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G.R. No. L-54258 November 27, 1987 DOMINGO CAN, petitioner, vs.

THE HONORABLE JUDGE NICOLAS GALING, in his capacity as Presiding Judge of Branch III, Court of First Instance of Sorsogon, 10th Judicial District, respondent. PADILLA, J.: Petition for certiorari and mandamus to reverse and set aside the Orders of the respondent Judge, dated 12 May 1980 and 10 June 1980, discharging Emilio Daria, one of the accused in Criminal Case No. 500 for Robbery, entitled "People of the Philippines v. Domingo Can, Emilio Daria, Sgt. Jesus Abion and Francisco Lizard " in order to be a witness for the State. On 16 July 1980, the Court issued a temporary restraining order enjoining respondent Judge from hearing or receiving the testimony of the discharged accused Emilio Daria in said Criminal Case No. 500, until further orders from the Court. On 6 February 1981, the Court resolved to give due course to the petition and declare the case submitted for decision, after considering the allegations, issues and arguments contained in the Petition for certiorari and mandamus, the Comments thereon and the Reply to said comments. The antecedent facts are: On 31 May 1978, an information for Robbery was filed with the Court of First Instance of Sorsogon against the aforenamed accused. The case was assigned to Branch III, presided over by respondent Judge. Upon arraignment, all the accused pleaded not guilty. On 29 November 1979, the prosecuting fiscal moved to discharge the accused Emilio Daria from the information, to be used as a state witness, on the following grounds: 1. That there are several defendants in the above-entitled case; 2. That the prosecution has no other direct evidence available for the proper prosecution of the offense committed except the testimony of accused Emilio Daria; 3. That there is absolute necessity for the testimony of the accused Emilio Daria, whose discharge is hereby requested in this motion; 4. That the testimony of said defendant can be substantially corroborated in its material points; 5. That defendant Emilio Daria does not appear to be the most guilty considering the accused Domingo Can is the master-mind of the robbery and the two other accused Francisco Lizardo and Jesus Abion are non-commissioned officers of the Philippine Constabulary while accused Emilio Daria appears to be the only unlettered [sic] but was merely asked by the accused Domingo Can and Sgt. Jesus Abion to take part in the commission of the offense and the accused Emilio Daria agreed having no Idea that robbery was to be perpetrated by the other accused. 6. That defendant Emilio Daria has not at any time been convicted of any offense involving moral turpitude; 7. That said defendant consents to be a witness for the government. 1 The fiscal's motion was opposed by petitioner and the other accused Francisco Lizardo. On 12 May 1980, as aforestated, the respondent Judge issued the Order discharging Daria from the information so that he may be utilized as a state witness. Motion for reconsideration of the order of discharge was denied in the other Order dated 10 June 1980. Hence, this petition. The sole issue for resolution in this case is the propriety of the discharge from the information in Criminal Case No. 500 of the accused, Emilio Daria, in order to be utilized as a state witness, Section 9, Rule 119 of the Rules of Court in force when this petition was brought to this Court, provides: Sec. 9. Discharge of one of several defendants to be witness for the prosecution When two or more persons are charged with the commission of a certain offense, the competent court, at any time before they have entered upon their defense, may direct one or more of them to be discharged with the latter's consent that he or they may be witnesses for the government when in the judgment of the court: (a) There is absolute necessity for the testimony of the defendant whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant; (c) The testimony of said defendant can be substantially corroborated in its material points; (d) Said defendant does not appear to be the most guilty; (e) Said defendant has not at any time been convicted of any offense involving moral turpitude. 2 Petitioner alleges that the above criteria have not been followed in the discharge of Daria from the information. We agree. There was no absolute necessity for the testimony of the accused Daria to qualify him as a state witness. The prosecution itself admitted that one of the government witnesses, named Michael Yu, testified that he saw and recognized the accused, Domingo Can, as one of those who committed the robbery. 3 Such testimony is direct evidence of Can's participation and clearly negates the absolute need for Daria's testimony in Identifying Can as one of the perpetrators of the offense. If at all, Daria's testimony would be merely corroborative and not essential. Neither is there a finding of non-availability of direct evidence other than the accused Daria's testimony. On the contrary, it is plainly admitted by the prosecution in its "Rejoinder to Opposition" dated 14 December 1979 that: The assertion of the accused that without Daria's confession the indictment of the other accused stands on no evidentiary foothold is misleading. The Identities of the three other accused were already knows to the authorities even before they learned that the accused Emilio Daria took part in robbery. As a matter of fact it was the accused Sgt. Jesus Abion who informed the PC that the accused Emilio Daria was with him and the other accused

when they committed the robbery. The prosecution witness Michael Yu testified that he recognized the accused Domingo Can and because of such a revelation the PC investigators were able to solve the case and the accused Jesus Abion and Francisco Lizardo admitted their participation in the crime. 4 The records of this case also disclose convictions of the accused Daria for various crimes, as 5 follows: attempted murder (Criminal Case No. 3533); carrying of deadly weapon (Criminal Case No. 2657); 6 slander by deed (Criminal Case No. 2175) 7 slight physical injuries 8 9 (Criminal Case No. 2400) and carrying of deadly weapon (Criminal Case No. 3233). His untrustworthiness as a witness on the ground of moral turpitude is apparent. Moral turpitude has been defined as "everything which is done contrary to justice, modesty, or good morals; 10an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man, or conduct contrary to justice, honesty, modesty or good morals. 11 In In re Gutierrez, 12 the crime of murder was considered a crime involving moral turpitude. Certainly, attempted murder, for which the accused Daria was found guilty, belongs to the same classification. The premeditated attempt to take a human life is decidedly a base, vile, and depraved act contrary to moral standards of right and wrong. Coupled with the other crimes for which the accused Daria had been previously convicted, the latter's disqualification to be discharged from the information to become a state witness should have been obvious. WHEREFORE, the petition is GRANTED. The Orders of respondent Judge, dated 12 May 1980 and 10 June 1980, are hereby REVERSED and SET ASIDE. The discharge of accused Emilio Daria from the information in Criminal Case No. 500 is annulled and his reinstatement as one of the accused in the same information is hereby ordered. Without pronouncement as to costs in this instance. SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur. [G.R. No. 100586. January 15, 1993.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DINDO CASTILLON and VALERIANO CABAJES, accused-appellants. The Solicitor General for plaintiff-appellee. Ignacio P. Moleta for accused-appellants. SYLLABUS 1.REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESS; TESTIMONY OF RAPE VICTIM; PRINCIPLE CONSIDERED BY THE COURT. To warrant a conviction in a rape charge, the victim's testimony must be clear and free from contradictions. In prosecuting offenses of this nature, conviction or acquittal virtually depends entirely on the credibility of complainant's testimony because of the fact that usually only the participants can testify as to its occurrences. (People vs. Abonada, 169 SCRA 530 [1989]). It is a fundamental principle in rape cases that the evidence for the prosecution must stand or fall on its own merits and can not be allowed to draw its strength from the weakness of the defense evidence. (People vs. Bacdad, 196 SCRA 786 [1991]). The seriousness with which the State rightfully views the matter with the corresponding imposition of the punishment that fits the crime calls for extreme care on the part of the judiciary to avoid an injustice from being done to an accused. (People vs. Nazareno, 80 SCRA 484 [1977]). 2.ID.; ID.; FACTUAL FINDINGS OF THE LOWER COURT; RULE AND EXCEPTION. We must also keep in mind that the factual findings of the trial judge who had the opportunity to observe the demeanor of the witnesses and to assess their credibility is entitled to the highest degree of respect. (People vs. Lao, et al., 204 SCRA 337 [1991]). This Court is not precluded, however, from carefully scrutinizing the evidence to ascertain whether a fact or circumstance has been overlooked or was misinterpreted by the lower court judge. This is the essence of appellate review. Otherwise, the presumption of innocence might go for naught. (People vs. Gabiana, 117 SCRA 260 [1982]). If the judgment should appear to be based on a misapprehension of facts, this Court can and will review the findings of fact of the lower court (People vs. Honrado, 204 SCRA 858 [1991]). 3.CRIMINAL LAW; RAPE; USE OF FORCE; ELEMENT OF VOLUNTARINESS ON THE PART OF THE VICTIM MUST BE ABSOLUTELY LACKING; CASE AT BAR. It is a well-settled rule that in the crime of rape, alleged to have been committed by force, it is essential that the element of voluntariness on the part of the victim be absolutely lacking. (People vs. Geneveza, 169 SCRA 153 [1989]). In the instant case, Arlene's testimony shows that there was no physical struggle on her part signifying her vehement refusal to submit to the intercourse complained of, nor of the obstinate resistance which one would naturally expect from an unwilling victim. As shown by her own testimony on cross-examination, she had every opportunity to thwart the impending sexual violation. The complainant did not make any manifest resistance expected of a woman defending her honor and chastity. (People vs. Cabading, 174 SCRA 48 [1989]). She could have easily made an outcry or resisted her attacker who was unarmed and therefore without danger to her life, in order to attract the attention of the people attending the dance for the JS program then going on in the basketball court. Considering that she was not threatened at knife or gun-point, her tenacity of resistance "was not enough to show the kind of resistance expected of a woman defending her virtue and honor." DECISION REGALADO, J p: In two complained both duly sworn to by complainant Arlene Cabajes Devocion on February 9, 1988, accused-appellants Dindo Castillon and Valeriano Cabajes, alias Ebong, were charged with multiple rape in Criminal Cases Nos. 287 and 288 of the Regional Trial Court of Surigao City, Branch 32. The accusatory part of the complaint in Criminal Case No. 287 reads: "That on or about the 27th day of February 1987 at 11:00 o'clock in the evening, more or less, at the stage of Albor Municipal High School, municipality of Libjo, Surigao del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another and by means of force and intimidation, did

then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant against her will and without her consent, to her damage and prejudice in the amount of P30,000.00" 1 while that of the complaint docketed as Criminal Case No. 288 alleges: "That on or about the 3rd day of March, 1987 at 7:00 o'clock in the evening, more or less, at the school plaza of Albor Municipal High School, in the municipality of Libjo (Albor), Surigao del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another and by means of force and intimidation, did, then and there willfully, unlawfully and feloniously have sexual intercourse of (sic) the complainant against her will and without her consent, to her damage and prejudice in the amount of P30,000.00." 2 Upon arraignment, appellants pleaded not guilty in both cases. The same parties being involved, a joint trial was conducted. Thereafter, the trial court in a joint judgment, dated April 8, 1991, found appellants guilty of rape in Criminal Case No. 287 and sentenced each of them to suffer the penalty of reclusion perpetua and its accessory penalties, to pay onehalf of the costs, and, jointly and severally, to indemnify Arlene Cabajes Devocion in the sum of P50,000.00 as consequential damages and P5,000.00 as legal fees of the private prosecutor. For insufficiency of evidence, appellants were acquitted on reasonable doubt in Criminal Case No. 288. 3 Their motion for reconsideration of the judgment of conviction in Criminal Case No. 287 having been denied, 4 appellants now entreat us to reverse the same, contending that the trial court erred in finding that they committed the crime of rape in the incident of February 27, 1987 and in not acquitting them of the charge therefor. 5 Now, in almost every partisan judicial contest, and especially so in prosecutions for crimes against chastity where the adjudication of guilt or innocence hinges on the credibility of contending versions of the parties involved, the judicial role necessitates a painstaking review of the evidence for the prosecution and the defense. That, again, is the task before us in this case to sift the veridical grain from the apocryphal chaff in the mass of conflicting evidence expectedly marshalled by the parties in support of their respective contentions. We shall accordingly discuss the evidentiary features of this case. Cdpr The People's evidence on this incident subject of Criminal Case No. 287 was adequately summarized by the trial court in its decision and we reproduce the pertinent portions thereof: "In the evening of February 27, 1987, a Junior-Senior (JS) prom of the high school was held at the basketball court at Albor. The herein complainant went to see the program which started at about eight o'clock in the evening. She was alone and without any companion while attending it. Later, at about eleven o'clock in the evening she decided to go home. She did not reach her boarding house because she met her sweetheart, Dindo Castillon, who held her hand and said that he wanted to talk with her. They proceeded to the nearby municipal stage and sat down at one side. Dindo Castillon started to romance her by embracing and kissing her. Both feeling amorous, they had sexual intercourse on the floor of the stage. "After Dindo had finished the sexual act but was still sitting on top of her, he called out, saying: "Come her(e) Bay, it's now your turn." When Arlene heard him, she twisted around to get free as she did not like what he said. Instead, Dindo held both her hands. Then Valeriano Cabajes, nicknamed Ebong, came near her front and suddenly boxed her two thighs. Because of the pain from the blows, she could not move anymore. Valeriano got on top of her and inserted his penis in her vagina while she shouted: 'My Lord, help.' She recognized Valeriano by his voice when he spoke. She even reproached him telling him that he was her relative. He replied saying: 'If other persons can get you, why not your relative.' While Valeriano was having intercourse with her, Dindo Castillon ran away. "After this harrowing incident, she just cried and went home alone to her boarding house. It was already about twelve o'clock midnight. She went to sleep without telling anybody what had happened to her. She was afraid as the accused had threatened to kill her if she reported the incident to anyone. The following day, a Saturday, she went home to Barangay Kahayag but did not tell her parents about the incident. She returned to Albor on Sunday afternoon." 6 The defense evidence and version of the same incident, as capsulized in the brief for appellants, is otherwise: "In the evening of February 27, 1987, a JS prom was held in Albor Municipal High School. At about 11:00 o'clock that evening, from the school site of Albor Municipal High School, appellant Dindo Castillon proceeded to the rented house of complainant in order to see her as it was their agreement. After seeing Arlene, he invited her to stroll around at the school site (to) which she agreed. As they strolled, the dance in the JS prom was still going on in the basketball court. Then they proceeded to the stage of the school where they conversed and engaged in romancing. After a while, they prepared themselves for a sexual intercourse. They were about to engage in the sexual act when suddenly a person lighted a match near their heads. Seeing about three persons on the stage, Dindo and Arlene stood up and hurriedly put on their pants and ran away. (T.S.N., p. 3 to 9, September 28, 1989) Cdpr "The three turned out to be Reden Llamera, Joseph Sembillo and the other appellant Victoriano Cabajes. They were following Dindo and Arlene up to the stage and when the two were romancing, they also watched them. Not contended with just being under the stage, they climbed up the stage. While already on the stage observing what Dindo and Arlene were doing, Joseph Sembillo lit a match, to look for his slipper (T.S.N., p. 9 to 11, September 28, 1989; p. 6 to 8, December 5, 1989, Castillo and Cabajes, testifying, respectively)." 7

We feel that a restatement of the applicable evaluative guideposts is in order. Indisputably, rape is a reprehensible crime and all those who are guilty must be severely punished. More often than not, the woman is a victim twice: first, of the sexual assault and, second, of the social stigma which attaches to the victim, though undeserved. Nonetheless, the records of the case must be examined with due care and caution. The exacting standard of proof beyond reasonable doubt acquires more relevance in rape charges which are easy to make but harder to prove and harder still to defend by the party accused who may be innocent. 8 To warrant a conviction in a rape charge, the victim's testimony must be clear and free from contradictions. 9 In prosecuting offenses of this nature, conviction or acquittal virtually depends entirely on the credibility of complainant's testimony because of the fact that usually only the participants can testify as to its occurrences. 10 It is a fundamental principle in rape cases that the evidence for the prosecution must stand or fall on its own merits and can not be allowed to draw its strength from the weakness of the defense evidence. 11 The seriousness with which the State rightfully views the matter with the corresponding imposition of the punishment that fits the crime calls for extreme care on the part of the judiciary to avoid an injustice from being done to an accused. 12 We must also keep in mind that the factual findings of the trial judge who had the opportunity to observe the demeanor of the witnesses and to assess their credibility is entitled to the highest degree of respect. 13 This Court is not precluded, however, from carefully scrutinizing the evidence to ascertain whether a fact or circumstance has been overlooked or was misinterpreted by the lower court judge. This is the essence of appellate review. Otherwise, the presumption of innocence might go for naught. 14 If the judgment should appear to be based on a misapprehension of facts, this Court can and will review the findings of fact of the lower court. 15 After a meticulous perusal of the records, we yield to the legal and moral persuasion that the People has not been successful in establishing with moral certainty the guilt of appellants. In the instant case, complainant's testimony shows an inherent lack of credibility on crucial points, as well as disturbing inconsistencies which cast serious doubts on the veracity thereof. Arlene, when asked how the alleged sexual assault transpired, testified on direct examination as follows: xxx xxx xxx "QWhile at the stage of Albor Municipal High School, what happened, if any? AKissing. QWho was kissing with whom? ADindo Castillon and myself, sir. QAfter kissing, what happened? AHe had sexual intercourse with me. QAfter he had sexual intercourse, immediately after he had sexual intercourse with you, what did he do, if any? AHe called the attention of Ebong Cabajes, 'come here bay, it's now your turn.' QWhat was the position of Dindo Castillon at that time when he called, 'Ebong come bay, it's now your turn'? AHe was sitting on me. QWhen you heard the calling of Dindo Castillon to (sic) Ebong Cabajes, 'come bay, it's now your turn', what did you do? AI twisted around. QWhy did you move around? ABecause I don't (sic) like it. xxx xxx xxx QWhat did Dindo Castillon do after, while you were moving around? ADindo Castillon held me. QWhat part of your body was held by Dindo Castillon? AMy hand. QWhich of your hand(s)? ALeft and right, sir. xxx xxx xxx QWhat happened when he, Ebong, approach(ed) you? ADindo Castillon held me and Ebong was there in front of me and he boxed my thighs. QWhere were you held by Dindo Castillon? AMy hand. xxx xxx xxx QWhat happened next after you were boxed by Ebong Cabajes? xxx xxx xxx (AFTER TWO MINUTES). Court:(Referring to the witness) QDid you understand the last question? AThen after he boxed my thighs I could not anymore moved (sic) because of the pain then he inserted his penis in my . . . and I shouted my Lord help!" 1 6 (Emphasis ours.) On cross-examination, she declared: "QJust after Dindo Castillon ejaculated, the first that he did was to stand up and put on his brief? AHe did not stand up because he called the attention of Ebong. QAccording to you. Dindo called Ebong and he did not stand up, did he squatting (sic) near your feet? AYes, Sir. QAs a matter of fact, while Dindo was still squatting near your feet and he called on Ebong, you even saw the penis of the sex organ of Dindo, is that correct? AYes, sir. xxx xxx xxx QHow far from your feet was Dindo squatting when he called Ebong?

