V. Sangalang, the sum of P12,000.00. The information filed against the appellant alleged: That on or about the 11th day of October, 1975 at about 1:30 o'clock in the early morning, in Barrio Quiling, Municipality of Talisay, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a short firearm, by using force, threats and intimidation, did then, and there, willfully, unlawfully and feloniously lie with and have carnal knowledge of the said Hilaria V. Sangalang, against her will and consent. The prosecution evidence upon which the lower court based its finding of guilt beyond reasonable doubt is narrated by the said court as follows: As first witness for the prosecution, Hilaria V. Sangalang, 18, single, testified that on October 11, 1975, she went to bed at 8:00 o'clock in the evening in their house situated in Barrio Quiling, Talisay, Batangas. At about 1:30 o'clock the following morning, she woke up and surprisingly felt that somebody, whom she recognized later to be the accused Venancio Ramilo thru the latter's voice and mustache which she chanced to touch, was on top of her (nakadapa sa akin) and was trying to ravish her. She then attempted to shout, but was able to utter the word "ATE" only once, because Venancio gagged her mouth with piece of cloth, thereby preventing her from shouting. On that fateful occasion, Venancio poked a gun at her forehead and she got scared. All that she could do then to resist the lustful advances of Venancio was to struggle and push the latter away from her body, but in the process, Venancio, who was persistently trying to insert his sex organ into her own, threatened to kill her if she would continue resisting. Nevertheless she continued to resist by closing her thighs to prevent Venancio's sex organ from penetrating her sex organ, but after some time he succeeded in having carnal knowledge of her against her will. After Venancio had deflowered her and while leaving their house, he threatened her not to tell anybody of what he did to her, or else he would kill her. Because of what Venancio did to her and his threats, she could not

help but weep until late that morning. She did not inform her older sister, Rufina, nor her younger brother, Silvestre, right away of what Venancio did to her because she was afraid that Venancio might carry out his threats against her. It was only at about 6:30 o'clock that same morning, while she was taking her breakfast with her sister, Rufina, that she finally reported to Rufina what Venancio had done to her. Then Venancio arrived and interrupted their breakfast by warning her " Helen ang bunganga mo, hindi ako natatakot mamatay. " Such threat was uttered by Venancio against her in the presence of her sister, Rufina, and her brother, Silvestre, but being alone in their house because their parents and the husband of his sister, Rufina were then in Bataan harvesting palay, they could do nothing but weep as Venancio loitered around the premises of their house. Venancio Ramilo left the premises of their house when two (2) young kids fetched him later that morning. At about 11:00 o'clock that same morning, complainant went to her uncle, Eleuterio Villanueva, a brother of her mother whose house is 150 meters away, and informed him of what Venancio Ramilo had done to her. Forthwith her uncle accompanied her to the Barrio Captain of Quiling, Talisay, Batangas, who in turn advised them to report the matter to the police authorities. On October 12, 1975, she and her uncle went again to the said Barrio Captain to seek his company in reporting the matter to the police authorities, but because the Barrio Captain allegedly had a previous engagement, he was not able to go with them. Nevertheless, in the evening of the same date, October 12, 1975, she and her uncle proceeded to the Police Station of Talisay, Batangas, and reported the matter to the Chief of Police. She was then investigated, in the course of which she executed a sworn statement, Exhibit B (p. 7, record). Then one (1) week after the date of the incident, she had herself examined by a doctor at the National Bureau of Investigation, and for which examination a document (p. 6, record), entitled "LIVING CASE NO. MC-75-773," signed by Alberto M. Reyes, Medico Legal Officer, National Bureau of Investigation, was issued. Eleuterio Villanueva, as second witness, testified that the complainant Hilaria V. Sangalang is his niece, she being a daughter of her (sic) sister; that at about 11:00 o'clock a.m. on October 11, 1975, Hilaria went to the Barrio Captain of Quiling, Talisay, Batangas, to report to him what Venancio Ramilo did to Hilaria. The said Barrio Captain, in turn, advised them to report the matter to the police authorities of Talisay, Batangas. In the evening of the following date, October 12, 1975, he and her niece went to the Chief of Police of Talisay, Batangas, to whom they reported the matter. Hilaria Sangalang was then and there investigated by the police, while he waited for her outside the police headquarters. Appellant Ramilo raised the following assignment of errors in this appeal: I THE LOWER COURT ERRED IN CLOSING ITS EYES TO THE INHERENT INCREDIBILITY OF, AND IRRECONCILABLE CONFLICTS IN, THE EVIDENCE OF THE PROSECUTION. II THE LOWER COURT ALSO ERRED IN IGNORING THE WELL-ESTABLISHED PRINCIPLES THAT THE PROSECUTION MUST DEPEND FOR CONVICTION UPON

THE STRENGTH OF ITS OWN EVIDENCE, THAT IT CANNOT RELY ON THE WEAKNESS OF THE EVIDENCE FOR THE DEFENSE; THAT AN ACCUSED HAS THE ABSOLUTE RIGHT TO REMAIN SILENT, BECAUSE OF THE PRESUMPTION OF HIS INNOCENCE AS ENSHRINED IN THE CONSTITUTION AND AS EXPRESSLY PROVIDED FOR IN THE CORRESPONDING LAWS, RULES AND REGULATION; AND THAT THE DEFENSE OF ALIBI ASSUMES IMPORTANCE WHEN THE EVIDENCE FOR THE PROSECUTION IS WEAK. III THE LOWER COURT FINALLY ERRED IN FINDING THE HEREIN ACCUSED GUILTY OF RAPE BEYOND REASONABLE DOUBT, AND IN SENTENCING HIM TO LIFE IMPRISONMENT. The appellant contends that the lower court erred in its appreciation of the prosecution evidence as the complainant's testimony is incredible being fraught with several inconsistencies. On the issue of credibility of witnesses, this Court has always accorded a high degree of respect to the findings of the trial court, the latter being in the best position to observe the deportment and demeanor of the witnesses. After a careful review of the records, we find no reason to deviate from this well-settled rule. The inconsistencies pointed out by the appellant refer to minor details which do not affect credibility, Complainant Sangalang, after having stated that at the time of the incident her sister had been "more or less two 'dipas' (armstretches) towards her left and her brother had been two 'dipas' towards the right" (tsn, June 8, 1976, pp. 1820) so that the distance between her brother and her sister was approximately four "dipas," she admitted having stated during the reinvestigation in the Fiscal's Office that the room where she was raped was about four meters in length and two meters in width only. Appellant Ramilo contends that a length of four "dipas" is certainly very much more than four meters. On the contrary, a meter is approximately as long as a "dipa". And even if there are variances as to measurements, conflicting testimonies on measurements of distances are of minor consequence (People v. Espinosa 141 SCRA 110; People v. Hilario, 113 SCRA 291). Moreover, we note that mere estimations and not exact calculations or measurements were given by Sangalang, as evidenced by the use of the phrase "more or less," thus giving an insight as to the limited knowledgeability of the complainant regarding measurements. This is understandable, as correctly pointed out by the Solicitor General, for she only reached the sixth grade in a barrio school. (tsn, May 19, 1976, p. 66). The next inconsistency pointed out refers to the conflicting statements made by the complainant as to when she first noticed the presence of the accused. According to her testimony during the reinvestigation of this case in the Fiscal's office on January 6, 1976 (pp. 3-4 of the transcripts of said reinvestigation), she noticed the presence of the accused for the first time "when he was (already) performing sexual intercourse with me. " (Exhibit 5-A").

During the trial, however, she stated that she noticed the presence of the accused for the first time when she still had her panties on and that he subsequently took them off and raped her. She said: "At first he had his gun poked on my forehead then while he was removing my panty he placed the gun or he put down the gun and then he pulled down my panty and then raped me." (tsn, p. 13, June 8, 1976).<re||an1w> We agree with the Solicitor General that her statement during the reinvestigation that she became aware of his presence "at the time when he was performing sexual intercourse with me," implies the period covering the entire incident from the time appellant entered until he left the house (tsn, June 8, 1976, p. 40). Besides, it was explained that "lying down is a part of the process of sexual intercourse." (Id, p. 42). Appellant Ramilo next questions what he describes as inconsistent testimonies regarding his position when the complainant first noticed him. The complainant stated in the reinvestigation by the fiscal that she could not tell because it was dark (Id. p. 43). In court, she declared she "suddenly felt that there was somebody on top of me" and answered "yes" to the question whether his position was such that his head was towards her head and his feet towards her feet? (Id, p. 44). The witness misunderstood the question propounded to her when she answered the fiscal's question. However, she understood from the leading question what answer to give at the trial. It would be unfair for the defense to use against the witness such a statement on a point which the latter did not clearly comprehend (People v. Espinosa,supra). We agree with the Solicitor General when he made the following observations as to the other inconsistencies: Appellant asserts that complainant stated in the reinvestigation that her mouth was gagged 'with a piece of cloth,' but in the reinvestigation by the fiscal, she adverted that her mouth was 'covered by his hands.' Reading her testimony in its entirety, this was what took place. When complainant woke up, appellant instantly covered her mouth with his hands. But she still tried to shout, which explains why appellant gagged her with a piece of cloth (pp. 12, 39, 40, 42, 48, 49, tsn, May 19, 1976; pp. 18, 20, 21, tsn, August 17, 1976). It is true that complainant stated in the affidavit that her private part bled. It is also true that she testified to not having known if her private part was bleeding because it was dark (p. 26, tsn, June 8, 1976).<re||an1w> She explained, however, that she discovered the bleeding only the following morning (pp. 28, 29, Id). In the reinvestigation, complainant stated that she did not wake her sister and brother up because she was afraid of appellant's threats (p. 10, appellant's brief). This is not contrary to her testimony during the trial that she did not know if they had been awakened by the incident (pp. 21-26, tsn, June 8, 1976). Clearly, the first would require a positive act on her part; the second was independent of it. In other words, while she did not attempt to wake up her brother and sister, she did not know if in fact they were awakened by the incident. Complainant was undoubtedly categorical in stating that the incident happened at 1:30 o'clock in the morning of October 11, 1975 (pp.40-4, tsn, August 17, 1976) although she

said at one time that the rape was committed at 5;30 in the morning, which could have been a misunderstanding of the question propounded to her. In any case, she immediately corrected herself (id). Whether or not complainant reported the incident to the police "immediately" as she stated in the preliminary investigation, or two days after the incident as she testified during the trial, is of no consequence. The fact is that she did report the matter on October 12, 1975, the police authorities investigated her, and her statement was taken. Whether it was complainant or her sister Rufina who went to their uncle Eleuterio Villanueva to tell him of the incident does not really matter. The fact is that Eleuterio Villanueva knew of the incident and accompanied complainant to the police authorities. These alleged inconsistencies pertain to minor details. They are of a kind which do not affect the integrity of Sangalang's testimony. It is well settled that inconsistencies on minor details do not affect credibility as they only refer to collateral matters which do not touch upon the commission of the crime itself (People v. Dondoy, G.R. No. 63728, September 15, 1986; People v. Pelias Jones, 137 SCRA 166; People v. Balane, 123 SCRA 614; People v. Alcantara, 33 SCRA 812; People v. Escoltero, 139 SCRA 218). Furthermore, a witness who is in a state of fright cannot be expected to recall with accuracy or uniformity matters connected with the main overt act (See People v. Balane, supra). Rather than discredit the testimony of such a prosecution witness, these discrepancies on minor details serve to add credence and veracity to her categorical, straightforward, and spontaneous testimony. The same do not affect the thrust of Sangalang's testimony. What is decisive is her positive Identification of the accused. Thus, the second assigned error is not meritorious as the defense of alibi cannot assume importance in the case at bar. The defense interposed an alibi through the testimony of two witnesses, namely the accused Venancio Ramilo and his cousin, Domingo Ramilo. Testifying in his behalf, Venancio Ramilo, 28, married and a resident of Barrio Quiling, Talisay, Batangas, denied ever having raped complainant Hilaria V. Sangalang, and claimed that he was in Manila at the residence of his cousin, Domingo Ramilo, from October 10, 1975, a Saturday, up to October 13, 1975. That on October 10, 1975, at about 2:00 p.m., his aforesaid cousin, Domingo Ramilo, went to his house at Barrio Quiling, Talisay, Batangas, and requested him (Venancio) to help him (Domingo) carry from the residence of a certain Dennis Hernandez in Tanauan, Batangas, to Manila eight (8) fighting cocks that Domingo bought in the public market of Tanauan, Batangas; that he acceded to said request and after having fetched the said fighting cocks from the residence of Dennis Hernandez, they left Tanauan for Manila at 3:00 o'clock that same afternoon of October 10, 1975 and stayed there in the house of Domingo up to October 13, 1975, because Domingo would want to buy for him a polo shirt and a pair of pants after Domingo shall have sold the fighting cocks, which were finally sold on October 12, 1975. It was already on October 13, 1975 when he allegedly went home to Barrio Quiling, Talisay, Batangas.

The other defense witness, Domingo Ramilo, corroborated the testimony of the accused Venancio Ramilo. Against the positive identification of the accused as in the case at bar, alibi is unavailing (People v. Ibal, G.R. Nos. 6601012, July 13, 1986; and People v. Bihasa, 132 SCRA 62). <re||an1w> As stated in the case of People v. Lumantas (28 SCRA 764): ... Alibi is one of the weakest defenses that can be resorted to by an accused (People v. De la Cruz, 76 Phil. 701). To establish alibi, the accused must show that he was at some other place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (U. S. v. Oxiles, 20 Phil. 587, etc.). It was not physically impossible for appellant to come to Manila and return to his barrio on the same day. According to him, he left his house in Barrio Quiling at 3:00 o'clock in the afternoon of October 10, 1975 and arrived in Manila at 6:00 o'clock that same afternoon (tsn, March 1, 1978, pp. 32, 37). The trip took about three hours, Appellant, then, had plenty of time to hasten back to his barrio and rape Sangalang at 1:30 o'clock in the early morning the following day, October 11. The alibi in this case is made more dubious and weak because it is established mainly by the accused himself and his relative-his cousin, and not by credible person who would in the natural order of things be best situated to support the tendered alibi (People v. Cabanit, 139 SCRA 95; People v. Brioso, 37 SCRA 336; People v. Bagasala, 39 SCRA 236; and People v. Carino, 55 SCRA 516). From the records, we find that the complainant has no motive other than to bring to justice the culprit who had grieviously wronged her (People v. Ibal, supra). It has long been held that no young Filipina of decent repute would publicly admit that she had been criminally abused and ravished unless that is the truth. It is her natural instinct to protect her honor. (People v. Alcantara, 126 SCRA 425; People v. Gamez, 124 SCRA 260; People v. Ilano 109 Phil. 912; and People v. Gan, 46 SCRA 667). WHEREFORE, the JUDGMENT appealed from is AFFIRMED with the modification that the indemnity to be paid is increased to P20,000.00. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-15309 February 16, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ROSALINA CASIANO, defendant-appellee. Office of the Solicitor General for plaintiff-appellant. Lorenzo G. Suyat for defendant-appellee. CONCEPCION, J.: Appeal from an order of the Court of First Instance of Pangasinan granting a motion to dismiss of defendant Rosalina Casiano. On October 19, 1955, Ricardo Macapagal filed, with the Justice of the Peace Court of Rosales, Pangasinan, a complaint, which was amended on or about December 6, 1955, charging Rosalinda Casiano with "estafa". After conducting the first stage of the preliminary investigation and finding the existence of probable cause, said court issued a warrant of arrest, whereupon defendant posted a bail bond for her temporary release. When the case was called for preliminary investigation, defendant waived her right thereto, and, accordingly, the record was forwarded to the Court of First Instance of Pangasinan. Subsequently the provincial fiscal filed therein an information for "illegal possession and use of a false treasury or bank notes", alleging: That on or about the 16th day of April, 1955, in the municipality of Rosales, Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with full knowledge that check No. 728681 is spurious and false and supposedly issued by the American Bankers Association of New York City, U.S.A., did then and there willfully, and unlawfully and feloniously use and have in his possession said false check No. 728681 which she sold and cashed to one Ricardo Macapagal for P580 although the face value of said check is $300, to the damage of the latter in said amount. Contrary to Article 168 of the Revised Penal Code. Upon arraignment on November 16, 1956, defendant entered a plea of not guilty. Thereupon, the prosecution began to present its evidence by introducing the testimony of a witness Pedro Punsalan, cashier of the Tarlac Branch of the Philippine National Bank who was crossexamined by defense counsel. Then the case was set for continuation of the hearing on December 12 and 13, 1956. Owing to several postponements secured by the defendant, the hearing was not resumed, however, until October 15, 1958, on which date defendant appeared with a new counsel, Atty. Lorenzo Suyat, who prayed for and secured another postponement. On November 10, 1958, said counsel was granted permission to submit a "motion to dismiss" which was filed on November 24, 1958, on the ground that there had been no preliminary investigation of the charge of illegal possession and use of a false bank note, and that the absence of such preliminary investigation affected the jurisdiction of the court. The motion was

granted and, a reconsideration of the order to this effect having been denied, the prosecution interposed the present appeal. Defendant-appellee maintains, and the Court of First Instance of Pangasinan held, that the waiver made by the defendant in the justice of the peace court did not deprive her of the right to a preliminary investigation of the crime of illegal possession and use of a false bank note, for this offense does not include, and is not included in, that of "estafa", to which her aforementioned waiver referred, the latter offense being covered by Article 315 of the Revised Penal Code, which article forms part of Title Ten thereof entitled "Crimes Against Property", whereas the former is the subject matter of Article 168 of said Code, which is part of Title Four thereof, entitled "Crimes Against Public Interest". We are not concerned, however, with an abstract academic question. The issue before us is whether defendant is entitled to a preliminary investigation of the crime of illegal possession and use of a false bank note as charged in the information herein. The answer to this question depends upon whether or not such crime was included actually in the allegations of the amended complaint filed with the justice of the peace court, regardless of the term used in said pleading to designate the offense charged therein. In this connection, the offended party, Ricardo Macapagal, averred in the amended complaint that the accused under false manifestation and fraudulent representations which she made to Ricardo Macapagal, that a check on its face valued at $300.00 and numbered 728681, was good and genuine as it was drawn by the American Bankers Association against the Guaranty Trust Company of New York in favor of Domingo Flores as Payee sold to Ricardo Macapagal said check for P580.00 Philippine Currency, which manifestations and representations the accused well knew were false and fraudulent and were only made to induce the aforementioned Ricardo Macapagal to buy said check as he in fact bought said check, paying to mentioned accused the stated amount of P580.00, which amount the accused converted unlawfully to her own use and benefit to the damage and prejudice of Ricardo Macapagal in said sum for the reason that the cheek upon presentation for collection was dishonored on the ground that it was fraudulent. Thus, complainant alleged in said amended complaint as he did in the original complaint that defendant-appellee had knowingly had in her possession, with intent to use, and actually used, a false or falsified bank note or other obligation payable to bearer, which is the crime defined and punished in Article 168, in relation to Article 166, of the Revised Penal Code, and the substance of the charge contained in the information above quoted. In other words, regardless of whether or not the crime of "estafa" includes or is included in that of illegal possession or use of a false bank note or other obligation payable to bearer, the Court of First Instance of Pangasinan erred in holding that the allegations of the information filed in this case were not included in those of the aforementioned amended complaint and that defendant-appellee was entitled to another preliminary investigation of the charge contained in the information. It erred, also, in dismissing the case for, even if defendant had a right to such other preliminary investigation, the same was deemed waived upon her failure to invoke it prior to or, at least, at the time of the entry of her plea in the court of first instance (People v. Solon, 47 Phil. 443, 448; People v. Magpale, 70 Phil. 176; People v. Lambino, 55 Off. Gaz., 1565). Independently of the foregoing, the absence of such investigation did not impair the validity of

the information or otherwise render it defective. Much less did it affect the jurisdiction of the court of first instance over the present case. Hence, had defendant-appellee been entitled to another preliminary investigation, and had his plea of not guilty upon arraignment not implied a waiver of said right, the court of first instance should have, either conducted such preliminary investigation, or ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case, as it did in the order appealed from. Although not raised by any of the parties herein, one question has arisen in the course of the deliberations of this Court. May we entertain the appeal taken in this case by the prosecution? This calls for a determination of the following issues, namely: (a) What is the effect of Rule 118, section 2, of the Rules of Court, upon the authority of this Court to pass upon the merits of the present appeal? (b) Has defendant waived her constitutional right not to be twice placed in jeopardy of punishment for the same offense? (c) May she still invoke such right? Rule 118, section 2, of the Rules of Court reads: The People of the Philippines cannot appeal if the defendant would be placed thereby in double jeopardy. In all other cases either party may appeal from a final judgment or ruling or from an order made after judgment affecting the substantial rights of the appellant. Does the foregoing provision deny to this Court the authority or jurisdiction to entertain the present appeal by the prosecution? The answer must be in the negative, for the following reasons, namely: 1. Apart from being inherently legislative in nature, the power to "define, prescribe and apportion the jurisdiction of the various courts" is explicitly vested by the Constitution in Congress (Article VIII, section 2, Constitution of the Philippines), not in the Supreme Court. An affirmative answer to the query would lead, therefore, to an encroachment by the Supreme Court upon the prerogatives of Congress, and, hence, to the unconstitutionality and nullity of the rule above quoted. 2. The same was adopted by this Court in the exercise of its authority, under our fundamental law, "to promulgate rules concerning pleadings, practice and procedure in all courts", which rules "shall not diminish, increase or modify substantive rights". (Article VIII, section 13, Constitution of the Philippines.) If section 2 of Rule 118 were construed as limiting, either the jurisdiction of the Supreme Court to entertain appeals by the Government in criminal cases, or the right of the latter to appeal in such cases, the result would be that this Court has exceeded its rule making power under the Constitution, not only by legislating on a subject that concerns neither "pleadings, practice or procedure," but, also, by diminishing or modifying "substantive rights", namely (a) the exclusive jurisdiction of the Supreme Court to "review, revise, reverse, modify or affirm on appeal ... final judgments or decrees of inferior courts in ... all ... cases in which only errors or questions of law are involved" which is statutory (Republic

