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RULE 116 (10)

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 121234 August 23, 1995


HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court
of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding
Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR.,
ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge
of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO
VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court
of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding
Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN,
and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque,
Branch 274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court
of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding
Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR.,
ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge
of the Regional Trial Court of Paraaque, Branch 274,respondents.

PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari,
prohibition and mandamuswith application for temporary restraining order and
preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against
petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal
Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the

aforementioned criminal case; and (3) dismiss said criminal case or include Jessica
Alfaro as one of the accused therein. 1
From the records of the case, it appears that on June 19, 1994, the National Bureau of
Investigation (NBI) filed with the Department of Justice a letter-complaint charging
petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other
persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice
formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R.
Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing
on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita NicolasVizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons,
St., BF Homes, Paraaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn
statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who
allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the
former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila
S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9,
1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who
expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the
sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated
the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the
sworn statements ofBelen Dometita and Teofilo Minoza, two of the Vizconde maids, and
the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an
engineer. The autopsy reports of the victims were also submitted and they showed that
Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen
(19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a
Motion for Production And Examination of Evidence and Documents for the NBI to
produce the following:
(a) Certification issued by the U.S. Federal Bureau of Investigation on the
admission to and stay of Hubert Webb in the United States from March 9, 1991
to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A.
Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement
dated October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during
the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress
Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of
Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the
NBI and other police agencies;

(h) transmittal letter to the NBI, including the report of the investigation conducted
by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares,
including their respective positions and duties;
(j) Statements made by other persons in connection with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the
documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro.
This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court
(RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said
sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L.
Mercader, Jr., produced a copy of said original in compliance with a subpoena duces
tecum. The original was then submitted by petitioner Webb to the DOJ Panel together
with his other evidence. It appears, however, that petitioner Webb failed to obtain from
the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request
for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the
crime at bar as he went to the United States on March 1, 1991 and returned to the
Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon,
Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture
and Pamela Francisco. 13 To further support his defense, he submitted documentary
evidence that he bought a bicycle and a 1986 Toyota car while in the United States on
said dates 14 and that he was issued by the State of California Driver's License No.
A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July
25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records
tending to confirm, among others, his arrival at San Francisco, California on March 9,
1991 as a passenger in United Airlines Flight No. 808.
The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio
"Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted
sworn statements, responses, and a motion to dismiss denying their complicity in the
rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong"
Ventura failed to file their counter-affidavits though they were served with subpoena in
their last known address. 17In his sworn statement, petitioner Gatchalian alleged that
from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the
following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New
Alabang Village, Muntinlupa watching video tapes. He claimed that his copetitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause
to hold respondents for trial" and recommending that an Information for rape with
homicide be filed against petitioners and their co-respondents, 18 On the same date, it
filed the corresponding Information 19 against petitioners and their co-accused with the
Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was,
however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who
issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano
voluntarily inhibited himself from the case to avoid any suspicion about his impartiality
considering his employment with the NBI before his appointment to the bench. The case
was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new
warrants of arrest against the petitioners and their co-accused. On August 11, 1995,
petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa

Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up
to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and
Tolentino gravely abused their discretion when they failed to conduct a preliminary
examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise
gravely abused its discretion in holding that there is probable cause to charge them with
the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right
to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully
intruded into judicial prerogative when it failed to charge Jessica Alfaro in the
Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that
the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and
uncorroborated. They hammer on alleged material inconsistencies between her
April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for
her misdescription of petitioner Webb's hair as semi-blonde. They also criticize
the procedure followed by the DOJ Panel when it did not examine witnesses to
clarify the alleged incredulities and inconsistencies in the sworn statements of the
witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section
1 of Rule 112 provides that a preliminary investigation should determine " . . .
whether there is a sufficient ground to engender a well-grounded belief that a
crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial." Section 3 of
the same Rule outlines the procedure in conducting a preliminary investigation,
thus:
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no
complaint or information for an offense cognizable by the Regional Trial
Court shall be filed without a preliminary investigation having been first
conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as
other supporting documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said affidavits
shall be sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, a
notary public, who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their
affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating
officer shall either dismiss the same if he finds no ground to continue with
the inquiry, or issue a subpoena to the respondent, attaching thereto a
copy of the complaint, affidavits and other supporting documents. Within
ten (10) days from receipt thereof, the respondent shall submit counteraffidavits and other supporting documents. He shall have the right to
examine all other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the


respondent shall also be sworn to and certified as prescribed in paragraph
(a) hereof and copies thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day period, the investigating
officer shall base his resolution on the evidence presented by the
complainant.
(e) If the investigating officer believes that there are matters to be clarified,
he may set a hearing to propound clarificatory questions to the parties or
their witnesses, during which the parties shall be afforded an opportunity
to be present but without the right to examine or cross-examine. If the
parties so desire, they may submit questions to the investigating officer
which the latter may propound to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the
investigating officer shall resolve the case within ten (10) days therefrom.
Upon the evidence thus adduced, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to
hold the respondent for trial, he shall prepare the resolution and corresponding
information. He shall certify under oath that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his witnesses,
that there is reasonable ground to believe that a crime has been committed and
that the accused is probably guilty thereof . . ."
The need to find probable cause is dictated by the Bill of Rights which protects "the right
of the people to be secure in their persons . . . against unreasonable searches and
seizures of whatever nature . . ." 20 An arrest without a probable cause is an
unreasonable seizure of a person, and violates the privacy of persons which ought not
to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque
concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts
and circumstances which would lead a reasonably discreet and prudent man to believe
that an offense has been committed by the person sought to be arrested. 22 Other
jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent
and cautious man. 24 The terms are legally synonymous and their reference is not to a
person with training in the law such as a prosecutor or a judge but to the average man
on the street. 25 It ought to be emphasized that in determining probable cause, the
average man weighs facts and circumstances without resorting to the calibrations of our
technical rules of evidence of which his knowledge is nil. Rather, he relies on the
calculus of common sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel
gravely abused its discretion when it found probable cause against the
petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a)
she allegedly erroneously described petitioner Webb's hair as semi-blond and (b)
she committed material inconsistencies in her two (2) sworn statement, thus: 26
xxx xxx xxx
To illustrate, the following are some examples of inconsistencies in the two
sworn statements of Alfaro:

On whether Alfaro knew Carmela before the incident in question


First Affidavit: She had NOT met Carmela before June 29,
1991.
Second Affidavit: "I met her in a party sometime in February,
1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on
that night. She just said "on the following day I read in the
newspaper that there were three persons who were
killed . . ."
Second Affidavit: "I peeped through the first door on the left. I
saw two bodies on top of the bed, bloodied, and in the floor, I
saw Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare buttocks,
on top of Carmela and pumping, her mouth gagged and she
was moaning and I saw tears on her eyes."
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: "by jumping over the fence, which was only a
little more than a meter high."
Second Affidavit: They "entered the gate which was already
open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill gate leading to
the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription and
inconsistencies did not erode the credibility of Alfaro. We quote the pertinent
ruling, viz.: 27
xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for purposes
of argument merely that she is a co-conspirator, it is well to note that
confessions of a co-conspirator may be taken as evidence to show the
probability of the co-conspirator's participation in the commission of the
crime (see People vs. Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be
proved by direct evidence of prior agreement to commit the crime. Indeed,

"only rarely would such a prior agreement be demonstrable since, in the


nature of things, criminal undertakings are only rarely documented by
agreements in writing. Thus, conspiracy may be inferred from the conduct
of the accused before, during and after the commission of the crime,
showing that the several accused had acted in concert or in unison with
each other, evincing a common purpose or design." (Angelo vs. Court of
Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86
SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in
her two sworn statements. InAngelo, the Court refused to discredit the
testimony of a witness accusing therein petitioner for the slaying of one
Gaviano Samaniego even though said witness failed to name Angelo in
his affidavit which was executed five (5) months earlier. Granting, the
Court continued, that a part of the witness' testimony is untrue, such
circumstance is not sufficient to discredit the entire testimony of the
witness.
On August 7, 1995, another counsel for respondent Webb submitted his
memorandum suggesting that the instant complaint "should not be
decided within the month to give time to the NBI to coordinate with the FBI
on the latter's inquiry into the whereabouts of Hubert Webb . . . and to
check on our U.S.-based witnesses."
In said memorandum, counsel for respondent Webb calls for the
application of the maxim falsus in uno, falsus in omnibus arising from the
inconsistencies of Alfaro's statements, among others. This is untenable.
As held in Angelo:
There is no rule of law which prohibits a court from crediting
part of the testimony of a witness as worthy of belief and
from simultaneously rejecting other parts which the court
may find incredible or dubious. The maxim falsus in uno,
falsus in omnibus is not a rule of law, let alone a general rule
of law which is universally applicable. It is not a legal
presumption either. It is merely a latinism describing the
conclusion reached by a court in a particular case after
ascribing to the evidence such weight or lack of weight that
the court deemed proper.
In the case before us, complainant reasoned out that Alfaro was then
having reservations when she first executed the first statement and held
back vital information due to her natural reaction of mistrust. This being
so, the panel believes that the inconsistencies in Alfaro's two sworn
statements have been sufficiently explained especially specially so where
there is no showing that the inconsistencies were deliberately made to
distort the truth. Consequently, the probative value of Alfaro's testimony
deserves full faith and credit. As it has been often noted, ex
parte statements are generally incomplete because they are usually
executed when the affiant's state of mind does not give her sufficient and
fair opportunity to comprehend the import of her statement and to narrate
in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31
[1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no
dispute that a crime has been committed and what is clear before us is
that the totality of the evidence submitted by the complainant indicate