AVery near, sir. QPlease point the distance. A(Witness pointing the distance of about 2 feet)." 17 In the aforequoted testimony, Arlene stated that Dindo was "sitting" on her just after their sexual intercourse when he called Ebong "Come bay, it's now your turn." It does not need to strain one's imagination to say that if Dindo was sitting on Arlene's thighs, supported by his knees, he would accordingly be in a crouching posture. Then, when Arlene "twisted" her body, Dindo is supposed to have held both her left and right hands, possibly half-raised near her face, thus pinning her body down. It was while Dindo was in such a crouching position that Ebong allegedly "boxed" her thighs, which is impossible since her thighs were then covered by the lower part of Dindo's body. Even if it were assumed that Dindo was "squatting" about two (2) feet from Arlene's feet, as she admitted on cross-examination, when the former held both her hands, Dindo would be leaning over and pinning down Arlene's body, thereby covering her thighs with his body. In such relative positions, it would be well-nigh impossible for appellant Cabajes to box Arlene's thighs. These are physical facts, drawn from ordinary human experience and ratiocination, that irresistibly cry for judicial acceptance. cdrep Shifting to another aspect, it bears noting the well-settled rule that in the crime of rape, alleged to have been committed by force, it is essential that the element of voluntariness on the part of the victim be absolutely lacking. 18 In the instant case, Arlene's testimony shows that there was no physical struggle on her part signifying her vehement refusal to submit to the intercourse complained of, nor of the obstinate resistance which one would naturally expect from an unwilling victim. As shown by her own testimony on crossexamination, she had every opportunity to thwart the impending sexual violation, thus: "QWhen Dindo called Ebong while squatting, you remained lying down on the floor, am I correct? AYes, Sir. QYou did not yet put on your panty and your blouse? ANot yet, Sir. QAfter Dindo called Ebong, did you look around? ANo, Sir. QAnd then how many minutes after Dindo called Ebong have (sic) elapsed when Ebong finally got near you? ATwo (2) minutes, Sir. QAnd when Ebong arrived, of course, he immediately removed his trousers and perhaps only his halfway? ANot yet, Sir. QOn that time, you said when Ebong was able to mount himself on top of you, all you said was 'My Lord', is that correct? Atty. Ravelo:Objection, Your Honor, misleading, she said, 'My Lord help'. Atty. Moleta:I stand corrected, Your Honor. Witness:I told him, "don't because we are related." QAfter that all you said "My Lord help", you say (sic) it in English? AMy Lord is in English and help in the dialect. QYou mean, "My Lord, tabang"? AYes. Sir. 19 (Emphasis supplied.) If, as she said, she did not like the fact that Dindo called Ebong to take his turn and she necessarily knew what that was supposed to have meant, and with her subsequent admission that Dindo was actually merely squatting near her feet, why did she not stand up and run away? At the very least, she could and should have shouted and protested against Dindo's announcement to give her to another man. It baffles the mind why she remained lying there almost naked for two minutes after Dindo called Ebong, particularly in light of her claim that she had no sexual experience prior to February 27, 1987. 20 Surely, a more vigorous opposition to the impending assault on her virtue is assumed to be adopted by an inexperienced victim on the threshold of womanhood. The complainant did not make any manifest resistance expected of a woman defending her honor and chastity. 21 She could have easily made an outcry or resisted her attacker who was unarmed and therefore without danger to her life, in order to attract the attention of the people attending the dance for the JS program then going on in the basketball court. 22 Considering that she was not threatened at knife or gun-point, her tenacity of resistance "was not enough to show the kind of resistance expected of a woman defending her virtue and honor." 23 The conduct of the victim immediately following the alleged sexual assault is of utmost importance as tending to establish the truth or falsity of the charge of rape. The conduct of herein complainant appears contrary to the natural reaction of an outraged woman robbed of her honor. 24 Arlene's behavior right after the alleged assault was wholly inconsistent with the charge of rape. Her reaction seemed to be too perfunctory and unconcerned about her alleged traumatic ordeal. Witness her narration of the events after her supposedly harrowing experience: "QFrom the stage, you went directly to your house? AYes, Sir. QUpon you(r) arriv(al) in your rented house, you took your supper? ANo, Sir. QBecause you are (sic) already taken your supper before you went to the J.S. program? AYes, Sir. QSo, upon arrival at your house, you went to sleep? ANot yet, Sir. QBefore you go to sleep, you converse with your co-boarders in that rented house of yours? (sic) AYes, Sir. xxx xxx xxx QWhat did you converse with your co-boarders that two were came back? (sic) ARegarding the JS program, Sir.

QAfter you conversed, after a while you went to sleep? AYes, Sir. QWhat time in the following morning did you wake up? AAt 5:00 o'clock in the morning. QThat is your usual hour of waking up? AYes, sir." 25 (Emphasis supplied.) The fact that she returned to her boarding house composed and unruffled, had gossiped with her co-boarders about the JS program as if nothing unusual had happened, and had no difficulty falling asleep and thereafter waking up at the usual hour provokes disbelief that she was really raped by appellants. Surely, her co-boarders would have noticed something amiss and inquired about it, especially since she said she helplessly cried after the incident hence she should have been emotionally upset. Arlene testified that on March 3, 1987 at about 7:00 P.M., or four days after the alleged sexual assault, she again went to the school plaza to get her notebook which she left there on the same afternoon. Twenty meters away from the school plaza, she saw Dindo Castillon and Valeriano Cabajes already there. Although she was alone, she nevertheless proceeded to the plaza. She testified that she was again raped by appellants and one Bimbo Eballe. This allegation was the subject of the complaint in Criminal Case No. 228 wherein appellants were acquitted, but we have to advert to relevant facts and findings therein since they pertinently shed light on complainant's representations and credibility in the case at bar. If complainant was really sexually assaulted by Dindo Castillon and Valeriano Cabajes on February 27, 1987, she would have taken the necessary precautions in order that appellants would not be afforded an opportunity to repeat such a dastardly act. It was already 7:00 o'clock in the evening and, presumably, there would only be a few persons, if at all, remaining in the school grounds. Logic and common sense would dictate that Arlene leave immediately rather than proceed to the school plaza, knowing that appellants were there. The normal human reaction would be for the victim to take flight at the first opportunity in order to avoid her tormentors. Surely, she would not risk a second rape, knowing that she could easily come back and get her notebook at a later time. Her decision to proceed to the school plaza, if her allegations were true, would be courting trouble and is not in accord with rational human behavior, hence the dubiety of her story. Complainant's failure to notify the authorities or, at the very least, her parents about her agonizing experience also seriously affects the truthfulness of her narration. In the morning following her supposed distressing experience, she went home for the weekend, as was her usual practice, to visit her parents. She had the whole weekend to confide to them. Her life was in no way in danger considering that her residence was about a kilometer away from Albor proper where the alleged raped occurred, aside from the protection afforded by and available in the household. llcd The Court also takes note of another inconsistency in the testimony of the complainant which further serves to demolish the case for the prosecution. Arlene initially declared: "QWhen did you hear for the first time the voice of Ebong Cabajes when you said you recognize(d) his voice? AWhen he spoke. QWhat did he say? AI told him, 'you're my relative', and he answered 'if another person could take advantage of you why not me who is your relative.' QAfter he succeeded in inforcebly (sic) having sexual intercourse with you, what else happened? AThe two of them r(a)n away." 2 6 (Emphasis supplied.) In the aforementioned testimony, Arlene stated that appellants ran away after the alleged sexual assault. Yet, when asked by the private prosecutor where Dindo was at the time of the supposed rape by appellant Cabajes, she made a diametrically opposed disclosure: "QBy the way while Ebong was having a forceable (sic) sexual intercourse with you, where was Dindo Castillon? AHe already r(a)n away. 27 (Emphasis ours.) In its decision, the lower court observed that the admitted presence of Valeriano Cabajes at the stage strongly corroborated the testimonies of Arlene Devocion and Joseph Sembillo regarding the wrongdoing of appellants. In addition to the more detailed report given by the complainant of what appellants allegedly did to her, prosecution witness Joseph Sembillo declared that both appellants did something that was not proper, that is, they raped Arlene. 28 The said finding of the trial court is belied by the following testimony of Joseph Sembillo admitting, on cross-examination, that he in fact saw nothing that would incriminate Dindo Castillon nor Valeriano Cabajes: "QIn your direct testimony when you were asked what did Dindo Castillon and Arlene Devocion do while they were (o)n the stage you said that they did something, am I correct? AYes, sir. QAnd that which you said they did something means Dindo Castillon and Arlene Devocion had a sexual intercourse, am I correct? AYes, sir. QYou also said that Dindo Castillon and Arlene Devocion are sweethearts, correct? AYes. QHence, you were not surprised that Dindo Castillon and Arlene Devocion did a (sic) sexual intercourse because you know that they are sweethearts? AYes. QYou also told the Court that after the intercourse between Dindo Castillon and Arlene Devocion, Ebong followed him, followed Dindo Castillon, you and Dindo Castillon already left the stage, correct? AYes, sir. QIn short, you have not seen anymore what Ebong Cabajes and Arlene Devocion did after Ebong Cabajes followed Dindo because you already, you and Dindo already left the stage, correct?

AYes." 29 (Emphasis ours.) Complainant Devocion's credibility is further eroded by the fact that her testimony was refuted by the revelations of prosecution witness Joseph Sembillo which are closely in accord with the version of the defense. As earlier noted, Arlene stated that at 11:00 A.M. of February 27, 1987, she decided to go home after watching the JS program which was held in the basketball court of the Albor Municipal High School. On her way home, she said she met Dindo who invited her to go to the stage of the same school. 30 Joseph Sembillo, on the contrary, declared that he saw Dindo Castillon in the dancing hall and that the latter invited him to Arlene's place. It was at Arlene's boarding house, that they all agreed to go back to the school grounds. 31 We take judicial cognizance of the fact that in rural areas in the Philippines, like Albor, Surigao del Norte, young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families. The fact that Arlene agreed to engage in pre-marital sex is already a disgrace to her family, what more of her acquiescence to have sexual intercourse on a stage near the vicinity where the JS program was being held and prying eyes and ears abound. Thus, she must have reasoned that it is better to cry "rape" and bring suit thereon to salvage her honor in part than to have her reputation sullied in the community by being bruited around and stigmatized as a woman of loose morals. Cdpr Under the foregoing premises and illations, the Court holds that the prosecution has failed to discharge the onus probandi on the requisite evidentiary quantum for a pronouncement of guilt beyond reasonable doubt. The constitutional presumption of innocence in favor of appellants not having been successfully rebutted, the judicial conscience cannot rest easy with their conviction in this case. WHEREFORE, the appealed judgment of the court a quo is hereby REVERSED and SET ASIDE. Accused-appellants Dindo Castillon and Valeriano Cabajes are hereby ACQUITTED on reasonable doubt. Their immediate release is ordered, unless there is any other valid cause for their continued deprivation of liberty. SO ORDERED. Narvasa, C .J ., Feliciano, Nocon and Campos, JJ ., concur. [G.R. No. 108000. June 17, 1993.] PEOPLE OF THE PHILIPPINES, petitioner, vs. THE COURT OF APPEALS, CHIEF INSPECTOR JOSE T. PRING, respondents. The Solicitor General for petitioner. Alexander A. Padilla for private respondent. SYLLABUS 1.REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI, WHEN AVAILABLE; RULE. The elevation of this case to the Supreme Court thru a special civil action for certiorari is deemed legally permissible. Settled is the rule that: "Certiorari may be availed of where an appeal would be slow, inadequate, insufficient, and will not promptly relieve a party from the injurious effects of the judgment complained of, or in order to avoid further litigation." In Jaca v. Davao Lumber Company (No. L-25771, March 29, 1982, 113 SCRA 107, 129) cited in Lansang, Jr. v. Court of Appeals, (G.R. No. 76028, April 6, 1990, 184 SCRA 230, 235), it was held that: "The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from making use of the extraordinary remedy of certiorari where the appeal is not an adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy - not the mere absence of all other legal remedies and the danger of failure of justice without the writ, that must usually determine the propriety of certiorari." 2.ID.; ID.; ID.; NO PROCEDURAL IMPEDIMENT FOR SUCH REMEDY IN CASE AT BAR. In the case at bar, the decision of the Court of Appeals setting aside the Order of Discharge of accuse Nonilo Arile effectively crippled the prosecution's bid to oppose private respondent's application for bail. It was the intention of the prosecution, had not the Order of Discharge been annulled, to utilize the testimony of Nonilo Arile to show that evidence of guilt against private respondent Jose Pring is strong. But since the prosecution has been warned by the trial court that it will soon decide the petition for bail of private respondent Jose Pring, with or without the intended opposition to be filed by the prosecution, the latter was left without choice and was thus compelled under justified circumstances to file a special civil action for certiorari to annul the judgment of the Court of Appeals, such action filed being an extraordinary and speedy remedy. The prosecution, which is immediate need of the reinstatement of the Order of Discharge resorted to this remedy not as a substitute for appeal but as the proper remedy that can with dispatch address its predicament. On the basis of the foregoing, there is no procedural impediment barring this Court from entertaining the instant petition and resolving the issue before us. 3.ID.; CRIMINAL PROCEDURE; DISCHARGE OF THE ACCUSED TO BE STATE WITNESS; HEARING IN SUPPORT OF THE DISCHARGE, AS A CONDITION; CONSTRUED; APPLICATION IN CASE AT BAR. The present rule under Section 9, Rule 119 of the 1985 Rules on Criminal Procedure thus amends the old rule by categorically requiring a hearing where the prosecution shall present the sworn statement of the proposed witness and its other evidence for the purpose of proving to the satisfaction of the court that the conditions for discharge as enumerated therein exist. The rationale behind this amendment is to avoid a repetition of the case of Flores v. Sandiganbayan (G.R. No. L- 63677, August 12, 1983, 124 SCRA 109) where the Supreme Court set aside the Order of Discharge of the Sandiganbayan because said court merely relied on the information furnished by the fiscal in forming its conclusion of whether the conditions for discharge have been met. The term "hearing in support of the discharge" as contemplated by said law refers to a proceeding, separate from the trial itself, where the prosecution presents its evidence proving the existence of the conditions for discharge and the sworn statement of the proposed witness. Necessarily, it does not foreclose; rather, it affords an opportunity for the defense to enter its opposition against the motion to discharge. All of this is intended to aid the court in fulfilling its mandated duty of determining the propriety or impropriety of the sought-after discharge. In requiring therefore, a "hearing in support of the discharge," the essential