Act No. 296, section 17[6], as well as (with slight difference in phraseology) constitutional (Article VIII, section 2, Constitution of the Philippines) and, hence, (b) the right of both parties in a case to appeal to the Supreme Court from the decision of the lower court and raise only questions of law, as in the case at bar. A similar issue was settled in the case of Marquez v. Prodigalidad (83 Phil. 813), an election protest involving municipal councilors, which was dismissed by the Court of First Instance. On appeal taken by the protestant, our jurisdiction to review the order appealed from was contested by the protestee, who relied on section 178 of the Revised Election Code (Republic Act No. 180) reading: From any final decision rendered by the Court of First Instance in protests against the eligibility or the election of provincial governors, members of the provincial board, city councilors, and mayors, the aggrieved party may appeal to the Court of Appeals or to the Supreme Court, as the case may be, within five days after being notified of the decision, for its revision, correction, annulment or confirmation, and the appeal shall proceed as in a criminal case. Such appeal shall be decided within three months after the filing of the case in the office of the clerk of the court to which the appeal has been taken. (Emphasis ours.) Speaking, through Mr. Justice Pablo, we held: ... Se pretended que, bajo esta disposicion legal, las decisions de los Juzgados de Primera Instancia en protestas contra la elecion de concejales en los municipios regularmente organizados, no son apelables. Notese sin embargo, que la orden apelada en el presente caso no resuelve los meritos de la protesta sino que sobresee la misma por supuesta falta de jurisdiction en virtud de una supuesta omision de incluir como partes a todos los candidates electos. De modo que la orden apelada versa sobre una question de jurisdiction, o sobre una question puramente de derecho . Y el articulo 2, Titulo VIII de la Constitution dispone que: The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question. (2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (3) All cases in which the jurisdiction of any trial court is in issue. (4) All criminal cases in which the penalty imposed is death or life imprisonment. (5) All cases in which an error or question of law is involved . La Constitucion claramente autoriza a la Legislatura a definir, prescribing y distributing la jurisdiccion de los tribunales; pero expresanente dispone que no puede privar al Tribunal Supreme de su jurisdiccion para reoisar reexaminar, revocar modificar o conocer en apelacion o mediante certiorari o recurso de casacion las decisions de Juzgados inferiores que versan, entre otras cosas, sobre la constitucionalidad de alguna ley ordenanza, tratado, u orden ejecutiva o sobre la jurisdiction del tribunal sentenciador, o sobre otras cuestions puramente de derecho. En otras palabras, la Constitucion ha querido establecer y conservar inalterable la jurisdiccion del Tribunal Supremo sobre

cuestiones constitucionales o puramente de derecho, con el proposito evidente de convertirlo en arbitro supreme en la interpretacion de la Constitucion y de la Ley. Se pretended que la prohibicion constitucional de privar al Tribunal Supreme de su jurisdiccion sobre las mencionasdas cuestions se refiere tan solo a aquellos asuntos sobre los cuales este Tribunal tenia jurisdiccion al tiempo de aprobarse la Constitucion y no a aquellos que, como el presente, no caian bajo su jurisdiccion de acuerdo con las leyes entonces vigentes pues es obvio, segun se alega, que no se priva a un tribunal de una jurisdiccion que no tenia. Esta distinction, sin embargo, no halla fundamento en el lenguaje de la Constitucion, pues la prohibition alli establecida es en sus terminos absoluta con un proposito claro y evidente que es el de situar en el Supremo Tribunal la autoridad suprema en la interpretation de la Constitucion y de la ley. Debe recordarse que antes de la aprobacion de nuestra Constitucion la jurisdiccion apelada del Tribunal Supreme no dependia, segun las leyes entonces vigentes, de la naturaleza de las questions planteadas, pues tenia esa jurisdiccion casi en todos los asuntos provenientes de los Juzgados de Primera Instancia independientemente de la questions alli envueltas. De suerte que la Constitucion al hacer referencia a la jurisdiccion apelada del Tribunal Supremo sobre ciertas questions de derecho, generales y especificas, no lo hace en relacion con la jurisdiccion apelada que el tribunal ya entonces tenia, sino que define una nueva jurisdiccion apelada del tribunal de la cual no quiere que este tribunal sea privado jamas . Por lo demas, si se he de interpretar la Constitucion en la forma que se pretendede, no habria uniformidad o simetria en la interpretation de las leyes del pais pues, si este tribunal no pudiese corregir los pronunciamientos legales de los tribunales inferiores en algunos asuntos, esos pronunciamientos podrian ser contradictorios y el conflicto podria quedar sin solucion por algun tiempo por lo menos, y esto es lo que indudablemente ha querido evitar la Constitucion. Y pretender que en casos como el presente el Tribunal Supremo no puede ejercer jurisdiccion apelada aunque hubiese serias infracciones de la Constitucion en la decision del tribunal inferior, equivale claramente a frustrar el proposito evidente de la Constitucion. Creemos por tanto, que el articulo 178 del Codigo Electoral Revisado, al disponer expresamente que son apelables las decisions de los Jugados de Primera Instancia "sobre protestas contra la elegibilidad o la election de gobernadores provinciales, vocales de la provincial, concejales de ciudad y alcaldes," no ha tenido el proposito de vedar en otras protestas la apelacion al Tribunal Supremo sobre cuestiones puramente de derecho, particularmente sobre cuestiones de jurisdiccion, o de constitucionalidad de alguna ley, ordenanza, tratado u orden ejecutiva. (Marquez vs. Prodigalidad, 83 Phil. 813, 815-818; Emphasis Supplied.) This view was ratified and reiterated in Calano v. Cruz (50 Off. Gaz., 610), a quo warranto proceeding, in which the eligibility of a municipal councilor was impugned. From an order dismissing the case, petitioner therein appealed to the Supreme Court, which passed upon the merits of the appeal, despite respondent's objection, based upon said section 178 of the Revised Election Code, to our jurisdiction to entertain the appeal. The propriety thereof was upheld in the following language:

In the past we had occasion to rule upon a similar point of law. In the case of Marquez v. Prodigalidad, 46 Off. Gaz., Supp. No. 11, p. 204, we held that section 178 of the Revised Election Code limiting appeals from decisions of Courts of First Instance in election contests over the offices of Provincial Governor, Members of the Provincial Board, City Councilors and City Mayors, did not intend to prohibit or prevent the appeal to the Supreme Court in protests involving purely questions of law, that is to say, that protests involving other offices such as municipal councilor may be appealed provided that only legal questions are involved in the appeal. Consequently, the appeal in the present case involving as it does purely questions of law is proper. (Calano v. Cruz, 50 O.G. 610, 612; Emphasis Supplied.) Insofar as the issue in the case at bar is concerned, there is a substantial parity between Rule 118, section 2, of the Rules of Court, and the aforementioned section 178 of the Revised Election Code. The former says that the prosecution may not appeal when the accused would be placed thereby in double jeopardy. The latter clearly denies, without any qualification, the right to appeal in election protests involving municipal vice-mayor and municipal councilors. Yet, the latter gave way, as it had to, to the constitutional provision granting the Supreme Court jurisdiction over all appealed cases involving purely questions of law. So must, the provision of said Rule, whenever such are the issues raised in the appeal, unless there is some other valid objection thereto. 3. Commenting on said section 2 of Rule 118, former Chief Justice Moran, who drafted our Rules of Court, says (Comments on the Rules of Court, by Moran, Vol. 2 [1957 ed.], p. 856) that said provision is "in conformity with a ruling laid down by the United States Supreme Court", citing Kepner vs. U.S. (11 Phil. 669). In that case, the Federal Supreme Court held that the prosecution may not, over the objection of the defendant in a criminal case, appeal from a decision of a court of first instance acquitting him of the crime of embezzlement, after due trial on the merits, because it would violate his right, under the Philippine Bill (Act of Congress of the U.S. of July 1, 1902) which is identical to that existing under the Federal Constitution and analogous to that recognized under the common law not to be placed twice in jeopardy of punishment for the same offense. The Kepner case is notauthority for the proposition that an appeal by the Government, after jeopardy has attached in the lower court, cannot be taken without any objection or with the consent of the accused . Indeed, it is well settled that "the immunity from second jeopardy granted by the Constitution is a personal privilege which accused may waive" (22 C.J.S., 412-413). He may, accordingly, appeal from a decision adverse to him, even though such appeal clearly puts him, again, in danger of punishment for the same offense. Considering the background of the rule under consideration and the fact that it was adopted in the exercise of the constitutional power of the Supreme Court to promulgate rules on "pleadings, practice and procedure", it is reasonable as well as necessary, to avoid the constitutional infirmity already adverted to to conclude that it was incorporated into the Rules of Court merely as a procedural measure, for the purpose, not of affecting substantive rights, but of enforcing the constitutional immunity from double jeopardy, "a personal privilege which accused may waive." Upon the other hand, defendant herein has filed a brief in which she limited herself to a discussion of the merits of the appeal. Thus, she not only failed to question, in her brief, either expressly or impliedly, the right of the prosecution to interpose the present appeal, but, also, conceded, in effect the existence of such right. She should be deemed, therefore, to have waived her aforementioned constitutional immunity.

It is true that in People vs. Hernandez (49 Off. Gaz., 5342), People vs. Ferrer, L-9072 (October 23, 1956), People vs. Bao, L-12102 (September 29, 1959) and People vs. Golez, L-14160 (June 30, 1960), we dismissed the appeal taken by the Government from a decision or order of a lower court, despite defendant's failure to object thereto. However, the defendants in those cases, unlike the defendant herein, did not file any brief . Hence, they had performed no affirmative act from which a waiver of the privilege under consideration could be implied. It is urged, however, that, if the failure to file a brief does not warrant said inference, much less could the same be justified when the accused, like defendant herein, has filed a brief, without invoking therein the aforementioned privilege. This argument conflicts, however, with the spirit underlying the provisions of the Rules of Court governing comparable situations. Upon arraignment, the defendant may move to quash the information, upon the ground, among others, that he "has been previously ... in jeopardy of being convicted ... of the offense charged" (Rule 113, Sections 1 and 2, paragraph [h]). However, if he "does not move to quash the ... information before he pleads thereto, he shall be taken to have waived all objections which are grounds for a motion to quash, except when the complaint or information does not charge an offense, or the court is without jurisdiction of the same" (Rule 113, section 10). Hence, if he pleads to the charge, without invoking his immunity from a second jeopardy, the same is deemed waived (People vs. Acierto, L-2708 & L-3355-60, January 30, 1953; 14 Am. Jur. 958; Alexander v. State, 176 So. 835; Branch v. State, 78 So. 411; State v. Warner, 205 N.W. 692; State v. Mases 199 P. 111; Fines v. State, 240 P. 1079; Fowler v. State, 120 S.W. 2d. 1054; Mann v. States, 187 N.E. 343; Ballusky v. People, 178 P. 2d. 433; People v. McDonald, 10 N.W. 2d. 309; State v. Davis, 238 P. 2d. 450). Again, "material averments in the complaint, other than those as to the amount of damages, shall be deemedadmitted when not specifically denied" in the answer filed by the defendant (Rule 9, section 8). Similarly, subject to specified exceptions, "defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived" by defendant (Rule 9, section 9). Thus, the foregoing waivers and admission by the defendant require a previous plea or answer by him. No such waiver or admission is deemed made in the absence of a plea. If the defendant fails to answer plaintiff's complaint, the allegations thereof are deemed denied and plaintiff is bound, therefore, to prove them. The same rule applies to defendants in a counterclaim, or cross-claim, or third-party, complaint. So, too, where plaintiff does not file a reply, "all the new matters alleged in the answer" filed by the defendant "are deemed controverted" by the plaintiff (Rule 11 and Rule 35, section 6). In other words, when no answer to the pleading of an opponent is filed, all material allegations made or new matters contained in said pleading are, under our Rules of Court, deemed denied. Conversely, if an answer is filed, such allegations or new matters in said pleading of the opponent as have not been specifically controverted in the aforementioned answer, are deemed admitted, and suchpersonal defenses as could have been or should have been set up therein are, in general, waived. It is true that briefs in appellate courts are not "pleadings" in the technical legal meaning of this term. In such courts, there are no "pleadings", in the sense of formal concise statements of the ultimate facts constituting plaintiff's cause or causes of action, and specifying the relief sought, or on which the defendant relies for his defense (Rule 6, section 1, and Rule 9, section 1, Rules of Court). The appellant files with the appellate court a brief specifying the "errors intended to be urged" and the arguments in support of such assignment of error (Rule 48,

section 17), whereas the appellee sets forth in his brief "his arguments ... on each assignment of error" (Rule 48, section 18). However, the briefs, like the pleadings, define and limit the issues submitted for determination, and, accordingly, should be subject to the general principles governing pleadings, insofar as the admission or denial of the claims of an opponent, as well as the waiver of defenses, are concerned. Hence, when the defendant-appellee in a criminal case does not file a brief, he like a defendant who fails to answer the complaint may, perhaps, be deemed to controvert the claim of plaintiff-appellant in all respects. However, if the defendant-appellee files a brief contesting the merits of the contention of plaintiff-appellant in his brief, without objecting to plaintiff's appeal, which plaintiff may take if the defendant consents or does not object thereto, said defendant-appellee like the defendant who pleads not guilty in the lower court, without invoking his immunity from a second jeopardy must be deemed to have waived such immunity. Indeed, it is well settled that the immunity must be "specially" pleaded (14 Am. Jur. 956); that this must be done "at the earliest opportunity" (Territory of Lobato, 134 P. 222; Yates v. State 17 So. 2d. 594) ; and that, otherwise, it is deemed waived (14 Am. Jur. 958; Branch v. State, supra; State v. Bohn, 248 P. 119; People v. McDonald, supra; State v. Harper, 184 S.W. 2d. 601; Driver v. Seay, 32 S.E. 2d. 87). What is more, our Rules of Court are notsatisfied with an express assertion of the immunity. Section 5 of Rule 113 requires the one invoking it to state the name under which defendant was convicted or in jeopardy of conviction or acquitted, the name of the court in which he was convicted or in jeopardy or acquitted and the date and place of such conviction or jeopardy or acquittal." All of which goes to show that silence of the accused thereon must be construed as waiver of the immunity. Hence, Corpus Juris Secundum says that such "waiver may be express or implied; in fact generally implied." ( 22 C.J.S. 412413). In the case at bar, there is another circumstance justifying the conclusion that defendant herein has waived said immunity. Upon issuance of the order of dismissal complained of, the prosecution filed a motion for reconsideration, to which the defendant objected upon the ground of double jeopardy. When defendant filed his brief with this Court, he was well aware, therefore, of the materiality or pertinence of said defense to the appeal taken by the prosecution. Yet, he did not avail himself of such defense. This omission must be due, therefore, to neither ignorance nor oversight on his part. He advisedly and purposely refrained from invoking said defense. In other words, he waived it. Regardless of the foregoing, could he have properly made use of it in this instance? For him to do so, it would be necessary for him to assert that the lower court had jurisdiction to hear and decide this case which is exactly the opposite of the theory sustained by him in his motion to dismiss. His situation then would be substantially identical to that of the accused in People vs. Acierto, supra. Acierto was accused before a U.S. Court Martial of having defrauded the Government of the United States, through falsification of documents, within a military base of the U.S. in the Philippines. Despite his objection to the jurisdiction of said court, which it overruled, he was, after trial, convicted therein. On review, the verdict was reversed by the Commanding General, who sustained Acierto's objection. Subsequently accused of estafa and falsification of said documents before one of our courts of first instance, Acierto was convicted therein. On appeal to the Supreme Court, he raised, among other questions, the following: former jeopardy and want of jurisdiction of the court a quo, both of which he claimed to have raised in the lower court and on both of which issues the Solicitor General sided with him , owing mainly to the provision of Article XIII, section 1 (a) of our Bases Agreement with the United States, reading:

1. The Philippines consents that the United States shall have the right to exercise jurisdiction over the following offenses: (a) Any offense committed by any person within any base except where the offender and offended parties are both Philippine citizens (not members of the armed forces of the United States on active duty) or the offense is against the security of the Philippines. Commenting on Acierto's contention this Court in a unanimous decision, penned by Justice Tuason, and concurred in by Chief Justice Paras, and Justices Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes [A], Jugo, Bautista and Labrador expressed itself as follows: This is the exact reverse of the position defendant took at the military trial. As stated, he there attacked the court martial's jurisdiction with the same vigor that he now says the court martial did have jurisdiction; and thanks to his objection, so we incline to believe, the Commanding General, upon consultation with, and the recommendation of, the Judge Advocate General in Washington, disapproved the court martial proceedings. xxx xxx xxx