a prima facie case that respondents conspired in the perpetration of the


imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance
of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the
crime was planned and then executed by the petitioners. In addition, the DOJ Panel
evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former
housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No.
808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their
statements as follows: 29
xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the Webb family,
on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening,
Hubert was at home inside his room with two male visitors. She knew it
because she and her co-housemaid, Loany, were instructed by Hubert to
bring them three glasses of juice. It was the last time she saw Hubert and
was later told by then Congressman Webb that Hubert was in the United
States.
While Mila S. Gaviola, another former housemaid of the Webb family and
who served as a laundry woman, claims, aside from corroborating the
statement of Nerissa Rosales, that on June 30, 1991, she woke up at
around 4:00 in the morning and as what she used to do, she entered the
rooms of the Webbs to get their clothes to be washed. As a matter of fact,
in that early morning, she entered Hubert's room and saw Hubert, who
was only wearing his pants, already awake and smoking while he was
sitting on his bed. She picked up Hubert's scattered clothes and brought
them together with the clothes of the other members of the family to the
laundry area. After taking her breakfast, she began washing the clothes of
the Webbs. As she was washing the clothes of Hubert Webb, she noticed
fresh bloodstains in his shirt. After she finished the laundry, she went to
the servant's quarters. But feeling uneasy, she decided to go up to the
stockroom near Hubert's room to see what he was doing. In the said
stockroom, there is a small door going to Hubert's room and in that door
there is a small opening where she used to see Hubert and his friends
sniffing on something. She observed Hubert was quite irritated, uneasy,
and walked to and from inside his room.
On that day, she noticed Hubert left the house at around 1:00 in the
afternoon and came back at around 4:00 in the same afternoon and went
inside his room using the secret door of the house. It was the last time that
she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at
about 10:00 in the morning, he was at the Ninoy Aquino International
Airport as he was then scheduled to take the United Airlines Flight No. 808
at 2:00 in the afternoon for New York. At the airport's lobby, he saw then
Congressman Freddie Webb with a male companion. He greeted him and
Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko
papuntang Florida." He knew Freddie Webb because he often watched
him then in a television show "Chicks to Chicks." He observed that the
man whom Freddie Webb referred to as his son, was of the same height
as Freddie. The son referred to has fair complexion with no distinguishing

marks on his face. He (son of Webb) was then wearing a striped white
jacket. When he and his children were already inside the plane, he did not
see Freddie anymore, but he noticed his son was seated at the front
portion of the economy class. He never noticed Freddie Webb's son upon
their arrival in San Francisco. He claims that, while watching the television
program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb
with her lawyer being interviewed, and when she described Hubert as
"moreno" and small built, with a height of five feet and seven inches tall,
and who was the one who left for United States on March 9, 1991, he
nurtured doubts because such description does not fit the physical traits of
the son of Freddie, who left with him for United States on the same flight
and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had an
affair with him for almost three (3) years and in fact, she had a child with
him who is now four (4) years old. Their relationship started in February,
1991 until she broke up with him in September 1993. She recalls that on
June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at
the canteen of a certain Aling Glo located at the back of the Paraaque
Municipal Hall.
At about 2:30, in the early morning of January 30, 1991, the radio operator
of the Paraaque police told Biong that he has a phone call. Before Biong
went to the radio room, she was instructed to take him over and after
somebody won the game, she followed Biong at the radio room where she
overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige,
aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down,
Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang
maupo" and then, he went outside the canteen apparently waiting for
somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male
passenger sitting at the backseat and parked near the canteen. After it
made some signals by blinking its headlight, Biong rode thereat at the
front seat beside the driver and then, they left. She was not able to
recognize the male passenger because the window of the taxi was tinted.
Biong came back at around 7:00 of the same morning and when he
arrived, he immediately washed his hands and face, and took his
handkerchief from his pocket which he threw at the trash can. She asked
him why he threw his handkerchief and he answered, "Hmp . . . amoy
tae." She inquired what happened in BF Homes and he replied, "Putang
inang mga batang iyon, pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his office where
she observed him doing something in his steel cabinet while he appeared
to be uneasy. Moments later, Galvan, another policeman of Paraaque,
arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to
which Biong answered, "Oo susunod na ako." Biong went to the office of
Capt. Don Bartolome who offered to accompany him and with whom she
asked permission to go with them. Before they proceeded to the place
where the killings happened, she asked Biong if he knew the exact
address and the latter immediately responded, "Alam ko na yon." She was
surprised because Galvan never told him the place of the incident.
As soon as they arrived at the Vizconde's residence, Biong instructed the
housemaids to contact the victim's relatives, while the security guard
fetched the barangay chairman and the president of the Homeowners

Association. When all these persons were already in the house, Biong
started recording the wounds of the victim. Inside the master's bedroom,
she saw Biong took a watch from the jewelry box. Because she could not
tolerate the foul odor, she and Capt. Bartolome went out of the room and
proceeded to the dining area. On top of the dining table, she saw the
scattered contents of a shoulder bag. Moments later, Biong came out from
the room and proceeded to the front door to remove the chain lock; asked
the keys from the housemaid and it was only then that the main door was
opened. Biong noticed a stone in front of the broken glass of the door and
requested Capt. Bartolome to go inside the servant's quarters as he
doubted the housemaids' claim that they heard nothing unusual. Using the
handle of his gun, Biong broke the remaining glass of the door panel.
Bartolome then came out of the room and told Biong that he can hear the
sound of the glass being broken. At the garage, Biong also noticed same
marks on the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house
together with the Vizconde housemaids. When Biong was preparing to
take a bath, she saw him remove from his pocket the things she also saw
from Vizconde's residence, to wit: calling cards, driver's license, ATM card,
a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace,
and the watch he took from the jewelry box inside the room of the
Vizcondes. These jewelry items were later pawned by Biong for
P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos
Avenue, Paraaque. The next day, she saw Biong took from his locker at
the Paraaque Police Station an imported brown leather jacket, which the
latter claimed to have been given to him by the person who called him up
in the early morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up
sometime in 1993. She observed that Biong seemed not interested in
pursuing the investigation of the Vizconde case. In fact, when Biong and
this group picked up Mike Gatchalian and brought him to the Paraaque
Police Station, she was surprised that Biong halted the investigation when
Gatchalian was profusely sweating while being interrogated. After the
father of Gatchalian talked to Colonel Pureza, the latter called up and
instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was
the last thing she remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory
evidence of petitioners. It ruled: 30
xxx xxx xxx
The voluminous number of exhibits submitted by respondent Webb to
support his defense of denial and alibi notwithstanding, the panel, after a
careful and thorough evaluation of the records, believes that they cannot
outweigh the evidence submitted by the complainant. Alibi cannot prevail
over the positive identification made by a prosecution witness. Verily, alibi
deserves scant consideration in the face of positive identification
especially so where the claim of alibi is supported mainly by friends and
relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas,
181 SCRA 316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater


evidentiary weight than the declaration of a credible witness who testified
on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed,
denial, like alibi, is weak and becomes even more weaker when arrayed
against the positive identification by the witness for the prosecution
(People vs. Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano,
whom he claimed was with him watching video tapes at the Syyap
residence. Other than claiming that he "was not and could not have been
at or near the area of the Vizconde residence at the time of the alleged
commission of the crime," respondent Lejano proffered no evidence to
substantiate his claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the acceptability
of his alibi in the form of documents tending to show that he was
thousands of miles away when the incident occurred. We have carefully
deliberated and argued on the evidence submitted by respondent Webb in
support of his absence from the country since March 9, 1991 to October
26, 1992 and found the same wanting to exonerate him of the offense
charged. The material dates in this case are June 29 and 30, 1991. While
respondent Webb may have submitted proof tending to show that he was
issued a California driver's license on June 14, 1991, there is no showing
that he could not have been in the country on the dates above mentioned.
Neither do we find merit in the allegation that respondent Webb personally
bought a bicycle on June 30, 1991 in California in view of his positive
identification by Alfaro and the two (2) househelps of the Webb family who
testified that he was here in the country on said dates. Additionally, the
issuance of receipt evidencing the purchase of a bicycle in California is no
conclusive proof that the name appearing thereon was the actual buyer of
the merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold
that the DOJ Panel did not gravely abuse its discretion when it found probable
cause against the petitioners. A finding of probable cause needs only to rest on
evidence showing that more likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing absolute certainty
of guilt. As well put in Brinegar v. United States, 31 while probable cause demands
more than "bare suspicion," it requires "less than evidence which would
justify . . . conviction." A finding of probable cause merely binds over the suspect
to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding
of probable cause, we also hold that the DOJ Panel did not, gravely abuse its
discretion in refusing to call the NBI witnesses for clarificatory questions. The
decision to call witnesses for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the evidence on hand
already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should
be determined in a summary manner. Preliminary investigation is not a part of
trial and it is only in a trial where an accused can demand the full exercise of his

rights, such as the right to confront and cross-examine his accusers to establish
his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough
evidence had been adduced to establish probable cause and clarificatory hearing
was unnecessary.
II
We now come to the charge of petitioners that respondent Judge Raul de Leon
and, later, respondent Judge Amelita Tolentino issued warrants of arrest against
them without conducting the required preliminary examination. Petitioners
support their stance by highlighting the following facts: (1) the issuance of
warrants of arrest in a matter of few hours; (2) the failure of said judges to issue
orders of arrest; (3) the records submitted to the trial court were incomplete and
insufficient from which to base a finding of probable cause; and (4) that even
Gerardo Biong who was included in the Information as a mere accessory had a
"NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was
impossible to conduct a "searching examination of witnesses and evaluation of
the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is
regulated by no less than the fundamental law of the land. Section 2 of Article III
of the Constitution provides:
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce and
particularly describing the place to be searched and the persons or things
to be seized.
The aforequoted provision deals with the requirements of probable cause both
with respect to issuance of warrants of arrest or search warrants. The similarities
and differences of their requirements ought to be educational. Some of them are
pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that
the same quantum of evidence is required whether one is concerned with
probable cause to arrest or probable cause to search. But each requires a
showing of probabilities as to somewhat different facts and circumstances, and
thus one can exist without the other. In search cases, two conclusions must be
supported by substantial evidence: that the items sought are in fact seizable by
virtue of being connected with criminal activity, and that the items will be found in
the place to be searched. It is not also necessary that a particular person be
implicated. By comparison, in arrest cases there must be probable cause that a
crime has been committed and that the person to be arrested committed it, which
of course can exist without any showing that evidence of the crime will be found
at premises under that person's control." Worthy to note, our Rules of Court do
not provide for a similar procedure to be followed in the issuance of warrants of
arrest and search warrants. With respect to warrants of arrest, section 6 of Rule
112 simply provides that "upon filing of an information, the Regional Trial
Court may issue a warrant for the arrest of the accused." In contrast, the
procedure to be followed in issuing search warrants is more defined. Thus,
Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. A search warrant shall