objective of the law is for the court to receive or possess evidence for or against the discharge which will serve as tangible and concrete basis, independent of the fiscal's or prosecution's persuasions, in granting or denying the motion for discharge. Hence, in resolving the issue in this petition, the proper question we should address is: Was there a failure to observe the spirit and intent of Sec. 9, Rule 119 in the case at bar? We rule in the negative. The prosecution has submitted the sworn statement of accused Nonilo Arile and its evidence showing that the conditions for discharge have been met. Neither can it be denied that the defense was able to oppose the motion to discharge Nonilo Arile. With both litigants able to present their side, the lack of actual hearing was not fatal enough to undermine the court's ability to determine whether the conditions prescribed under Section 9, Rule 119 were satisfied. Having received evidence for and against the discharge, the Court avoided a repetition of the case of Flores v. Sandiganbayan (supra). 4.ID.; ID.; PROCEDURAL DUE PROCESS; NOT VIOLATED IN CASE AT BAR. As held in the case of Juanita Yap Say and William Lim v. Intermediate Appellate Court, et al. (G.R. No. L73451, March 28, 1988, 159 SCRA 325) ". . . 'To be heard' does not only mean verbal arguments in court. Where a party was given the opportunity to be heard, either through oral arguments or pleadings, there can be no denial of procedural due process. `Due process is not semper et ubique judicial process." We reiterate: private respondent Jose Pring has filed his opposition to the motion to discharge Nonilo Arile and even discussed the material points of the latter's testimony in his petition for bail. His assertion then that there was a denial of due process for failure to conduct a hearing in support of the discharge is unfounded and not substantiated after a perusal of the records of the case. DECISION ROMERO, J p: On October 23, 1992, herein public respondent Court of Appeals in CA-G.R. No. 28933, entitled "Chief Inspector Jose T. Pring v. Honorable Apolinario B. Santos as Judge of RTC of Pasig, Metro Manila, Branch 67 and People of the Philippines, et al.," annulled and set aside the Order of the lower court granting the prosecution's motion to discharge accused Nonilo Arile to turn state witness. Subject decision of October 23, 1992 held that: "xxx xxx xxx In the case at bar, prior to the discharge of accused Nonilo Arile on September 8, 1992, there was no hearing by the court on the motion to discharge. Records of the proceedings of the trial court on September 4, 1992, as reflected in the order of the same date, merely show that the motion to discharge was deemed submitted for resolution, without any hearing thereon. . . ." The People of the Philippines, thru the instant petition now assails the above stated Decision, claiming that respondent appellate court committed grave abuse of discretion in annulling and setting aside the discharge of accused Nonilo Arile from the information in order to allow him to testify as state witness in the hearing for admission to bail of private respondent Jose Pring and the trial in Criminal Case No. 94159 before the lower court. Criminal Case No. 94159 is entitled "People of the Philippines v. Nonilo Arile, Jaime Serrano, Edmund Divinagracia, Jose Pring, Timoteo Zarcal, Reynaldo Fernandez, Danilo Fernandez, Eddie Chang, Jose Sy and John Does." In said case, private respondent herein, Jose Pring was among those charged with violation of Article 267 (Kidnapping for Ransom) of the Revised Penal Code, in an information filed on August 21, 1992 with the lower court. Subsequent to the filing of the information, private respondent Jose Pring submitted his petition for bail, its hearing scheduled on August 31, 1992 and September 2, 1992 at 2:00 P.M. On August 28, 1992, the prosecution filed a motion to discharge accused Nonilo Arile to be a state witness, with notice of hearing on September 4, 1992 at 8:30 A.M. Another motion for issuance of bail, with notice of hearing on September 4, 1992 at 8:30 A.M. was filed on August 31, 1992 by private respondent Jose Pring thru his counsel. On the scheduled hearing of the petition for bail on August 31, 1992, private respondent Jose Pring failed to appear although his lawyers did. Upon joint motion by the prosecution and defense, the arraignment, pre-trial conference and hearing on the petition for bail were re-set at 2:00 P.M. of September 4, 1992. On September 1, 1992, the prosecution filed an opposition to the petition for bail and asked to defer the hearing thereof until the resolution of the trial court of the motion to discharge accused Nonilo Arile, whose testimony is allegedly necessary to establish that the evidence of guilt against private respondent Jose Pring is strong. On September 4, 1992, counsels of private respondent Jose Pring filed his opposition to the motion to discharge accused Nonilo Arile. At 2:00 P.M. of the same day, Criminal Case No. 94159 was called for arraignment, pre-trial and petition for bail, but only accused Nonilo Arile appeared. Thus, the trial court issued the following order: "WHEREFORE, in view of the absence of the other accused, let the arraignment and pre-trial conference be reset on September 10, 11, 17, 18, 24 and 25, 1992, all at 2:00 o'clock in the afternoon. The motion to discharge accused Nonilo Arile to be state witness is hereby considered submitted for resolution. xxx xxx xxx." Having submitted for resolution the motion to discharge, thru the Order of September 4, 1992, the trial court on September 8, 1992 issued an Order granting said motion. In discharging accused Nonilo Arile to be a state witness, the trial court ratiocinated: "Upon a careful examination of the Sworn Statement made by the accused Nonilo Arile and the other evidence of the prosecution including other Sworn Statements of Jaime Serrano, accused Edmund Divinagracia, witness Rogelio A. Morales (driver of the kidnapped victim) Chin Yi Tsou (father of the victim), this Court is satisfied that the averment of the Government in its Motion to Discharge Accused arile are borne out and fully supported by the facts and relevant evidence." The court, thus, found that the conditions for discharge as required under Sec. 9, Rule 119 of the 1985 Revised Rules on Criminal Procedure have been satisfied.

Private respondent Jose Pring assailed the Order of discharge, filing a special civil action for Certiorari and Prohibition with the Court of Appeals. In the hearing conducted by the appellate court on September 22, 1992, counsels of private respondent Jose Pring emphatically stressed the trial court's failure to comply with the required hearing in support of the discharge as mandated in Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as amended. On October 23, 1992, the Court of Appeals rendered the questioned Decision ruling that "before effecting the discharge the court should require the prosecution to present evidence and the sworn statement of the proposed witness at a hearing in support of the discharge." Finding that the lower court immediately resolved the motion to discharge without a hearing thereon, the Court of Appeals annulled and set aside the Order of discharge dated September 8, 1992. Hence, the filing of the present petition by the prosecution. Comment by private respondent Jose Pring was filed on February 1, 1993. Prior to said comment, the lower court issued an Order of January 21, 1993, which among others considered the petition for bail of private respondent Pring submitted for resolution with or without the opposition filed by the prosecution. This prompted the prosecution to file with this Court an Urgent Motion For the Immediate Issuance of a Temporary Restraining Order and Resolution of the Petition. The prosecution, in praying for the issuance of a temporary restraining order, sought to enjoin the trial court from hearing private respondent Jose Pring's motion for bail, pending resolution before this Court, of the petition on whether the annulment of the Order of discharge by the appellate court is proper. The state argued the prosecution, shall have no leg to stand on in opposing the release on bail of private respondent Jose Pring, without the testimony of accused Arile, that will show the evidence of guilt against private respondent Jose Pring is strong. LexLib Thus, on March 30, 1993, the temporary restraining order was issued by this Court En Banc, ordering Judge Apolinario Santos to cease and desist from resolving or granting the motion for bail of private respondent Pring in Criminal Case No. 94159 until the present petition is resolved. The petition raises a single issue: can the trial court without conducting a hearing pursuant to Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as amended, resolve the prosecution's Motion to Discharge Nonilo Arile where the records show that the latter's sworn statement together with the prosecution's other evidence were already in the possession of the court and had been challenged by private respondent in his Opposition to Discharge Nonilo Arile and in his Petition For Bail? prLL Favoring an affirmative ruling thereon is the State, represented by the Solicitor General arguing that evidence of the prosecution consisting of (a) sworn statement of proposed witness Nonilo Arile; (b) resolution of the investigating prosecutors; (c) affidavits of Rogelio Morales, driver of the kidnapped Chinese children; (d) affidavits of accused Jaime Serrano and Edmund Divinagracia have all been submitted before the trial court to form part of the records of the case and thus, made available for the scrutiny of private respondent Jose Pring who controverted in detail the statements of proposed witness Nonilo Arile, both in his Opposition to the Motion To Discharge and Petition For Bail. It is the Solicitor General's theory that this submission of evidence to prove that the conditions for discharge as required by law exist, amounts to the presentation thereof in open court and the opportunity to rebut the same, well afforded to private respondent Jose Pring assuredly satisfies due process requirement contemplated by law in mandating a hearing. Under these circumstances, concludes counsel for the State, at no instance was there ever a violation of said provision of law; rather, the requirement of holding an actual hearing in support of the discharge was substantially complied with. LLjur Strongly opposed to such proposition is private respondent Jose Pring, advocating strict adherence to the letter of the law. In his Comment, he emphatically stressed that Nonilo Arile's exclusion from the information is not valid, since it is based on an Order of Discharge, the issuance of which is fatally flawed for failure of the trial court to conduct a hearing in support of his discharge. To further obtain the dismissal of the petition, private respondent contends that the State's filing of a petition for certiorari under Rule 65 is improper, where upon analysis of the single issue raised in the petition, the only inquiry it presents before this Court is one of law. Under our laws on procedure, claims private respondent, a decision of the Court of Appeals involving a pure question of law may be elevated to the Supreme Court only by a petition for review on certiorari under Rule 45 and not under Rule 65. The elevation of this case to the Supreme Court thru a special civil action for certiorari is deemed legally permissible. Settled is the rule that: "Certiorari may be availed of where an appeal would be slow, inadequate, insufficient, and will not promptly relieve a party from the injurious effects of the judgment complained of, or in order to avoid further litigation." 1 In Jaca v. Davao Lumber Company 2 cited in Lansang, Jr. v. Court of Appeals , 3 it was held that: "The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from making use of the extraordinary remedy of certiorari where the appeal is not an adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy not the mere absence of all other legal remedies and the danger of failure of justice without the writ, that must usually determine the propriety of certiorari." In the case at bar, the decision of the Court of Appeals setting aside the Order of Discharge of accused Nonilo Arile effectively crippled the prosecution's bid to oppose private respondent's application for bail. It was the intention of the prosecution, had not the Order of Discharge been annulled, to utilize the testimony of Nonilo Arile to show that evidence of guilt against private respondent Jose Pring is strong. But since the prosecution has been warned by the trial court that it will soon decide the petition for bail of private respondent Jose Pring, with or without the intended opposition to be filed by the prosecution, the latter was left without choice and was thus compelled under justified circumstances to file a special civil action for certiorari to annul the judgment of the Court of Appeals, such action filed being an extraordinary and speedy remedy. The prosecution, which is in

immediate need of the reinstatement of the Order of Discharge resorted to this remedy not as a substitute for appeal but as the proper remedy that can with dispatch address its predicament. cdphil On the basis of the foregoing, there is no procedural impediment barring this Court from entertaining the instant petition and resolving the issue before us. Prior to the 1985 Rules on Criminal Procedure, as amended, Section 9, Rule 119 provided that: "SEC. 9.Discharge of one of several defendants to be witness for the prosecution. When two or more persons are charged with the commission of a certain offense, the competent court, at any time before they have entered upon their defense, may direct one or more of them to be discharged with the latter's consent that he or they may be witnesses for the government when in the judgment of the court: (a)There is absolute necessity for the testimony of the defendant whose discharge is requested; (b)There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant; (c)The testimony of said defendant can be substantially corroborated in its material points; (d)Said defendant does not appear to be the most guilty; (e)Said defendant has not at any time been convicted of any offense involving moral turpitude." On the other hand, Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as amended, now provides that: "SEC. 9.Discharge of accused to be state witness . When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a)There is absolute necessity for the testimony of the accused whose discharge is requested; (b)There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c)The testimony of said accused can be substantially corroborated in its material points; (d)Said accused does not appear to be the most guilty; (e)Said accused has not at any time been convicted of any offense involving moral turpitude. Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence." The present rule thus amends the old rule by categorically requiring a hearing where the prosecution shall present the sworn statement of the proposed witness and its other evidence for the purpose of proving to the satisfaction of the court that the conditions for discharge as above-enumerated exist. The rationale behind this amendment is to avoid a repetition of the case of Flores v. Sandiganbayan 4 where the Supreme Court set aside the Order of Discharge of the Sandiganbayan because said court merely relied on the information furnished by the fiscal in forming its conclusion of whether the conditions for discharge have been met. 5 The Supreme Court in Flores (supra) said that since it is the Court's exclusive responsibility to discharge an accused from the information, it must see to it that: ". . . the requisites prescribed by the rules exist, particularly the requisite that there is absolute necessity for the testimony of the defendant whose discharge is requested. Under this requisite, the fiscal must show that there is absolute necessity for the testimony of the defendant whose discharge he seeks, in order to be a witness for the prosecution. This requirement is aimed to curtail miscarriage of justice, before too common, through the abuse of the power to ask for the discharge of one or more defendants. Absolute necessity of the testimony of the defendant, whose discharge is requested must now be shown if the discharge is to be allowed, and the power to determine the necessity is lodged upon the court. . . .." Thus, the term "hearing in support of the discharge" as contemplated by said law refers to a proceeding, separate from the trial itself, where the prosecution presents its evidence proving the existence of the conditions for discharge and the sworn statement of the proposed witness. Necessarily, it does not foreclose; rather, it affords an opportunity for the defense to enter its opposition against the motion to discharge. All of this is intended to aid the court in fulfilling its mandated duty of determining the propriety or impropriety of the sought-after discharge. In requiring therefore, a "hearing in support of the discharge," the essential objective of the law is for the court to receive or possess evidence for or against the discharge which will serve as tangible and concrete basis, independent of the fiscal's or prosecution's persuasions, in granting or denying the motion for discharge. Hence, in resolving the issue in this petition, the proper question we should address is: Was there a failure to observe the spirit and intent of Sec. 9, Rule 119 in the case at bar? We rule in the negative. The prosecution has submitted the sworn statement of accused Nonilo Arile and its evidence showing that the conditions for discharge have been met. Neither can it be denied that the defense was able to oppose the motion to discharge Nonilo Arile. With both litigants able to present their side, the lack of actual hearing was not fatal enough to undermine the court's ability to determine whether the conditions prescribed under Section 9, Rule 119 were satisfied. Having received evidence for and against the discharge, the Court avoided a repetition of the case of Flores v. Sandiganbayan (Supra).