Construction of the United States Military Law by the Judge Advocate General or the United States Army is entitled to great respect, to say the very least. When such construction is a disclaimer of jurisdiction under the Bases Agreement, the Philippine Government certainly is not the party to dispute it; the fewer the rights asserted by the United States the more it enhanced the dignity of the Philippines and its interest promoted. Irrespective of the correctness of the views of the Military authorities, the defendant was estopped from demurring to the Philippine court's jurisdiction and pleading double jeopardy on the strength of his trial by the court martial. A party will not be followed to make a mockery of justice by taking inconsistent Positions which if allowed would result in brazen deception. It is trifling with the courts, contrary to the elementary principles of right dealing and good faith, for an accused to tell one court that it lacks authority to try him and, after he has succeeded in his effort, to tell the court to which he has been turned over that the first has committed error in yielding to his plea. From another angle, it seems immaterial whether or not the court martial had jurisdiction of the accused and his crimes under the terms of the Bases Agreement. Granting that it had, the Court of First Instance of Quezon City nevertheless properly and legally took cognizance of the cases and denied the defendant's motion to quash. By the Agreement, it should be noted, the Philippine Government merely consents that the United States exercise jurisdiction in certain cases. This consent was given purely as matter of comity, courtesy, or expediency. The Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the terms o the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains not only jurisdictional rights no granted, but also all such ceded rights as the United State Military authorities for reasons of their own decline to make use of. The first, proposition is implied from the fact of Philippine sovereignty over the cases; the second from the express provisions of the

treaty. The treaty expressly stipulates that offenses included therein may be tried by the proper Philippine courts if for any special reason the United States waives it jurisdiction over them. xxx xxx xxx

Partly for the reasons already shown, the plea of double jeopardy is without merit. If the court martial had no jurisdiction, jeopardy could not have attached. This proposition is too well established and too well known to need citation of authorities. Even if it be granted that the court martial did have jurisdiction , the military trial in the instant cases has not placed the appellant in jeopardy such as would bar his prosecution for violation of the Philippine penal laws or, for that matter, a second trial under the Articles of War. Although under Rev. Stat. see. 1342, art. 2, it has been held that a former trial may be pleaded when there has been a trial for the offense, whether or not there has been a sentence adjudged or the sentence has been disapproved (Dig. JAG [19121] p. 167), the rule is and should be otherwise when the disapproval was made in response to the defendant's plea based on lack of jurisdiction. (Ex parte Costello, 8 F. 2nd, 283, 286). In such case the former trail may not be pleaded in bar in the second trial. (Emphasis Supplied) In other words, it was held that, granting that the Court Martial had jurisdiction over the crime or crimes with which he had been charged, and was permitted by the Treaty to exercise it, the Philippine Government did not thereby divest itself of its own jurisdiction to try and punish Acierto therefor, and that, even if he had, therefore, been placed in jeopardy of punishment before said Court Martial, he was estopped from pleading it before the Philippine courts, for "a party will not be allowed to make a mockery of justice by taking inconsistent positions, which, if allowed, will result in brazen deception", and "it is trifling with the courts, contrary to the elementary principles of right dealing and good faith, for an accused to tell one court, that it lacks authority to try him, and, after he has succeeded in his effort, to tell the court to which he has been turned over that the first has, committed error in yielding to his plea." This would exactly be the position of defendant herein were she to plead double jeopardy in this case, for such plea would require the assertion of jurisdiction of the court of first instance to try her and that the same erred in yielding to her plea therein of lack of authority therefor. In the language of our decision in the Acierto case, it is immaterial whether or not the court a quo had said authority. It, likewise, makes no difference whether or not the issue raised by defendant in the lower court affected its jurisdiction. The fact is that she contested such jurisdiction and that, although such pretense was erroneous and led the court to believe that it was correct and to act in accordance with such belief. The "elementary principles of fair dealing and good faith" demand, accordingly, that she be estopped now from taking the opposite stand, in order to pave the way for a plea of double jeopardy, unless the rule of estoppel laid down in the Acierto case is revoked. As a matter of fact, said rule applies with greater force to the case at bar than to the Acierto case, because the same involved two (2) separate proceedingsbefore courts deriving their authority from different sovereignties, whereas the appeal in the case at bar is acontinuation of the proceedings in the lower court, which like the Supreme Court, is a creature of the same sovereignty. In short, the inconsistency and impropriety would be more patent and glaring in this case than in that of Acierto, if appellant herein pleaded double jeopardy in this instance.

The issue eventually boils down, therefore, to whether the rule of estoppel applied in the Acierto case should be confirmed or revoked. Upon mature consideration, we are of the opinion that said rule should be maintained, because: 1. It is basically and fundamentally sound and just. 2. It is in conformity with the principles of legal ethics, which demand good faith of the highest order in the practice of law. 3. It is well settled that parties to a judicial proceeding may not, on appeal, adopt a theory inconsistent wit that which they sustained in the lower court (Williams v. McMicking, 17 Phil. 408; Molina v. Somes, 24 Phil. 49 Agoncillo v. Javier, 38 Phil. 424; American Express v. Natividad, 46 Phil. 208; Toribio v. Decasa, 55 Phil. 416; San Agustin v. Barrios, 68 Phil. 475; Jimenez v. Bucoy, L-10221 [February 28, 1958]; Northern Motors, Inc. v. Prince Line, et al., L13884 [February 29, 1960]; Mode v. Calasanz, L-14835 [August 31, 1960]). Thus, in Atkins Kroll & Co., Inc. v. B. Cua Hian Tek, L-9871 (January 31, 1958), we said: ... When a party deliberately adopts a certain theory and the case is tried and decided upon that theory in the court below, he will not be permitted to change his theory on appeal.... The rule is stated in Corpus Juris Secundum as follows: ... where the case was tried by the lower court an the parties on a certain theory, it will be reviewed and decide on that theory, insofar as the pleadings, liberally construed, permit and not be approached from a different point of view. (5 C.J.S., section 1464, pp. 77-79; Emphasis Supplied.) 4. The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same "must exist as a matter of law, and many not be conferred by consent of the parties or by estoppel" (5 C.J.S., (861-863). However, if the lower court had jurisdiction and the case was heard and decided upon a given theory such, for instance, as that the court had and jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. Her the principle of estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon the will of the parties, has no bearing thereon. Thus, Corpus Juris Secundum says: Where accused has secured a decision that the indictment is void, or has been granted an instruction based on its defective character directing the jury to acquit, he is estopped, when subsequently indicted, to assert that the former indictment was valid. In such case, there may be a new prosecution whether the indictment in the former prosecution was good or bad. Similarly, where, after the jury was impaneled and sworn, the court on accused's motion quashed the information on the erroneous assumption that the court had no jurisdiction, accused cannot successfully plead former jeopardy to a new information.... (22 C.J.S., see. 252, pp. 388-389; emphasis supplied.)

Where accused procured a prior conviction to be set aside on the ground that the court was withoutjurisdiction, he is estopped subsequently to assert, in support of a defense of previous jeopardy, that such court had jurisdiction (22 C.J.S. p. 378.) The following is quoted from the Annotated Cases: Waiver of Objection to Second Jeopardy by Procuring Quashal of First Indictment . It may be stated as a general rule that where a person after being put in jeopardy procures a quashal of the indictment upon which he is being prosecuted, he cannot thereafter plead former jeopardy when placed on trial upon another indictment for the same offense. His action in procuring a quashal of the indictment constitutes a waiver of his constitutional privilege. Brown v. State, 109 Ga. 570, 34 S.E. 1031; Joy v. State, 14 Ind. 139; State v. Scott, 99 Ia 36, 68 N.W. 451. See also Miller v. State, 33 Ind. pp. 509, 71 N.E. 248; Jones v. Com. 124 Ky. 26, 97 S.W. 1118; Com. v. Gould, 12 Gray (Mass.) 171; State v. Priebnow 16 Neb. 131, 10 N.W. 628; Van Rueden v. State, 96 Wis. 671, 71 N.W. 1048. In Brown v. State, 109 Ga. 570, 34 S.E. 1031, in effect overruling Black v. State, 36 Ga. 447, 91 Am. Dec. 772, it appeared that the court, though at first it overruled the demurrer, reversed its former ruling after the admission of evidence and quashed the accusation. At a subsequent trial the defendant pleaded former jeopardy. The court said: 'Although the demurrer filed by the accused was at first overruled by the judge, the subsequent ruling sustaining the same was the one that the accused himself invoked, and it does not distinctly appear that he objected at the time to the judge sustaining the demurrer at that stage of the case and ordering the accusation to be quashed. It therefore does not lie in his mouth on a subsequent trial to say that the accusation was good, and that for that reason he was in jeopardy on the former trial. Whether the first accusation was good or bad is immaterial. The accused obtained a ruling that it was bad, accepted the be of that ruling, and he will not be allowed to bring in quest the propriety of a ruling which he himself invoked .' In Joy v. State, 14 Ind. 139, it appeared that after the jury had been selected and sworn the defendant moved to quash the count the indictment on which the district attorney had elected to trial. The motion to quash was sustained. On a subsequent trial the plea of former jeopardy was interposed. The court said: "It (the quashal of the court) was for his benefit, and he is presumed to waive any future peril he may incur, view of the advantage he derives by getting rid of the present pressing jeopardy. So in the case at bar, the defendant charged in two counts with having produced the death of human being first, by fire; second, by blows. The court were properly joined; but by his own motion and therefore certainly with his consent, he procured an order of the co which operated to withdraw the second count from the consideration of the jury as fully as if it had charged a separate offense. To that count no evidence could have been direct if the trial had progressed. By that act, it appears to for these reasons and those heretofore advanced, he consented to waive any constitutional rights which might have apparently attached, just as he would have waived those rights if he had consented to the discharge of the jury, or after verdict moved for a new trial or in arrest." In the reported case it appears that after the jury h been impaneled and sworn and the defendant placed on the stand in the first trial, the defendant moved to quash the indictment on account of a material variance therein. The indictment was quashed. The defendant pleaded former jeopardy on the second trial. The court held that inasmuch as

the former indictment was quashed at the instance of the defendant, he was not in a position to urge that he was placed jeopardy thereunder, and that having once urged the invalidity of the indictment he was estopped from thereafter claiming it to have been valid. (14 Am. Cas. 426; Emphasis supplied.) To the same effect is the following passage of our decision in the Acierto case: Even if it be granted that the court martial did have jurisdiction, the military trial in the instant cases has not placed the appellant in jeopardy such as would bar his prosecution for violation of the Philippine penal laws or, for that matter, a second trial under the Articles of War. Although under Rev. Stat. Sec. 1342, art. 2, it has been held that a former plea shall be valid when there has been a trial for the offense, whether or not there has been a sentence adjudged or the sentence has been disapproved (Dig. JAG [1912] p. 167), therule is and should be otherwise when the disapproval was made in response to the defendant's plea based on lack of jurisdiction. (Ex parte Costello, 8 F. 2nd 283, 286.) In such case the former trial may not be pleaded in bar in the second trial (Emphasis Supplied.) Lastly, pursuant to the last sentence of Section 10, Rule 113 of the Rules of Court: ... If, however, the defendant learns after he has pleaded or has moved to quash on some other ground that the offense with which he is now charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or been in jeopardy, the court may in its discretion entertain at any time before judgment a motion to quash on the ground of such pardon, conviction, acquittal or jeopardy. A court thereby has "discretion" to entertain or not to entertain a motion to quash filed by the defendant based upon a former jeopardy, which came to his knowledge " after he has pleaded." Although this provision regulates the procedure in courts of first instance, we find no plausible reason to depart from its policy in proceedings beforeappellate courts. Although, as adverted to above, there are no "pleadings" in the technical sense of the term in appealed cases, the briefs therein filed play the role of said pleadings insofar as said briefs concretize the issues raised and submitted for determination by the appellate court. However, defendant herein has not tried to avail himself of said provision, for she has not moved to dismiss the appeal upon the ground of double jeopardy. At any rate, she cannot invoke, by analogy the above quoted provision of Section 10, Rule 113, because the same requires that knowledge of the former jeopardy be acquired after the plea, whereas defendant herein knew, before filing her brief with this Court, that the attempt by the prosecution to seek a review of the order appealed from opened the door to the issue of double jeopardy. In fact, when the prosecution moved, in the lower court, for a reconsideration of said order, defendant objected upon the ground of double jeopardy. But, even if she may claim the benefits of the aforementioned provision of Section 10, Rule 113, it should be noted that the same confers upon the Court "discretion" to entertain the plea of double jeopardy or not. Under the circumstances surrounding this case considering particularly that defendant had induced the lower court to believe erroneously that the crime charged in the information was not included in allegations of the complaint, that another preliminary investigation of the crime charged in the information was necessary, and that in the absence of such other preliminary investigation the lower court had no jurisdiction over the case, and that the ends of justice would be defeated, by entertaining now a plea of double

jeopardy, which up to this late stage of the proceedings, has not been set up in this Court we are of the opinion, and so hold, that the interest of the proper administration of justice would be served best by a determination of the merits of the charge against defendant herein. WHEREFORE, the order appealed from is hereby reversed and the case remanded to the lower court for further proceedings not inconsistent with this decision, without special pronouncement as to costs. It is so ordered. Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur. Bengzon, J., concurs in the result.

Separate Opinions PARAS, C.J., dissenting: The Constitution provides: (20) No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Art. III-Bill of Rights.) The Rules of Court provides: SEC. 2. Who may appeal. The People of the Philippines can not appeal if the defendant would be placed thereby in double jeopardy. In all other cases either party may appeal from a final judgment or ruling or from an order made after judgment affecting the substantial rights of the appellant. (Rule 118) Even before the foregoing section of Rule 118 of the Rules of Court was promulgated, all the decisions of this Court from the time the doctrine in the Kepner case was laid down had consistently been the denial of an appeal by the government when the accused has been discharged or acquitted. Only a favorable ruling upon a motion to dismiss equivalent to a demurrer could be appealed. General Orders No. 58 provided: SEC. 44. Either party may appeal from a final judgment or from an order made after judgment affecting the substantial rights of the appellant or in any case now permitted by law. The United States may also appeal from a judgment for the defendant rendered on a demurrer to an information or complaint, and from an order dismissing a complaint or information. The opening sentence in the Rules of Court not found in General Orders No. 58 or its amendments is, therefore, a mere reiteration of the doctrine in the Kepner case. In People vs. Borja, 43 Phil. 618, upon appeal by the Government, the Solicitor General's Office, instead of filing a brief, moved to dismiss the appeal. And so in other cases. Recently, we held that the

Government cannot appeal an order of dismissal or on the merits of a criminal case although said order is erroneous (People vs. Labatete, L-12917, April 27, 1960; People vs. Bao, L-12102, Sept. 29, 1959; People vs. Robles, L-12761, June 29, 1959; People vs. Tacneng, L-12082, April 30, 1959). In the instant case, after a witness had testified for the prosecution, the Court of First Instance ordered the dismissal of the case upon motion of the accused on the ground that there was lack of previous preliminary investigation. In fact, there has been such an investigation but the court erroneously granted the motion on that sole ground. When the fiscal asked for reconsideration of the order of dismissal, defense counsel immediately objected on the ground that such motion would place the accused in double jeopardy. The fiscal has appealed the cue. Under the repeated ruling of this Court, it is our bounden duty to dismiss the appeal without any further discussion. But after the Solicitor General's Office has filed its brief, the counsel for the defense or appellee made no reference to nor claim double jeopardy, and now it is contended that such an omission is equivalent to waiver of the defense. I regret to dissent. Such waiver is only possible when after an accused has been prosecuted and acquitted or convicted, a new complaint or prosecution would entitle the accused to the defense of double jeopardy, and it is only in this instance that said defense could be waived. (See Sec. 1[h] and Sec. 5, Rule 113). That waiver has no application to an appeal for the reason that that remedy is completely banned or prohibited. It should be remembered that while in the Salico case (47 O.G. 1765, 84 Phil. 722), this Court in a divided opinion had ruled otherwise, subsequent decisions had abandoned the doctrine. It can be conjectured that when the counsel for appellee prepared his brief, he had not read the latest doctrine on the matter, for the simple reason that the Official Gazette and the Philippine Reports have not published the decisions containing said doctrines. Even in the 1960 edition of the Comments on Criminal Procedure by Judge Ruperto Kapunan, Jr., still contains the doctrine in the Salico case as the latest. No wonder, therefore, that the counsel for appellees had failed to mention in his brief that the doctrine in said case has been completely abandoned. Reference is made to the doctrine in the case of Acierto (L-2708 and L-3335-60, Jan. 30, 1953, 49 O.G. 518). To my mind, there is no relevancy for that case refers to the jurisdiction of the military court of the United States, on the one hand, and the civil court or court of first instance of the Philippine Government, on the other. And it is clear that in the present appealed case, the question involved is not one of jurisdiction but irregularity in the proceeding based on the false ground that there has been no preliminary investigation of the case before it was tried by the court of first instance. Needless to say, preliminary investigation is a step that can be waived expressly or impliedly. As stated above, the record shows that the counsel for defendant-appellee had already invoked the defense of double jeopardy when the fiscal filed a motion for reconsideration. In a criminal case, even if the brief does not mention such detail, under our power to review, revise, reverse, modify, or affirm decisions of lower courts, we can consider any error we can detect in deciding the case.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-60962 July 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MONTEVERDE y CONE alias "EDUARDO MASCARIAS, accused-appellant.

PARAS, J.: This is an appeal interposed by defendant Rolando Monteverde from the judgment of the CFI of Zamboanga City, in Criminal Case No. 1661 (185-111-79) finding him and his co-accused Reynaldo Codera Jr. guilty of the crime of Robbery with Rape and sentencing them to death. According to the spouses, Tomas and Teresita, at about 1:00 in the morning of December 29, 1976, the appellant and co-accused Reynaldo destroyed the window of their house. Teresita stood up and lighted a kerosene lamp, at which instance the couple saw Reynaldo at the window pointing a gun at them. He forced them to open the door. Once inside, he hogtied Tomas, gagged him and placed him under the bed. With the use of a gun and a knife, the appellant and Reynaldo intimidated Teresita and raped her three times (twice by the former and once by the latter). At about 4:00 in the same morning, they ransacked the house and left with their loot valued at P300.00 plus cash money of P15.00. Teresita and her husband immediately reported the matter to the police. Upon examination, the medico-legal officer issued a medical certificate with the following findings: that Teresita was already 2 months pregnant when she was sexually abused and that there were no external signs of physical injuries. Said medical certificate, however, was not properly Identified in court because the physician was not presented during the trial. On March 27, 1977, the victims-spouses went to the police station for Identification of arrested suspects. The spouses immediately identified Reynaldo as one of the two culprits who had committed the crimes. Teresita also unhesitatingly pointed to Rolando in a picture shown to her, as the very same person who is the other culprit. In a sworn statement before the NBI, Reynaldo admitted that he and appellant planned the robbery. However, he was not cross-examined because pending trial, he escaped. The appellant put up alibi as his defense and claimed that he was elsewhere with relatives and friends when the incident took place. Finding the straightforward and substantiated testimonies of the spouses credible, the trial court convicted the appellant and Reynaldo as charged and sentenced them to death. The appellant, however, assails the spouses' credibility, and claims that: (a) the medical certificate does not show signs of physical injuries and spermatozoa; (2) said medical certificate and even his co-accused's confession are inadmissible against him, for being hearsay; (3) recidivism cannot be considered against him because it was not alleged in the information; and (4) the lower court's proceedings are void because the amended information does not contain a certification, The appeal lacks merit. The fact that the medical certificate shows no external signs of physical injuries and spermatozoa on the victim does not negate the commission of rape. (People vs.