not issue but upon probable cause in connection with one specific offense
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be
seized.
Sec. 4. Examination of complainant; record. The judge must, before
issuing the warrant, personally examine in the form of searching questions
and answers, in writing and under oath the complainant and any
witnesses he may produce on facts personally known to them and attach
to the record their sworn statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. If the judge is thereupon
satisfied of the facts upon which the application is based, or that there is
probable cause to believe that they exist, he must issue the warrant, which
must be substantially in the form prescribed by these Rules.
We discussed the difference in the Procedure of issuing warrants of arrest and
search warrants in Soliven vs. Makasiar, 33 thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The
pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants
to "other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge
to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest.
This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence
of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof,
issue a warrant; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission

of supporting affidavits of witnesses to aid him in arriving at a


conclusions as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.
Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate
the submission of petitioners that respondent judges should have conducted
"searching examination of witnesses" before issuing warrants of arrest against
them. They also reject petitioners' contention that a judge must first issue an
order of arrest before issuing a warrant of arrest. There is no law or rule requiring
the issuance of an Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report,
the two (2) sworn statements of Alfaro and the sworn statements of Carlos
Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners.
Apparently, the painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is probable cause to issue
warrants of arrest against petitioners. Again, we stress that before issuing
warrants of arrest, judges merely determine personally the probability, not the
certainty of guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause. They just personally
review the initial determination of the prosecutor finding a probable cause to see
if it is supported by substantial evidence. The sufficiency of the review process
cannot be measured by merely counting minutes and hours. The fact that it took
the respondent judges a few hours to review and affirm the probable cause
determination of the DOJ Panel does not mean they made no personal
evaluation of the evidence attached to the records of the case. 36
Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced.
Our Allado ruling is predicated on the utter failure of the evidence to show the
existence of probable cause. Not even the corpus delicti of the crime was
established by the evidence of the prosecution in that case. Given the clear
insufficiency of the evidence on record, we stressed the necessity for the trial
judge to make a further personal examination of the complainant and his
witnesses to reach a correct assessment of the existence or non-existence of
probable cause before issuing warrants of arrest against the accused. The case
at bar, however, rests on a different factual setting. As priorly discussed, the
various types of evidence extant in the records of the case provide substantial
basis for a finding of probable cause against the petitioner. The corpus delicti of
the crime is a given fact. There is an eyewitness account of the imputed crime
given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn
statements of their former maids. It was therefore unnecessary for the
respondent judges to take the further step of examining ex parte the complainant
and their witnesses with searching questions.
III
Petitioners also complain about the denial of their constitutional right to due
process and violation of their right to an impartial investigation. They decry their
alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They
also assail the prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not
conduct the preliminary investigation with indecent haste. Petitioners were given
fair opportunity to prove lack of probable cause against them. The fairness of this
opportunity is well stressed in the Consolidated Comment of the Solicitor
General, viz.:
Again, there is no merit in this contention. Petitioners were afforded all the
opportunities to be heard. Petitioner Webb actively participated in the
preliminary investigation by appearing in the initial hearing held on June
30, 1995 and in the second hearing on July 14, 1995; and by filing a
"Motion for Production and Examination of Evidence and Documents" on
June 27, 1995 (p. 4, Petition), a "Reply to the compliance and
Comment/Manifestation to the Motion for Production and Examination of
Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation"
on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995
(pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous
letter-requests were also sent by the petitioner Webb's counsel to the DOJ
Panel requesting the latter to furnish him a copy of the reports prepared by
the FBI concerning the petitioner's whereabouts during the material period
(Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August
14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to
issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner
Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus"
with the Regional Trial Court, Branch 63 of Makati in order to compel said
Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for
submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the
petition after Mercader produced and submitted to the DOJ Panel the first
sworn statement of Alfaro, without ruling on the admissibility and credence
of the two (2) conflicting and inconsistent sworn statements of the principal
witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A.
Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex
"F."
It must also be pointed out that despite the declaration by the DOJ Panel
that the preliminary investigation was to be terminated after the hearing
held on July 14, 1995, the panel continued to conduct further
proceedings, e.g. comparison of the photo-copies of the submitted
documents with the originals on July 17, 1995. (p. 7, Petition) The panel
even entertained the "Response" submitted by accused Miguel Rodriguez
on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even
announced that any party may submit additional evidence before the
resolution of the case. (p. 8, Petition) From the time the panel declared the
termination of the preliminary investigation on July 14, 1995, twenty-seven
(27) days elapsed before the resolution was promulgated, and the
information eventually filed in the Regional Trial Court of Paraaque on
August 10, 1995. This notwithstanding the directive of Section 3(f) Rule
112 of the Revised Rules of Court that the investigating officer shall
resolve the case within ten (10) days from the termination of the
preliminary investigation. The DOJ Panel precisely allowed the parties to
adduce more evidence in their behalf and for the panel to study the
evidence submitted more fully. This directly disputes the allegation of the
petitioners that the resolution was done with indecent haste in violation of
the rights of the petitioners. During the period oftwenty-seven (27) days,

the petitioners were free to adduce and present additional evidence before
the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due process
during the conduct of the preliminary investigation simply because the
DOJ Panel promulgated the adverse resolution and filed the Information in
court against them.
Petitioners cannot also assail as premature the filing of the Information in court
against them for rape with homicide on the ground that they still have the right to
appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The
filing of said Information is in accord with Department of Justice Order No. 223,
series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken
from a resolution of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor finding probable causeexcept
upon showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or grave abuse
of discretion, no appeal shall be entertained where the appellant had
already been arraigned. If the appellant is arraigned during the pendency
of the appeal, said appeal shall be dismissed motu propio by the
Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable
cause, however, shall not hold the filing of the information in court.
Sec. 2. When to appeal. The appeal must be filed within a period of
fifteen (15) days from receipt of the questioned resolution by the party or
his counsel. The period shall be interrupted only by the filing of a motion
for reconsideration within ten (10) days from receipt of the resolution and
shall continue to run from the time the resolution denying the motion shall
have been received by the movant or his counsel. (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an
Information in court after the consummation of the preliminary investigation even
if the accused can still exercise the right to seek a review of the prosecutor's
recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information
considering her alleged conspiratorial participation in the crime of rape with
homicide. The non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And
Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro
qualified under its Section 10, which provides:
xxx xxx xxx
Sec. 10. State Witness. Any person who has participated in the
commission of a crime and desires to a witness for the State, can apply
and, if qualified as determined in this Act and by the Department, shall be
admitted into the Program whenever the following circumstances are
present:

(a) the offense in which his testimony will be used is a grave felony as
defined under the R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of
the offense committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral
turpitude.
An accused discharged from an information or criminal complaint by the
court in order that he may be a State Witness pursuant to Sections 9 and
10 of Rule 119 of the Revised Rules of Court may upon his petition be
admitted to the Program if he complies with the other requirements of this
Act. Nothing in this Act shall prevent the discharge of an accused so that
he can be used as a Witness under Rule 119 of the Revised Rules of
Court.
Upon qualification of Alfaro to the program, Section 12 of the said law mandates
her non-inclusion in the criminal Complaint or Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the Program. The
certification of admission into the Program by the Department shall be
given full faith and credit by the provincial or city prosecutor who is
required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL
COMPLAINT OR INFORMATION and if included therein, to petition the
court for his discharge in order that he can be utilized as a State Witness.
The court shall order the discharge and exclusion of the said accused
from the information.
Admission into the Program shall entitle such State Witness to immunity
from criminal prosecution for the offense or offenses in which his
testimony will be given or used and all the rights and benefits provided
under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that
they constitute ". . . an intrusion into judicial prerogative for it is only the court
which has the power under the Rules on Criminal Procedure to discharge an
accused as a state witness." The argument is based on Section 9, Rule
119 38which gives the court the prerogative to approve the discharge of an
accused to be a state witness. Petitioner's argument lacks appeal for it lies on the
faulty assumption that the decision whom to prosecute is a judicial function, the
sole prerogative of courts and beyond executive and legislative interference. In
truth, the prosecution of crimes appertains to the executive department of
government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion the discretion of whether, what and whom to