Nor was there a violation of due process as private respondent Jose Pring insists. As held in the case of Juanita Yap Say and William Lim v. Intermediate Appellate Court, et al . 6 ". . . 'To be heard' does not only when verbal arguments in court. Where a party was given the opportunity to be heard, either through oral arguments or pleadings, there can be no denial of procedural due process. 'Due process is not semper et ubique judicial process.'" We reiterate: private respondent Jose Pring has filed his opposition to the motion to discharge Nonilo Arile and even discussed the material points of the latter's testimony in his petition for bail. His assertion then that there was a denial of due process for failure to conduct a hearing in support of the discharge is unfounded and not substantiated after a perusal of the records of the case. WHEREFORE, the petition is hereby GRANTED and the decision of the Court of Appeals in CA G.R. No. 28933 rendered on October 23, 1992 is SET ASIDE. Accordingly, the Order of Discharge of Nonilo Arile issued by the trial court in Criminal Case No. 94159 on September 8, 1992 is thus REINSTATED. The temporary restraining order of March 30, 1993 issued by the Court En Banc is hereby LIFTED. SO ORDERED. Narvasa, C .J ., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Quiason, JJ ., concur. [G.R. No. L-67302. June 18, 1987.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO TORREFRANCA, alias "Tony", SOFRONIO GILBOLINGO, alias "Ponyong", ISAIAS DARO, alias "Ely", TIRSO MELECIO, alias "Tirso", and OLIPIO ARELLANO, alias "Apyot", defendant-appellants. Felicitas Aquino for defendants-appellants. DECISION PARAS, J p: Accused Antonio Torrefranca alias "Tony", Sofronio Gilbolingo alias "Ponyong", Isaias Daro alias "Ely", Tirso Melecio alias "Tirso", Olipio Arellano alias "Apyot" and Benedicto Botohoy were charged with the crime of Robbery in Band with Double Homicide before the Regional Trial Court of the City of Tagbilaran, Bohol, Seventh Judicial Region, Branch I. On the same day that the information was filed, the fiscal filed a motion requesting the discharge of accused Botohoy. After the prosecution had presented its evidence and rested its evidence (accused Botohoy was among the prosecution witnesses who testified) the trial court granted the said motion for discharge and ordered Botohoy's release from detention. Trial proceeded against the other accused, and in a decision ** dated January 25, 1984, the trial court rendered judgment, the dispositive portion of which, reads: "WHEREFORE, finding the herein accused Antonio Torrefranca alias Tony, Sofronio Gilbolingo alias Ponyong, Isaias Daro alias Ely, Tirso Melecio alias Tirso and Olipio Arellano alias Apyot guilty beyond reasonable doubt of the special crime of Robbery with Homicide, all said accused are hereby sentenced to suffer the penalty of death to pay severally and jointly the following damages, to wit: 1)Twelve Thousand Pesos (P12,000.00) by reason of the death of Vivencio Diaganon to be paid to his legal heirs; 2)Twelve Thousand Pesos (P12,000.00) by reason of the death of Flaviana Diaganon to be paid to her legal heirs; 3)Five Thousand Pesos (P5,000) as moral damages to be paid to the legal heirs of Vivencio Diaganon; 4)Five Thousand Pesos (5,000) as moral damages to be paid to the legal heirs of Flaviana Diaganon; 5)To pay their proportionate share of the costs. SO ORDERED." (p. 37, Rollo). The facts of the case, as found by the trial court, are summarized as follows: In the early evening of March 25, 1981, Botohoy went to the store of Gilbolingo at the junction of Barangay Libertad Norte, Sagbayan, Bohol to take a ride for Batuan, Bohol, to see his wife who was harvesting palay thereat. Inside the store, he saw the appellants Torrefranca, Daro, Melecio, Arellano and Gilbolingo. Gilbolingo approached Botohoy and took his sickle and bolo (p. 26, TSN), then placed them on the shelves of the store. Botohoy observed that the appellants were drinking "tuba" and were discussing something which he could not hear, as he was far from the group. Thereafter, Gilbolingo and Torrefranca forced him to go with the group to the house of the Diaganon couple. On their way to the Diaganons' house, Botohoy noticed that Gilbolingo brought a bolo and his (Botohoy's) sickle, Daro carried a small bolo, Melecio had a piece of wood, Arellano carried a small bolo, while Torrefranca had a revolver. At about 7:00 o'clock in the evening, the group reached the house of the Diaganon couple, which is a kilometer away. Gilbolingo called for Flaviana Diaganon, who, upon seeing Gilbolingo, readily invited him in. Whereupon, the group rushed up the stairs. While doing so, Torrefranca covered his head and face with a black cloth. (pp. 39-42, TSN). Once inside, Gilbolingo held Flaviana by the hair and hacked her neck with the sickle (Exh. A). Flaviana fell down on the floor, spattering blood all over Gilbolingo's blue t-shirt. Then, Gilbolingo hacked her forearms and took the bundles of money on her waist, which were rolled inside a stocking (pp. 42-51, 53, TSN). Meanwhile, Torrefranca, who was holding a gun, positioned himself at the sala while Daro and Melecio entered the bedroom of Vivencio Diaganon. Botohoy heard Vivencio's voice, pleading to Daro to stop assaulting him. Then, Daro came out of the room, carrying under his armpit a blanket and trousers, and holding a bolo covered with blood (pp. 57-58, TSN). Melecio also came out from the room of Vivencio, carrying a piece of wood covered with blood. Torrefranca then ordered Daro and Melecio to hurry up and look for money. Whereupon, Daro opened the drawer of a sewing machine and brought out a bundle of money, two centimeters thick. Torrefranca went to a big bamboo basket and dug into the palay inside. He got a bundle of money and placed it in his pocket (pp. 63-69, TSN). Arellano searched another room in the house but was not able to get anything. (pp. 69-70, TSN).

Thereafter, Torrefranca announced to his companions: "Let us go down now." Before leaving the house, Torrefranca increased the volume of the radio, which was then set on a small table. Torrefranca removed his mask, as he went down the house, and took custody of all the money taken from the victims. When the group returned to Gilbolingo's house, Torrefranca explained that they could not yet divide the loot because they may tend to spend it and may direct suspicion on them (pp. 70-78, TSN). Then, he warned Botohoy not to report the matter to the police, otherwise, he would kill Botohoy and his family. The following morning, Alfonso Diaganon, a son of Vivencio Diaganon by a previous marriage, went to the house of the victims, upon being informed by one of the victims' farm hands that something tragic had happened to the two old persons. He saw Flaviana Diaganon lying on the floor leading to the kitchen with a large wound on her neck, and Vivencio Diaganon lying prostrate on his bed in the bedroom, with wounds on the forehead, left cheek and on the sides of his body. He also discovered an amount of Twenty One Thousand Pesos (P21,000.00) concealed among the palay. Then, he reported the matter to the police. On the same day, Dr. Estanislao Camacho, Municipal Health Officer of Sagbayan, Bohol autopsied the bodies of the victims and reduced his findings into writing, to wit: that the cause of death of Vivencio Diaganon was massive hemorrhage of the head and the right chest, probably caused by a sharp pointed instrument (pp. 73-74, TSN); and that the cause of death of Flaviana Diaganon was massive hemorrhage, coming from the neck caused by a sharp instrument, possibly a sharp bladed scythe (pp. 80-81, TSN). On April 15, 1981, when Botohoy was apprehended by the police, Botohoy executed an extrajudicial confession revealing the details of the commission of the outrageous offense and identifying the appellants as the perpetrators thereof. Thus, on April 16, 1981, Sgt. Amedio G. Cagata applied for and obtained a search warrant from the Hon. Andrew S. Namocatcat, Judge of the then Court of First Instance of Bohol, to authorize the search of the residences of the appellants. From the house of Daro, they recovered one small bolo, stained with blood (Exh. "B"), two bales of cloth (Exhs. "D" and "D-1") and one t-shirt (Exh. "L"); from Gilbolingo's house, they recovered a blue t-shirt, stained with blood (Exh. "C"); and from Melecio's house, they found a white t-shirt (Exh. "M"). On April 20, 1981, Gilbolingo executed a document entitled Waiver of Rights, in which he expressed his desire to waive his rights to remain silent and to the presence of counsel during interrogation. Thereafter, he executed an extrajudicial confession admitting his participation in the commission of the crime and naming all the other accused, except Arellano (his brother-in-law) as his co-conspirators. Subsequently, Gilbolingo subscribed and swore to his Waiver of Rights and Extrajudicial confession before the then Assistant Provincial Fiscal Daniel B. Bernaldez of Bohol. During the trial, the appellants testified on their whereabouts at the time of the incident, their defenses amounting to a general denial and alibi. Gilbolingo subsequently repudiated the voluntariness of his extrajudicial confession, claiming that he was merely forced to sign prepared documents (p. 117, Rollo). The defense also presented witness Epifanio Abao, who assumed full responsibility for the crime, allegedly with a certain Marlito Paca (whose family name he does not know), a certain Cris (whose family name he does not also know), Cito Petalcorin, Junior Tutor, Junior Petalcorin and Narding Abari (p. 24, Rollo). After trial, the trial court convicted the appellants of the complex crime of Robbery with Homicide, and sentenced them as aforesaid. In this appeal, the appellants assail the credibility of the testimony of their co-accused Botohoy. They also contend that the discharge of Botohoy to become a state witness was in violation of Rule 119, Section 9, for he appears to be the most guilty (Botohoy had been working in the plantation of the deceased spouses and had known the extent of their earnings) and has been a fugitive from justice for attempted rape, a crime involving moral turpitude. We have carefully examined the records of the case and We find no plausible reason to alter the trial court's appreciation of the credibility of Botohoy's testimony. In the discharge of a co-accused, the trial court may reasonably be expected to err. Where such error is committed, however, the error of the court in discharging such accused cannot affect the legal consequences of his discharge (US vs. Mendiola, 82 Phil. 740). Neither can such error affect the testimony and the quality of his testimony. Even if the discharged witness should lack some of the qualifications enumerated by Section 9, Rule 119 of the Rules of Court, his testimony will not, for that reason alone, be discarded or disregarded (US vs. Abanzado, 37 Phil. 658; People vs. Jamero, 24 SCRA 206). Thus, the trial court correctly gave credence to Botohoy's testimony in court, which confirmed the material allegations of his extrajudicial confession, pointing to the appellants as the perpetrators of the crime. Indeed, appellants' mere denial and stories of alibi cannot prevail over the positive testimony of Botohoy, that the appellants killed the Diaganon spouses and ransacked the latter's house. Post mortem findings of Dr. Estanislao Camacho corroborate Botohoy's testimony on the injuries sustained by the victims. The results of the searches conducted in the respective residences of the appellants, likewise, substantiate Botohoy's description of the t-shirts worn by the appellants at the time of the incident, the weapons used by them, and the articles which formed part of the loot (TSN, pp. 478-490). Appellants argue that Botohoy's testimony is biased and unreliable, because he harbored ill-feelings against them, to wit: Sofronio Gilbolingo mauled Botohoy in 1979 and they have become enemies since then; Isaias Daro testified against Botohoy in a case for Malicious Mischief filed against the latter; Olipio Arellano's wife also testified against Botohoy in said Malicious Mischief case; Tirso Melecio reprimanded Botohoy's son for stealing his (Melecio's) corn; and Antonio Torrefranca was responsible for the arrest of Botohoy, as suspect in the instant case. (p. 114, Rollo). We find these supposed insidious motivations, however, too frivolous and shallow, as to induce Botohoy to testify falsely against the appellants, at the risk of confessing participation in the commission of such grave offenses, as in the instant cases. As held in People vs. Tatlonghari, 27 SCRA 726:

"The reasons for the alleged individual grudges of the witnesses against appellant being so flimsy and uncertain, it is incredible that they could constitute as sufficient motive for an average individual to conjure up so serious a charge as murder and thereby send an otherwise innocent man to a long stretch of prison terms. . . ." We find the testimony of witness Epifanio Abao, assuming full responsibility for the commission of the crime, unworthy of credit and belief. A careful analysis of the evidence adduced in this case shows that his statements are substantially inconsistent on material points, rendering him a totally unreliable witness. Thus, on cross examination, he testified that on the date of the incident, he and his companions waited for nighttime at the public market in Barangay San Vicente Sagbayan, Bohol; and that the bodies of the victims were lying side by side on the floor of the room of their house (TSN, p. 1292). At the trial, however, it was established that on March 25, 1981, there was no public market in Barangay San Vicente, Sagbayan, Bohol. It was also clearly proven that the victims' bodies were lying in different places (where the victims were respectively killed). Witness Mauricio Petalcorin (one of his alleged co-conspirators), denied any participation in the robbery and advanced the reason why Abao testified in favor of the appellants, to wit: "QCan you give any reason why Epifanio Abao will testify here and point you as the person who killed the old woman in that robbery case committed in San Vicente, Sagbayan, Bohol, on March 25, 1981? AI know the reason. QPlease tell the Honorable Court? AThat fellow . . . INTERPRETER: Witness pointing to a person who answered to the name Epifanio Abao. Con't of the Answer: is always asking money and that Gilbolingo is used to give money. . . . QHow long have you known Sofronio Gilbolingo? AMay 19, 1983 since the time that I was placed in jail because we were together in one cell. . . ." (pp. 1364-1366, TSN). The foregoing infirmities in witness Abao's testimony lead us to no other conclusion than that his narrations were last minute concoctions to exculpate the appellants from their criminal responsibilities. Finally, appellant Gilbolingo's claim that his extrajudicial confession was secured thru force or intimidation, deserves scant consideration. While he claimed that Sgt. Cagata maltreated and coerced him into signing prepared documents, he did not complain of the alleged maltreatment when he was brought before Provincial Fiscal Bernaldez before whom he swore to the truth of the same. Neither did he file a complaint thereafter against Sgt. Cagata. The trial court also found that his confession is replete with details, that could have been furnished only by the appellant himself (People vs. Nillos, 127 SCRA 207). Additionally, it is alleged that since he made the extrajudicial confession in the absence of his attorney, the confession has no evidentiary value, even if his right to have his counsel present at the time of the interrogation or confession had been WAIVED by him, the waiver being VOID. Assuming this to be so, still the evidence presented in this case excluding said confession, will suffice to convict all the appellants. Well settled is the rule that conclusions of the trial judge, regarding the credibility of witnesses, command great respect and consideration, specially when, as in this case, they are supported by the evidence of record. WHEREFORE, the appealed decision is hereby AFFIRMED, subject to the following modifications: (1) the death penalty is reduced to reclusion perpetua ** in view of the provisions of the 1987 Constitution and (2) the indemnity to the victims' heirs is increased from P12,000.00 to P30,000.00 for each victim. SO ORDERED. Teehankee, (C.J.) Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin , Sarmiento and Cortes, JJ., concur. Separate Opinions CRUZ, J., concurring: The extrajudicial confession of Gilbolingo should not have been admitted because it was obtained in violation of the Bill of Rights and existing applicable jurisprudence. (Art. IV, Sec. 20, 1973 Constitution; Art. III, Sec. 12, 1987 Constitution; People v. Galit, 135 SCRA 465, People v. Sison, 142 SCRA 219.) I concur in the result, however, because, as the majority opinion observes, "even if we were to disregard his confession, the other evidence presented in this case can suffice to convict all the appellants." [G.R. No. L-23092. October 28, 1977.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANITO BEBERINO alias NIT (appeal withdrawn), GERARDO CASAA alias BANDONG (appeal withdrawn), LEODEGARIO ESTRADA (appeal withdrawn), and IGNACIO CALVARIO, defendants, IGNACIO CALVARIO, defendant-appellant. Rodrigo Matutina for appellant. Office of the Solicitor General for appellee. DECISION CONCEPCION, JR., J p: Appeal of the accused Ignacio Calvario from the judgment of the Court of First Instance of Surigao del Norte finding him guilty as an accomplice in the crime of simple robbery and sentencing him to suffer an indeterminate penalty ranging from four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law; and to indemnify, jointly and severally, together with his co-accused Anito Beberino, Gerardo Casaa, and Leodegario Estrada, the heirs of Gregoria Nuez in the amount of P605.00; and to pay proportionate costs.