Bawit, L-48116, February 20, 1981; People vs. Dadaeg, L-37798, July 15, 1985, 137 SCRA 500). While the medical certificate as well as the questioned extrajudicial confession may be incomplete or defective, neither is indispensable to prove the crime of rape. In previous cases, medical examination was held to be merely corroborative. (People vs. Pielago, et al., L-42256, December 19, 1985; People vs. Opena, L-34954, February 20, 1981, 102 SCRA 755). In a prosecution for rape, the accused may be convicted even on the sole basis of the complainant's testimony, if credible. (People vs. Aragona, L-43752, September 19, 1985, 138 SCRA 569). In the case at bar, We find no cogent reason to disturb the trial court's findings on the credibility of the spouses. Having heard the witnesses and observed their deportment during the trial, the trial court is in a good position to decide the question. Indeed, the spouses' direct and substantiated testimonies are more credible than the appellant's general denial and uncorroborated testimony. Considering that the spouses have no motive to charge the appellant falsely, especially with such a grave offense, his defense of alibi is unavailing because the spouses positively Identified him. (People vs. Arbois, L-36936, August 5, 1985, 138 SCRA 24; People vs. Estante, L-30354, July 30, 1979, 92 SCRA 122; People vs. Cabeltes, L-38145-48, June 29, 1979, 91 SCRA 208; People vs. Chavez, L-38603, September 30, 1982, 117 SCRA 221). The trial court properly appreciated recidivism as an aggravating circumstance although not alleged in the information because the same was proved by evidence. (People vs. Perez, L50044, July 31, 1981, 106 SCRA 436; People vs. Entes, L-50632, February 24, 1981, 103 SCRA 162). Finally, We wish to state that while generally, a preliminary investigation is mandatory and a certification that such investigation was held is required, still this rule does not apply if the issue is raised only after conviction. Thus, it has been held that after a plea of not guilty to the information, an accused is deemed to have foregone the right of preliminary investigation and to have abandoned the right to question any irregularity that surrounds it (See Zacarias vs. Cruz, 30 SCRA 728, People vs. Beltran, 32 SCRA 71. See also People vs. Arbola, L-16936, Aug. 5,1985). Judgment of conviction is AFFIRMED, with the modification that due to the lack of the necessary votes, the death penalty is reduced to reclusion perpetua, with costs against the accused. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-28582 March 25, 1970 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODRIGO BALURAN Y YAON and ROSARIO MORANTE alias CHARING, defendantsappellants. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Celso P. Ylagan for plaintiff-appellee. Dakila F. Castro and Associates for defendant-appellant Rosario Morante. Jose N. Bolinao as counsel de officio for defendant-appellant Rodrigo Baluran.

PER CURIAM: Appeal taken by Rodrigo Baluran and Rosario Morante from the decision of the Court of First Instance of Bulacan finding them guilty, beyond reasonable doubt, the crime of robbery with homicide, committed with one aggravating circumstance and without any mitigating circumstance to offset the same, and sentencing both to suffer the penalty of death, to indemnify, jointly and severally, the heirs of the deceased Melchor Mariano in the sum of P6,000.00, and each to pay one-half of the costs. In the morning of June 15, 1966 the Police Department of Malolos, Bulacan was informed that the body of a dead man had been found on the shoulder of a certain portion of the MacArthur Highway located in barrio Dakila of said municipality. Sgt. Antonio Cailipan, who was dispatched immediately to investigate the case, found on a slope of the shoulder of the highway, partly hidden by tall grasses, the dead body of a man apparently a victim of foul play because his right eye was swollen, his neck bore scratches and the back of his head had a big gaping wound. Searching the body, he found money in the pockets of the dead man's pants, one ring with the initial "M", and a piece of paper. He had the cadaver taken to the morgue of the Provincial Hospital of Malolos where it remained until noon of that day. Earlier that morning, one Macaria Garcia had reported to Justo Cruz, Chief of Police of Plaridel, Bulacan, that, contrary to what her son-in-law, Melchor Mariano, used to do everyday after he was through with his work as a tricycle driver, he failed to return home the previous night. Chief Cruz called up the Chief of Police of Malolos by telephone to relay the information to him and he was, in turn, informed that the dead body of a man, who apparently answered the description of the missing person, had been found in barrio Dakila, within the jurisdiction of Malolos. Chief

Cruz and some relatives of the missing man then went to the Malolos Provincial Hospital where they found and identified the dead body of Melchor Mariano. As the Medico-Legal Officer of Bulacan could not be contacted, the cadaver was brought to the NBI office in Manila where an autopsy was conducted by Dr. Ricardo Ibarrola, the NBI Medico-Legal Officer whose findings are as follows: Blood coming out of the nostrils; cyanosis of the fingernailbeds. Abrasion, lumbar region, left, posterior aspect 3.5 X 0.6 cm. Confused abrasions, neck, anterior aspect, 9.0 X 7.0 cm. and posterior aspect, 2.0 X 1.0 cm. Contusions, purplished blue; orbital region, right 5.5 X 3.2 cm. with marked swelling of the soft tissues; lumbar region, right, posterior aspect, 4.0 X 2.5 cm. Lacerated wounds; temporo-parieto occipital region of scalp, right, 1.0 x 0.4 cm., with an adjacent contusion inferiorly, 1.5 X 0.3 cm. and the surrounding tissue slightly depressed and compressible occipital region of scalp, left side, 4.2 X 0.9 cm. Fractures, compound, depressed and comminuted, parieto-temporal bone, right 6.0 X 2.5 cm., extending to the right middle cranial fossa; occipital bone, left side, 1.0 X 0.1 cm. Tracheal ring, 1st, right postero-lateral aspect partially severed. Hematoma: epicranial, fronto-parieto-temporal right, 13.0 X 11.0 cm.; neck, anterior aspect, intramuscular and around the larynx, trachea and esophagus, massive, with softening and loosening of the muscles; thyroid gland, bilateral, also massive. Contusion, tracheal mucosa, upper part. Hemorrhages: subarachnoidal both cerebral hemispheres; cerebral, both lateral ventricles. Lacerations, parietal and temporo-occipital lobes, both right, moderately extensive. Brain, markedly congested; other visceral organs, slightly congested. Heart contains dark fluid blood. Stomach, about half-full of partly digested rice and food materials. That same day June 15, 1966 having received confidential information that appellants herein had been seen around midnight of June 14 at the crossing of Plaridel, Bulacan, Chief of Police Cruz of said municipality ordered that Baluran be fetched from his residence at barrio

Banga. While he was evasive at the beginning of the investigation to which he was subjected, he broke down later on and disclosed to Lt. Felipe Adriano the circumstances surrounding the killing of Melchor Mariano between 12 o'clock midnight of June 13 and 1:00 o'clock in the morning of June 14, both of 1966; how his co-appellant dumped the body of their victim along the McArthur Highway; how the two tried to go to Baguio to sell the Honda tricycle driven by their victim until they were intercepted at the constabulary checkpoint at Bamban, Tarlac and later on brought to Concepcion, Tarlac; how he was allowed to go home to get the license of the Honda in San Fernando, Pampanga, while his co-appellant was left in the custody of the constabulary detachment at Concepcion. His statement was reduced to writing that same day, signed by him before the Investigating Officer and later sworn to by him before Municipal Judge Santiago of Plaridel (Exhibit B). Thereafter Sgt. Elias Tuazon, Patrolmen Lucas and de Mesa, of the Police Force of Plaridel, were ordered to fetch appellant Morante from Concepcion, Tarlac. The constabulary authorities at that place delivered to them the person of said appellant for custody, as well as the Honda tricycle. They then returned to Plaridel where they arrived at past 6:00 o'clock in the evening of June 15, 1966. Hours later appellant Morante gave a written statement describing her participation in the robbery of the tricycle and in the killing of Melchor Mariano, which was later subscribed and sworn to by her before municipal Judge Santiago (Exhibit A). The Honda tricycle mentioned above worth P1,850.00 belonged to Fernando Garcia, father-inlaw of the deceased Melchor Mariano who was the one driving it to ferry passengers within the municipality of Plaridel and from said municipality to nearby towns such as Guiguinto and Malolos. At the time of his death, Mariano was 37 years of age, married to Agripina Garcia and with several children. . Aside from the Honda tricycle the Police Department of Plaridel recovered from appellant Baluran a watch worth P60.00 (Exhibit C), and from appellant Morante, the driver's license of the deceased Mariano (Exhibit D), his residence certificate (Exhibit E) and a prayer book (Exhibit F). On the basis of the evidence thus gathered by the authorities, a criminal complaint for robbery with homicide was filed against appellants in the Municipal Court of Plaridel, Bulacan. As they waived in writing the preliminary investigation (Record, p. 16) the case was forwarded, to the Court of First Instance where the Provincial Fiscal filed the following information: That on or about the 15th day of June, 1966, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rodrigo Baluran y Yaon alias Rod and Rosario Morante alias Charing, armed with blunt instruments, conspiring and confederating together and helping one another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of violence, force and intimidation, take, rob and carry away with them the following property, to wit: one (1) man's wrist watch marked "Baybis", valued at P60.00, cash money in the amount of P4.00, driver's license, prayer book and residence certificate, all belonging to Melchor Mariano; and one (1) motorcycle marked "Honda", 65 cc, with side car, valued at P1,800.00, belonging to Fernando Garcia, to the damage and prejudice of the said owners in the total sum of P1,864.00; that during the commission of robbery or on the occasion thereof, the said accused, conspiring and confederating together and helping one another, did then and there wilfully,

unlawfully and feloniously attack, assault and hit with blunt instruments they were then provided the said Melchor Mariano, hitting the latter on the vital parts of his body, thereby causing serious physical injuries which directly caused the death of the said Melchor Mariano and in order to conceal or destroy the body of the crime, the said accused, in furtherance of their conspiracy, dumped the body of the said Melchor Mariano along the side of the MacArthur Highway and the railroad track at Barrio Dakila, Malolos, Bulacan. That in the commission of this crime, the following aggravating circumstances were present to wit: (1) use of superior strength, (2) nocturnity, (3) evident premeditation, and (4) treachery. Contrary to law. It appears that at about midnight on June 14, 1966 appellant Morante boarded the tricycle driven by the deceased Melchor Mariano and had herself taken to barrio Tabang, Guiguinto, Bulacan. Along the way, she had the vehicle stopped to allow her co-appellant Baluran to ride with her. Upon reaching barrio Tabang, Morante got off but returned soon saying that the person she was looking for was not in his house. They then motored back towards Plaridel, but before reaching the "crossing" Morante told Mariano to proceed to Bagong Silang where she wanted to borrow some money from someone. Once near the alleged house of the latter, appellants ordered the tricycle to stop, and Baluran got off and proceeded in the direction of the house. Returning shortly thereafter, he told Mariano to wait for a short while because Romy was getting ready. In the meantime, Morante also got off the tricycle and pretended to answer a call of nature at a nearby place. Then, the driver of the tricycle who remained astride the driver's seat was suddenly hit on the neck with a blunt instrument, and afterwards successive blows rained on his head, face and other parts of the body, as a result of which he fell down. Taking him for dead, appellants put him on the side car of the tricycle. Then appellant Morante started the engine and drove towards MacArthur Highway. Along the way Baluran threw the iron bar on the road side, and when they reached barrio Dakila they dumped the body of their victim on the shoulder of the highway near a ditch with growing tall grass the same place where it was discovered later. Appellants then searched the body of their victim and deprived him of P4.00, of his wrist watch, residence certificate and a prayer book. Afterwards, with appellant Morante still at the driver's seat, they proceeded northward with the intention of going to Baguio where they intended to sell the tricycle but at the Bamban, Tarlac P.C. checkpoint, they were stopped at about 4:00 o'clock in the morning by the soldier on guard duty. When the latter questioned appellant Morante, she admitted that she had no driver's license and that the ownership papers of the vehicle were not with her but with the owner, her uncle, living in San Fernando, Pampanga. As the guard noticed blood stains on the bar handles of the tricycle and on the floor of the side car, she told him that the same came from her nose. Upon further questioning, she also said that they had hit a person riding in the tricycle due to their suspicious behavior, both were taken to the P.C. headquarters located at Concepcion, Tarlac. Discussing the defense evidence, the trial court says the following in the appealed decision: The two accused admit the killing of the driver, although each points to the other as the one responsible for said death. Both admit having taken the body to a lonely grassy place to hide it. They admit having taken the tricycle from Plaridel, to Malolos, Pampanga, and Tarlac, with Baguio as the terminal. The burden of proving their innocence is shifted to them, but each one of said accused failed to

give a clear and convincing explanation. It is noteworthy that each of the accused tried very hard to throw the blame on each other for only the killing of the victim and not on the robbery of the tricycle. Upon the other hand, the written statements of both accused appearing on Exhibits A and B bore all the marks of a true confession. The same were written in Tagalog, the native language of accused Morante who reached first year in the high school. The said language is also fairly spoken by accused Baluran. The details of said confessions tally with the killing of the deceased driver, the taking of the Honda for sale to Baguio, the hiding of the dead driver, the taking of money, driver's license, wrist watch, residence certificate, and prayer book of the victim; the interception by the PC at the checkpoint at Bamban, Tarlac, the attempt on their part to mislead the police about the presence of blood clots on the motor and on the footrest of the cab of the tricycle, their attempts to show to the PC authorities in Tarlac that the said tricycle was owned by an uncle of the girl who lived in San Fernando, Pampanga, the surrender by accused Baluran of the watch of the deceased, the surrender of Morante of the license, residence certificate and the prayer book belonging to the deceased. In fact, were it not for the immediate confession of this accused Baluran, the detention of Rosario Morante in Tarlac PC Headquarters could not have been known to the local police of Plaridel. Lt. Felipe Adriano and Municipal Judge Francisco Santiago of Plaridel both testified to the voluntariness and freedom with which the said statements had been given. The father of Rosario Morante was only outside of the room where her statement was taken and he could not have been unaware of any maltreatment her daughter suffered, if indeed she suffered anything. In fact, from a perusal of his statements in court, he appeared to be a resigned father who expected the worst from his child in view of her boyish and wayward nature. Judge Francisco Santiago before whom the two exhibits were subscribed and sworn to went beyond the ordinary norm of conducting the preliminary investigation in this case by putting down in his own penmanship additional questions and answers regarding the said statements. The Court is satisfied that said police officer and Judge Santiago only did their duties, and were not biased in the least. As to the claim of each of the accused that only one of them is really responsible for the killing of the driver, the Court believes and so holds that the proven acts of the accused in running away with the motor vehicle after the said driver was killed, the asportation of money and other articles belonging to the victim constitute the complex crime of robbery with homicide. For under Article 294, Paragraph 1, of the Revised Penal Code, this complex crime is committed when robbery is proven and a homicide shall have been committed "by reason or on occasion of the robbery." So it does not matter whether one or the other killed the herein victim because the latter was killed "by reason or on occasion of the robbery." This is apart from the consideration of the acts of the accused in this case which fully show that in the commission of the robbery there is concerted action and meeting of the minds of the two accused, so that the conspiracy has been well established by the prosecution. There being a conspiracy, it is of no moment whether only one or both of them delivered the fatal blows, for the act of one is the act of the other, and both are equally responsible as principals.

In her brief appellant Morante contends that the trial court erred in admitting her confession (Exhibit A) as well as that of her co-appellant (Exhibit B) as evidence against her and that, as a result, said court erred in not acquitting her. Similarly, Baluran's counsel de officio contends that the trial court erred: in admitting the latter's extrajudicial confession as evidence against him; in proceeding with the trial of the case without a previous valid preliminary investigation and, as a result, erred in finding him guilty of the crime charged. Baluran's contention that there was no previous valid preliminary investigation is without merit, firstly, because the same was not raised at any stage of the proceedings below; secondly, he and his co-appellant had waived the preliminary investigation in the Municipal Court of Plaridel (Record, p. 16). Appellants also claim that the confessions in question should not be given any probative value against them because they were obtained through force and intimidation. After going over appellants' testimony (transcript of October 6, 1966, pp. 1-45 and 45-75) and other evidence presented to support their contention, we find that the same is too weak and unreliable to overcome the testimony of Lt. Felipe Adriano of the Plaridel Municipal Police, and of Francisco Santiago, municipal judge of the same municipality (pp. 4-19 of the transcript of the stenographic notes corresponding to August 11, 1966, respectively) showing that the aforesaid confessions were made freely and voluntarily. While it is true that they were taken in the police department of Plaridel, it is equally true that the affiants were subsequently taken to the presence of Municipal Judge Santiago who had said confessions read to them as they were, asking them afterwards whether they were the questions made to them and the answers given by them. Both replied in the affirmative and further affirmed in the presence of said judge that they had not been subjected to any violence, threat or intimidation. Moreover, Judge Santiago, whose credibility has not been assailed by appellants, asked them additional questions now forming part of their respective confession. In the particular case of appellant Morante, who claims that she was given face blows and karate blows, the following excerpts from the testimony of her own father would be sufficient, We believe, to show that her claim deserves but scant consideration Q You stated that you were able to talk with your daughter here the following days after she was taken from Tarlac and that she complained to you that her hair was pulled by a police officer, did you come to know that police officer? A I did not inquire from her who that policeman was, because I was not interested in knowing who. FISCAL. Q Did you ask your daughter if she was hurt? A Yes, sir. Q What was the answer?. A She said not very much.

Q Your daughter also told you that somebody gave her a karate blow, did you ask her who gave that karate blow to her? A She complained to me, sir. I did not ask who that person was. Q You stated you did not ask her who that man was but did she tell you who that man was? A She told me; I have forgotten, sir. Q You mean to say she has given the name of the man who gave her that karate blow? A Yes, sir. Q But you have forgotten the name of that man already? A Yes, sir. Q But on the day it was told you, you knew the name of the man? A I know that person by name but I do not know his face. Moreover, the questioned statements (Exhibits A and B) are in Tagalog, the native language of Morante, and a dialect fairly spoken and understood by Baluran. Their contents tally substantially in many important respects with their respective testimony during the trial. Each of them, however, claims that it was the other who did the killing. We agree with the lower court that while upon the evidence it was appellant Baluran alone who inflicted the fatal blows that killed Mariano, appellant Morante is likewise responsible therefor, the conspiracy to rob and kill said deceased having been established. The fact that appellant Morante engaged the services of Mariano and the use of his tricycle on the night in question; the fact that she later fetched her co-appellant and both directed Mariano to take them to barrio Tabang pretending that Morante was going there to borrow money from someone; the fact that while they were motoring back towards Plaridel, Morante told the tricycle driver to proceed to barrio Bagong Silang where she intended to see a relative by the name of Romy to borrow money from him; the fact that upon nearing the alleged house of the latter, appellants ordered the tricycle driver to stop and then appellant Baluran got off pretending to look for Romy in the house just to come back later saying that the latter was already getting ready; the further fact that Morante then got off of the tricycle and while she was pretending to answer a call of nature at a nearby place, Baluran attacked the unsuspecting tricycle driver with a blunt instrument, hitting him on the neck, head and face which injuries caused this death, the fact that they afterwards took the body of their victim aboard the tricycle and dumped it on the shoulder of the road along the MacArthur highway; the fact that both appellants run away with the tricycle of the deceased with the intention of selling it in Baguio City but were unable to do so because they were apprehended at Bamban, Tarlac; lastly, the fact that both were found in the possession of money and other things belonging to the deceased; all these can lead us to but one conclusion, namely, that both appellants had conspired to rob and kill the deceased Melchor Mariano. This makes one completely liable for the acts of the other.