charge, the exercise of which depends on a smorgasbord of factors which are


best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 vesting in the Department of
Justice the power to determine who can qualify as a witness in the program and
who shall be granted immunity from prosecution.39 Section 9 of Rule 119 does
not support the proposition that the power to choose who shall be a state witness
is an inherent judicial prerogative. Under this provision, the court, is given the
power to discharge a state witness only because it has already acquired
jurisdiction over the crime and the accused. The discharge of an accused is part
of the exercise of jurisdiction but is not a recognition of an inherent judicial
function. Moreover, the Rules of Court have never been interpreted to be beyond
change by legislation designed to improve the administration of our justice
system. R.A. No. 6981 is one of the much sought penal reform laws to help
government in its uphill fight against crime, one certain cause of which is the
reticence of witnesses to testify. The rationale for the law is well put by the
Department of Justice, viz.: "Witnesses, for fear of reprisal and economic
dislocation, usually refuse to appear and testify in the investigation/prosecution of
criminal complaints/cases. Because of such refusal, criminal complaints/cases
have been dismissed for insufficiency and/or lack of evidence. For a more
effective administration of criminal justice, there was a necessity to pass a law
protecting witnesses and granting them certain rights and benefits to ensure their
appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the
validity of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery
proceedings during their preliminary investigation by suppressing the April 28,
1995 original copy of the sworn statement of Alfaro and the FBI Report. The
argument is novel in this jurisdiction and as it urges an expansive reading of the
rights of persons under preliminary investigation it deserves serious
consideration. To start with, our Rules on Criminal Procedure do not expressly
provide for discovery proceedings during the preliminary investigation stage of a
criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the
right to move for a bill of particulars and for production or inspection of material
evidence in possession of the prosecution. 42 But these provisions apply after the
filing of the Complaint or Information in court and the rights are accorded to the
accused to assist them to make an intelligent plea at arraignment and to prepare
for trial. 43
This failure to provide discovery procedure during preliminary investigation does
not, however, negate its use by a person under investigation when indispensable
to protect his constitutional right to life, liberty and property. Preliminary
investigation is not too early a stage to guard against any significant erosion of
the constitutional right to due process of a potential accused. As aforediscussed,
the object of a preliminary investigation is to determine the probability that the
suspect committed a crime. We hold that the finding of a probable cause by itself
subjects the suspect's life, liberty and property to real risk of loss or diminution. In
the case at bar, the risk to the liberty of petitioners cannot be understated for they
are charged with the crime of rape with homicide, a non-bailable offense when
the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of
preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of
preliminary investigation conducted by one whose high duty is to be fair and
impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the

right to have a preliminary investigation conducted before being bound over for
trial for a criminal offense, and hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it is a substantive right." A
preliminary investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from any
material damage. We uphold the legal basis of the right of petitioners to demand
from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn
statement of Alfaro and the FBI Report during their preliminary investigation
considering their exculpatory character, and hence, unquestionable materiality to
the issue of their probable guilt. The right is rooted on the constitutional
protection of due process which we rule to be operational even during the
preliminary investigation of a potential accused. It is also implicit in section (3) (a)
of Rule 112 which requires during the preliminary investigation the filing of a
sworn complaint, which shall ". . . state the known address of the respondent and
be accompanied by affidavits of the complainant and his witnesses as well as
other supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents from
other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the
United States Supreme Court held that "suppression of evidence favorable to an
accused upon request violates due process where the evidence is material to
guilt or punishment, irrespective of the good faith or bad faith of the prosecution."
Its progeny is the 1935 case ofMooney v. Holohan 47 which laid down the
proposition that a prosecutor's intentional use of perjured testimony to procure
conviction violates due process. Thus, evolved jurisprudence firming up the
prosecutor's duty to disclose to the defense exculpatory evidence in its
possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society
wins not only when the guilty are convicted but when criminal trials are fair."
Indeed, prosecutors should not treat litigation like a game of poker where
surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory
evidence in their favor, we are not prepared to rule that the initial non-production
of the original sworn statement of Alfaro dated April 28, 1995 could have resulted
in the reasonable likelihood that the DOJ Panel would not have found probable
cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners,
submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it
cannot produce the original as it had been lost. Fortunately, petitioners, on July
28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in
the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit,
the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as
a part of their evidence. 51 Petitioners thus had the fair chance to explain to the
DOJ Panel then still conducting their preliminary investigation the exculpatory
aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still
found probable cause to charge them despite the alleged material discrepancies
between the first and second sworn statements of Alfaro. For reasons we have
expounded, this finding of probable cause cannot be struck down as done with
grave abuse of discretion. 52 On the other hand, the FBI Report while
corroborative of the alibi of petitioner Webb cannot by itself reverse the probable
cause finding of the DOJ Panel in light of the totality of evidence presented by
the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its
impartiality due to the prejudicial publicity waged in the press and broadcast
media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due
process while undergoing preliminary investigation. We find no procedural
impediment to its early invocation considering the substantial risk to their liberty
while undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the most problematic areas in
constitutional law where the conflicting demands of freedom of speech and of the
press, the public's right to information, and an accused's right to a fair and
impartial trial collide and compete for prioritization. The process of pinpointing
where the balance should be struck has divided men of learning as the balance
keeps moving either on the side of liberty or on the side of order as the tumult of
the time and the welfare of the people dictate. The dance of balance is a difficult
act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be
avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can match
the high volume and high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and fiction about the case
continues unabated even today. Commentators still bombard the public with
views not too many of which are sober and sublime. Indeed, even the principal
actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media
abuses and their threat to a fair trial notwithstanding, criminal trials cannot be
completely closed to the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, 53 it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial in AngloAmerican justice demonstrates conclusively that at the time this Nation's
organic laws were adopted, criminal trials both here and in England had
long been presumptively open, thus giving assurance that the proceedings
were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality.
In addition, the significant community therapeutic value of public trials was
recognized: when a shocking crime occurs, a community reaction of
outrage and public protest often follows, and thereafter the open
processes of justice serve an important prophylactic purpose, providing an
outlet for community concern, hostility, and emotion. To work effectively, it
is important that society's criminal process "satisfy the appearance of
justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11,
which can best be provided by allowing people to observe such process.
From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of
openness inheres in the very nature of a criminal trial under this Nation's
system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d
989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed
by the First Amendment, share a common core purpose of assuring

freedom of communication on matters relating to the functioning of


government. In guaranteeing freedoms such as those of speech and
press, the First Amendment can be read as protecting the right of
everyone to attend trials so as to give meaning to those explicit
guarantees; the First Amendment right to receive information and ideas
means, in the context of trials, that the guarantees of speech and press,
standing alone, prohibit government from summarily closing courtroom
doors which had long been open to the public at the time the First
Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also
as a catalyst to augment the free exercise of the other First Amendment
rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people
generally and representatives of the media have a right to be
present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms
guarantees to the public the right to attend criminal trials, various
fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend
criminal trials is implicit in the guarantees of the First Amendment; without
the freedom to attend such trials, which people have exercised for
centuries, important aspects of freedom of speech and of the press could
be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under
certain circumstances can deprive an accused of his due process right to fair
trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a
finding of prejudicial publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, we find nothing in the records that will prove that the
tone and content, of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot
just rely on the subliminal effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider
in determining whether they can easily be blinded by the klieg lights of publicity.
Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does
not appear that they considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness.
At no instance, we note, did petitioners seek the disqualification of any member
of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as
petitioners will now have to undergo trial on the merits. We stress that probable
cause is not synonymous with guilt and while the light of publicity may be a good
disinfectant of unfairness, too much of its heat can bring to flame an accused's
right to fair trial. Without imposing on the trial judge the difficult task of
supervising every specie of speech relating to the case at bar, it behooves her to

be reminded of the duty of a trial judge in high profile criminal cases to control
publicity prejudicial to the fair administration of justice. 55 The Court reminds
judges that our ability to dispense impartial justice is an issue in every trial and in
every criminal prosecution, the judiciary always stands as a silent accused. More
than convicting the guilty and acquitting the innocent, the business of the
judiciary is to assure fulfillment of the promise that justice shall be done and is
done and that is the only way for the judiciary to get an acquittal from the bar
of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave
abuse of discretion on the part of the respondents. Costs against petitioners.
SO ORDERED.
Regalado, J., concurs.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave
RULE 116 (11)

THIRD DIVISION
MUSTAPHA M. GANDAROSA,
Petitioner,

G.R. No. 167910


Present:

- versus -

EVARISTO FLORES and PEOPLE OF


THE PHILIPPINES,
Respondents.

YNARESSANTIAGO, J.
Chairperson,
AUSTRIAMARTINEZ,
CHICONAZARIO, and
NACHURA, JJ.*
Promulgated:

July 17, 2007


x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of


the 1997 Revised Rules of Civil Procedure, seeking to reverse and set aside the
Decision,[2] dated 24 August 2004 of the Court of Appeals in CA-G.R. SP No.
77163, dismissing petitioner Mustapha M. Gandarosas Petition for Review of the
Order[3] dated 24 July 2002 of the Regional Trial Court (RTC), Iloilo City, Branch
31, which denied the motion of the prosecution to amend the Information by
excluding petitioner from the charge in Criminal Case No. 00-52992 for Libel, and
its Resolution,[4] dated 12 April 2005 denying reconsideration thereon.
On 23 June 2000, the Daily Informer, a newspaper of daily circulation
in Iloilo City, touted the banner headline, Gandarosa Wants Flores Out for
Personal Convenience? Back-door-pay anomaly exposed.[5] According to the
article, petitioner, in his capacity as the Assistant Regional Director of the Bureau
of Internal Revenue (BIR) - Regional Office, revealed to members of the media
that high-ranking BIR officials, among them Regional Director Sonia Flores and
Revenue District Officer Willy Narnola, are involved in anomalous transactions to
favor certain taxpayers in the assessment of their taxes. A photo of Sonia Flores
and Willy Narnola was similarly plastered on the newspapers front page. This
prompted respondent Evaristo Flores, husband of Sonia Flores and with the
conformity of the latter, to file a Complaint (I.S. No. 2075-2000) with the Office of
the City Prosecutor of Iloilo City against petitioner, Manny Regalado Alcalde, the
author of the aforesaid article; and Rey P. Alcalde and Bernie G. Miaque, editor
and publisher, respectively, of the Daily Informer.
On 21 August 2000, Investigating Prosecutor Nora Causing-Espaola of the
Office of the City Prosecutor, Iloilo City, issued a Resolution[6] finding probable
cause to hold petitioner and his therein co-respondents liable for Libel, and
recommended the filing of the corresponding Information in court. Petitioner
sought reconsideration thereon.
Pending the resolution of the Motion for Reconsideration of the 21 August
2000 Resolution, an Information[7] for Libel was filed before the RTC of Iloilo
City, Branch 31 against petitioner, Manny Regalado Alcalde, Rey P. Alcalde and
Bernie G. Miaque, charging, thus:
INFORMATION
The undersigned City Prosecutor accuses [petitioner] MUSTAPHA
MUSS GANDAROSA, EMMANUEL MANNY REGALADO ALCALDE,
REY P. ALCALDE AND BERNIE G. MIAQUE, whose maternal surnames, dates
and places of birth cannot be ascertained, of the crime of LIBEL under Art. 353 in
relation to Art. 355, all of the Revised Penal Code, committed as follows:
That on or about June 23, 2000, in the City of Iloilo, Philippines, and
within the jurisdiction of this Court, the said accused, Emmanuel Manny
RegaladoAlcalde, as the author, Rey P. Alcalde as Managing Editor of the Daily
Informer, Bernie G. Miaque as the Publisher of the Daily Informer, a daily
newspaper published in the City of Iloilo and of general circulation in
Western Visayas, and Mustapha Muss Gandarosa, Assistant Regional Director
of the Bureau of Internal Revenue, Revenue Region 11, as the source, conspiring
and confederating with each other, working together and helping one another, did
then and there willfully, unlawfully and criminally and with the intention of
attacking the honesty, virtue and reputation of Sonia Flores, Regional Director of
the Bureau of Internal Revenue, Revenue Region 11, write, compose and publish
and permit and cause to be written, composed and published in the June 23, 2000