It is undisputed that in the evening of February 3, 1960, the house of Gregoria Nuez, situated in sitio Balibayon, barrio Lakandula, Placer, Surigao del Norte, was broken into and robbed by several persons of cash and other articles of value amounting to P605.00, on the occasion of which Gregoria Nuez was strangled to death. Gregoria Nuez, a septuagenarian with ample means, lived alone in her house built on her coconut plantation close to the seashore. Her grandchildren took turns in keeping her company at night. On the night of February 3, 1960, Victor Ugay and Julian Dublois, both 16 years of age, spread a mat in the sala, while their grandmother slept on a wooden bed inside a small room. Before retiring, the boys placed a wooden bar across the door, on the inside, and locked the windows with pieces of wire and tuned in the radio. They went to sleep at about 10:00 o'clock. 1 Towards midnight, the boys were awakened by three men, 2 two of whom were armed with revolvers, who ordered them to lie down on their stomach, after which they were bound hand and foot and their mouths stuffed with cloth. 3 After the boys were tied, the three men entered the room occupied by Gregoria Nuez, and soon thereafter, the boys heard choking sounds ("tika-tika") and kicking inside the room. They also heard the clinking of bottles and the snorting of pigs, under the house, as if there were people there. After a while, the men came out the room and left, passing through the window facing the sea. Not long thereafter, they heard the sounds of a departing motor launch, so that they tried to unloosen the ropes that bound them. 4 At about 5:00 o'clock in the morning, Librada Dobdoban de Ugay was awakened by her son, Victor Ugay, shouting for help. She ran to the house of Gregoria Nuez, about 20 brazas away. The door was still barred from the inside, so that she passed through an open window. Inside, she saw her son, Victor, and her nephew, Julian Dublois, bound hand and foot. She called her mother in-law and, receiving no answer, she entered her room. There, she saw her mother-in-law, Gregoria Nuez, lying down apparently lifeless. So she went back to the sala and untied Victor Ugay and Julian Dublois. After a cursory check of the house, she found that the money from the sale of copra amounting to P147.50, as well as the radio-phono, records, Coleman lamp and flashlight, all belonging to Gregoria Nuez, were missing. 5 The matter was reported to the police, and an autopsy of the cadaver of Gregoria Nuez showed that she died of strangulation by hand. 6 Dissatisfied with the apparent inability of the local police force to solve the crime expeditiously, the relatives of the victim sought the assistance of the Philippine Constabulary. 7 On March 1, 1960, Cpl. Michael Desoloc was dispatched to Placer to conduct an investigation. In barrio Lakandula, he received information that one Ignacio Calvario had knowledge of the crime and was willing to testify if the authorities would utilize him as a witness in the case. 8 Ignacio Calvario was, accordingly, taken into custody, and after questioning, he executed an affidavit wherein he described the means by which the crime was committed and the role he played in the commission thereof. He also named (Bandong) Gerardo Casaa, (Nit) Anito Beberino, (Mandot) Rumaldo Guibao, Floro Abas, Gario Estrada, Rose Bebang, Penoy, Busio, and (Pelesio) Simplicio Guibao as his confederates. 9 Following further investigations, a complaint for robbery in band with murder was filed by Cpl. Desoloc before the Justice of the Peace Court of Placer, Surigao against the aforenamed persons. Ignacio Calvario was listed in the complaint as one of the witnesses for the prosecution. 10 Finding a prima facie case against the accused, the Justice of the Peace issued a warrant of their arrest, 11 and, upon termination of the preliminary investigation, remanded the case to the Court of First Instance of Surigao for trial on the merits. 12 A reinvestigation of the case was conducted by the Fiscal after which he filed an information before the Court of First Instance of Surigao charging the accused, including Ignacio Calvario who had by then demonstrated hostility to the prosecution and indicated that he would no longer testify for the government, with the crime of robbery with homicide. 13 In due time following the conclusion of the trial, judgment was rendered finding the accused Anito Beberino, Gerardo Casaa and Leodegario Estrada guilty of the crime of robbery with homicide, and sentenced to suffer the penalty of reclusion perpetua, and to indemnify, jointly and severally, the heirs of Gregoria Nuez in the amount of P3,000.00. The accused Ignacio Calvario was found guilty as an accomplice in the crime of simple robbery since he did not actually participate in the killing of Gregoria Nuez and no conspiracy was proved among the accused, and sentenced to suffer the penalty hereinbefore stated. 14 For insufficiency of evidence, the accused Simplicio Guibao, Rumaldo Guibao, Floro Abas, and Rudy Casaa were acquitted; while the case was dismissed as against Rose Bebang and Penoy, nicknamed Busio. 15 From this judgment, Gerardo Casaa, Anito Beberino, Leodegario Estrada, and Ignacio Calvario appealed. However, the appeals of Gerardo Casaa, Leodegario Estrada, and Anito Beberino were subsequently withdrawn, 16 so that the appeal of Ignacio Calvario alone is left for consideration. In seeking a reversal of the judgment appealed from, the appellant Ignacio Calvario claims that the evidence of the prosecution is insufficient to sustain a conviction because the extrajudicial confession upon which said judgment is based was obtained from him by means of threats, and, therefore, inadmissible in evidence. The appellant testified that he was threatened by Cpl. Michael Desoloc who said that if he would not affix his thumbmark on the document, he (Calvario) would be brought to the barracks and sent to Bilibid to be burned. 17 Cpl. Desoloc, however, denied having threatened or coerced the appellant into executing the said extrajudicial confession and claimed that Ignacio Calvario furnished the statements contained therein freely and voluntarily. His claim is corroborated by the Justice of the Peace of Placer, Surigao, before whom Ignacio Calvario swore to the veracity of its contents, who testified that he read the extrajudicial confession to the accused and asked the latter if he understood what had been read to him; and that when the accused answered in the affirmative, he requested the accused to affix his thumbmark on the document, which he did. The appellant's claim that he had been threatened into executing the extrajudicial confession in question appears to be more of an afterthought than a valid claim. The circumstances surrounding its execution positively show that the document was executed

freely and voluntarily and the reason that prompted the accused to do so was that he had been promised immunity from prosecution as he would be utilized as a government witness. Thus, Cpl. Michael Desoloc testified that he went to sitio Balibayon on March 1, 1960 to investigate the robbery and killing of Gregoria Nuez. After questioning Librada Ugay, Victor Ugay, and Julian Dublois, he proceeded to barrio Lakandula where he was informed by one Eliot Dublois, who obtained his information from Eugenio Cinco, that Ignacio Calvario was one of the robbers. He went to Cinco who told him that Ignacio Calvario was indeed willing to testify if utilized as a government witness. On that very same day, Ignacio Calvario was arrested. Apparently, an agreement had been reached for Ignacio Calvario was brought to sitio Balibayon where they reenacted the commission of the crime. The next day, March 2, 1960, Calvario was brought to the poblacion of Placer where he pointed to Cpl. Desoloc the perpetrators of the crime. On March 6, 1960, Ignacio Calvario executed the extrajudicial confession after which he was released from custody. 18 On March 8, 1960, Cpl. Michael Desoloc filed a complaint before the Justice of the Peace Court of Placer, Surigao, charging Gerardo Casaa and others with the crime of robbery in band with murder. Ignacio Calvario, true to the promise, was merely listed as one of the witnesses for the prosecution. 19 After the preliminary investigation, the case was remanded to the Court of First Instance of Surigao for trial. However, a re-investigation was conducted, during which time Ignacio Calvario turned hostile, so that he was included in the information as one of the accused. 20 As will be seen, the appellant was to be used as a government witness which was not done because he later denied the facts that he had revealed in his confession. This Court has earlier held that where one of several co-defendants turns state's evidence on a promise of immunity by the prosecuting attorney, but later retracts and fails to keep his part of the agreement, his confession made under such a promise may then be used against him. 21 In view thereof, the extrajudicial confession of the appellant is admissible as evidence against him. Finally, counsel for the appellant claims that the trial court erred in convicting Calvario as an accomplice in the crime of robbery although he had no knowledge of the criminal intent of his co-accused. prcd The contention is without merit. In his extrajudicial confession, the appellant stated that he was in Placer, Surigao on February 3, 1960 and that at abut 7:00 o'clock in the evening of the said day, he was told by Gerardo Casaa to get aboard the latter's boat ("lancha") as they were sailing for barrio Cawilan. Already on board were Anito Beberino, Rumaldo Guibao, and Rudy Casaa, the son of Gerardo Casaa. Thirty minutes after lifting anchor, they reached the island of Maytubig where they met the group composed of Floro Abas, Gario Estrada, Rose Bebang, Penoy, Busio, and Simplicio Guibao. He then heard the two groups discussing whose boat they would use in going to sitio Balibayon to rob Gregoria Nuez. After some time, they agreed to ride on the boat of Simplicio Guibao, so that Rudy Casaa took the boat of his father to sitio Sanisani. A while later, they landed on the seashore near the house of Gregoria Nuez. They disembarked and Simplicio Guibao sailed for Nonoc, promising to come back for them later. Upon reaching the house of Gregoria Nuez, he and Gerardo Casaa, Anito Beberino, and Gario Estrada went upstairs, while their other companions remained below. Gerardo Casaa then removed the latch securing the window with a screw driver, after which Gerardo Casaa and Anito Beberino, both of whom were armed with revolvers, and Gario Estrada entered the house through the open window. The appellant stayed behind, on the porch. Once inside, Gerardo Casaa kicked the two persons then sleeping in the sala of the house who were subsequently gagged and hogtied by Anito Beberino and Gario Estrada. Then, Gerardo Casaa entered the room of Gregoria Nuez and strangled her to death. After killing Gregoria Nuez, Gerardo Casaa removed the victim's ring from her finger while Anito Beberino and Gario Estrada ransacked the room. Thereafter, they opened five bottles of wine, which they mixed with beer, and gave a glass of the concoction to Calvario. On coming out of the room, Gerardo Casaa opened the "comoda" and removed the radio therefrom and passed it on the Calvario who put it atop a bench on the veranda. Gario Estrada likewise gave Calvario a petromax lamp which he also placed on the bench. Then, the three left the house passing through the open window and rejoined their companions below. Afterwards, all of them boarded the boat of Simplicio Guibao who had returned for them and sailed towards Sanisani. He and Floro Abas, Rose Bebang, Penoy, and Busio disembarked at Sanisani, while Gerardo Casaa, Rumaldo Guibao, and Gario Estrada boarded the boat of Rudy Casaa and returned to Placer. The appellant's statement is corroborated by Severo Enriquez who declared that he saw the appellant Ignacio Calvario, Leodegario Estrada, Gerardo Casaa, Anito Beberino, Flor Abas, and several others disembark from a launch at about 10:00 o'clock in the evening of February 3, 1960 and proceed towards the house of Gregoria Nuez with the appellant Ignacio Calvario in the lead. 22 The evidence thus presented proves conspiracy, and that the appellant not only knew of the plan to rob Gregoria Nuez, but also participated in its commission by previous and simultaneous acts which lent to the accomplishment of the criminal intent. Although the appellant may not have foreseen the killing of the victim and did not take part in its execution, he is nevertheless guilty of the crime of robbery with homicide. The rule is that when homicide takes place as a consequence of or on the occasion of a robbery, all those who took part in the robbery shall be guilty as principals of the crime of robbery with homicide, unless there is proof that they have tried to prevent the killing. 23 Here, there is nothing in the record which would tend to show that the appellant ever attempted to prevent the homicide. The appellant is, therefore, guilty of the crime of robbery with homicide, covered by Article 294, No. 1, of the Revised Penal Code, which is punished with reclusion perpetua to death. The commission of the offense was attended by the aggravating circumstances of nocturnity, abuse of superior strength, and disregard to the age of the offended party, the victim being 70 years of age. The case thus calls for the application of the maximum penalty provided by law, namely death. But for lack of the necessary number of votes, appellant is hereby sentenced to reclusion perpetua.

As principal in the commission thereof, the appellant should also be ordered to indemnify the heirs of the victim, jointly and severally, with Gerardo Casaa, Anito Beberino, and Leodegario Estrada, the amount of P12,000.00 for the death of Gregoria Nuez aside from the amount of P605.00, the value of the articles stolen. Considering, however, that Gerardo Casaa, Anito Beberino, and Leodegario Estrada had previously withdrawn their appeals so that the judgment of the trial court is already final as to them, their joint and solidary liability with the appellant for the death of Gregoria Nuez shall not exceed P3,000.00. prLL Modified in the manner above indicated, the judgment appealed from should be, as it is hereby, affirmed with costs against the appellant. SO ORDERED. Fernando (Chairman), Antonio, Aquino and Santos, JJ., concur. Barredo, J., took no part. [G.R. No. 80268. May 27, 1992.] BOGO-MEDELLIN MILLING CO., INC. and ROBERT HERMOSA , petitioners, vs. THE HON. JUDGE PEDRO SON, Presiding Judge of Regional Trial Court, Branch 11, 7th Judicial District and MANOLITO TUACAO , respondents. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; DOUBLE JEOPARDY; REQUISITES. Under Section 9 of Rule 117 of the Rules of Court, the following are the requisites for the defense of double jeopardy: 1. There must be a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; 2. Filed before a court of competent jurisdiction; 3. After the accused had been arraigned and pleaded to the charge; 4. That the accused was convicted or acquitted or the case against him was dismissed or otherwise terminated without his express consent; 5. The second offense charged is the same as the first offense charged, or for an attempt to commit the same or a frustration thereof; or 6. The second offense necessarily includes or is necessarily included in the first offense charged. 2.ID.; ID.; DISCHARGE OF ONE OF SEVERAL DEFENDANTS TO BE WITNESS FOR THE PROSECUTION; REQUISITES; NOT COMPLIED WITH IN CASE AT BAR. Those requisites for the discharge of an accused from an information in order that he may become a witness for the prosecution, are the following: "(1) Two or more persons are charged with commission of a certain offense; (2) The application for discharge is filed before the defense has offered its evidence; (3) There is absolute necessity for the testimony of the defendant whose discharge is requested; (4) There is no other direct evidence available for the proper prosecution of the offense committed; (5) The testimony of said defendant can be substantially corroborated in its material points; (6) Said defendant does not appear to be the most guilty; and (7) Said defendant has not at any time been convicted of any offense involving moral turpitude." In the case at bar, it does appear that not all of the above requisites had been complied with when petitioner Hermosa was discharged from the qualified theft information. There appeared no absolute necessity for Hermosa's testimony in order to sustain the information against Tuacao, since there were other witnesses whose testimonies should be sufficient to prove the charge. Thus, during the preliminary investigation, Nonillo dela Cruz, one of the accused in the information for simple theft, testified that it was Hermosa who had driven the truck carrying the alleged stolen tire out of the premises of petitioner Bogo-Medellin, and that after the tire had been sold to a certain Soledad Divinagracia, he (dela Cruz) received from Tuacao P100.00 and P200.00 from Hermosa. It, therefore, appears that Hermosa's testimony would merely serve to corroborate and strengthen the testimony of Nonillo dela Cruz and to furnish additional details of the events constituting the offense charged. It may also be noted that during the preliminary investigation, petitioner Hermosa had admitted that it was he who had driven the truck carrying the stolen tire, and that it was he who had brought the same to the vulcanizing shop of Gerry Maluya which shop was under the management of Nonillo dela Cruz. Moreover, since petitioner Hermosa had also testified that respondent Tuacao and he (Hermosa) had planned the commission of the crime, Hermosa appeared to be at least as guilty, if not more so, than respondent Tuacao. 3.ID.; ID.; ID.; DISCHARGE OF ACCUSED LEFT TO DISCRETION OF TRIAL COURT. The general rule is that the discharge of an accused in order that he may turn state witness, is expressly left to the discretion of the trial court. 4.ID.; ID.; ID.; EFFECT OF DISCHARGE OF DEFENDANT; CASE AT BAR. The effect of the discharge of a defendant is specified in Section 10 of Rule 119 in the following manner: "Sec. 10. Discharge of Accused Operates as Acquittal. The order indicated in the preceding section, shall amount of an acquittal of the accused discharged and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge." . . . There is thus on record no sufficient basis to withhold the benefits of Section 10 of Rule 119 from petitioner Hermosa. We conclude that, petitioner Hermosa having been acquitted of the charge of qualified theft, could not be subsequently reinstated as a co-accused in the same information without a prohibited second jeopardy arising under the circumstances, absent satisfactory proof that he had refused or failed to testify against his co-accused. 5.ID.; ID.; ID.; LEGAL CONSEQUENCES OF ACQUITTAL FOLLOWS DISCHARGE AND PERSISTS UNLESS DISCHARGED ACCUSED FAILS OR REFUSES TO TESTIFY AGAINST CO-DEFENDANT; ACTUAL TESTIMONY OF ACCUSED NOT CONDITION PRECEDENT FOR AVAILABILITY OF DOUBLE JEOPARDY DEFENSE. We consider Section 10 to mean that once the discharge of an accused from the information is effected, the legal consequence of acquittal follows and persists unless the accused so discharged fails to refuses to testify against his codefendant, in which case the defense of double jeopardy is withdrawn from him and becomes unavailable to him. Until it is shown that the discharged accused has in fact failed or refused to testify against his co-defendant, subsequent proof showing that any or all of the conditions listed in Section 9 of Rule 119 of the Rules of Court had not been actually fulfilled, would not affect the legal consequence of the discharge, i.e., would not wipe away the resulting acquittal. Using an analogy drawn from the civil law, the failure or refusal of the discharged accused to testify against his co-accused constitutes a resolutory condition