The foregoing makes it unnecessary for us to consider appellant Morante's contention that the trial court erred in considering the confession made by her co-appellant as evidence against her. It is clear from what has been stated heretofore that, even disregarding the confession of Baluran, the rest of the evidence of record is sufficient to support the judgment of conviction against her. The crime of robbery with homicide charged having been proven beyond reasonable doubt, We come now to the consideration of the manner and circumstances under which the crime was committed. We agree with the trial court that the evidence of record shows that the deceased was attacked and killed treacherously with a blunt instrument. The crime committed, considering all the foregoing, is robbery with homicide penalized under paragraph 1 of Article 294 of the Revised Penal Code with reclusion perpetua to death. This penalty should be imposed in its maximum degree, the commission of the offense having been attended by one aggravating circumstance without any mitigating circumstance to offset the same. WHEREFORE, it is our painful duty to affirm the appealed judgment, except that the indemnity of P6,000.00 is increased to P12,000.00 to be paid, jointly and severally, by the appellants to the heirs of the deceased Melchor Mariano. With costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION September 22, 1939 G.R. No. 46108 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DATU GALANTU MEDTED, ET AL., defendants. DATU GALANTU-MEDTED, KANAKAN MEDTED, and MAUTI DUMAURONG, appellants. Carmelo Basa for appellants. Diaz, J.: At about 7 oclock in the night of September 25, 1937, Moro Manankian, married to Sumerigan, received a spear wound in his breast above his right nipple, piercing his right lung and producing a hemorrhage which caused his death a few moments later. This took place in his own house situated in the place called Makamalig in the barrio of Marang, district of Parang, Province of Cotabato. The crime was attributed to the accused Datu Galantu Medted, Kanakan Medted, Mauti Dumaurong, and Makagaan, all Moros, against whom a complaint was first presented in the justice of the peace court of the municipal district of Parang, followed later by an information filed in the Court of First Instance of Cotabato. After due trial in the latter court, the three appellants the accused Makagaan having been released from the charge upon motion of the fiscal, for lack of evidence were convicted of the crime of murder and sentenced to suffer the penalty of reclusion perpetua and to pay jointly and severally to the heirs of the deceased an indemnity of P1,000 plus the costs. They appealed from said sentence and in this instance they now argue that the court erred: (1) In not sustaining the defense of double jeopardy in their favor, and (2) in finding them guilty of the crime with which they had been charged, notwithstanding the fact that the same had not been established beyond reasonable doubt. It appears from the evidence presented during the trial that while the deceased Manankian was cooking coconut oil on the stove inside the kitchen of their house, on the occasion in question, he unexpectedly received a spear wound in his breast, as a consequence of which he was unable to utter any word except to tell his wife Sumerigan that he had been speared. His wife, upon peeping through the uncovered opening between the floor of their living room and that of their kitchen, in order to find out who could have been the aggressors of her husband, saw the

appellants by the light of a lamp which was in the kitchen and by that of the flames of the fire in the stove beside which her said husband stood cooking the coconut oil. It likewise appears from the evidence that the appellants and their respective families were not in good terms with the deceased and his wife ever since said deceased, about four years before, charged the father of the two appellants and grandfather of the last one, with having stolen two carabaos belonging to him and his wife. The person whom the deceased had charged with theft of large cattle was named Sulay. The case had been submitted to a Constabulary officer and later to the chieftains of the place where the parties resided. During the sort of trial held before said chieftains, Sulay required to swear before the Koran to affirm thereby the truth of his allegation that he had not stolen the animals belonging to the deceased. Upon swearing, he invoked death to come upon him if he was not telling the truth. It happened that Sulay died some years later and the deceased and his faction believed that it was due to his having sworn falsely in connection with the question between him and the deceased, relative to the two carabaos belonging to said deceased. Thereafter the resentment of the appellants, who are sons and grandson of Sulay, against the deceased and his family, became more accentuated and aggravated. The lower court declared that the motive of the crime was the grave resentment then existing between the deceased and the appellants. The testimony of the widow of the deceased to the effect that she recognized the accused-appellants as the perpetrators of the aggression committed against her husband, is corroborated by that of the witness Mama, who testified that at the cries of said widow, he saw and recognized the three appellants as they fled from said place, each of them carrying spears and creeses. While it is true that Sumerigan told Bansil, Sangad and Mamarinta, who were the first to go to her house after the crime, that she had not been able to recognize the perpetrators thereof, stating the same thing to Lieutenant Cabrera of the Army, who went to the scene of the crime on the following day for the purpose of conducting the necessary investigation, however, the reason given by said witness for having behaved in that manner is not only satisfactory but convincing as well. The widow being a native of the Province of Lanao, she was a stranger in Makamalig and had no relatives therein who could protect her. Bansil, Sangad and Mamarinta were all very near relatives of the appellants, some by reason of blood ties and others by reason of marriage. Although she knew who the authors of her husbands death were, she kept silent for fear of being harmed. She likewise kept silent when Lieutenant Cabrera went to said place to conduct an investigation, because the relatives of the appellants were then present and could hear her. On that same occasion, however, amidst sobs and tears, she told Lieutenant Cabrera in a low voice, outside the hearing of others, that she would go to see him at his headquarters in order to make a true revelation and to give him the names of the

perpetrators of the crime. She did so, as she had promised, soon after her husbands body had been buried. The appellants base their defense of double jeopardy on the fact that the first complaint filed against them in the justice of the peace court was dismissed upon petition of the fiscal himself, for lack of evidence, as soon as it had been received in the Court of First Instance, and on the fact that, notwithstanding said dismissal, the fiscal again charged them with the same acts and offense in another case. This defense is unfounded. The result of a preliminary investigation can neither constitute nor give rise to the defense of double jeopardy in any case, because such preliminary investigation is not and does not in itself constitute a trial or even any part thereof. The only purpose of a preliminary investigation is to determine, before the presentation of evidence by the prosecution and by the defense, if the latter party should wish to present any, whether or not there are reasonable grounds for proceeding formally and resolutely against the accused (People vs. Peji Bautista, G.R. No. 45739, April 25, 1939; U.S. vs. Yu Tuico, 34 Phil. 209). In order that the defense of jeopardy may lie, there must be a former judgment, either of acquittal or of conviction, rendered by a court competent to render the same, not only by reason of the offense committed, which must be the same or at least comprised within it, but also by reason of the place where it was committed. Under the established facts it cannot be stated that the same circumstances exist in the case under consideration. Consequently, the defense of double jeopardy is untenable. The lower court held as proven the existence of the qualifying circumstance of treachery, the aggravating circumstances of nighttime and of dwelling, and the mitigating circumstance of lack of instruction of the appellants, in the commission of the crime. However, it gave no importance to the aggravating circumstance of nighttime because it correctly declared the same to be absorbed in the qualifying circumstance of treachery (People vs. Piring, 63 Phil. 546). There is no doubt about the existence of treachery as a qualifying circumstance because the appellants committed the aggression by taking the deceased by surprise without any risk whatsoever to themselves, the deceased not having been, as he was not, warned in order to defend himself or even to avoid said aggression. The act, or rather the aggression, was treacherous and was the result of a conspiracy among the appellants. For all the foregoing, the appealed judgment being in accordance with law, it is hereby affirmed in toto, with the costs to the appellants, who must, however, be credited with one-half of the preventive imprisonment which they have been suffering to date. So ordered. Avancea, C.J., Villa-Real, Imperial, Laurel, Concepcion, and Moran, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-32950 July 30, 1971 JOSE C. LUCIANO and FLORENTINO S. ROLLS, petitioners, vs. HON. HERMINIO C. MARIANO, as JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL; HON. B. JOSE CASTILLO, as incumbent PROVINCIAL FISCAL OF RIZAL, and HON. BENJAMIN H. AQUINO, as former PROVINCIAL FISCAL OF RIZAL, respondents. Coronel Law Office and Bagatsing, Alidio & Associates for petitioners. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Pedro A. Ramirez for respondents.

TEEHANKEE, J.: A petition for writs of certiorari, mandamus and prohibition, pleading grave abuse of discretion and excess of jurisdiction on the part of respondent court in issuing its questioned order of December 15, 1970 in that (a) no proper preliminary investigation or review of the criminal antigraft charge against petitioners was conducted by respondent provincial fiscal and (b) respondent court, without holding the hearing on the validity of the information previously ordered by this Court, prematurely and improperly held the questioned information to be valid, paving the way for the imminent wrongful suspension from office of petitioner Jose C. Luciano, incumbent acting mayor of Makati, Rizal, as a necessary consequence thereof. The present action is a sequel case of Luciano vs. Wilson, 1 resolved by the Court on August 31, 1970, wherein Mr. Justice Reyes thus summarized the antecedent facts: As a consequence of our decision in G.R. No. L-30306 (Jose C. Luciano vs. Provincial Governor of Rizal, et al.) promulgated on 20 June 1969, upholding the suspension from office, by the Court of First Instance of Rizal, of elected Mayor Maximo Estrella, Vice-Mayor Teotimo Gealogo, and Councilors Justino Ventura, Pedro Ison, Ignacio Babasa and Bernardo Nonato, among other accused, as a result of their having been found guilty of violation of Republic Act 3019 (AntiGraft and Corrupt Practices Act), then ranking Councilor Jose C. Luciano entered into the office of and duly qualified as Acting Mayor of Makati. The records show, however, that on 30 May 1969, or prior to his assumption of the mayorship, petitioner Luciano, together with Florentino S. Rolls, was himself charged with violation of the Anti-Graft and Corrupt Practices Law before the

Court of First Instance of Rizal, in an information signed by then Provincial Fiscal Benjamin H. Aquino (Criminal Case No. 19346). To forestall his suspension from public office, Luciano filed with this Court on 3 June 1969 a petition for prohibition to restrain the Provincial Fiscal from filing the information against him; the Court of First Instance of Rizal from accepting and/or giving due course to that information; and to have said information declared null and void. The petition was based on the allegations that the disputed information, although dated 29 May 1969, was actually transmitted to the Court of First Instance of Rizal only on 30 May 1969, the very day when the respondent fiscal took his oath of office as judge of the Rizal Court of First Instance; and that such criminal information was filed without the respondent fiscal having conducted a preliminary investigation and without giving the accused (petitioner) notice and opportunity to be heard. On 5 June 1969, this Court dismissed the petition, but without prejudice to petitioner's filing with the court a quo of an appropriate motion for the conducting of a preliminary investigation and for the suspension in the meantime of criminal proceedings. Conformably with the aforesaid resolution, petitioner filed with the lower court a motion to allow the holding of a preliminary investigation of the case, on the same ground of lack of preliminary investigation. On 14 June 1969, this motion was denied, the court below pointing out that the information carried a verified certification by the provincial fiscal that he had conducted the required preliminary investigation on the case. Nevertheless, considering that said fiscal had been appointed to the judiciary, the court ventured the opinion that there was nothing wrong in the incumbent Provincial Fiscal's conducting a reinvestigation or review of the evidence in the hands of the prosecution. Thus, the latter was given 30 days from receipt of the order within which to signify in writing whether or not he deemed it necessary to conduct a reinvestigation of the case. As the Provincial Fiscal B. Jose Castillo, however, manifested that no reinvestigation of the case could be made without any petition to this effect from the accused, Luciano filed on 12 July 1969 a request for the fiscal to conduct a preliminary investigation and/or reinvestigation. Because of these incidents, petitioner's arraignment had to be postponed several times. On 13 September 1969, the Provincial Fiscal granted petitioner's request for reinvestigation, the court being notified thereof. On 15 September 1969, petitioner Luciano was arraigned and entered a plea of not guilty to the charge. Thereupon, the court set the trial of the case for 15 October 1969 without prejudice to the outcome of the reinvestigation. Finally, in a written manifestation dated 15 December 1969, the Provincial Fiscal informed the court that he had conducted a preliminary investigation and/or reinvestigation of the case, with notice to the parties, on 18 October 1969; that on said date, counsel for the petitioner manifested that the evidence previously submitted to State Prosecutor Edilberto Barot, Jr. be considered and upon receipt of the respective memoranda of the Police Commission and the petitioner, the case be deemed submitted for resolution; and that taking into consideration the aforesaid evidence previously adduced together with the memoranda of the Police Commission and the petitioner, the case be deemed submitted for resolution; and that taking into consideration the aforesaid evidence

previously adduced together with the memoranda of the parties he (the fiscal) believed that there existed sufficient evidence to establish prima facie the guilt of the accused. On the same day, 15 December 1969, the court issued an order in Criminal Case No. 19346, suspending the accused Jose C. Luciano from public office pursuant to Section 13 of Republic Act 3019. "(I)t appearing that in the information charging the accused is sufficient in form and substance and the validity of said information is apparent." Immediately, the accused filed with the respondent court an urgent motion for reconsideration of said order and for the holding in abeyance of the suspension-directive. It also appears from the record that at 2:45 in the afternoon of that day, 15 December 1969, respondent Johnny Wilson, the Acting Vice-Mayor, took an oath of office as Acting Mayor of Makati before a judge of the Court of First Instance of Rizal. On 16 December 1969, Luciano instituted the present proceeding in this Court, originally against Johnny Wilson (who apparently did not press his intention to occupy the position of Acting Mayor) and the Provincial Governor of Rizal only, which was given due course on the same day. And, acting on petitioner's prayer we issued a temporary restraining order against respondent Provincial Governor, to prevent him from appointing respondent Wilson as Acting Mayor of Makati, Rizal, and the latter from usurping and intruding into the office of petitioner as Acting Mayor. This Court likewise directed petitioner to include as parties respondent the Judge of the Court of First Instance of Rizal before whom Criminal Case No. 19346 was pending, and the People of the Philippines. This, the petitioner did; thus, on 19 December 1969, this Court issued another temporary restraining order to include in the prohibition the enforcement by the respondent Judge of his automatic suspension order of 15 December 1969 against the petitioner, and the ordering or causing of the latter's arrest for performing the duties of Acting Mayor of Makati. This Court's resolution in said precursor case of Luciano vs. Wilson specified Luciano's two grounds for assailing the legality of the same respondent court's "automatic suspension, order of 15 December 1969" as follows: "(a) that he was denied his day in court when the respondent Judge reached the conclusion that the information is valid, without affording him opportunity to be heard; and (b) that the information does not charge an indictable offense under Republic Act 3019, and that no preliminary investigation was conducted in accordance with law." As further narrated therein, "After the case was submitted and while pending decision by this Court, respondent Johnny Wilson filed, on 30 June 1970, a motion to the effect that, abandoning his previous stand, said respondent was willing to confess judgment in all material points relevant to the issue of holding a hearing to determine the validity of an information filed under the Anti-Graft and Corrupt Practices Act, ... . Counsel for other respondents, 2required to comment, manifested conformity to Wilson's motion. This Court thereupon stated the following grounds and considerations for granting Wilson's motion. "(C)onsidering that the basic stand of petitioner Luciano, assented to by respondent Wilson in his motion, that there should have been a hearing on the validity of the information, appears conformable to the spirit of the law, taking into account the serious and far reaching consequences of a suspension of an elected public official even before his conviction, and considering that public interest demands a speedy determination of the issues involved in this case as well as in the case pending against petitioner in the branch of the Court of First Instance of Rizal presided by respondent Judge Herminio Mariano, this Court is of the opinion

that the motion should be granted. In the hearing thus to be held, petitioner's submission that the information charges no indictable offense and that no due preliminary investigation was made by the Provincial Fiscal, can be fully ventilated ," 3 and accordingly resolved, inter alia. xxx xxx xxx (2) To set aside the order of 15 December 1969 , issued by respondent Judge Herminio Mariano in Criminal Case No. 19346 of the Court of First Instance of Rizal, suspending petitioner Jose C. Luciano from office ; (3) To direct said respondent Judge Mariano to forthwith hold a hearing on the validity of the information filed in said Criminal Case No. 19346 and the claimed lack of proper preliminary investigation, and determine such issues as soon as practicable; and (4) Should he find in favor of the prosecution, to hear and decide the criminal case on its merits. 4 Accordingly, respondent court was called upon to hold a hearing on the validity of the information 5 for violation of the Anti-Graft Law, at which hearing "petitioner's submission that the information charges no indictable offenseand that no due preliminary investigation was made by the provincial fiscal, can be fully ventilated," as directed in this Court's above-quoted Resolution of August 31, 1970. At a preliminary hearing held on October 12, 1970 in connection with petitioner's urgent motion for production and copying of documents, respondent court expressed doubts as to the nature of and procedure at the hearing to be held by it in compliance with this Court's Resolution, thus: Court: You will note that order of the Supreme Court did not lay down the necessary ruling to be adopted by this court to determine the validity of the information or if there is a preliminary investigation. Neither is there a provision in the Supreme Court to determine the invalidity of the information and lack of preliminary investigation, then this court will resolve as to how. Under Rule 135, Section 6, it is provided for therein how this court shall determine the validity of the information. That is in answer to this. I think you will not deny this court has already jurisdiction. What means or the procedure to be followed or adopted so by tomorrow the court will invite the parties. How would you like to determine the validity. Would you like to present your evidence or would you like to argue? Because there is no specific rule. So we are going to adopt suitable ways. The Court will ask the prosecution if it is the turn of the prosecution in this case. Is there preliminary investigation? Is there a valid information? (sic) What is the stand of the defense? Is there a preliminary investigation? Whatever is the answer, he who will claim there is none should prove the same. That is the process that we will adopt tomorrow. 6

Petitioners' counsel submitted that the proper procedure "to determine the validity of the information ... is to hear the motion to quash" dated December 16, 1969 and left unresolved during the pendency in this Court of Luciano vs. Wilson. 7 Respondent court gave respondent fiscal, if he so wished, up to the afternoon of that same day, October 12, 1970, within which to submit his answer thereto. 8 The required hearing was finally commenced by respondent court in the afternoon of October 26, 1970. The hearing centered on discussions whether there had been preliminary investigation of the graft charge against petitioners, 9 since the complaint filed against them was admittedly for falsification which was dismissed by the investigating fiscal, state prosecutor Barot with the conccurrence of then provincial fiscal (now judge) Benjamin Aquino, who, however, considered the evidence sufficient to sustain the filing of the graft charge. As to the other issue of the validity of the information, petitioners' counsel submitted that it depended on respondent court's resolution on the first issue of whether there had been due preliminary investigation and "then we can meet again depending on the resolution that the court may hand down on this first incident." 10 Respondent court terminated the hearing after securing the parties' stipulation "that at first instance, the case which was filed is falsification against the accused in this case. That it was dismissed after Fiscal Barot conducted the preliminary investigation; that then Provincial Fiscal Benjamin Aquino, now Judge of the Court of First Instance considered the evidence that while it may not sustain the charge of falsification it can sustain the charge of violation of the Anti-graft (Law)," 11 and asking as to what would be done on the rest of the scheduled dates of hearing, to which petitioners' counsel, by way of reply, "pray(ed) to cancel these hearings until your honor has resolved this issue" 12 and the incident was declared submitted. Without further ado, respondent court thereafter issued its disputed order of 15 December 1970, wherein it "hold and so rules that there has been a preliminary investigation held in this case, and that the information is valid." I. On the first issue of whether there had been a proper preliminary investigation of the graft charge prior to the filing of the information therefor against petitioners, respondent court, in ruling affirmatively, relied on the same written manifestation dated 15 December 1969 of respondent fiscal Castillo of his having conducted on October 18, 1969 "a preliminary investigation and/or reinvestigation" (which had already been considered and in effect found far from conclusive in Luciano vs. Wilson) and declared that: ... At the reinvestigation conducted by Provincial Fiscal B. Jose Castillo by virtue of their aforementioned petition, the accused instead of presenting evidence in their defense in order to offset the evidence of the prosecution, merely submitted the evidence presented at the preliminary investigation conducted by State Prosecutor Barot, and rested their fate in the hands of Provincial Fiscal Castillo, knowing that he may decide the matter for or against the accused. Indeed, notwithstanding the fact that all the opportunities were open at the reinvestigation for the accused to exercise their rights afforded them by law, probably carried by over confidence and belief that the Provincial Fiscal would render a verdict in their favor, the accused folded their arms and chose not to exercise such rights. Perhaps if the resolution of the Fiscal was in their favor, the accused would no longer complain. Now that the Fiscal has manifested that based on the evidence presented at the reinvestigation, he believes that a prima facie case exists