issue of the Daily Informer the following defamatory and libelous statements, as
follows:
The latest one is dubbed as back-door-pay where high (sic) BIR
officials like RD Flores and Revenue District Officer
(RDO) Willy Narnola enter the office through the backdoor where
hands with envelopes exchange and the persons concerned get
their share from illegitimate transactions in the Bureau.
xxxx
x x x the envelope given to Flores is an open and daily
reality by the examiners after they have assessed payments.
Which statements are included in the following article:
BACK-DOOR-PAY ANOMALY EXPOSED
by: Manny Regalado Alcalde
A scheme on how money changes hands right inside the
BIR Regional Office compound was revealed to the media
yesterday
by
no
less
than
Assistant
Regional
[D]irecto Mustapha Gandarosa, while a source who requested not
to be identified told the INFORMER that Muss Gandarosa is
blinded by his ulterior motives, the reason why hes coming out
with the expos against his very own office.
According to the INFORMER source[,] Gandarosa was
hurt when he was not appointed Regional Director and instead it
was Mrs. Sonia Flores who was appointed to the position by the
BIR Commissioner Beethoven Rualo.
The source alleged Gandarosa has since then been waiting
for an opportunity to put down Regional Director Sonia Flores.
However, this was denied by Gandarosa himself in an
interview with the INFORMERS (sic).
According to Gandarosa, the issues thrown against RD
Sonia Flores are legitimate and the series of exposes were intended
to stop the irregularities that exist in the BIR Revenue Region No.
11.
Yesterday, another anomaly was revealed to a select group
of media practitioners by ARD Gandarosa.
The latest one is dubbed as Back-door-pay where high
BIR (sic) officials like RD Flores and Revenue [D]istrict Officer
(RDO) Willy Narnaloaenters (sic) the office through the backdoor
where hands with envelopes exchange and the persons concerned
get their share from illegitimate transactions in the Bureau.
Gandarosa admitted he had been subjected to such
temptations but upon learning that the money given him came from
a taxpayer, he refused to accept his supposed share and let go of
the officer. According to the Muslim Assistant Regional Director
the envelope given to Flores is an open and daily reality by the
examiners after they have assessed payments.
Recently a source told the INFORMERS (sic) that from
January to May this year, a high[-]ranking official may have
pocketed some P50 million from various taxpayers after their tax

assessments were adjusted in exchange for payolas that at times


reach millions.
The source further said that another official gets an average
of P50,000 to P100,000 per week.
Which defamatory and libelous statements are false and malicious and exposed of
Sonia Flores and her husband, Evaristo Flores, to public hatred, contempt, ridicule
and dishonor.[8]

The case was docketed as Crim. Case No. 00-52992.


On 30 January 2001, petitioner filed an Extremely Urgent Motion to
Suspend Proceedings before the RTC, stating therein that he had a pending Motion
for Reconsideration with the Office of the City Prosecutor which sought to reverse
its finding of probable cause against him. [9] On 9 February 2001, petitioner filed a
Supplemental Motion for Reconsideration.[10]
In the meantime, or on 20 February 2001, the Office of the City Prosecutor
released a Resolution[11] denying petitioners Motion for Reconsideration of the 21
August 2000 Resolution which found probable cause against him for Libel. The
Office of the Prosecutor declared that it had lost jurisdiction over the case upon the
filing of the Information for Libel in the proper court.
Meanwhile, on 13 March 2001, the RTC rendered an Order[12] denying his
Extremely Urgent Motion to Suspend Proceedings. The RTC spelled out itsraison
d'tre, thus:
The grounds advanced by the [petitioner] to suspend proceedings, namely,
that there is a pending Motion for Reconsideration filed by [petitioner] with the
City Prosecutor and that probable cause against him does not exist are not legal
grounds to suspend proceedings especially when the Court has acquired valid
jurisdiction over the accused. Under Sec. 11(c), Rule 117 (sic), Revised Rules of
Criminal Procedure, the arraignment shall be suspended in the following cases:
x x x (c) a petition for review of the resolution of the prosecutor is pending at
either the Department of Justice of the Office of the President; provided, that the
period of suspension shall not exceed sixty (60) days counted from the filing of
the petition with the reviewing office. In this case the Motion for Reconsideration
should have been filed with the Office of the Ombudsman-Visayas which is the
reviewing office and not with the City Prosecutor. Consequently, there is no
petition for review pending at the offices mentioned in Sec. 11(c), Rule 117 (sic),
aforesaid.[13]

Subsequently, on 17 April 2001, petitioner filed an Omnibus Motion,


seeking reconsideration of the above Order, and for the quashal of the
Information. This was opposed by the prosecution through the private prosecutor.
[15]
Later, the Office of the Ombudsman (Visayas) filed its Opposition to
petitioners Motion to Quash the information, praying for the denial thereof and for
the continuance of the proceedings.[16]
[14]

Pending the resolution of his Omnibus Motion before the RTC, or on 31


May 2001, petitioner, aggrieved by the earlier denial by the Office of the City
Prosecutor of his Motion for Reconsideration,[17] filed a Petition for Review with
the Department of Justice (DOJ), praying that the earlier Resolution of the Office
of the Prosecutor, dated 20 February 2001, be reconsidered and set aside; that a

new one be rendered finding no probable cause against him and ordering the City
Prosecutor of Iloilo City to withdraw the Information.[18]
On 24 July 2001, the RTC issued an Order denying petitioners Omnibus
Motion of 17 April 2001 for lack of merit, and setting petitioners arraignment.
[19]
Petitioner filed with the RTC a Motion for Reconsideration, including a
Supplemental Motion for Reconsideration, praying once again that the Information
filed against him be quashed.[20] A hearing thereon was conducted on 24 August
2001[21] whereby the prosecution was given 10 days to comment from the said date.
[22]
In the Order[23] of even date, the RTC ordered the issuance of subpoenas to
petitioner and his co-accused. The trial court also set the arraignment on 25
September 2001. However, petitioner failed to appear as scheduled. Thus, in view
of his unjustified absence, the RTC ordered that the bond posted for his provisional
liberty be cancelled and a warrant of arrest be issued against him.[24]
Petitioner sought reconsideration thereon. In his Motion, petitioner prayed
for the last resetting of the arraignment to 30 October 2001, and further manifested
that on the said date, his arraignment shall proceed forthwith irrespective of
whether his petition before the DOJ shall have been resolved.[25]
The RTC found the Motion to be well-taken. Hence, on 31 October 2001,
petitioner was arraigned. He pleaded not guilty to the charge. Thereafter, the case
was set for pre-trial.
Several months following his arraignment, the DOJ issued a
Resolution[26] on 12 February 2002, reversing the Resolution of the City Prosecutor
of Iloilo City, and directing the amendment of the Information for Libel and the
dropping of petitioner from the charge.[27] It held, inter alia, that the accusation is
not synonymous with guilt; and only the persons who publish, exhibit, or cause the
publication or exhibition of any defamation in writing are the ones responsible for
Libel; and from the evidence presented, petitioner did not cause the same.[28]
On 7 March 2002, in obedience to the DOJ Resolution of 12 February 2002,
the Office of the City Prosecutor filed with the RTC a Motion with Leave of Court
to Amend Information.[29]
The RTC rendered an Order,[30] dated 24 July 2002, denying the Motion to
Amend Information. According to the RTC, petitioner was already arraigned
on 30 October 2001, and the pre-trial was set thereafter. The RTC rationalized in
this wise, thus:
It must be remembered that said [petitioner] was already arraigned
on October 30, 2001, and the pre-trial set thereafter. [Petitioner] did not disclose
to the Department of Justice that he was already arraigned, otherwise, had he done
so, the Department of Justice, could have dismissed his appeal for being moot and
academic.
Nonetheless, this instant Motion [to Amend Information] [was] filed after
the said [petitioner] has already been arraigned. Under Section 4, Rule 117,
which allows the amendment of complaint or information, the same shall be done
before the accused entered his plea, hence, the desirability of amendment, since
the Court will not entertain any Motion to Quash, after the arraignment pursuant
to Section 1, Rule 117. This is so because with accused[s] arraignment, the issue
has been joined.