that results in lifting of the defense of double jeopardy. The actual testimony of the discharged accused against his co-accused is not, contrary to what respondent Judge Son believed, a condition precedent to the availability of the double jeopardy defense. 6.ID.; ID.; ID.; ERROR IN GRANTING PETITION DOES NOT DEPRIVE ACCUSED OF LEGAL CONSEQUENCES OF ACQUITTAL SO LONG AS NO QUESTION OF JURISDICTION IS INVOLVED; CASE AT BAR. This Court has held several times in the past that any witting or unwitting error of the prosecution in asking for the discharge of an accused and of the trial court in granting the petition for discharge, so long as no question of jurisdiction is involved, would not deprive the discharged accused of the acquittal that is specified in Section 10 of Rule 119 and of the constitutional guarantee against double jeopardy. Notwithstanding, therefore, the apparent failure to comply with all of the above listed requisites for the discharge of one of several accused to be a witness for the prosecution, the discharge of petitioner Hermosa must be considered as valid for present purposes, that is, for determination of whether a second and prohibited jeopardy would attach upon reinstatement of Hermosa as a co-accused in the qualified theft information. 7.ID.; EVIDENCE; COMPETENCY OF ACCUSED AS WITNESS OR ADMISSIBILITY OF HIS TESTIMONY NOT AFFECTED BY MISTAKEN OR IMPROPER DISCHARGE. It is also relevant to note that the improper or mistaken discharge of an accused like petitioner Hermosa would not affect his competency as a witness or render inadmissible his testimony. DECISION FELICIANO, J p: On 27 September 1985, the Office of the Provincial Fiscal of Cebu filed before Branch 11 of the Regional Trial Court of Cebu, then presided over by Judge Valeriano Tomol, Jr., an information charging petitioner Robert Hermosa with the crime of qualified theft, upon a complaint filed by petitioner Bogo-Medellin Milling Company, Inc. ("Bogo-Medellin"), in Criminal Case No. CBU-6172. Bail in the amount of P12,000.00 was recommended. At the same time, several other persons including private respondent Manolito Tuacao were charged in a separate information for simple theft, in Criminal Case No. CBU-6173. The acts involved in both informations related to the theft of the same item, a large rubber tire. Five (5) months later, on 11 February 1986, private respondent Manolito Tuacao was dropped from the information for simple theft in Criminal Case No. CBU-6173, and instead was charged as co-accused of petitioner Hermosa in the case for qualified theft (Criminal Case No. CBU-6172). The amended information in CBU-6172 read as follows: cdphil "That on or about the 24th day of June, 1984, at around 7:00 o'clock in the morning, more or less, in the municipality of Medellin, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused being then employees of the Bogo-Medellin Company, Incorporated, conspiring, confederating and mutually helping with Nonillo Dela Cruz, Enrique Caballete, and Melecio Pilones, the latter three (3) accused having been charged in a separate information for theft, with deliberate intent to gain, and without the knowledge and consent of the owner, and with grave abuse of confidence, did then and there willfully, and unlawfully and feloniously take, steal and carry away one (1) tire marked Goodyear with a dimension of 1000 x 20 and sold the same in the amount of Four Thousand Seven Hundred Eighteen (P4,718.00) Pesos, Philippine Currency, to the damage and prejudice of the Bogo-Medellin Company, Incorporated in the amount aforestated. Contrary to law." 1 After arraignment of the two (2) accused, but before the prosecution could commence presenting its evidence, petitioner Bogo-Medellin filed on 14 April 1986 a manifestation informing the trial court of petitioner Hermosa's desire and willingness to act as state witness and to testify against his co-accused, private respondent Tuacao who, Hermosa claimed, was the most guilty. Bogo-Medellin then prayed for the discharge of petitioner Hermosa from the information in Criminal Case No. CBU-6172. The application for discharge was opposed by co-accused Tuacao upon the argument that the requirements of Rule 119 of the Rules of Court had not been satisfied. More specifically, respondent Tuacao asserted that petitioner Hermosa, judging from the evidence presented during the preliminary investigation, was the most guilty of the several persons accused of stealing the rubber tire. prLL Initially, Judge Tomol denied the application of petitioner Bogo-Medellin for discharge of Hermosa. On Bogo-Medellin's motion for reconsideration, however, Judge Tomol issued an order reversing himself and discharging petitioner Hermosa from the information for qualified theft. On 2 December 1986, on the initial scheduled date of hearing of the qualified theft case, petitioner Hermosa failed to appear before the trial court. The hearing was accordingly rescheduled, first to 20 January 1987 and later to 3 March 1987. By the latter date, respondent Judge Pedro C. Son had become Presiding Judge of Branch 11 of the Regional Trial Court of Cebu. On the 3 March 1987 hearing, counsel for private respondent Tuacao manifested to the court that he would be moving for reconsideration of the order of Judge Tomol discharging petitioner Hermosa from the qualified theft information. BogoMedellin opposed the motion for reconsideration upon the ground that reinstatement of Hermosa as co-accused in Criminal Case No. CBU-6172 would place him in double jeopardy, considering that the order of Judge Tomol discharging Hermosa had resulted in his acquittal of the crime of qualified theft. On 18 March 1987, respondent Judge Son issued an order reinstating petitioner Hermosa as co-accused in the case for qualified theft. The dispositive portion of this order read as follows: "In view of all the foregoing, and considering the new provisions in the 1985 Rules on Criminal Procedure, the order of August 6, 1986 is hereby reconsidered, and Robert Hermosa is ordered reinstated as accused in the case at bar. Let a warrant issue for his arrest with bond fixed as P12,000.00. In the meantime, cancel the hearing on April 2, 1987, but the hearing on May 19, 1987, as previously set, shall proceed. SO ORDERED." 2

Bogo-Medellin moved for reconsideration of the order of reinstatement, without success. 3 The sole issue raised in the instant Petition for Certiorari is whether or not the order of former Judge Tomol dated 6 August 1986 discharging petitioner Hermosa as accused in Criminal Case No. CBU-6172 had amounted to his acquittal of the crime charged. An affirmative answer to this question would lead to the conclusion that the order of respondent Judge Pedro C. Son dated 18 March 1987 reinstating him as one of the accused in Criminal Case No. CBU-6172 amounted to subjecting private respondent Tuacao to a second jeopardy for the same criminal offense. Under Section 9 of Rule 119 of the Rules of Court, the following are the requisites for the defense of double jeopardy: 1.There must be a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; 2.Filed before a court of competent jurisdiction; 3.After the accused had been arraigned and pleaded to the charge; 4.That the accused was convicted or acquitted or the case against him was dismissed or otherwise terminated without his express consent; 5.The second offense charged is the same as the first offense charged, or for an attempt to commit the same or a frustration thereof; or 6.The second offense necessarily includes or is necessarily included in the first offense charged. Bogo-Medellin and Hermosa argue that the order of Judge Tomol of 6 August 1986 discharging Hermosa from the information for qualified theft had the effect of acquitting Hermosa of that offense. Upon the other hand, it is contended by respondent Tuacao that the requisites under Section 9 of Rule 119 of the Rules of Court were not properly complied with. Those requisites for the discharge of an accused from an information in order that he may become a witness for the prosecution, are the following: "(1)Two or more persons are charged with commission of a certain offense; (2)The application for discharge is filed before the defense has offered its evidence; (3)There is absolute necessity for the testimony of the defendant whose discharge is requested; (4)There is no other direct evidence available for the proper prosecution of the offense committed; (5)The testimony of said defendant can be substantially corroborated in its material points; (6)Said defendant does not appear to be the most guilty; and (7)Said defendant has not at any time been convicted of any offense involving moral turpitude." 4 In the case at bar, it does appear that not all of the above requisites had been complied with when petitioner Hermosa was discharged from the qualified theft information. There appeared no absolute necessity for Hermosa's testimony in order to sustain the information against Tuacao, since there were other witnesses whose testimonies should be sufficient to prove the charge. Thus, during the preliminary investigation, Nonillo dela Cruz, one of the accused in the information for simple theft, testified that it was Hermosa who had driven the truck carrying the alleged stolen tire out of the premises of petitioner Bogo-Medellin, 5 and that after the tire had been sold to a certain Soledad Divinagracia, he (dela Cruz) received from Tuacao P100.00 and P200.00 from Hermosa. It, therefore, appears that Hermosa's testimony would merely serve to corroborate and strengthen the testimony of Nonillo dela Cruz and to furnish additional details of the events constituting the offense charged. It may also be noted that during the preliminary investigation, petitioner Hermosa had admitted that it was he who had driven the truck carrying the stolen tire, and that it was he who had brought the same to the vulcanizing shop of Gerry Maluya which shop was under the management of Nonillo dela Cruz. Moreover, since petitioner Hermosa had also testified that respondent Tuacao and he (Hermosa) had planned the commission of the crime, 6 Hermosa appeared to be at least as guilty, if not more so, than respondent Tuacao. cdrep Notwithstanding, however, the apparent failure to comply with all of the above listed requisites for the discharge of one of several accused to be a witness for the prosecution, the discharge of petitioner Hermosa must be considered as valid for present purposes, that is, for determination of whether a second and prohibited jeopardy would attach upon reinstatement of Hermosa as a co-accused in the qualified theft information. The general rule is that the discharge of an accused in order that he may turn state witness, is expressly left to the discretion of the trial court. 7 The effect of the discharge of a defendant is specified in Section 10 of Rule 119 in the following manner: "Sec. 10.Discharge of Accused Operates as Acquittal. The order indicated in the preceding section, shall amount of an acquittal of the accused discharged and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge." Respondent Judge Pedro C. Son did read Section 10 of Rule 119 and reached the following construction thereof: "On the claim of the private prosecutor that the discharge of Robert Hermosa on the basis of the questioned order operated as an acquittal and therefore would constitute double jeopardy if he is reinstated as accused, it needs only to state that under Section 10 of Rule 119, the discharge which amounts to an acquittal and therefore a bar to a future prosecution for the same offense, applies only if and after the discharged accused shall have actually testified for the state or his failure to testify is attributable to the prosecution. Thus, where Hermosa has not yet testified, the principle of double jeopardy does not yet apply. For even if he is not reinstated as accused and he fails or refuses, for some reason, to testify against his co-accused, then his discharge does not

operate as an acquittal and therefore not a bar to future prosecution of the same offense." 8 (Emphasis supplied) We read Section 10 differently. We consider Section 10 to mean that once the discharge of an accused from the information is effected, the legal consequence of acquittal follows and persists unless the accused so discharged fails to refuses to testify against his co-defendant, in which case the defense of double jeopardy is withdrawn from him and becomes unavailable to him. Until it is shown that the discharged accused has in fact failed or refused to testify against his co-defendant, subsequent proof showing that any or all of the conditions listed in Section 9 of Rule 119 of the Rules of Court had not been actually fulfilled, would not affect the legal consequence of the discharge, i.e., would not wipe away the resulting acquittal. Using an analogy drawn from the civil law, the failure or refusal of the discharged accused to testify against his co-accused constitutes a resolutory condition that results in lifting of the defense of double jeopardy. The actual testimony of the discharged accused against his co-accused is not, contrary to what respondent Judge Son believed, a condition precedent to the availability of the double jeopardy defense. This Court has held several times in the past that any witting or unwitting error of the prosecution in asking for the discharge of an accused and of the trial court in granting the petition for discharge, so long as no question of jurisdiction is involved, would not deprive the discharged accused of the acquittal that is specified in Section 10 of Rule 119 and of the constitutional guarantee against double jeopardy. 9 It is also relevant to note that the improper or mistaken discharge of an accused like petitioner Hermosa would not affect his competency as a witness or render inadmissible his testimony. 10 In the case at bar, there is no evidence of record to show that petitioner Hermosa failed or refused to testify against his co-accused, i.e., that he reneged on his covenant with the prosecution. 11 All the record shows is that petitioner Hermosa failed to attend two (2) scheduled hearings, which does not necessarily show that he had violated his undertaking to testify against his co-accused "in accordance with his sworn statement constituting the basis for his discharge." Indeed, respondent Judge Son had noted in his 18 March 1987 Order that Hermosa had yet to testify. In his second order postponing the hearing of 19 May 1987 to 7 July 1987, respondent Judge Son stated that the absence of petitioner Hermosa could have been due to the fact that the warrant for his arrest had not been properly served on him as ordered by the trial court in its order of 18 March 1987 reinstating him as co-accused in the qualified theft information. There is thus on record no sufficient basis to withhold the benefits of Section 10 of Rule 119 from petitioner Hermosa. We conclude that, petitioner Hermosa having been acquitted of the charge of qualified theft, could not be subsequently reinstated as a co-accused in the same information without a prohibited second jeopardy arising under the circumstances, absent satisfactory proof that he had refused or failed to testify against his co-accused. WHEREFORE, the Petition for Certiorari is hereby GRANTED DUE COURSE, and the Orders of respondent Judge Pedro C. Son dated 18 March 1987 and 3 July 1987 are hereby SET ASIDE and the Order of Judge Valeriano Tomol dated 6 August 1986 is hereby REINSTATED. No pronouncement as to costs. SO ORDERED. Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur. FIRST DIVISION [G.R. Nos. 80418-19. October 23, 1992.] EDUARDO ROSALES, HON. RODOLFO G. PALATTAO and PEOPLE OF THE PHILIPPINES, petitioners, vs. COURT OF APPEALS, NELSON EXCONDE and RONILO AONUEVO, respondents. Quiason, Makalintal, Barot & Torres and Atilano S. Guevarra, Jr., for petitioners. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; DISCHARGE OF ACCUSED TO BE STATE WITNESS; THE PHRASE "SO THAT THEY MAY BE WITNESSES FOR THE STATE" UNDER SEC. 9, RULE 119, COMPLIED IN CASE AT BAR. Where an accused was discharged to become a state witness after he had already testified as an ordinary witness for the prosecution, and the Court of Appeals noted that the phrase "so that they may be witnesses for the State" presupposes a future undertaking of the accused, the Court of Appeals failed to consider one important detail: at the time of Rosales' discharge, the corresponding Information against the alleged masterminds had not yet been filed. His testimony, if ever, was then to be a future undertaking on his part, and the successful prosecution of those responsible for the dastardly acts would hinge solely on his testimony as a state witness. As such, his discharge satisfied the intent of Sec. 9 of Rule 119 that one or more discharged accused "may be witnesses for the State" and was therefore in accord with law. 2.ID.; ID.; ID.; NECESSITY OF THE TESTIMONY OF THE ACCUSED FOR THE PROPER PROSECUTION OF THE OFFENSE IN THE CASE AT BAR. We agree with the observation of the Solicitor General that before Rosales testified on the circumstances surrounding the killing of Punzalan there was no direct evidence to establish the identity of the plotters and their underlying motive to silence him and thus prevent him from testifying against them before the Sandiganbayan. It was Rosales who supplied the necessary evidence to link them to the murder of Punzalan and Ramos. Moreover, the alleged eyewitness who earlier narrated his account of the murder never testified in court for fear of his life. There was nothing then to implicate the various accused to the liquidation of Punzalan and Ramos except the testimonies of Rosales and Bautista who, it must be emphasized, do not appear to be the most guilty. Rosales merely served as a look-out while Bautista drove the getaway vehicle. 3.ID.; ID.; ID.; PREVIOUS TESTIMONY AS ORDINARY WITNESS NOT A BAR THERETO IN THE CASE AT BAR. The peculiar nature of this case also justifies the action taken by the prosecution in presenting Rosales and Bautista first as ordinary witnesses. This, to ensure that they would testify according to their undertaking, as there were powerful political kingpins involved and the lives of Rosales and Bautista were in grave peril if measures were not taken to protect them. One such step was to withhold from public knowledge the intention of Rosales and Bautista to turn state witnesses; otherwise, they might not be able