against the accused, they cannot anymore invoke the same rights and press for another preliminary investigation. The provincial Fiscal is not bound by the qualification of the crime designated in the complaint filed with his Office. Rather, he is guided by the evidence presented in the course of a preliminary investigation and on the basis of which he may formulate and designate the offense and file the corresponding information. ... The Provincial Fiscal may simply rely on the records of the case on the basis of which he can draw his conclusion, which was exactly what then Provincial Fiscal Aquino did. Certainly, even granting that an error had been committed in that the accused were given a preliminary investigation on the charge of falsification but were subsequently charged with violation of the Anti-Graft and Corrupt Practices Act under the same preliminary investigation, which the Court does not subscribe to be an error, yet such alleged error had been cured by the reinvestigation conducted by Provincial Fiscal Castillo which lasted for three months and which partook of the nature of a preliminary investigation. 13 Respondent court had reason to fault petitioners and their counsel for their imprudence and "overconfidence" in "folding their arms" and apparently choosing not to exercise their rights of confronting and cross-examining the complainant and witnesses against them and adducing their own evidence, when respondent Castillo called the case for reinvestigation on October 18, 1969. But respondent court's factual conclusions that fiscal Castillo had indeed conducted a reinvestigation and reviewed the evidence were far from accurate. As late as the date the present petition was heard by the Court on January 19, 1971, the stenographic notes of all testimonial evidence given before state prosecutor Barot 14 during the hearings at the preliminary investigation of the original charge for falsification had not yet been transcribed and could not therefore be reviewed. Upon interpellation, Fiscal Castillo confirmed this fact, as well as the further fact that neither Fiscal Aquino nor the stenographer had apprised him of the contents of said notes. Fiscal Castillo could not therefore inform this Court of the factual and legal bases for the information filed by his predecessor in office 15 and consequently manifested in open court his readiness and willingness to conduct a preliminary investigation in fairness to petitioners. Legally, respondent court's theory that under the same preliminary investigation for the crime of falsification which was ordered dismissed by the investigating fiscal with the approval of then provincial fiscal Aquino and fiscal Castillo as being "without any factual or legal basis", that petitioners could nevertheless be charged on the basis of the records with the graver crime of violation of the Anti-Graft and Corrupt Practices Law, the dependency of which under a valid information carries mandatory suspension from office, 16 has been rejected by this Court. InBandiala vs. Court of First Instance of Misamis Occidental, 17 where the preliminary investigation was for robbery in band (with one of the two accused waiving the second stage), the Court held that the provincial fiscal could not file against the accused an information for the graver crime of robbery with kidnapping, without giving the accused "ample opportunity at a fullblown preliminary investigation to demonstrate that what the fiscal regards as "kidnapping" in the legal sense was merely an incident of, and is therefore absorbed in the crime of robbery." The Court noted once again that "(A) preliminary investigation, it must be borne in mind, is a practical device created by statute and by mandate of our Rules of Court, principally for the purpose of preventing hasty, malicious and ill-advised prosecutions," and pointedly emphasized that "(T)he Rules of Court on the matter of preliminary investigation, construed in their integrated entirety, direct that, in the circumstances here obtaining, the Fiscal, if he believes that

he should raise the category of the offense, must conduct a preliminary investigation anew as to the entire charge. Fundamental principles of fair play dictate this course of action. The Fiscal is not allowed by the Rules of Court to wait in ambush; the role of a Fiscal is not mainly to prosecute, but essentially to do justice to every man and to assist the courts in dispensing that justice." II. On the second issue of the validity of the information, respondent court evidently failed to appreciate the full import of this Court's resolution of August 31, 1970 that it hold a hearing at which "petitioners' submission that the information charges no indictable offense ... can be fully ventilated." Respondent court held no hearing whatsoever on this second issue, disregarding petitioners' prayer at the hearing of October 26, 1970 that it reset the issue for the required hearing, should it resolve adversely, as it did, the first issue of whether there had been due preliminary investigation. Relying simply on the ritualistic recitation of the necessary averments for sufficient information, 18 respondent court summarily ruled in its questioned order as follows: No doubt a cursory reading of the information filed in this case will show that it is sufficient in form and substance because it contains all the elements prescribed by law, to wit: the designation of the offense by the statute, the name of the accused, the act or omission complained of as constituting the offense, the name of the offended party, the approximate time of the commission of the offense, and the place where the offense was committed. The Court cannot, therefore, but rule that the information is valid and the Court having found, as above stated, that proper preliminary investigation had been conducted, what remains for the Court to do is to try the case on the merits. 19 Respondent court's premptory * ruling and advance pronouncement that what remained for it to do "is to try the case on the merits" rendered moot the petitioners pending motion to quash and its scheduling the same for hearing on December 21-23, 1970, in the light of its frequent references at the preliminary hearing of October 13, 1970, 20 to this Court's "overwhelming statements" in Luciano vs. Provincial Governor, 21 to the effect that "suspension is a sequel to that finding (of a valid information), an incident to the criminal proceedings before the Court" and that "under section 13 of the Anti-Graft and corrupt Practices Act, once a valid information upon the provisions thereof is lodged with the Court of First Instance, that court has the inescapable duty to suspend the public official indicted thereunder." These statement were however taken by respondent court out of context for in the said case of Luciano vs. Prov. Governor, the suspension order against Mayor Estrella, et al. as upheld by this Court came only in the trial court's judgment of conviction and the validity of the information could no longer be questioned and was not in issue. III. (a) Under the facts and circumstances here obtaining, as discussed hereinabove, the Court finds that since the information for alleged violation of the Anti-graft Law was filed without any previous notice to petitioners and due preliminary investigation thereof, and despite the dismissal of the original charge for falsification as being "without any factual or legal basis", petitioners are entitled to a new preliminary investigation for the graft charge, with all the rights to which they are entitled under section 1 of Republic Act No. 5180, approved September 8, 1967, as invoked by them anew from respondent court, viz, the submittal of the testimonies in affidavit form of the complainant and his witnesses duly sworn to before the investigating fiscal, and the right of accused, through counsel, to cross-examine them and to adduce evidence in their defense. In line with the settled doctrine as restated in People vs. Abejuela, 22 respondent

court shall hold in abeyance all proceedings in the case before it until after the outcome of such new preliminary investigation. (b) Should respondent fiscal, after such preliminary investigation, find sufficient evidence to establish prima faciethe guilt of the accused and therefore maintain the information for violation of Republic Act No. 3019 as filed and so inform the lower court, then the trial court must hold a hearing on the validity of the information and make an affirmative finding of validity thereof, before it can issue the order of suspension from office of petitioner Luciano. This procedure was first indicated in the leading case of Luciano vs. Prov. Governor, supra, where we stated that "in line with the statutory text of Section 13, the suspension spoken of follows the pendency in court of a criminal prosecution under a "valid information". Adherence to this rigoristic requirement funnels us down to no other conclusion than that there must, first of all, be a determination that the information filed is valid before suspension can be effected. This circumstance militates strongly against the notion that suspension is automatic. Suspension is however, mandatory." In the subsequent case of Luciano vs. Wilson, supra, the Court, in requiring such pre-suspension hearing, held definitely that "a hearing on the validity of the information appears conformable to the spirit of the law, taking into account the serious and far reaching consequences of a suspension of an elected public official, even before his conviction and that public interest demands a speedy determination of the issues involved in (the) case." The Court has again this month reiterated such requirement in Oliveros vs. Villalluz, L-33362, wherein we set aside the suspension order issued without prior hearing by the trial court against petitioner mayor of Antipolo, Rizal, as being "premature and in grave abuse of discretion." (c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from office of public officers charged under a valid information under the provisions of Republic Act 3019 or under the provisions of the Revised Penal Code in bribery, pursuant to section 13 of said Act, 23 it may be briefly stated that upon the filing of such information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary. What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information, and thereafter hand down its ruling, issuing the corresponding order of suspension should it uphold the validity of the information or withholding such suspension in the contrary case. (d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, e.g. that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided in Rule 117 of the Rules of Court. The mandatory suspension decreed by the Act upon determination of the pendency in court of a criminal prosecution for violation of the Anti-Graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious, and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall

be called upon to issue the suspension order upon its upholding the validity of the information and setting the same for trial on the merits. (e) In the case at bar, ruling on the validity of the information is to be held in abeyance until after the outcome of the preliminary investigation to be conducted by respondent provincial fiscal of the graver charge of alleged violation of the Anti-Graft Law, and hence no suspension order can issue. Should the fiscal find no case, he will then so inform respondent court and move to dismiss the case. In the contrary case, respondent court will then have to hear and decide petitioners' pending motion to quash before it, which squarely raises question that the facts charged do not constitute an offense and are not punishable under section 3 (a) and (e) of Republic Act No. 3019, contrary to the information's averment. (Investigating prosecutor Barot's resolution of May 14, 1969 recommending the dismissal of the charge of falsification of public documents against petitioners found "that the investigation conducted by the Police Commission was half-hazardly done and that it did not fully bring to the attention of the investigating officer the existing supporting documents attesting to the regularity of the appointment of Florentino S. Rolls as patrolman of the Makati Police Department." 24 [The complaint had charged that Rolls had collected and received salaries as patrolman "without having been previously qualified and appointed as such."] Then provincial fiscal, now judge, Aquino, in his last-act-in-office resolution of May 30, 1969, 25 in sustaining prosecutor Barot's dismissal of the charge of falsification, however, considered that the appointment of Roll's, Luciano's brother-in-law [admittedly a civil service eligible with chief of police eligibility] to the Makati Police Department and his assignment to then councilor Luciano, as vice-chairman of the municipal council's police committee, was a case of "rampant nepotism, favoritism and misuse of influence which shakens the confidence of the people in their police forces" and that since "there is no evidence to establish that Pat. Rolls had actually performed this work" [of following up the approval of pending appointments of members and employees of the police department, awaiting process and review by the Civil Service Commission], 26 ordered the filing under his signature on the same day of the information for violation of Republic Act No. 3019 against petitioners.) The prejudicial legal question raised by the pending quashal motion that respondent court would then first have to rule upon may be thus formulated: did then Mayor Estrella's appointment of Rolls (Luciano's brother-in-law) as municipal patrolman, upon then Councilor Luciano's recommendation and influence and Roll's assignment by the then chief of police to Luciano's office constitute a violation of section 3(a) and (e) of Republic Act No. 3019 27 as charged in the challenged information? 28 ACCORDINGLY, the writ of certiorari is granted and respondent court's order of 15 December 1970 in Criminal Case No. 19346 is set aside and annulled. Respondent court is further directed to hold in abeyance all proceedings in said case until after the outcome of the new preliminary investigation herein ordered, and thereafter to proceed in accordance with law as hereinabove indicated. The writ of mandamus is granted against respondent provincial fiscal who is hereby directed to conduct in accordance with law a preliminary investigation of the charge against petitioners for violation of Republic Act No. 3019 as alleged in the information in Criminal Case No. 19346, No costs. Reyes, J.B.L., Makalintal, Zaldivar, Castro and Barredo, JJ., concur. Fernando, Villamor, Concepcion, C.J. and Makasiar, JJ., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12871 July 25, 1959

TIMOTEO V. CRUZ, petitioner, vs. FRANCISCO G. H. SALVA, respondent. Baizas and Balderrama for petitioner. City Attorney Francisco G. H. Salva in his own behalf. MONTEMAYOR, J.: This is a petition for certiorari and prohibition with preliminary injunction filed by Timoteo V. Cruz against Francisco G. H. Salva, in his capacity as City Fiscal of Pasay City, to restrain him from continuing with the preliminary investigation he was conducting in September, 1957 in connection with the killing of Manuel Monroy which took place on June 15, 1953 in Pasay City. To better understand the present case and its implications, the following facts gathered from the pleadings and the memoranda filed by the parties, may be stated. Following the killing of Manuel Monroy in 1953 a number of persons were accused as involved and implicated in said crime. After a long trial, the Court of First Instance of Pasay City found Oscar Castelo, Jose de Jesus, Hipolito Bonifacio, Bienvenido Mendoza, Francis Berdugo and others guilty of the crime of murder and sentenced them to death. They all appealed the sentence although without said appeal, in view of the imposition of the extreme penalty, the case would have to be reviewed automatically by this Court. Oscar Castelo sought a new trial which was granted and upon retrial, he was again found guilty and his former conviction of sentence was affirmed and reiterated by the same trial court. It seems that pending appeal, the late President Magsaysay ordered a reinvestigation of the case. The purpose of said reinvestigation does not appear in the record. Anyway, intelligence agents of the Philippine Constabulary and investigators of Malacaang conducted the investigation for the Chief Executive, questioned a number of people and obtained what would appear to be confession, pointing to persons, other than those convicted and sentenced by the trial court, as the real killers of Manuel Monroy. Counsel for Oscar Castelo and his co-defendants wrote to respondent Fiscal Salva to conduct a reinvestigation of the case presumably on the basis of the affidavits and confessions obtained by those who had investigated the case at the instance of Malacaang. Fiscal Salva conferred with the Solicitor General as to what steps he should take. A conference was held with the Secretary of Justice who decided to have the results of the investigation by the Philippine Constabulary and Malacaang investigators made available to counsel for the appellants. Taking advantage of this opportunity, counsel for the appellants filed a motion for new trial with this Tribunal supporting the same with the so-called affidavits and confessions of some of those persons investigated, such as the confessions of Sergio Eduardo y de Guzman, Oscar Caymo,

Pablo Canlas, and written statements of several others. By resolution of this Tribunal, action on said motion for new trial was deferred until the case was studied and determined on the merits. In the meantime, the Chief, Philippine Constabulary, head sent to the Office of Fiscal Salva copies of the same affidavits and confessions and written statements, of which the motion for new trial was based, and respondent Salva proceeded to conduct a reinvestigation designating for said purposes a committee of three composed of himself as chairman and Assistant City Attorneys Herminio A. Avendaio and Ernesto A. Bernabe. In connection with said preliminary investigation being conducted by the committee, petitioner Timoteo Cruz was subpoenaed by respondent to appear at his office on September 21, 1957, to testify "upon oath before me in a certain criminal investigation to be conducted at the time and place by this office against you and Sergio Eduardo, et al., for murder." On September 19, 1957, petitioner Timoteo Cruz wrote to respondent Salva asking for the transfer of the preliminary investigation from September 21, due to the fact that this counsel, Atty. Crispin Baizas, would attend a hearing on that same day in Naga City. Acting upon said request for postponement, Fiscal Salva set the preliminary investigation on September 24. On that day, Atty. Baizas appeared for petitioner Cruz, questioned the jurisdiction of the committee, particularly respondent Salva, to conduct the preliminary investigation in view of the fact that the same case involving the killing of Manuel Monroy was pending appeal in this Court, and on the same day filed the present petition for certiorari and prohibition. This Tribunal gave due course to the petition for certiorari and prohibition and upon the filing of a cash bond of P200.00 issued a writ of preliminary injunction thereby stopping the preliminary investigation being conducted by respondent Salva. The connection, if any, that petitioner Cruz had with the preliminary investigation being conducted by respondent Salva and his committee was that affidavits and confessions sent to Salva by the Chief, Philippine Constabulary, and which were being investigated, implicated petitioner Cruz, even picturing him as the instigator and mastermind in the killing of Manuel Monroy. The position taken by petitioner Cruz in this case is that inasmuch as the principal case of People vs. Oscar Castelo, et al., G.R. No. L-10794, is pending appeal and consideration before us, no court, much less a prosecuting attorney like respondent Salva, had any right or authority to conduct a preliminary investigation or reinvestigation of the case for that would be obstructing the administration of justice and interferring with the consideration on appeal of the main case wherein appellants had been found guilty and convicted and sentenced; neither had respondent authority to cite him to appear and testify at said investigation. Respondent Salva, however, contends that if he subpoenaed petitioner Cruz at all, it was because of the latter's oral and personal request to allow him to appear at the investigation with his witnesses for his own protection, possibly, to controvert and rebut any evidence therein presented against him. Salva claims that were it not for this request and if, on the contrary, Timoteo Cruz had expressed any objection to being cited to appear in the investigation he (Salva) would never have subpoenaed him. Although petitioner Cruz now stoutly denies having made such request that he be allowed to appear at the investigation, we are inclined to agree with Fiscal Salva that such a request had been made. Inasmuch as he, Timoteo Cruz, was deeply implicated in the killing of Manuel Monroy by the affidavits and confessions of several persons who were being investigated by Salva and his committee, it was but natural that petitioner should have been interested, even

desirous of being present at that investigation so that he could face and cross examine said witnesses and affiants when they testified in connection with their affidavits or confessions, either repudiating, modifying or ratifying the same. Moreover, in the communication, addressed to respondent Salva asking that the investigation, scheduled for September 21, 1957, be postponed because his attorney would be unable to attend, Timoteo Cruz expressed no opposition to the subpoena, not even a hint that he was objecting to his being cited to appear at the investigation. As to the right of respondent Salva to conduct the preliminary investigation which he and his committee began ordinarily, when a criminal case in which a fiscal intervened though nominally, for according to respondent, two government attorneys had been designed by the Secretary of Justice to handle the prosecution in the trial of the case in the court below, is tried and decided and it is appealed to a higher court such as this Tribunal, the functions and actuations of said fiscal have terminated; usually, the appeal is handled for the government by the Office of the Solicitor General. Consequently, there would be no reason or occasion for said fiscal to conduct a reinvestigation to determine criminal responsibility for the crime involved in the appeal. However, in the present case, respondent has, in our opinion, established a justification for his reinvestigation because according to him, in the original criminal case against Castelo, et al., one of the defendants named Salvador Realista y de Guzman was not included for the reason that he was arrested and was placed within the jurisdiction of the trial court only after the trial against the other accused had commenced, even after the prosecution had rested its case and the defense had begun to present its evidence. Naturally, Realista remained to stand trial. The trial court, according to respondent, at the instance of Realista, had scheduled the hearing at an early date, that is in August, 1957. Respondent claims that before he would go to trial in the prosecution of Realista he had to chart his course and plan of action, whether to present the same evidence, oral and documentary, presented in the original case and trial, or, in view of the new evidence consisting of the affidavits and confessions sent to him by the Philippine Constabulary, he should first assess and determine the value of said evidence by conducting an investigation and that should he be convinced that the persons criminally responsible for the killing of Manuel Monroy were other than those already tried and convicted, like Oscar Castelo and his co-accused and co-appellants, including Salvador Realista, then he might act accordingly and even recommend the dismissal of the case against Realista. In this, we are inclined to agree with respondent Salva. For, as contended by him and as suggested by authorities, the duty and role of prosecuting attorney is not only to prosecute and secure the conviction of the guilty but also to protect the innocent. We cannot overemphasize the necessity of close scrutiny and investigation of the prosecuting officers of all cases handled by them, but whilst this court is averse to any form of vacillation by such officers in the prosecution of public offenses, it is unquestionable that they may, in appropriate cases, in order to do justice and avoid injustice, reinvestigate cases in which they have already filed the corresponding informations. In the language of Justice Sutherland of the Supreme Court of the United States, theprosecuting officer "is the representative 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 a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocent suffer. He may prosecute with earnestness and vigor indeed,