Thus, this Court having already acquired jurisdiction, does not lose it
despite the resolution of the Secretary of Justice. It has the option to grant or
deny the Motion to Dismiss filed by the fiscal, whether before or after the
arraignment of the accused (Ledesma v. Court of Appeals, 278 SCRA 657).
WHEREFORE, the instant Motion is hereby Denied for lack of merit.[31]

Petitioner sought reconsideration of the RTCs denial to amend the


Information by filing an Omnibus Motion,[32] dated 19 August 2002. He reiterated
his prayer that new judgment be rendered giving due course to his Motion to
Amend the Information by dropping his name from among those charged. On 20
March 2003, the RTC rendered an Order denying the same for lack of merit, and
set the case for pre-trial. The RTC articulated:
Firstly, the Motion to Amend Information was filed by the City
Prosecutors Office without clearance from the Office of the OmbudsmanVisayas. It shall be noted that the Information herein was approved by the
Ombudsman-Visayas.
Secondly, this Motion comes after the accused Mustapha Gandarosa had
already been arraigned, hence, already moot and academic.
Thirdly, the authority to proceed with this case, the Court exercising its
sound discretion, was first iterated in Crespo v. Mogul, 151 SCRA 462, reiterated
inLedesma v. CA 278 SCRA 657 and Jalandoni v. Drilon, 327 SCRA 107.[33]

Consequently, petitioner sought relief from the Court of Appeals via a


Petition for Certiorari, attributing grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the RTC for failing to exclude petitioner from
the Information for Libel in Criminal Case No. 00-52992.
The Court of Appeals affirmed the RTC and dismissed the petition. It held
that not only had the Information against the petitioner already been filed in court,
but that the latter had already been arraigned when the amendment of the
Information was sought by the prosecutor; hence, the matter was no longer in the
hands of the prosecutors office but, rather, with the RTC. The Court of Appeals
relied on Roberts, Jr. v. Court of Appeals,[34] reiterating that when the complaint or
information had already been filed in court, the matter should be left entirely for
the determination of the court.[35]
Moreover, the Court of Appeals defended the silence on the part of the RTC
on not making its own determination of the existence of probable cause, hence:
So too, in assailing the subject order, petitioner faults the public
respondent in not making his own determination of the existence of probable
cause. In other words, petitioner would like to impress before this Court that
since the subject order is silent as to the conduct of such evaluation, then the
public respondent did not make his own findings of such probable cause.
We do not subscribe to this thesis of petitioner. It must be emphasized that
judges must not rely solely on the report or resolution of the prosecutor, they must
evaluate the report and the supporting documents, viz, the affidavits, the
transcripts of stenographic note (if any), and all other supporting documents
behind the Prosecutors certification which are material in assisting the Judge to
make his determination of probable cause. Thus, if the public respondent in this
case was silent in his order as to such evaluation of probable cause, then it only

goes to show that it was adopting the prosecutors earlier findings that probable
cause exists against herein petitioner, accused in Crim. Case No. 00-52992, for
Libel.[36]

Petitioner sought reconsideration thereon, which was denied by the Court of


Appeals in its Resolution dated 12 April 2005. In the aforesaid Resolution, the
appellate court explicated, thus:
In the case at bench, there is no dispute that petitioner had already been
arraigned in the aforesaid criminal case, thus, any amendment to the information
must be done with leave of court. While this was what the public prosecutor
properly did, it does not automatically follow that the court must grant the same.
It is still within the discretion of the court, which must still make its own
independent findings, assessment and evaluation of the evidence presented based
upon the testimonies and affidavits of the parties and/or their witnesses, and other
attachments, if any. To be sure, this was what the public respondent did in
denying the motion for amendment filed by the public prosecutor.[37]

Petitioner now seeks redress before this Court through the instant Petition
for Review on Certiorari on the following assignment of errors, to wit:
A. THE COURT OF APPEALS GRAVELY ERRED WHEN IT SANCTIONED
WITH APROVAL THE RTC ILOILOS DEPARTURE FROM THE ACCEPTED
AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN THE LATTER
DENIED THE MOTION TO AMEND THE INFORMATION.
1. THE RTC ILOILOS ACT OF DENYING THE PUBLIC
PROSECUTORS MOTION TO AMEND THE INFORMATION
ON THE SOLE GROUND THAT IT HAS ACQUIRED
JURISDICTION OVER THE CASE, AND WITHOUT MAKING
AN INDEPENDENT EVALUATION OF THE EVIDENCE
PRESENTED IS CONTRARY TO LAW AND SETTLED
JURISPRUDENCE WHICH SHOULD NOT HAVE ESCAPED
THE JUDICIOUS SCRUTINY OF THE HONORABLE COURT
OF APPEALS.
2. THE RTC ILOILOS ACT OF DENYING THE PUBLIC
PROSECUTORS MOTION TO AMEND THE INFORMATION
IS CONTRARY TO LAW, SETTLED JURISPRUDENCE, AND
THE EVIDENCE ON RECORD.
B. THE COURT OF APPEALS ERRED WHEN IT HELD THAT
RTC ILOILOS SILENCE AS TO THE EVALUATION OF PROBABLE
CAUSE SHOULD BE TAKEN TO MEAN THAT RTC ILOILO WAS
ADOPTING THE PROSECUTORS EARLIER FINDINGS OF
PROBABLE CAUSE.[38]

Petitioner is unequivocal that it does not contest the RTCs jurisdiction


and its discretion to decide whether he should be excluded from the Information
for Libel in Criminal Case No. 00-52992. What petitioner maintains as erroneous
is the fact that the RTC neither examined the evidence presented nor reviewed the
Resolutions of the DOJ, but instead, merely denied the motion to amend the
Information on the basis simply that it had already acquired jurisdiction over the
case.

Moreover, petitioner disputes the existence of probable cause against him on


the ground that private respondent Evaristo Flores failed to present clear,
convincing and credible evidence that he was the source of the alleged libelous
publication identifying private respondents wife, Sonia Flores, as being involved
in corrupt practices in the BIR. According to petitioner, private respondent merely
relied on newspaper reports. Even then, petitioner argues that he never named
Sonia Flores as the official involved in the anomalies, nor did he identify any
particular official. He further asserts that malice does not exist where the accused
shows good intention or justifiable motive for an alleged defamatory
imputation. He repeats his invocation that not only did he not mention the name of
Sonia Flores, but he was motivated by his moral, social and legal duty to expose
what he perceived were anomalies in the BIR.
Finally, petitioner imputes grave abuse of discretion on the part of the Court
of Appeals when it held that the RTCs silence as to the evaluation of probable
cause should be taken to mean that it was adopting the prosecutors earlier findings
of the existence of probable cause. Petitioner submits that such a silence was not a
tacit affirmation of the public prosecutors earlier findings on the existence of
probable cause but rather, it showed a failure on the part of the RTC to exercise its
discretion in the manner that was expected of it.
For their part, respondent People of the Philippines thru the Office of the
Solicitor General (OSG) filed its Comment, [39] dated 25 October 2005 and
Memorandum[40] dated 8 December 2006, praying that the instant Petition be
denied for lack of merit.
According to the OSG, while the trial court was silent on whether it
conducted an independent evaluation of the evidence to determine the existence of
probable cause, this fact does not necessarily prove that no such evaluation was
made.[41] The OSG further asseverates that the Resolution of the DOJ directing the
amendment of the Information was rendered despite the fact that petitioner had
already been arraigned. The OSG posits that the same is violative of Section 4,
[42]
Part IV of the Manual for Prosecutors of the DOJ, which prescribes that
notwithstanding the showing of manifest error or grave abuse of discretion, no
petition shall be entertained when the accused has already been arraigned. The
same section mandates that once the accused is arraigned, the petition shall be
dismissed motu proprio by the Secretary of Justice.[43]
We deny the Petition.
First, the preliminaries.
There is no question that once an Information is filed in court, any
disposition of the case such as its dismissal or its continuation rests on the
sound discretion of the court. Indeed, in Crespo v. Mogul,[44] it was emphasized
that when a criminal action is initiated via the filing of a complaint or information
in court, the court thereby acquires jurisdiction over the case, which is the authority
to hear and determine the case.[45] The court remains the best and sole judge on
what to do with the case before it notwithstanding the power of the prosecutor to
retain the direction and control of the prosecution of criminal cases. InCrespo, this
Court was explicit that the determination of the case is within its exclusive
jurisdiction and competence.[46] Hence, [a] motion to dismiss the case filed by the

fiscal should be addressed to the Court who has the option to grant or deny the
same.[47]
Jurisprudence, however, is also explicit that once a motion to dismiss is
filed, the trial judge may grant or deny it, not out of subservience to the Secretary
of Justice, but in faithful exercise of judicial prerogative. [48] Hence, in the
determination thereof, trial judges are required to make their own independent
assessment. Citing Martinez v. Court of Appeals,[49] the Court in Roberts, Jr. v.
Court of Appeals,[50] said:
Whether to approve or disapprove the stand taken by the prosecution is not the
exercise of discretion required in cases like this. The trial judge must himself be
convinced that there was indeed no sufficient evidence against the accused, and
this conclusion can be arrived at only after an assessment of the evidence in the
possession of the prosecution. What was imperatively required was the trial
judges own assessment of such evidence, it not being sufficient for the valid and
proper exercise of judicial discretion merely to accept the prosecutions word for
its supposed insufficiency.