to take the witness stand to pinpoint the masterminds. While it is the usual practice of the prosecution to present the accused who turns state witness only after his discharge, the trial court may nevertheless sanction his discharge after his testimony if circumstances so warrant. In the case before Us, the imminent risk to his life justified the deviation from the normal course of procedure as a measure to protect him while at the same time ensuring his undaunted cooperation with the prosecution. Indeed, as is explicit from the Rule, as long as the motion for discharge of an accused to be utilized as a state witness is filed before the prosecution rests, the trial court should, if warranted, grant it. 4.ID.; ID.; ID.; DISCRETIONARY ON THE LOWER COURT; CASE AT BAR. The rule is that the discharge of an accused is left to the sound discretion of the lower court, which has the exclusive responsibility to see to it that the conditions prescribed by the Rules are met. In the case before Us, there being compliance with the requirements of Sec. 9 of Rule 119, the trial court cannot be faulted for ordering, upon motion of the prosecution, the discharge of Rosales. 5.ID.; ID.; ID.; ID.; EFFECT OF SUBSEQUENT SHOWING THAT NOT ALL REQUIREMENTS WERE FULFILLED. Once the discharge is effected, any subsequent showing that not all the five (5) requirements outlined in Sec. 9 of Rule 119 were actually fulfilled cannot adversely affect the legal consequences of such discharge which, under Sec. 10 of the same Rule, operates as an acquittal of the accused thus discharged and shall forever be a bar to his prosecution for the same offense. In Bogo-Medellin Milling Co., Inc. v. Son, We ruled that once an accused is discharged to be a state witness, the legal consequence of acquittal follows and persists unless the accused so discharged fails or refuses to testify against his co-defendant. DECISION BELLOSILLO, J p: In what seems to be a deviation from customary practice, an accused was discharged to become a state witness after he had already testified as an ordinary witness for the prosecution. The Court of Appeals found this procedure rather unusual, hence, its nullification. Petitioners believe otherwise. On 22 August 1985, separate Informations were filed before the Regional Trial Court of Lucena City charging petitioner Eduardo Rosales, together with Crisanto Bautista and private respondents Nelson Exconde and Ronilo Aonuevo for the murder of Marcial Punzalan, an ex-Mayor of San Antonio and Tiaong towns in Quezon Province, and his leader, Demetrio Ramos. These Informations, docketed as Crim. Cases Nos. 85-499 and 85607, were consolidated and raffled to Branch 53 presided by petitioner Judge Rodolfo G. Palattao. cdll In the trial of the case, the prosecution presented Eduardo Rosales and then Crisanto Bautista as witnesses before moving for their discharge. Admittedly, their testimonies led to the identification of the alleged masterminds of the slayings, which included prominent local political leaders like ex-Mayor Ananiano Wagan of San Antonio and ex-Mayor Francisco Escueta of Tiaong as well as two (2) barangay captains, and to the filing of an information against the four (4), docketed as Crim. Case No. 86-330. The trial court granted the discharge of Rosales but deferred action on the motion to discharge Bautista pending resolution of this case. 1 Private respondents Nelson Exconde and Ronilo Aonuevo pleaded for the reconsideration of Rosales discharge but the same was denied. Upon petition for certiorari with the Court of Appeals, however, the order of discharge was recalled as the appellate court found no plausible reason for the discharge of Rosales after he admitted his guilt in the course of his testimony. 2 It also noted that there was an eyewitness to the slaying incident, thus, the testimonies of the accused turned-statewitnesses would "merely constitute independent evidence against a few of the accused". 3 Hence, this petition for review on certiorari of the Decision of the Court of Appeals of 14 January 1987 and its Resolution denying reconsideration. Quite interestingly, this petition for review was filed despite the fact that Rosales was subsequently gunned down in front of his house on 3 August 1987 while this case was pending before the lower court. 4 Counsel for petitioner Rosales as well as the Solicitor General opined that the resolution of the present case would "guide the court a quo and the parties in their future action", 5 especially since a motion for the discharge of Rosales' co-accused, Crisanto Bautista, to be utilized as state witness still remained unresolved by the trial court. They prayed that the questions of law raised in the present controversy be clarified. prLL We find merit in the instant petition. The nullification of the order of discharge by the appellate court was premised on its interpretation that Sec. 9, Rule 119, of the New Rules on Criminal Procedure contemplates only of a situation where the prosecution moves for the discharge of one or more accused "so that they may be witnesses for the State." It reads "SECTION 9.Discharge of accused to be state witness . When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn statement of its proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated at its material points; (d) Said accused does not appear to be the most guilty; (e) Said accused has not at any time been convicted of any offense involving moral turpitude. "Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence" (emphasis supplied).

Indeed, as the Court of Appeals noted, the phrase "so that they may be witnesses for the state" presupposes a future undertaking of the accused. Considering that Rosales had already testified against his co-accused, the appellate court deemed it unnecessary to order the discharge of Rosales. Yet, the Court of Appeals failed to consider one important detail: Rosales was still to take the witness stand against the alleged architects of the Punzalan killing in Crim. Case No. 86-330. While the accused therein may not have been Rosales' coconspirators in the consolidated criminal cases where he was discharged, all of them were charged for their respective roles in the same felony, albeit the Information charging the masterminds was filed only much later. Had the prosecution known earlier of the participation of the local political leaders in the murder of Punzalan and Ramos, perhaps they would have been readily included in the Informations filed against Rosales and company. But this knowledge only came about as a result of the subsequent revelations of accused-witnesses Rosales and Bautista in open court. Thus, they were not included in the two (2) Informations filed against Rosales and his co-accused. cdll At the time of Rosales' discharge, the corresponding Information against the alleged masterminds had not yet been filed. His testimony, if ever, was then to be a future undertaking on his part, and the successful prosecution of those responsible for the dastardly acts would hinge solely on his testimony as a state witness. As such, his discharge satisfied the intent of Sec. 9 of Rule 119 that one or more discharged accused "may be witnesses for the State" and was therefore in accord with law. Likewise, the finding of the Court of Appeals that Rosales' testimony was no longer necessary is not well-taken. We agree with the observation of the Solicitor General that before Rosales testified on the circumstances surrounding the killing of Punzalan there was no direct evidence to establish the identity of the plotters and their underlying motive to silence him and thus prevent him from testifying against them before the Sandiganbayan. It was Rosales who supplied the necessary evidence to link them to the murder of Punzalan and Ramos. Moreover, the alleged eyewitness who earlier narrated his account of the murder never testified in court for fear of his life. There was nothing then to implicate the various accused to the liquidation of Punzalan and Ramos except the testimonies of Rosales and Bautista who, it must be emphasized, do not appear to be the most guilty. Rosales merely served as a look-out while Bautista drove the getaway vehicle. The peculiar nature of this case also justifies the action taken by the prosecution in presenting Rosales and Bautista first as ordinary witnesses. This, to ensure that they would testify according to their undertaking, as there were powerful political kingpins involved and the lives of Rosales and Bautista were in grave peril if measures were not taken to protect them. One such step was to withhold from public knowledge the intention of Rosales and Bautista to turn state witnesses; otherwise, they might not be able to take the witness stand to pinpoint the masterminds. As succinctly put by the Solicitor General "The foregoing narration of facts speaks for itself. The prosecution could not have afforded to file a Motion to Discharge before Rosales took the witness stand. There was risk. Threat of death was present. And death came." 6 The rule is that the discharge of an accused is left to the sound discretion of the lower court, which has the exclusive responsibility to see to it that the conditions prescribed by the Rules are met. 7 While it is the usual practice of the prosecution to present the accused who turns state witness only after his discharge, the trial court may nevertheless sanction his discharge after his testimony if circumstances so warrant. In the case before Us, the imminent risk to his life justified the deviation from the normal course of procedure as a measure to protect him while at the same time ensuring his undaunted cooperation with the prosecution. Indeed, as is explicit from the Rule, as long as the motion for discharge of an accused to be utilized as a state witness is filed before the prosecution rests, the trial court should, if warranted, grant it. LLphil In the case before Us, there being compliance with the requirements of Sec. 9 of Rule 119, the trial court cannot be faulted for ordering, upon motion of the prosecution, the discharge of Rosales. Once that discharge is effected, any subsequent showing that not all the five (5) requirements outlined in Sec. 9 of Rule 119 were actually fulfilled cannot adversely affect the legal consequences of such discharge which, under Sec. 10 of the same Rule, operates as an acquittal of the accused thus discharged and shall forever be a bar to his prosecution for the same offense. Thus "SECTION 10.Discharge of an accused operates as an acquittal. The order indicated in the preceding section shall operate as an acquittal of the accused discharged and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for the discharge " (emphasis supplied). In Bogo-Medellin Milling Co., Inc. v. Son, 8 We ruled that once an accused is discharged to be a state witness, the legal consequence of acquittal follows and persists unless the accused so discharged fails or refuses to testify against his co-defendant. Consequently, the Court of Appeals committed a reversible error when it annulled and set aside the order for the discharge of accused Eduardo Rosales there being no showing that he actually failed or refused to testify against his co-conspirators. WHEREFORE, the assailed Decision of the Court of Appeals of 14 January 1987 in CA-G.R. SP Nos. 10164-65 is SET ASIDE and the Order of the Regional Trial Court, Branch 53, Lucena City, in Crim. Cases Nos. 85-499 and 85-607 is REINSTATED, hereby declaring as VALID the discharge of Eduardo Rosales as state witness. Cdpr SO ORDERED. Padilla, Grio-Aquino and Medialdea, JJ ., concur. Cruz, J ., is on leave. SECOND DIVISION [G.R. No. 86025. November 28, 1989.] RODOLFO R. AQUINO and SEVERINO B. BUGARIN, in their capacity as PROVINCIAL PROSECUTOR and ASSISTANT PROVINCIAL PROSECUTOR,

respectively of Pangasinan, petitioners, vs. HON. DEODORO J. SISON, Presiding Judge of the Regional Trial Court, Branch 40, Dagupan City and RODOLFO MEJIA alias "RUDING", respondents. Sison, Palma, Tolete, Villamil and Associates Law Office for respondent Rodolfo Mejia. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO DISMISS ON GROUND OF INSUFFICIENCY OF EVIDENCE; MUST BE FILED AFTER THE PROSECUTION HAS RESTED ITS CASE. Under Section 15, Rule 119 of the 1980 Rules on Criminal Procedure, it is only after the prosecution has rested its case that the accused may file a motion to dismiss the case on the ground of insufficiency of evidence. It is therefore clear that private respondent's motion to dismiss on the ground of insufficiency of evidence suffers from prematurity, having been interposed at the time when the prosecution was still presenting its evidence. 2.ID.; ID.; ID.; A DISMISSAL OF CASE BASED THEREON PRESENTED PREMATURELY IS A GRAVE ABUSE OF DISCRETION ON THE PART OF THE JUDGE; DOUBLE JEOPARDY DOES NOT ATTACH. The orders prematurely filed dismissing the case pursuant to the motion to dismiss is capricious and tainted with grave abuse of discretion amounting to excess of jurisdiction. Double jeopardy will therefore not attach in such a case. 3.ID.; EVIDENCE; MUST BE FORMALLY OFFERED. The chemistry report relied upon by respondent judge should not have been considered as evidence since said report has not been properly identified and testified or by NBI Forensic Chemist Felisa Vigulla-Borcelis. Any evidence which a party desires to submit for the consideration of the court must formally be offered by him (De Castro v. Court of Appeals, et al., 75 Phil. 834). The offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties at the trial (U.S. v. Solano, 33 Phil. 582; Dayrit v. Gonzales, 7 Phil. 582). DECISION PARAS, J p: On February 29, 1988, an information was filed before the Regional Trial Court, Branch 40, Dagupan City charging private respondent Rodolfo Mejia, alias "Ruding" with the crime of Illegal Possession of Firearm. In said information, nine (9) persons appear as witnesses for the prosecution. Upon being arraigned, private respondent entered a plea of "not guilty", after which the prosecution began the presentation of its evidence. Complainant Virgilio Quinto was the prosecution's first witness. In the course of Quinto's cross-examination, he admitted that he and private respondent were subjected to paraffin tests. After the cross-examination of Virgilio Quinto, the defense verbally moved for the dismissal of the case on the ground of insufficiency of evidence. Acting on said motion, and despite the vigorous objection of the prosecution, the respondent Judge, in open court, issued the following Order dated October 14, 1988, to wit: llcd "Acting on the motion of the defense for reason of insufficiency of evidence to prove the guilt of the accused beyond reasonable doubt, and finding the same well taken; "As prayed for, this case is hereby DISMISSED with costs de oficio. "The property bond posted for the provisional liberty of the accused is hereby cancelled and released. "SO ORDERED." 1 On October 24, 1988, petitioners filed their Motion for Reconsideration, which was denied by respondent Judge in his order dated November 21, 1988, thus: prcd "Submitted for resolution is the Motion for Reconsideration of the Order dated October 14, 1988, dismissing the case. "Upon a consideration of the testimony of prosecution's principal witness, Virgilio Quinto together with the Chemistry Report Nos. C-88-37 & C-88-38 (Exhs. 1 & 2) of Felisa Vigulla-Borcelis, NBI Forensic Chemist, finding Virgilio Quinto, positive of nitrates and the accused Rodolfo Mejia, negative; the only logical conclusion is that Virgilio Quinto and not the accused was in possession of the gun, subject of this case. "The Court firmly believes that there is no cause or reason to hold the accused far further trial; and to allow the prosecution to present further evidence will be an exercise in futility. Furthermore, the accused might be placed in double jeopardy. "WHEREFORE, the 'Motion for Reconsideration' is hereby DENIED for lack of merit. "SO ORDERED." 2 Hence, this petition for certiorari seeking to nullify respondent Judge's Orders dated October 14, 1988 and November 21, 1988 even as it prays for the issuance of a writ of mandamus to compel respondent Judge to reinstate criminal case No. D-8439, entitled "People of the Philippines v. Rodolfo Mejia. 3 " In a resolution dated July 12, 1989, this Court gave due course to the petition and considered the case submitted for decision. Petitioners prosecutors raise the following grounds for the allowance of the writs prayed for: I THE RESPONDENT JUDGE DENIED THE RIGHT OF THE PROSECUTION TO DUE PROCESS OF LAW; II CHEMISTRY REPORT NOS. C-88-37 AND C-88-38 (Exhs. 1 and 2) ARE PIECES OF HEARSAY EVIDENCE; III THE REINSTATEMENT OF CRIMINAL CASE NO. D-8439 WILL NOT PLACE THE PRIVATE RESPONDENT IN DOUBLE JEOPARDY; IV THERE IS NO REGLEMENTARY PERIOD FOR THE FILING OF A SPECIAL CIVIL ACTION OF CERTIORARI; and