he should do so. But, while he may strike had blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. (69 United States law Review, June, 1935, No. 6, p. 309, cited in the case of Suarez vs. Platon, 69 Phil., 556) With respect to the right of respondent Salva to cite petitioner to appear and testify before him at the scheduled preliminary investigation, under the law, petitioner had a right to be present at that investigation since as was already stated, he was more or less deeply involved and implicated in the killing of Monroy according to the affiants whose confessions, affidavits and testimonies respondent Salva was considering or was to consider at said preliminary investigation. But he need not be present at said investigation because his presence there implies, and was more of a right rather than a duty or legal obligation. Consequently, even if, as claimed by respondent Salva, petitioner expressed the desire to be given an opportunity to be present at the said investigation, if he latter changed his mind and renounced his right, and even strenuously objected to being made to appear at said investigation, he could not be compelled to do so. Now we come to the manner in which said investigation was conducted by the respondent. If, as contended by him, the purpose of said investigation was only to acquaint himself with and evaluate the evidence involved in the affidavits and confessions of Sergio Eduardo, Cosme Camo and others by questioning them, then he, respondent, could well have conducted the investigation in his office, quietly, unobtrusively and without much fanfare, much less publicity. However, according to the petitioner and not denied by the respondent, the investigation was conducted not in respondent's office but in the session hall of the Municipal Court of Pasay City evidently, to accommodate the big crowd that wanted to witness the proceeding, including members of the press. A number of microphones were installed. Reporters were everywhere and photographers were busy taking pictures. In other words, apparently with the permission of, if not the encouragement by the respondent, news photographers and newsmen had a filed day. Not only this, but in the course of the investigation, as shown by the transcript of the stenographic notes taken during said investigation, on two occasions, the first, after Oscar Caymo had concluded his testimony respondent Salva, addressing the newspapermen said, "Gentlemen of the press, if you want to ask questions I am willing to let you do so and the question asked will be reproduced as my own"; and the second, after Jose Maratella y de Guzman had finished testifying and respondent Salva, addressing the newsmen, again said, "Gentlemen of the press is free to ask questions as ours." Why respondent was willing to abdicate and renounce his right and prerogative to make and address the questions to the witnesses under investigation, in favor of the members of the press, is difficult for us to understand, unless he, respondent, wanted to curry favor with the press and publicize his investigation as much as possible. Fortunately, the gentlemen of the press to whom he accorded such unusual privilege and favor appeared to have wisely and prudently declined the offer and did not ask questions, this according to the transcript now before us. But, the newspapers certainly played up and gave wide publicity to what took place during the investigation, and this involved headlines and extensive recitals, narrations of and comments on the testimonies given by the witnesses as well as vivid descriptions of the incidents that took place during the investigation. It seemed as though the criminal responsibility for the killing of Manuel Monroy which had already been tried and finally determined by the lower court and

which was under appeal and advisement by this Tribunal, was being retried and redetermined in the press, and all with the apparent place and complaisance of respondent. Frankly, the members of this Court were greatly disturbed and annoyed by such publicity and sensationalism, all of which may properly be laid at the door of respondent Salva. In this, he committed what was regard a grievous error and poor judgment for which we fail to find any excuse or satisfactory explanation. His actuations in this regard went well beyond the bounds of prudence, discretion and good taste. It is bad enough to have such undue publicity when a criminal case is being investigated by the authorities, even when it being tried in court; but when said publicity and sensationalism is allowed, even encouraged, when the case is on appeal and is pending consideration by this Tribunal, the whole thing becomes inexcusable, even abhorrent, and this Court, in the interest of justice, is constrained and called upon to put an end to it and a deterrent against its repetition by meting an appropriate disciplinary measure, even a penalty to the one liable. Some of the members of the Court who appeared to feel more strongly than the others favored the imposition of a more or less severe penal sanction. After mature deliberation, we have finally agreed that a public censure would, for the present, be sufficient. In conclusion, we find and hold that respondent Salva was warranted in holding the preliminary investigation involved in this case, insofar as Salvador Realista is concerned, for which reason the writ of preliminary injunction issued stopping said preliminary investigation, is dissolved; that in view of petitioner's objection to appear and testify at the said investigation, respondent may not compel him to attend said investigation, for which reason, the subpoena issued by respondent against petitioner is hereby set aside. In view of the foregoing, the petition for certiorari and prohibition is granted in part and denied in part. Considering the conclusion arrived at by us, respondent Francisco G. H. Salva is hereby publicly reprehended and censured for the uncalled for and wide publicity and sensationalism that he had given to and allowed in connection with his investigation, which we consider and find to be contempt of court; and, furthermore, he is warned that a repetition of the same would meet with a more severe disciplinary action and penalty. No costs. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion and Barrera, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-60349-62 December 29, 1983 CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L. BRINGAS, ERNESTO M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. GUIRITAN, MACARIO B. BALANSAG and ROSARIO F. DABALOS, all of Butuan City, and the PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. JUDGE NAPOLEON D. VILLANUEVA, in his capacity as City Judge of Butuan, respondent. The Solicitor General for respondent.

ESCOLIN, J.: The legal question raised in this petition is whether the certification of the investigating fiscal in the information as to the existence of probable cause obligates respondent City Judge to issue a warrant of arrest. The antecedent facts are not disputed. During the period from March 30 to April 14, 1982, petitioners, The City Fiscal of Butuan City and his assistants filed in the City Court of Butuan the following informations, to wit: CRIMINAL CASE NO. 1220 12210 TITLE People vs, Jimmy Tan People vs. Carlito Fortun People vs. Jarail Majini People vs. Amelita Dy People vs. Slight Phy. Inj. Violation of P.D. 1306 -do-

12211

12212 12213

Violation. of B.P. 22 -do-

Angelito Dy 12214 People vs. Jesus Aloyan People vs, Bebot Lauron People vs. Mariano Trani Antonio Monghit 12217 People vs. EIorde Subingbing Fernando Sagay 12218 People vs. Perla Trasga People vs. Renato Dayan People vs. Edgardo Dayan People vs. Benito Sy Ibaez People vs. Benito Sy Ibaez Grave oral defamation Estafa Estafa

12215

Mal. Mischief Usurption of authority authority Alarm & Scandal

12216

12219

12220

Estafa

12221

Estafa

12222

-do-

These informations, except the last four, docketed as Criminal Cases Nos. 12219 12220, 12221. and '2222, were certified to by the respective investigating Fiscals as Follows: "that a preliminary examination has been conducted by me in this case, having examined 'the complainant and his witnesses; that on the basis of the sworn statements, and other evidence submitted before this Official there is reasonable ground to believe that the crime charged has been commited and that herein accussed is probably guilty thereof " The informations in Criminal Cases Nos. 12219 and 12220 bore the certification of 3rd Assistant Fiscal Felixberto

Guiritan that I am filing this information upon directive of the Minister of Justice, who upon review of this resolution of the undersigned investigating fiscal has found prima facie case against herein accused, 1 while the informations in Criminal Cases Nos. 12221 and 12222 were certified to by 2nd Assistant Fiscal Ernesto M. Brocoy in this wise: "I am filing this information upon directive of the City Fiscal pursuant to the provisions of P.D. No. 911, who, upon review of the resolution of the investigating fiscal now on temporary detail with the office of the Provincial Fiscal of Surigao del Sur, has foundprima facie case against the herein accused." 2 Following receipt of said informations, respondent judge issued an order setting on April 5, 1982 the hearing of said criminal cases for the purpose of determining the propriety of issuing the corresponding warrants of arrest. After said hearing, respondent issued the questioned orders dated April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the court the affidavits of the prosecution witnesses and other documentary evidence in support of the informations to aid him in the exercise of his power of judicial review of the findings of probable cause by petitioners. 3 Petitioners filed two separate motions for reconsideration of said orders, contending that under P.D. Nos. 77 and 911, they are authorized to determine the existence of a probable cause in a preliminary examination/investigation, and that their findings as to the existence thereof constitute sufficient basis for the issuance of warrants of arrest by the court. 4 On April 28, 1982, respondent judge denied said motions and reiterated his order to petitioners to submit the supporting affidavits and other documents within five (5) days from notice. 5 Hence, petitioners filed this petition for certiorari and mandamus to set aside the aforesaid orders and to compel respondent to issue the warrants of arrest in Criminal Cases Nos. 1220912222. Meanwhile, the respondent, in addition to his duties as presiding judge of Branch I of the City Court of Butuan, was also assigned to preside over Branch II of said court, as Judge Jesus Ruiz, presiding judge of said sala, had retired from the service. The informations filed by petitioners in Branch II likewise remained dormant because of respondent's firm refusal to issue the corresponding warrants of arrest for want of affidavits of the witnesses. Thus, as disclosed by petitioner's urgent motion, 6 no warrants had been issued in 113 informations as of July 15, 1982. On July 12, 1982, respondent judge received Our May 19, 1982 Resolution requiring him to comment on the petition. However, interpreting the same as a denial of the petition itself, respondent issued on the following day, July 13, and Omnibus Order directing petitioners to submit immediately the supporting affidavits and other evidence in Criminal Cases Nos. 1220912222. Having failed to secure a reconsideration of said Omnibus Order, petitioners finally submitted the required affidavits and documents on July 15, 1982 in order to avoid further delay in the prosecution of these cases. This move on the part of the petitioners would have rendered the instant petition moot and academic. But while respondent gave due course to some of said cases either by issuing the warrants of arrest or taking some other appropriate action, 7 he refused to issue the warrants in Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422, and instead ordered the records thereof remanded to the City Fiscal "for further preliminary investigation or reinvestigation," for on the bases of said affidavits, respondent found no prima facie case against the accused.

Petitioners therefore filed a motion with this Court to restrain respondent from enforcing the orders subject of the main petition and to compel him to accept, and take cognizance of, all the informations filed in his court. They contend that the fiscal's certification in the information of the existence of probable cause constitutes sufficient justification for the judge to issue a warrant of arrest; and that such certification binds the judge, it being supported by the presumption that the investigating fiscal had performed his duties regularly and completely. Upon the other hand, respondent justifies his order as an exercise of his judicial power to review the fiscal's findings of probable cause. He further maintains that the failure of petitioners to file the required affidavits destroys the presumption of regularity in the performance of petitioners' official duties, particularly in the light of the long standing practice of the Office of the City Fiscal of Butuan of attaching to the informations filed with the court the affidavits of prosecution witnesses and other documentary evidence presented during the preliminary investigation. The issue to be resolved is whether or not the respondent city judge may, for the purpose of issuing a warrant of arrest, compel the fiscal to submit to the court the supporting affidavits and other documentary evidence presented during the preliminary investigation. We sustain the position of respondent judge. The primary requirement for the issuance of a warrant of arrest is the existence of probable cause. Section 3, Article IV of the 1973 Constitution provides that... no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer, as may be recognized by law, after examination under oath or affirmance of the complainant and the witnesses he may produce .... P.D. No. 911 authorizes the fiscal or state prosecutor to determine the existence of probable cause. Thus, If on the basis of complainant's sworn statements and documents submitted, the investigating dismiss the raise. If probable cause is established by complainant's evidence, he shall notify the respondent by issuing a subpoena .... (Sec. 1 [b], RA 5180, as amended by P.D. Nos. 77 and 911). The fiscal or state prosecutor shall certify under oath in the information to be filed by him that he has examined the complainant and his witnesses; that on the basis of the sworn Statements and other evidence submitted before him there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof ... (Sec. 1[d], Id.). There is thus no dispute that the judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest, But does such certification bind the judge to come out with the warrant? We answer this query in the negative. The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court:

Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest. Under this section, the judge must satisfy himself of the existence of probable cause before issuing , a warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscals certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. vs. Ocampo 8 and Amarga vs. Abbas. 9 And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of long-standing practice had been attached to the informations filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the cases where he was satisfied that probable cause existed. German to the issue at hand is the Rule on Summary Procedure in Special Cases to the following, to wit: I. B. Criminal Cases: (1) Violation of traffic laws, rules and regulations; (2) Violations of the rental laws; (3) Violations of municipal or city ordinances; (4) All other criminal cases where the penalty prescribed by law for the offense charged does not exceed six (6) months imprisonment, or a fine of One Thousand Pesos [1,000.00], or both irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom; Provided, however, that in offenses involving damage to property through reckless negligence, this Rule shall govern where the imposable fine does not exceed Ten Thousand Pesos [10,000.00]. In said cases, the filing of the affidavits of witnesses with the court is mandatory. Section 9, par. 2 of said Rule prescribes that "the complaint or information must be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are defendants plus two (2) copies for the court's files. Section 10 of the Summary Rule provides: On the basis of the complaint or information and the affidavits accompanying the same, the court shall make a preliminary determination whether to dismiss the case outright for being patently without basis or merit, or to require further proceedings to be taken. In the latter case, the court may set the case for immediate arraignment of an accused under custody, and if he pleads guilty, may
10

applicable

render judgment forthwith. If he pleads not guilty, and in all other cases, the court shall issue an order, accompanied by copies of all the affidavits submitted by the complainant, directing the defendants to appear and submit his counter-affidavit and those of his witnesses at a specified date not later than ten (10) days from receipt thereof. Failure on the part of the defendant to appear whenever required, shall cause the issuance of a warrant for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or affirmation of the complainant and his witnesses. The obvious purpose of requiring the submission of affidavits of the complainant and of his witnesses is to enable the court to determine whether to dismiss the case outright or to require further proceedings. One last point. It appears that after petitioners had submitted the required affidavits of witnesses, the respondent judge ordered Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422 remanded to the City Fiscal for further preliminary investigation or reinvestigation. We hold that respondent did not abuse his discretion in doing so. From the informations and affidavits presented to him, he found the charges patently without basis or merit. For respondent to issue the warrants of arrest and try the accused would only expose the latter to unnecessary harrassment, anxiety and expense. And as already pointed out, under the Rule on Summary Procedure in Special Cases, the respondent judge has the power to order the outright dismissal of the charge if, from the information and the affidavits attached thereto, he finds the same to be patently without basis or merit. WHEREFORE, the petition is hereby dismissed. No costs. SO ORDERED. Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur. Aquino, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-23048 July 31, 1964

IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS WITH APPLICATION FOR TEMPORARY RESTRAINING ORDER OR EX PARTE PRELIMINARY INJUNCTION. JESUS LAVA, petitioner, vs. LT. COL. OSCAR C. GONZALES, Chief Intelligence Officer of the Philippine Constabulary, respondent. RESOLUTIONS PAREDES, J.: The petition is DISMISSED, and the restraining Order or Preliminary Injunction prayed for should be, as it is hereby DENIED. Without costs. The Warrant of Arrest issued by the Manila Court of First Instance in Criminal Case No. 19166 is valid and Effective. The offense described in said Warrant of Arrest was "Rebellion Complex", but the information was amended and the petitioner can still be held guilty for simple rebellion (People v. Geronimo, G.R. No. L-8936, Oct. 23, 1956; People v. Romagosa, G.R. No. L-8476, Feb. 28, 1958; People v. Santos, G.R. No. L-11813, Sept. 17, 1958). A new preliminary investigation is not necessary after the amendment of the information for the reason that there has been no change in the nature of the crime charged, which is rebellion, and moreover, the accused petitioner who was already custody when the amended was filed, should have asked, but did not, for a re-investigation of said case, within the period five (5) days from the time he learned of the amended information (sec. 15, Rule 112, Rev. Rules). Granting arguendo, that the warrant of arrest in question is defective, still petitioner's arrest is legal because an offender can be taken into custody, by any officer of the law, or by any private, individual, even without any warrant of arrest, when an offense has in fact been committed and the arresting officer or individual, has reasonable ground to believe that the person to be arrested has committed it (Sec. 6-b, Rule 113, Rev. Rules), and forthwith deliver the arrested person to the judicial authorities, as was done in this case (Sec. 17, ibid). Normally, a writ of preliminary injunction should not issue to restrain the prosecution of criminal offenses Kwong Sing v. City of Manila, 41 Phil. 103; Gorospe v. Peaflorida, L-11583, July 19, 1957). In view hereof, it is deemed unnecessary to pass upon the issues raised, in connection with the warrants of arrest in Criminal Cases Nos. 2043 and 2044 of the Bulacan Court of First Instance. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1wph1.t Bengzon, C.J., Padilla, Bautista Angelo, Regala and Makalintal, JJ., concur. Concepcion and Reyes, J.B.L., JJ., concur in the result.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-39962 March 3, 1977 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO CUSTODIO, accusedappellants. RESOLUTION

CONCEPCION JR., J.:t.hqw The Court's attention has been called to the fact that the decision in this case has been interpreted in prosecution circles in such manner as may cause the obstruction of the administration of justice. Hence, a clarification and a restatement of some of the principles therein involved are in order. In this case, which involved a prosecution in the Court of First Instance, the Court ruled, inter alia, that the fiscal's duty to direct and control the prosecution of criminal cases requires that he must be present during the proceedings; and that evidence presented by the private prosecutor at a hearing, at which neither the fiscal nor his assistant or duly authorized special counsel was officially present, cannot be considered as evidence for the People of the Philippines. This pronouncement, as can be clearly deduced therefrom, applies to the trial and prosecution of criminal cases before the Courts of First Instance, Criminal Circuit Courts, and City Courts (which are provided by law with their own City Fiscals) only, and not to the municipal courts. The procedure in the trial of criminal cases before the municipal courts and City Courts which do not have their own City Fiscals has not in any way been altered or modified by the pronouncement in this case. Under Sec. 2, Rule 110 1 of the Revised Rules of Court, and in the light of the ruling in the cases of P.P.I. vs. Alvarez and P.P.I. vs. Perez, et al., 2 police, constabulary, and other peace or law enforcement officers and private prosecutors may prosecute criminal cases in the said courts, but this authority ceases upon actual intervention of the provincial or City Fiscal or their assistants, or upon the elevation of the case to the Court of First Instance. Fernando (Chairman) and Antonio, JJ., concur.

Separate Opinions

BARREDO, J., concurring: I would like to add that there is no prohibition against the offended party undertaking the prosecution of the case.

AQUINO, J,: concurring: It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal" was taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adultery case prosecuted in the Court of First Instance. Rule 123 prescribes the procedure in inferior courts, Section 4 of Rule 110 might have been based on the assumption that criminal cases tried in inferior courts are appealable to the Court of First Instance, where a trial de novo is held and where the fiscal shall take charge of the cause in behalf of the prosecution (Secs. 6 and 7, Rule 123).

Separate Opinions BARREDO, J., concurring: I would like to add that there is no prohibition against the offended party undertaking the prosecution of the case.

AQUINO, J,: concurring: It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal" was taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adultery case prosecuted in the Court of First Instance. Rule 123 prescribes the procedure in inferior courts, Section 4 of Rule 110 might have been based on the assumption that criminal cases tried in inferior courts are appealable to the Court of First Instance, where a trial de novo is held and where the fiscal shall take charge of the cause in behalf of the prosecution (Secs. 6 and 7, Rule 123). Footnotes 1 Sec. 2. Complaint defined. Complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other employee of the government or governmental institution in charge of the enforcement or execution of the law violated. 2 74 Phil, 20.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. Nos. 110991-92 February 24, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELCHOR DELA IGLESIA, accused-appellant.

PADILLA, J.: This is an appeal from the judgment * of the Regional Trial Court of Tuao, Cagayan, Branch XI, which found accused-appellant Melchor dela Iglesia guilty of the crime of murder on two (2) counts for the alleged brutal killing of Manuel P. Baquiran and his son Johnson Baquiran. The two (2) informations docketed as Crim. Case No. 330-T and Crim. Case No. 331-T, respectively, read as follows: Crim. Case No. 330-T That on or about November 2, 1990, in the municipality of Sto. Nino, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Melchor dela Iglesia together with three (3) John Does who were not identified, armed with guns, conspiring together and helping one another, with intent to kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one, Manuel P. Baquiran, inflicting upon him gunshot wounds on the different parts of his body which caused his death. Contrary to law. Crim Case No. 331-T That on or about November 2, 1990, in the municipality of Sto. Nino, province of Cagayan and within the jurisdiction of this Honorable Court, the said accused Melchor dela Iglesia, together with three (3) John Does who were not identified, armed with guns, conspiring together and helping one another, with intent to kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one, Johnson Baquiran, inflicting upon him gunshot wounds on the different parts of his body which caused his death.