It is imperative on the part of the trial judges to state their assessment and
reasons in resolving the motion before them.
We now resolve the question: Is the petitioner correct in claiming that the
RTC committed grave abuse of discretion in denying the Motion to Amend the
Information to exclude petitioner from the charge for the reason that it relied
solely on the ground that it had acquired jurisdiction over the case?
Under the herein factual milieu, we answer in the negative.
Contrary to petitioners contention, a cursory reading of the assailed Order
would reveal that the RTC did not deny the Motion on the lone basis that it had
already acquired jurisdiction over the criminal action. It denied the Motion on
more formidable legal grounds.
The reason for the RTCs denial of petitioners Motion bears reiterating, viz:
Nonetheless, the instant Motion is filed after the said accused has
already been arraigned. Under Section 4, Rule 117, which allows the
amendment of complaint or information, the same shall be done before the
accused entered his plea, hence, the desirability of amendment, since the Court
will not entertain any Motion to Quash, after the arraignment pursuant to Section
1, Rule 117. This is so because with accused[s] arraignment the issue has been
joined.[51]

The crucial fact is, on 31 October 2001,[52] the petitioner was unconditionally
arraigned. He was arraigned with the assistance of his counsel,
Atty.Marlou Ubano. He already entered his plea during his arraignment.
[53]
Subsequently, a plea of not guilty was set in the records.[54]
Nothing in the records discloses that petitioners arraignment was with
restriction, condition, or reservation. Jurisprudence is clear that with the
arraignment of the petitioner, the DOJ Secretary can no longer entertain the appeal
or petition for review because petitioner had already waived or abandoned the
same.[55] In the case at bar, following petitioners arraignment, he is deemed to

have waived or abandoned his petition for review earlier filed with the DOJ
Secretary.
This is where petitioners contention that the RTC failed to make
independent findings based on the evidence before it does not hold water. The
allegation that the RTC did not make an independent evaluation of the evidence to
determine the existence of probable cause becomes immaterial in light of
petitioners unconditional arraignment. Petitioners arraignment constitutes a
waiver of her right to preliminary investigation or reinvestigation. [56] Such
waiver is tantamount to a finding of probable cause. [57] Hence, the
determination of the existence or non-existence of probable cause becomes
unnecessary. Following petitioners arraignment, it was no longer the RTCs duty
to make an independent finding of the evidence before it for the determination of
probable cause.
We do not herein abandon the ruling that the trial court has the duty to make
an independent assessment of the merits of the motion when confronted with a
motion to withdraw an information on the ground of lack of probable cause based
on a resolution of the secretary of justice.[58] Surely, trial courts are called to validly
and properly exercise judicial discretion and independence. But where the accused
has already been arraigned without reservation, condition or restriction, in line with
our ruling in Adasa v. Abalos,[59] the unconditional arraignment constitutes a waiver
of his right to preliminary investigation or reinvestigation. Consequently, there is a
waiver or abandonment of his petition for review before the Department of
Justice. In like manner, therefore, the trial court has no more need to make an
independent assessment of the evidence before it to determine probable
cause. Trial ensues. Conversely, with the arraignment of the accused, the DOJ
Secretary can no longer entertain the appeal or petition for review because the
accused has already waived or abandoned the same.
Moreover, when the petitioner brought forth the denial of the Motion to
Amend the Information to exclude his name from the charge, and to seek
thequashal of the Information before the Court of Appeals on certiorari, he was in
error in his choice of remedy. This Court emphasizes the established rule that the
writ of certiorari will not lie against the denial of a motion to quash an
information. The remedy is for petitioner to go to trial on the merits, and if an
adverse decision is rendered, to appeal therefrom in a manner authorized by law.
[60]
We have, however, sanctioned a writ of certiorari on the basis of a patent,
capricious and whimsical exercise of discretion by a trial judge or when an appeal
will not promptly relieve petitioner from the injurious effects of the disputed
orders.[61] No such special circumstances are herein present that would convince us
to treat the instant case as an exception. Thus:
The special civil action of certiorari or prohibition is not the proper
remedy against interlocutory orders such as those assailed in these proceedings;
i.e., an order denying a motion to quash the information, and one declaring the
accused to have waived his right to present evidence and considering the case
submitted for decision. As pointed out by the Office of the Solicitor General
(citing Nierras v. Dacuycuy, 181 SCRA 1 [1990], and Acharon v. Purisima, et
al., 13 SCRA 309; People v.Madaluyo, 1 SCRA 990), the established rule is that
when such an adverse interlocutory order is rendered, the remedy is not to resort
forthwith to certiorari or prohibition, but to continue with the case in due course
and, when an unfavorable verdict is handed down to take an appeal in the manner
authorized by law. It is only where there are special circumstances clearly
demonstrating the inadequacy of an appeal that the special civil action

of certiorari or prohibition may exceptionally be allowed. The Court has been


cited to no such special circumstances in the cases at bar.[62]

Certainly, this Court has been steadfast in holding that when such an adverse
interlocutory order as the denial of a motion to quash is rendered, the remedy is not
to resort forthwith to certiorari or prohibition. Besides, remedies of appeal
and certiorari are mutually exclusive and not alternative or successive.[63]
WHEREFORE, the Petition is DENIED. Costs against petitioner.
SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA.
ALICIA AUSTRIA-MARTINEZ ANTONIO
EDUARDO
NACHURA
Associate Justice
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

B.

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
[2]

[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]

[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]

Associate Justice Antonio Eduardo B. Nachura, then Solicitor General filed the Memorandum for public
respondent People of the Philippines before this Court.
Rollo, pp. 16-46.
Penned by Associate Justice Vicente L. Yap with Associate Justices Arsenio J. Magpale and Ramon
M. Bato, Jr., concurring; id. at 47-57.
Penned by Judge Rene S. Hortillo; records, p. 279.
Rollo, pp. 58-60.
Records, p. 14. The newspaper article was written by Manny Regalado Alcalde.
Rollo, pp. 83-88.
Records, pp. 47-48.
Id.
Id. at 53.
Rollo pp. 96-107.
Id. at 125.
Records at 67.
Rollo, p. 115.
Records, pp. 81-104.
Rollo, pp. 127-130.
Id. at 131-132.
Id. at 125.
Records, pp. 148-173.
Id. at 130-131.
Id. at 144-147.
Id. at 224.
No resolution on the Motion appears on record.
Id.
Id. at 226.
Id. at 249-252.
Rendered by Undersecretary Ma. Merceditas N. Gutierrez for the Secretary of Justice; id. at 261-264.
The decretal portion of the 12 February 2002 Resolution, pronounces, viz:
WHEREFORE, the resolution of the City Prosecutor of Iloilo City is REVERSED and he is
directed to amend the information for libel and to drop [petitioner] Mustapha Gandarosa from the charge
and to report to this Office the action taken within ten (10) days from receipt hereof. (Id. at 263264.)
Id. at 263.
Id. at 265.
Id. at 279.
Rollo, p. 178.
Id. at 179-194.
Id. at 195.
324 Phil. 568, 601 (1996).
Rollo, p. 53.
Id. at 56.

[37]
[38]
[39]
[40]

[41]
[42]

[43]
[44]
[45]
[46]
[47]
[48]
[49]

[50]
[51]
[52]
[53]
[54]
[55]
[56]
[57]
[58]
[59]

Id. at 60.
Id. at 30-31.
Filed by Solicitor General Alfredo L. Benipayo; id. at 300-316.
Filed by then Solicitor General (now Associate Justice of the Supreme Court) Antonio Eduardo
B. Nachura; id. at 396-412.
Id. at 406.
SECTION 4. Cases not subject to review; exceptions. No petition may be allowed from a resolution
of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable
cause except upon showing of manifest error or grave abuse of discretion. Either complainant/offended
party or respondent/accused may file a petition. Notwithstanding the showing of manifest error or grave
abuse of discretion no petition shall be entertained where the accused had already been arraigned. Once
arraigned, the petition shall be dismissed motu proprio by the Secretary of Justice.
Id. at 408.
G.R. No. L-53373, 30 June 1987, 151 SCRA 462.
Id. at 469.
Id. at 471.
Id.
Roberts, Jr. v. Court of Appeals, supra note 34.
G.R. No. 112387, 13 October 1994, 237 SCRA 575, 585-586. Also citing Dee v. Court of Appeals, G.R.
No. 111153, 21 November 1994, 238 SCRA 254, 265.
Roberts, Jr. v. Court of Appeals, supra note 34.
Records, p. 279.
Id.
Id. at 243.
Id.
Adasa v. Abalos, G.R. No. 168617, 19 February 2007.
Id.
Id.
Ledesma v. Court of Appeals, 344 Phil. 207, 217 (1997).
Supra note 55.

RULE 117 (1)


Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-37007

July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and


ARMANDO VALDEZ,petitioners,
vs.
ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of
Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents.
GANCAYCO, J.:
This is a petition for review on certiorari of an order of the Court of First Instance of
Pangasinan, Third Judicial District, in Criminal Case No. D-529 entitled "The People of
the Philippines versus Juan Tuvera, Sr., et al.," granting the motion to quash the
information filed by accused Juan Tuvera, Sr., herein respondent. The issue is whether
a barrio captain can be charged of arbitrary detention.
The facts are as follows:
On October 12, 1972, an information for Arbitrary Detention was filed against Juan
Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court of First Instance of
Pangasinan, which reads as follows:

The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas
Mendoza and Rodolfo Mangsat alias Rudy, all of Manaoag, Pangasinan, of the
crime of ARBITRARY DETENTION, committed as follows:
That on or about the 21st day of April 1973, at around 10:00 o'clock in the
evening, in barrio Baguinay, Manaoag, Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, accused Juan Tuvera, Sr., a barrio captain,
with the aid of some other private persons, namely Juan Tuvera, Jr., Bertillo
Bataoil and one Dianong, maltreated one Armando Valdez by hitting with butts of
their guns and fists blows and immediately thereafter, without legal grounds, with
deliberate intent to deprive said Armando Valdez of his constitutional liberty,
accused Barrio captain Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat. Rodolfo
Mangsat, members of the police force of Mangsat, Pangasinan conspiring,
confederating and helping one another, did, then and there, willfully, unlawfully
and feloniously, lodge and lock said Armando Valdez inside the municipal jail of
Manaoag, Pangasinan for about eleven (11) hours. (Emphasis supplied.)
CONTRARY TO ARTICLE 124 of the R.P.C.
Dagupan City, October 12, 1972.
(SGD.) VICENTE C. CALDONA
Assistant Provincial Fiscal
All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not
guilty.
On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the
facts charged do not constitute an offense and that the proofs adduced at the
investigation are not sufficient to support the filing of the information. Petitioner Assistant
Provincial Fiscal Ramon S. Milo filed an opposition thereto.
Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged
with Arbitrary Detention, respondent Judge Angelito C. Salanga granted the motion to
quash in an order dated April 25, 1973.
Hence, this petition.
Arbitrary Detention is committed by a public officer who, without legal grounds, detains
a person.1 The elements of this crime are the following:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds. 2
The ground relied upon by private respondent Tuvera for his motion to quash the
information which was sustained by respondent Judge, is that the facts charged do not
constitute an offense,3 that is, that the facts alleged in the information do not constitute
the elements of Arbitrary Detention.
The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza
and Pat. Mangsat, who are members of the police force of Manaoag, Pangasinan in
detaining petitioner Valdez for about eleven (11) hours in the municipal jail without legal
ground. No doubt the last two elements of the crime are present.