V RESPONDENT JUDGE COMMITTED A GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING CRIMINAL CASE NO. D-8439. (Memorandum of petitioner, p. 5). Petitioners question respondent Judge's dismissal of Criminal Case No. D-8439. They claim that the prosecution had been deprived of due process considering that only one witness so far had been presented by it and that it has neither terminated the presentation of its evidence nor rested its case. Petitioners likewise point out that the Chemistry Report (Exhs. 1 and 2) which states that private respondent "was found negative of nitrates" cannot be the basis for the dismissal of the case as the same is hearsay for not having been identified and testified or by NBI Forensic Chemist Felisa Vigulla-Borcelis. Petitioners' contention is meritorious. Under Section 15, Rule 119 of the 1980 Rules on Criminal Procedure, it is only after the prosecution has rested its case that the accused may file a motion to dismiss the case on the ground of insufficiency of evidence. It is therefore clear that private respondent's motion to dismiss on the ground of insufficiency of evidence suffers from prematurity, having been interposed at the time when the prosecution was still presenting its evidence. prLL The orders issued by the respondent judge dismissing the case was capricious and tainted with grave abuse of discretion amounting to excess of jurisdiction. Double jeopardy would therefore not attach in such a case. The chemistry report relied upon by respondent judge should not have been considered as evidence since said report has not been properly identified and testified or by NBI Forensic Chemist Felisa Vigulla-Borcelis. Any evidence which a party desires to submit for the consideration of the court must formally be offered by him (De Castro v. Court of Appeals, et al., 75 Phil. 834). The offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties at the trial (U.S. v. Solano, 33 Phil. 582; Dayrit v. Gonzales, 7 Phil. 182). Respondent Judge's questioned act constitutes gross and grave abuse of discretion, which exhibits either a blatant disregard of well-established, basic procedural laws or pathetic ignorance of the law. PREMISES CONSIDERED, the petition is GRANTED. The questioned orders dated October 14, 1988 and November 21, 1988 hereby declared NULL and VOID To avoid suspicion of partiality, this case is hereby ordered to be re-raffled to another sala. SO ORDERED. Padilla, Sarmiento and Regalado, JJ., concur. Melencio-Herrera (Chairman), J., is on leave. [G.R. No. 108811. May 31, 1994.] APOLINARIO GONZALES, petitioner, vs. THE HONORABLE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and IMELDA CARATAO, respondents. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; DOUBLE JEOPARDY; REQUISITES; WHEN NOT APPLICABLE; CASE AT BAR. The dismissal of the charge for qualified seduction is clearly sanctioned by Section 11, Rule 119 of the Revised Rules of Court in order to pave the way for the filing of the proper offense for the crime of rape. The accused cannot invoke double jeopardy; for that kind of jeopardy to arise, the following requisites must be extent: (1) The previous complaint or information or other formal charge is sufficient in form and substance to sustain a conviction; (2) The Court has jurisdiction to try the case; (3) The accused has been arraigned and has pleaded to the charge; and (4) The accused is convicted or acquitted or the case is dismissed without his express consent. When all the above elements concur, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, can be rightly barred. Here, there is no question that the Municipal Trial Court did not have the requisite jurisdiction to try the offense of rape, a crime that lies instead within the province of the Regional Trial Court to take cognizance of. Moreover, the dismissal of Criminal Case No. 2560 for qualified seduction by the Municipal Trial Court not only was provisional but likewise with the express consent of the accused (herein petitioner). 2.CRIMINAL LAW; RAPE AND QUALIFIED SEDUCTION; DISTINGUISHED; CASE AT BAR. Rape and qualified seduction are not identical offenses. The elements of rape (1) that the offender has had carnal knowledge of a woman; and (2) that such act is accomplished (a) by using force or intimidation, or (b) when the woman is deprived of reason or otherwise unconscious, or (c) when the woman is under twelve (12) years of age substantially differ from the elements of qualified seduction. The latter requires (1) that the offended party is a virgin, which is presumed if she is unmarried and of good reputation; (2) that she must be over twelve (12) and under eighteen (18) years of age; (3) that the offender has sexual intercourse with her; and (4) that there is abuse of authority, confidence or relationship on the part of the offender. While the two felonies have one common element, i.e., carnal knowledge of a woman, they significantly vary in all other respects. Contrary to the assertion of accused-petitioner, the case of People vs. Samillano (56 SCRA 573), did not hold that qualified seduction is necessarily included in rape; what this Court has said is that one who is charged with rape may be found guilty of qualified seduction when the "verified complaint for rape contains allegations which aver the crime of seduction." 3.CONSTITUTIONAL LAW; RIGHT TO SPEEDY TRIAL; NOT VIOLATED IN CASE AT BAR. The Supreme Court recognized and upheld (People vs. Albao, 97 Phil. 28; and other cited cases) an accused's right to speedy trial; in this instance, however, it sees no transgression thereof. The appellate court itself has found, and later concluded, that "with only two (2) postponements in the same month entailing in interval of just seven (7) days, the proceedings have not been unreasonably delayed in violation of the right to speedy trial." Looking at the records, the Court finds no cogent reason to rule otherwise. DECISION VITUG, J p:

This petition for review on certiorari assails the decision, dated 12 February 1993, of the Court of Appeals, sustaining the validity of the order, dated 15 June 1992, of the Regional Trial Court (Branch 9) of Malolos, Bulacan, which has reconsidered and set aside its previous order of 30 March 1992 provisionally dismissing criminal cases for multiple rape filed against petitioner. The backdrop settings may be briefly recited; thus: A criminal complaint for qualified seduction (of private complainant Imelda Caratao), following a preliminary investigation, was filed (docketed Criminal Case No. 2560) with the Municipal Trial Court of Obando, Bulacan, against herein petitioner Apolinario Gonzales. The latter, upon arraignment, pleaded "not guilty" to the charge. The presentation of evidence by the prosecution started in May 1983 and was concluded in November 1988. Thereafter, the defense took its turn. When the defense was about to rest its case, the prosecution filed a motion to instead commit the accused to answer to a charge for rape since the evidence submitted indicated that rape, not qualified seduction, was evidently committed. Petitioner opposed the motion. On 17 January 1990, the trial court issued an order which, in part, read: Cdpr "The evidence adduced in the prosecution of this case clearly and manifestly show that the crime of Qualified Seduction as defined and penalized under the provisions of Art. 337 of the Revised Penal Code has not been proven. The crime of rape is an offense beyond the jurisdiction of this Court. "If there was a mistake in the charging of the proper offense against the accused, thus the motion, to commit and detain him under the authority of Section 11 Rule 119 of the Rules of Court, the trying Court must have jurisdiction to hear the original case and that of the subsequent case to be filed against the accused. "The Court having no jurisdiction to institute nor try the offense of rape, cannot, and will not, assume the jurisdiction of the Public Prosecutor, for it is their prerogative to file necessary complaint or information against any accused, jurisdiction of which falls exclusively with the Regional Trial Court. Cdpr "WHEREFORE, premises considered, there being no sufficient evidence to prove the crime of Qualified Seduction as charged in the complaint, this case is hereby dismissed." 1 Following the dismissal of Criminal Case No. 2560, the prosecution filed six (6) separate informations for rape, alleged to have been committed on 15, 16, 17, 18, 19 and 20 November 1982, before different branches of the Regional Trial Court (RTC) of Malolos, Bulacan. These cases were later consolidated (docketed Criminal Cases No. 1858-M-90 to No. 1864-M-90, inclusive). When arraigned, Gonzales pleaded "not guilty" to the charges. In the hearing of 01 July 1991, the prosecution presented its first witness, a brother of private complainant. On 23 March 1992, the private complainant and her counsel not having appeared, the public prosecutor requested a postponement of the hearing. Petitioner did not object to the postponement. On 30 March 1992, the public prosecutor again requested that the hearing be postponed on the same ground. This time, the defense objected and moved for the dismissal of the cases, claiming that the delay would violate petitioner's right to a speedy trial. The trial court issued an order, which read: prcd "On motion to this effect of the defense counsel predicated on the constitutional right of the accused to a speedy trial as viewed against the repeated absences of the complaining witness despite due notice, and without objection on the part of the Trial Prosecutor, the above-entitled case is hereby DISMISSED PROVISIONALLY with the express consent of the accused and with costs de oficio. "SO ORDERED." 2 On the very same day, private counsel for private complainant filed a motion for the reconsideration of the court's order, alleging that they (the complainant and private counsel) "were already within the Court premises but complainant was afraid to enter the courtroom in the absence of (her) counsel who was then attending a hearing before another branch of (the) Court." On 15 June 1992, the trial court, finding the motion for reconsideration to be impressed with merit, issued an order lifting and setting aside the 30 March 1992 order of dismissal. cdll A petition for certiorari was filed by Gonzales with the Court of Appeals. On 12 February 1993, respondent appellate court issued its questioned decision which dismissed the petition and affirmed the trial court's order of 15 June 1992. Hence, the instant petition. We uphold the appealed decision. Section 11, Rule 119 of the Revised Rules of Court provides: "Sec. 11.When mistake has been made in charging the proper offense. When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information." The dismissal of the charge for qualified seduction is clearly sanctioned by the abovequoted rule in order to pave the way for the filing of the proper offense for the crime of rape. The accused cannot invoke double jeopardy; for that kind of jeopardy to arise, the following requisites must be extant: cdll (1)The previous complaint or information or other formal charge is sufficient in form and substance to sustain a conviction; (2)The court has jurisdiction to try the case; (3)The accused has been arraigned and has pleaded to the charge; and (4)The accused is convicted or acquitted or the case is dismissed without his express consent.

When all the above elements concur, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, can be rightly barred. Here, there is no question that the Municipal Trial Court did not have the requisite jurisdiction to try the offense of rape, a crime that lies instead within the province of the Regional Trial Court to take cognizance of. Moreover, the dismissal of Criminal Case No. 2560 for qualified seduction by the Municipal Trial Court not only was provisional but likewise with the express consent of the accused (herein petitioner). LLpr Then, too, rape and qualified seduction are not identical offenses. The elements of rape (1) that the offender has had carnal knowledge of a woman; and (2) that such act is accomplished (a) by using force or intimidation, or (b) when the woman is deprived of reason or otherwise unconscious, or (c) when the woman is under twelve (12) years of age substantially differ from the elements of qualified seduction. The latter requires (1) that the offended party is a virgin, which is presumed if she is unmarried and of good reputation; (2) that she must be over twelve (12) and under eighteen (18) years of age; (3) that the offender has sexual intercourse with her; and (4) that there is abuse of authority, confidence or relationship on the part of the offender. While the two felonies have one common element, i.e., carnal knowledge of a woman, they significantly vary in all other respects. Contrary to the assertion of accused-petitioner, the case of People vs. Samillano (56 SCRA 573), did not hold that qualified seduction is necessarily included in rape; what this Court has said is that one who is charged with rape may be found guilty of qualified seduction when the "verified complaint for rape contains allegations which aver the crime of seduction." cdll We recognize, and we have thus heretofore upheld, 3 an accused's right to speedy trial; in this instance, however, we see no transgression thereof. The appellate court itself has found, and later concluded, that "with only two (2) postponements in the same month entailing an interval of just seven (7) days, the proceedings have not been unreasonably delayed in violation of the right to speedy trial." Looking at the records ourselves, we find no cogent reason to rule otherwise. WHEREFORE, the appealed decision of respondent appellate court is AFFIRMED. No special pronouncement on costs. SO ORDERED. Feliciano, Bidin, Romero and Melo, JJ., concur. [G.R. No. 82350. October 7, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISAAC LONDOO, accusedappellant. The Solicitor General for plaintiff-appellee. Duran & Associates for accused-appellant. SYLLABUS REMEDIAL LAW; CRIMINAL PROCEDURE; DEMURRER TO EVIDENCE (SECTION 15, RULE 119 OF THE RULES OF COURT AS AMENDED); APPLICABLE TO ACTIONS PENDING AND UNDETERMINED AT THE TIME OF ITS PASSAGE. Pursuant to the time-honored rule to which attention is drawn by the Solicitor General, that adjective statutes may be made applicable to actions pending and undetermined at the time of their passage, the amended provision should have been applied to Oas, specially since it is favorable to her. So does this Court now rule: Section 15, Rule 119, as lastly amended, applies as regards Oas. Since she sought and was granted leave to file a demurrer to evidence, and she made an explicit reservation to present evidence in the event of denial of her demurrer (withdrawing an earlier waiver made by her), her situation falls within said Section 15, Rule 119, as amended. Not having expressly waived the right to adduce evidence, she did not lose the right to do so after her motion for dismissal was denied. Hence, the Court is constrained to regard as grave error, because contrary to the letter and spirit of the applicable law (albeit probably unintended), the Sandiganbayan's act of ruling otherwise under the circumstances, and convicting Oas on the basis only of the evidence of the prosecution. DECISION NARVASA, J p: The facts involved in the appeal at bar are remarkably similar to those in Oas v. Sandiganbayan, decided by the Court en banc on October 2, 1989. 1 Consequently, application of the doctrine laid down in OAS is all that is needful to resolve the present case. cdphil The accused-appellant herein, Isaac Londoo, was indicted before the Regional Trial Court of Legaspi City 2 for the felony of rape committed on or about December 4, 1982 in Guinobatan, Albay, the alleged offended party being a 12-year old, mentally retarded girl named Expedina Morales y Padre. Londoo entered a plea of innocent when arraigned on this charge, after which the prosecution adduced evidence and rested its case in due course. Londoo then sought leave of the Trial Court to file a demurrer to evidence under Section 15, Rule 119 of the Rules of Court. By Order given on September 24, 1986, the Court granted his counsel a period of thirty (30) days within which to submit the demurrer, and reset the hearing of the case "for the reception of accused's evidence," directing Londoo "to appear on the . . . (appointed) date of hearing." 3 The demurrer was filed by Londoo's counsel on March 9, 1987, 4 after obtaining several extensions. 5 To that demurrer the prosecution presented an opposition dated April 7, 1987. 6 On July 27, 1987, the Trial Court issued an order to the effect that the case was deemed submitted for decision, the accused Londoo having, by filing a demurrer to evidence, waived his right to present evidence in his behalf. 7 The Court later caused issuance of notice to the parties requiring their appearance on September 23, 1987 for the "promulgation of the decision." 8 LLpr Londoo's counsel reacted by filing a motion dated September 19, 1987, advocating the theory that his client had not lost the right to present evidence by filing a demurrer to evidence as provided in Section 15, Rule 119 said section being unconstitutional because it

deprives him of his constitutional right to present evidence in his behalf (Sec. 14 [3], Article IV [Bill of Rights], Constitution) and thus diminishes his substantive rights (Sec. 5 [5], Constitution), and upon this ground, praying that "the promulgation of judgment be set aside and the proposed judgment be considered only as a resolution of the pending Demurrer to Evidence." What the Court did, by Order dated September 23, 1987, was to give the parties fifteen days "to file their respective memorandum" on the issues raised in Londoo's motion, and to reset the promulgation of judgment to November 11, 1987. 9 Only the prosecution filed a memorandum, however; Londoo did not, despite obtaining an extension to do so. 10 On October 28, 1987, the Trial Court promulgated an Order denying Londoo's motion of September 19, 1987 and advising that the promulgation of judgment would "proceed as scheduled . . ." 11 However, it was not until January 26, 1988 that the promulgation of the judgment was eventually effected, 12 promulgation having been delayed by Londoo's failure to appear at earlier settings thereof. 13 The decision found Londoo guilty beyond reasonable doubt of the crime charged and imposed on him the penalty of reclusion perpetua and the obligation to indemnify the victim in the amount of P30,000.00. Londoo filed his notice of appeal on the same day, January 26, 1988. 14 On November 13, 1988, amendment of the law governing demurrers to evidence (Sec. 15, Rule 119, Rules of Court) went into effect. As already stated, Oas v. Sandiganbayan 15 determines the disposition of Londoo's appeal. Oas ruled as follows: 16 "The Sandiganbayan was, to be sure, quite correct in emphasizing to Oas on July 1, 1988 that by filing a demurrer to evidence, she was waiving the right to present evidence. That cautionary advice was entirely justified by the governing provision then in force, Section 15, Rule 119 of the 1985 Rules on Criminal Procedure a provision having no counterpart in the 1964 Rules and obviously meant to alter the jurisprudential principle therefore obtaining said Section 15 reading as follows: 'SEC. 15.Demurrer to Evidence. When after the prosecution has rested its case, the accused files a motion to dismiss the case on the ground of insufficiency of evidence, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.' But the law was changed after Oas' demurrer to evidence had been overruled, verdict rendered against her, her motion for reconsideration of her conviction denied by Resolution promulgated on November 9, 1988 and before she could take an appeal to this Court. On November 13, 1988, the 1988 amendments to the 1985 Rules on Criminal Procedure (Rules 110-126, Rules of Court) went into effect. Section 15, Rule 119, was amended to read as follows: 'SEC. 15.Demurrer to Evidence. After the prosecution has rested its case, the Court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court. If the Court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (n)' Pursuant to the time-honored rule to which attention is drawn by the Solicitor General, that adjective statutes may be made applicable to actions pending and undetermined at the time of their passage, the amended provision should have been applied to Oas, specially since it is favorable to her. So does this Court now rule; Section 15, Rule 119, as lastly amended, applies as regards Oas. Since she sought and was granted leave to file a demurrer to evidence, and she made an explicit reservation to present evidence in the event of denial of her demurrer (withdrawing an earlier waiver made by her), her situation falls within said Section 15, Rule 119, as amended. Not having expressly waived the right to adduce evidence, she did not lose the right to do so after her motion for dismissal was denied. Hence, the Court is constrained to regard as grave error, because contrary to the letter and spirit of the applicable law (albeit probably unintended), the Sandiganbayan's act of ruling otherwise under the circumstances, and convicting Oas on the basis only of the evidence of the prosecution." WHEREFORE, the Court Resolved to SET ASIDE (1) the Order of the Trial Court of July 27, 1987 declaring the case submitted for decision on the basis of the evidence of the prosecution, the accused Londoo being deemed to have waived the right to present evidence by filing a demurrer to evidence; (2) the Order of October 28, 1987 denying Londoo's motion of September 19, 1987; and (3) the Decision promulgated on January 26, 1988, and to REMAND the case to the Trial Court for reception of the appellant's evidence and such further proceedings as are required by law, without pronouncement as to costs. LibLex SO ORDERED. Cruz, Grio-Aquino and Medialdea, JJ., concur.