Contrary to law. 1 Upon arraignment, accused-appellant pleaded not guilty in both cases. He waived pre-trial and the trial court heard both cases jointly inasmuch as they arose from the same incident and involved the same witnesses. The prosecution's case revolved mainly on the testimonies of alleged eyewitness, Bartolome Baquiran and his mother Rosalinda Baquiran, together with the stipulated evidence with respect to the cause of death of the victims Manuel Baquiran and Johnson Baquiran. The prosecution's version may be synthesized as follows: On 2 November 1990, at around nine o'clock in the evening, Manuel Baquiran and his two (2) children, namely, Johnson Baquiran and Bartolome Baquiran, together with a relative named Nelson Panaga were at Barangay Cabayu, Sto. Nino, Cagayan. They were then staying in the farm owned by Manuel to guard their harvested palay stored inside a small nipa hut in the farm. At that time, the Baquirans and Panaga were already inside the hut when armed men appeared from nowhere and surrounded the hut. One of the armed men shouted, "Umulug cayo" and thereupon, Manuel Baquiran came out of the hut followed by Johnson and Bartolome Baquiran as well as by Nelson Panaga. According to Bartolome, his father (Manuel) noticed the presence of the accused-appellant outside the hut which prompted Manuel to come out of the hut and face the unexpected visitors. Once outside the hut, Bartolome claimed that he saw accused-appellant carrying a rifle over his left shoulder. He did not recognize the other armed men dressed in military uniforms who by then surrounded the place. Bartolome averred that accused-appellant did not say anything to his father nor did his father ask what brought accused-appellant to their place. Rather, Bartolome observed that accusedappellant and the armed men called his uncle, Nelso Panaga, and brought the latter beyond hearing distance and he (Nelson) and the armed men started conversing among themselves for about thirty (30) minutes. Nelson Panaga was eventually escorted back inside the hut after which, accused-appellant allegedly ordered his (Bartolome's) father and elder brother (Johnson) to come and follow him (accused-appellant). Bartolome further related that he did not observe any adverse reaction from his father nor brother as they were taken along by accused-appellant and his companions. He (Bartolome) and Nelson Panaga were left behind in the hut. 2 Manuel and Johnson Baquiran (father and son) did not return to their hut on the same night nor did they return to their house in Cabayu, Sto. Nino, Cagayan. Three days later, their decomposing bodies were found floating on a distant river. Their bodies were later examined at the Piat District Hospital by Dr. Silverio Salvanera. The autopsy revealed that Manuel and Johnson sustained multiple gunshot wounds as they were both shot at the abdomen. 3 Rosalinda Baquiran, widow of the deceased Manuel Baquiran, testified that her son Bartolome went home to tell her that his father and brother were taken away by armed men from their hut in Cabayu, and they had not returned ever since. Bartolome also told here that accused-

appellant was among the armed men who took away his father and brother and that it was the accused-appellant who killed the two (2) Baquirans. Rosalinda further asserted that only the accused-appellant had the strong motive to kill her husband. This was allegedly brought about by accused-appellant's claim of ownership over a parcel of land in Cabayu, Sto. Nino, Cagayan the same land where her husband and son were abducted on 2 November 1990. This land dispute resulted in bad blood between the parties even as her husband sought legal means to have the dispute adjudicated before the barangay hall until it finally reached the PAO office in Tuao, Cagayan. 4 The prosecution also presented Recto Baquiran, another son of the deceased Manuel, to corroborate Rosalinda's claim of accused-appellant's strong motive for killing his father. He testified that sometime in May 1990, while he and his father were busy preparing their ricefield in Cabayu for the planting season, he saw accused-appellant together with five (5) other men arrive and confront his father on whether they could plow in the said field. While he was not able to overhear the exact exchange of words between his father and accused-appellant, he noticed that his father became very angry with accused-appellant because of the latter's claim of ownership over the said land. The last time Recto saw accused-appellant was on 28 October 1990, when they were in the PAO office discuss the land dispute. Accused-appellant allegedly wanted an amicable settlement but his father did not agree, so nothing was settled. Five (5) days later, or on 2 November 1990, his father and brother Johnson were killed. 5 On the other hand, the defense anchored its case on denial and alibi. Nelson Panaga, who was with Manuel, Johnson and Bartolome Baquiran on the night of the alleged abduction, testified that he was already asleep when Johnson Baquiran woke him up because of the orders for them to go down, and thereafter Manuel and Johnson were investigated by a part of the group outside the hut. While this was going on, some armed men also approached him and allegedly asked for the direction in going to Minanga, Cagayan, to which he replied that he did not know. He also testified that there were additional armed men in the vicinity but that only five (5) armed men approached them. He alleged that he did not recognize any of the five (5) armed men who approached them. Subsequently, Manuel and Johnson Baquiran were taken by the armed group who allegedly told Nelson not to worry for they (Manuel and Johnson) would come back after a while. They however, never did. Nelson Panaga alleged that he executed an affidavit on 4 November 1990 before a certain SPO3 Domingo Ruiz, wherein he stated that he did not recognize any of the armed men. However, said document was not subscribed nor sworn to before any officer authorized by law to administer oaths. He was never subpoenaed during the preliminary investigation of the case. He admitted though that it was accused-appellant who requested him to testify in his favor. 6 The next defense witness, Mateo Relos, testified that on 2 November 1990, he and accusedappellant were at the Iglesia ni Kristo chapel in Tabang, Sto. Nino, Cagayan where both rendered guard duty. He averred that he never left the chapel while on duty. He averred further that he never left the chapel the whole night of 2 November 1990, until the following morning when he and the accused-appellant went home at about 5:00 a.m. When questioned by the

court, he stated that there was no logbook to record those who rendered guard duty at the chapel. 7 Vioquelin Villena, deacon (pangulong diakono) of the Iglesia ni Kristo at Sto. Nino, Cagayan, testified that a logbook was kept inside the said INK chapel to record the attendance of members rendering guard duty. He maintained that on 2 November 1990, he personally went to the INK chapel at around 6:00 p.m. and noted the presence of the accused-appellant and Mateo Relos. He left before 7:00 p.m. and came back at 5:00 a.m. the following day to check on the two (2) guards whom he found to be on their assigned posts. 8 Accused-appellant reiterated the deacon's story when he testified in his own behalf. He stated that 2 November 1990, was his assigned "guard day and prayer day", so that he rendered guard duty from 6:00 p.m. to 5:00 a.m. of the next day (3 November 1990) together with his companion, Mateo Relos. Thereafter, they turned over the premises to KA Vioquelin (Villena). Accused-appellant admitted that there was an existing land dispute between him and Manuel involving the land on which Baquiran was then farming. Hence, he engaged the services of a lawyer who advised him that he had a meritorious claim. Thereafter, he brought the matter to Manuel Baquiran's attention who however refused to amicably settle with him despite the intercession of their relatives. Eventually, he brought the problem before the PAO office, where he and Manuel Baquiran both appeared, but to no avail. Accused-appellant denied that he attempted to plow in the disputed land in May 1990 although this happened way back in May 1987. He was also seriously considering filing a formal complaint against Manuel Baquiran to recover part of the land when he learned that Manuel and his son Johnson were abducted and murdered on 2 November 1990. Accused-appellant categorically professed his innocence in regard to the charges against him and claimed that he was being implicated in the crime solely because of the aforestated land dispute. Beyond that, no other motive could be ascribed to him. Besides, accused-appellant contended, how could he be at the crime scene when he stayed and guarded the INK chapel the whole night of 2 November 1990? 9 On 13 April 1993, the court a quo rendered its judgment, the dispositive part of which states: WHEREFORE, finding the accused Melchor dela Iglesia guilty beyond reasonable doubt of the offense of Murder (2 counts), in Criminal Case No. 330-T for the death of Manuel Baquiran and in Criminal Case No. 331-T for the death of Johnson (Jenison) Baquiran, he is hereby sentenced to suffer two (2) life imprisonments. He is further sentenced to indemnify the heirs of Manuel Baquiran in the amount of Fifty Thousand (P50,000.00) Pesos and the heirs of Johnson (Jenison) Baquiran in the amount of Fifty Thousand (P50,000.00) Pesos, and to pay the costs. SO ORDERED. 10 Before this Court, the accused-appellant assigns the following errors allegedly committed by the lower court:

I THE TRIAL COURT ERRED IN NOT APPRECIATING THE TESTIMONY OF NELSON PANAGA. II THE TRIAL COURT ERRED IN HOLDING THAT NELSON PANAGA IS A BROTHER-IN-LAW OF THE ACCUSED-APPELLANT WHEN NOTHING APPEARS TO BE SO IN THE RECORDS OF THE CASE. III THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED BASED IN EFFECT IN (SIC) CIRCUMSTANTIAL EVIDENCE. 11 The trial court's ratio decidendi focused on the well-entrenched principle that the defense of alibi is a weak defense that can easily be fabricated and cannot prevail over the positive identification of the accused. It found no unworthy motive on the part of prosecution witness Bartolome Baquiran to falsely testify against the accused, rationalizing that a thirteen (13) year old boy would not deliberately concoct a tale and falsely charge an innocent person with so heinous a crime as double murder. Bartolome Baquiran's consistency, according to the trial court, in pointing to his uncle (accused-appellant) as being with the armed group that took away his father and brother on the night of 2 November 1990, both in the preliminary investigation and more so during the trial of the case, led it (the trial court) to conclude that accused-appellant "presumably killed his father and brother" and that he knew hs uncle (accused-appellant) very well as not to have mistaken him for another person. On the other hand, the trial court evaluated the evidence for the defense in this wise: One factor which militates against the alibi of the accused is the fact that, admittedly, Tabang, Sto. Nino where the accused claims to have been present the whole night of November 2, 1990 is, by his own admission, only three kilometers away from Cabayu, Sto. Nino. It is not enough to prove that the accused was not at the scene where the crime was committed, he must also prove that it was physically impossible for him to be at the scene of the crime at such time (People vs. Martinez, 127 SCRA page 260; People v. Beneraba, 129 SCRA 266.) xxx xxx xxx The testimony of the defense witness Nelson Panaga does not persuade the Court as to its reliability and truth for the reason that the said witness is the brother-in-law of the accused, his wife being the sister of the accused. While the relationship is not necessarily a ground to disregard the testimony of the witness, in this case, the Court finds the testimony of Nelson Panaga to be unreliable. If indeed he denied before the police investigator that the accused was one of armed men who took away the victims from Cabayu, Sto. Nino, Cagayan, why is it that he did not immediately do so why did he not see to it that the same be

subscribed and sworn to before a duly authorized officer? As to the testimony of Mateo Relos, the Court is not likewise convinced that it is sufficient to establish the alibi of the accused for the reason that when subjected to clarificatory questions by the Court, he gave conflicting answers. Neither could he categorically state that he was awake the whole night of November 2, 1990. He never stated that Melchor dela Iglesia did not leave the vicinity of the INC Chapel the whole night. In fact the said witness admits that he and Melchor dela Iglesia does (sic) not always sleep whenever they both performed guard duty in the chapel. Nor can the Court accept the testimony of witness Vioquelin Villena. He only identified the alleged logbook (Exhibit "2"). The Court however observes that the entries for the month of November are topsyturvy and some portions thereof, particularly those referring to November 11 up to November 30 are inserted after the entries for the month of August and before the entries for the month of September while those pertaining to November 1 to November 10 are found after October, 1990 and January, 1991. The said log book is not a very reliable document. Another reason why the Court has decided to disregard the said log book (Exhibit 2-a) is the fact that the said document contains spaces where the absent guard did not sign. The accused could very well have signed the empty spaces after his name long after November 2, 1990. At any rate, witness Mateo Relos himself testified that there was no such log book. 12 Notably absent from the above-quoted discussion of the court a quo is a categorical pronouncement that on the strength of the evidence presented by the prosecution, it was rendering a judgment of conviction based purely on circumstantial evidence. One thing is certain in this case. No one among the prosecution witnesses had actually witnessed the killing of the two (2) victims . While Bartolome Baquiran maintained that he identified the accused-appellant as one of the armed men who "ordered" his father and older brother to follow them, Nelso Panaga, the other eyewitness, declared that he did not recognize any of the five (5) armed men who came to the nipa hut. The trial court gave no weight or credence to the testimony of Nelson Panaga based on the following reasons: (1) that Nelson Panaga is the brother-in-law of the accused; and (2) that Nelson's statement before the police investigator wherein he denied that the accused was one of the armed men was not subscribed and sworn to before an officer duly authorized to administer oaths. In his brief, accused-appellant maintains that "there is nothing in the records which showed that Nelson Panaga is the brother-in-law of the accused-appellant." 13 While ordinarily, this Court defers to the findings of fact of the trial court, a careful examination of the transcripts of stenographic notes reveals that indeed, Nelson's relationship with accused-appellant has not been duly established during the trial. Instead, we find that such alleged "relationship" was averred by witness Rosalinda Baquiran during the preliminary investigation of the case. 14 Corollarily, we find no order of the court a quo, whether on its own motion, or by positive move on the part of the prosecution, to introduce such testimony of Rosalinda during the preliminary investigation as evidence, in order that such "fact" may form part of the record of the case. 15

But, even assuming that Nelson Panaga is indeed related to accused-appellant, the records also indicate that he is a relative of the victims. In fact, in his testimony, witness Bartolome referred to him (Nelson) as his "uncle." 16 Be that as it may, the office of the Solicitor General argues that Nelson Panaga's testimony does not contradict that of Bartolome Baquiran's positive identification of accused-appellant since the former "simply declared that he did not recognize the armed men, but he did not categorically state that appellant was not one of them." 17 On this matter, we quote Nelson Panaga's testimony: Q How about those armed men do (sic) you recognize these people ? Fiscal Objection, leading your honor. Court Witness may answer. A NO. Q All of them? A Yes. 18 (Emphasis supplied) Nelson Panaga's negative answer may have been equivocal if one assumes that what the question wanted to elicit was whether or not accused-appellant was one of the armed men. But that would be bordering on conjecture. After all, it would be equally logical to argue that his negative answer meant that he did not know the identities of the armed men, and that accusedappellant was not there, consistent with the purpose for which his testimony was being offered. As to the reason why Panaga's alleged affidavit was not subscribed before an officer duly authorized to administer oaths, the Court finds no immediate relevance of such circumstance considering that Nelson Panaga was presented as an eyewitness by the defense and was available for cross examination by the prosecution. The relevant inquiry should have been as to the credibility of his allegation vis-a-vis that of prosecution eyewitness Bartolome Baquiran. It is also a curious circumstance why, as the other key eyewitness, he (Nelson) was never subpoenaed by the investigating judge during the preliminary investigation. 19 With respect to the trial court's appreciation of accused-appellant's alibi, the Court agrees with the trial court's observation that it was not physically impossible for accused-appellant to be at the crime scene when the crime was committed, considering that by his own admission, the said place is only about three (3) kilometers away from the Iglesia ni Kristo chapel where supposedly accused-appellant stayed as guard from 6:00 p.m. of 2 November 1990 up to 5:00 a.m. of 3 November 1990. Similarly, the testimonies of Mateo Relos and Vioquelin Villena may have been equivocal to the point that accused-appellant could have left the chapel for some time on the night of 2 November 1990 and come back the following morning when Villanuena noted his presence. The alleged logbook (Exhibit 2-A; defense) offers no clue whether or not such is the case, save for

the fact that it corroborates to a limited extent the fact of accused-appellant's presence at the chapel at 6:00 p.m. of 2 November 1990. According to the trial court, since Mateo Relos could not categorically state that he was awake the whole night of 2 November 1990 and that he was not really sure whether accused-appellant never left the premises of the chapel, therefore, accused-appellant could have really left the chapel to perpetrate the heinous crimes some time during the evening of 2 November 1990. Accused-appellant may not have presented an air-tight alibi. Nevertheless, the more important consideration in the case at bench is whether accused-appellant could have left the chapel in Tabang, Sto. Nino not the whole night of 2 November 1990 but sometime between 6:00-9:00 p.m. of that day in order that he could physically be at Cabayu at about 9:00 p.m. on 2 November 1990, as alleged. The testimony of Vioquelin Villena established that he left the chapel after noting the presence of accused-appellant and Mateo Relos sometime at 7:00 p.m. of 2 November 1990. Hence, the relevant inquiry which the trial court failed to appreciate was whether there was proof that accused-appellant left the chapel at such time, leaving Mateo Relos alone, then proceeded to Cabayu with armed companions to abduct Manuel and Johnson Baquiran, in plain sight of eyewitness Bartolome and Nelson Panaga, kill Manuel and Johnson, dump their bodies in a distant river, then return to the chapel where he was again seen by Vioquelin Villena at 5:00 a.m. of 3 November 1990. It appears that there is no such proof. In the case at bench, the only other circumstance that could link accused-appellant as the perpetrator of the crimes is the alleged existing land dispute between him and Manuel Baquiran. This land dispute, as admitted and established by both parties, had even reached the mediation stage wherein no amicable settlement was reached. To the mind of the prosecution, this circumstance furnishes enough strong motive for accused-appellant to kill. This Court notes however, that prior to the killing, there is no evidence on record that accused-appellant had made threats on the life of Manuel or his family or similar manifestations to the effect that he was so desperate to recover an alleged successional right to the land, so as to eventually hatch a murder plot against his relative. 20 All that was established is a bare allegation that Manuel Baquiran had no "known enemy except (that of) accused-appellant." 21 Hence, not only is there a marked absence of an unbroken chain of circumstances, but that in essence, there is only one circumstance to speak of and that is, accused-appellant's alleged positive identification by witness Bartolome Baquiran, which is in turn negated by the testimony of Nelso Panaga. The Court is not unmindful of the rule that the issue of assigning values and weight to the testimonies of witnesses is at best the province of the trial court. However, the exception should be applied to this case where certain facts of substance have been overlooked and misappreciated and which have given rise to a hypothesis inconsistent with the guilt of the accused. Moreover, when the alleged eyewitnesses contradict themselves, then the element of reasonable doubt is injected and cannot be lightly disregarded. 22 The inference made by the trial court that Mateo Relos could have slept on the night in question or that the accused could have left the Iglesia ni Kristo chapel the whole night, has lost sight of the fact that the crimes happened at 9:00 p.m. of 2 November 1990. Therefore, the inference should be obviously limited to between 7:00 and 9:00 p.m. where the testimonies of Vioquelin Villena and Mateo Relos have established that accused-appellant was in the Iglesia ni Kristo

chapel. To hold otherwise would logically infer either of two (2) things, that Mateo Relos slept even before 7:00 p.m. (the approximate time Villena left the premises), or that he lost visual contact with accused-appellant as early as that time a fact that has not been duly proved by the prosecution. It is axiomatic in criminal law that the quantum of evidence required for conviction of an accused is that which produces moral certainly in an unprejudiced mind that the accused is guilty beyond reasonable doubt. If the evidence is susceptible of two (2) interpretations, one inconsistent with the innocence of the accused and the other inconsistent with his guilt, the accused must be acquitted. 23 Accordingly, circumstantial evidence would only be sufficient if there is a concurrence of the following elements: (a) there is more than one circumstance, (b) the facts from which the inference was derived are proven and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstances must be "an unbroken chain which leads to one fair and reasonable conclusion, which points to the defendant, to the exclusion of all others, as the guilty person." 24 The Constitution demands no less than "proof beyond reasonable doubt", consistent with the demands of justice and due process. In sum, we rule that while accused-appellant's alibi may have been weak, the evidence presented by the prosecution was much weaker. A broken chain of circumstances cannot overcome the constitutional presumption of innocence in favor of the accused which entitles him to an ACQUITTAL. WHEREFORE, WE REVERSE the judgment of conviction rendered by the trial court against accused-appellant. He is ACQUITTED of the crimes charged, based on reasonable doubt and the Court orders his RELEASE from detention unless he is held for some other legal cause or ground. Costs de oficio. SO ORDERED. Davide, Jr., Bellosillo, Quiason and Kapunan, JJ., concur.