The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who
can be liable for the crime of Arbitrary Detention.
The public officers liable for Arbitrary Detention must be vested with authority to detain
or order the detention of persons accused of a crime. Such public officers are the
policemen and other agents of the law, the judges or mayors. 4
Respondent Judge Salanga did not consider private respondent Tuvera as such public
officer when the former made this finding in the questioned order:
Apparently, if Armando Valdez was ever jailed and detained more than six (6)
hours, Juan Tuvera, Sr., has nothing to do with the same because he is not in
any way connected with the Police Force of Manaoag, Pangasinan. Granting that
it was Tuvera, Sr., who ordered Valdez arrested, it was not he who detained and
jailed him because he has no such authority vested in him as a mere Barrio
Captain of Barrio Baguinay, Manaoag, Pangasinan. 5
In line with the above finding of respondent Judge Salanga, private respondent Tuvera
asserts that the motion to quash was properly sustained for the following reasons: (1)
That he did not have the authority to make arrest, nor jail and detain petitioner Valdez
as a mere barrio captain;6 (2) That he is neither a peace officer nor a policeman, 7(3)
That he was not a public official;8 (4) That he had nothing to do with the detention of
petitioner Valdez;9 (5) That he is not connected directly or indirectly in the administration
of the Manaoag Police Force;10 (6) That barrio captains on April 21, 1972 were not yet
considered as persons in authority and that it was only upon the promulgation of
Presidential Decree No. 299 that Barrio Captain and Heads of Barangays were decreed
among those who are persons in authority; 11 and that the proper charge was Illegal
Detention and Not Arbitrary Detention.12
We disagree.
Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were
later named barrio captains and now barangay captains) were recognized as persons in
authority. In various cases, this Court deemed them as persons in authority, and
convicted them of Arbitrary Detention.
In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario Braganza, a
municipal councilor, arrested Father Feliciano Gomez while he was in his church. They
made him pass through the door of the vestry and afterwards took him to the municipal
building. There, they told him that he was under arrest. The priest had not committed
any crime. The two public officials were convicted of Arbitrary Detention. 14
In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the help of Filoteo
Soliman, bound and tied his houseboy Sixto Gentugas with a rope at around 6:00 p.m.
and delivered him to the justice of the peace. Sixto was detained during the whole night
and until 9:00 a.m. of the next day when he was ordered released by the justice of the
peace because he had not committed any crime, Gellada was convicted of Arbitrary
Detention.16
Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the
powers and duties of a barrio captain include the following: to look after the
maintenance of public order in the barrio and to assist the municipal mayor and the
municipal councilor in charge of the district in the performance of their duties in such
barrio;17 to look after the general welfare of the barrio;18 to enforce all laws and
ordinances which are operative within the barrio; 19and to organize and lead an

emergency group whenever the same may be necessary for the maintenance of peace
and order within the barrio.20
In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego
has this to say about the above-mentioned powers and duties of a Barrio Captain, to
wit:
"Upon the barrio captain depends in the main the maintenance of public order in the
barrio. For public disorder therein, inevitably people blame him.
"In the event that there be a disturbing act to said public order or a threat to disturb
public order, what can the barrio captain do? Understandably, he first resorts to peaceful
measures. He may take preventive measures like placing the offenders under
surveillance and persuading them, where possible, to behave well, but when necessary,
he may subject them to the full force of law.
"He is a peace officer in the barrio considered under the law as a person in authority. As
such, he may make arrest and detain persons within legal limits.21 (Emphasis supplied.)
One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted
that other public officers like judges and mayors, who act with abuse of their functions,
may be guilty of this crime.22 A perusal of the powers and function vested in mayors
would show that they are similar to those of a barrio captain 23 except that in the case of
the latter, his territorial jurisdiction is smaller. Having the same duty of maintaining
peace and order, both must be and are given the authority to detain or order detention.
Noteworthy is the fact that even private respondent Tuvera himself admitted that with
the aid of his rural police, he as a barrio captain, could have led the arrest of petitioner
Valdez.24
From the foregoing, there is no doubt that a barrio captain, like private respondent
Tuvera, Sr., can be held liable for Arbitrary Detention.
Next, private respondent Tuvera, Sr. contends that the motion to quash was validly
granted as the facts and evidence on record show that there was no crime of
Arbitrary Detention;25 that he only sought the aid and assistance of the Manaoag Police
Force;26 and that he only accompanied petitioner Valdez to town for the latter's personal
safety.27
Suffice it to say that the above allegations can only be raised as a defense at the
trial as they traverse what is alleged in the Information. We have repeatedly held that
Courts, in resolving a motion to quash, cannot consider facts contrary to those
alleged in the information or which do not appear on the face of the information.
This is because a motion to quash is a hypothetical admission of the facts
alleged in the information.28 Matters of defense cannot be proved during the
hearing of such a motion, except where the Rules expressly permit, such as
extinction of criminal liability, prescription, and former jeopardy.29 In the case
of U.S. vs. Perez,30 this Court held that a motion to quash on the ground that the
facts charged do not constitute an offense cannot allege new facts not only
different but diametrically opposed to those alleged in the complaint. This rule admits of
only one exception and that is when such facts are admitted by the
prosecution.31lawphi1
Lastly, private respondent claims that by the lower court's granting of the motion to
quash jeopardy has already attached in his favor 32 on the ground that here, the case
was dismissed or otherwise terminated without his express consent.

Respondent's contention holds no water. An order granting a motion to quash, unlike


one of denial, is a final order. It is not merely interlocutory and is therefore
immediately appealable. The accused cannot claim double jeopardy as the dismissal
was secured not only with his consent but at his instance.33
WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The
questioned Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let
this case be remanded to the appropriate trial court for further proceedings. No
pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Paras, JJ., concur.

THIRD DIVISION
[G.R. No. 119063. January 27, 1997]

JOSE G. GARCIA, petitioner, vs. COURT OF APPEALS, PEOPLE OF


THE
PHILIPPINES
and
ADELA
TEODORA
P.
SANTOS,respondents.
DECISION
DAVIDE, JR., J.:

The issue here is whether the Court of Appeals committed reversible error
in affirming the trial court's order granting the motion to quash the information
for bigamy based on prescription.
On 28 August 1991, petitioner Jose G. Garcia filed with the Quezon City
Prosecutor's Office an "Affidavit of Complaint" charging his wife, private
respondent Adela Teodora P. Santos alias "Delia Santos," with Bigamy,
Violation of C.A. No. 142, as amended by R.A. No. 6085, and Falsification of
Public Documents. However, in his letter of 10 October 1991 to Assistant City
Prosecutor George F. Cabanilla, the petitioner informed the latter that he
would limit his action to bigamy.
[1]

[2]

After appropriate proceedings, Assistant Prosecutor Cabanilla filed on 8


January 1992 with the Regional Trial Court (RTC) of Quezon City an
information, dated 15 November 1991, charging the private respondent with
Bigamy allegedly committed as follows:
[3]

That on or before the 2nd day of February, 1957, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, being
previously united in lawful marriage with REYNALDO QUIROCA, and without the
said marriage having been dissolved, (or before the absent spouse has been declared

presumptively dead by a judgment rendered in the proper proceedings), did then and
there wilfully, unlawfully and feloniously contract a second marriage with JOSE G.
GARCIA, which marriage has [sic] discovered in 1989, to the damage and prejudice
of the said offended party in such amount as may be awarded under the provisions of
the Civil Code.
CONTRARY TO LAW.
The information was docketed as Criminal Case No. Q-92-27272 and
assigned to Branch 83 of the said court. On 2 March 1992, the private
respondent filed a Motion to Quash alleging prescription of the offense as
ground therefor. She contended that by the petitioner's admissions in his
testimony given-on 23 January 1991 in Civil Case No. 90-52730, entitled
"Jose G. Garcia v. Delia S. Garcia," and in his complaint filed with the Civil
Service Commission (CSC) on 16 October 1991, the petitioner discovered the
commission of the offense as early as 1974. Pursuant then to Article 91 of the
Revised Penal Code (RPC), the period of prescription of the offense started
to run therefrom. Thus, since bigamy was punishable by prision mayor, an
afflictive penalty which prescribed in fifteen years pursuant to Article 92 of
the RPC, then the offense charged prescribed in 1989, or fifteen years after its
discovery by the petitioner.
[4]

[5]

[6]

The private respondent quoted the petitioner's testimony in Civil Case


No.90-52730 as follows:
[7]

No, no, just answer. What did you learn from her (Eugenia) about the private
respondent?

That she has been married previously in case I don't know it. But she said she has
been previously married, in fact I saw her husband - Rey, a few days ago and they
said, "Baka magkasama pa silang muli:"

xxx
ATTY. EVANGELISTA:
Q

When did Eugenia R. Balingit told [sic] that private respondent was already
married to another man?

That was when I told her that we are separating now. I told her in tagalog, "na
maghihiwalay na kami ni Delia ngayon." "Ang unang tanong niya sa akin, 'si Rey
ba ang dahilan,' ang alam ko po, Rey ang dating boyfriend niya, kaya ang sabi ko,
'hindi po, Mario ang pangalan, ' napabagsak po siya sa upuan, sabi niya, 'hindi na
nagbago."'

When was that when you came to know from Eugenia Balingit, the judicial
guardian, that private respondent was already married to another man when she
married you?

That was when the affair was happening and I found out.

What year?

1974. [8]

The portion of the complaint filed on 16 October 1991 before the CSC
which the private respondent alluded to, reads as follows:
5. At the time the respondent married the herein complainant she never informed
him that she was previously married to a certain "REYNALDO QUIROCA" on
December 1, 1951 wherein she used the name of "ADELA SANTOS" which
was part of her true name "ADELA TEODORA P. SANTOS" as per her
genuine Baptismal Certificate issued by the Parish of San Guillermo, Bacolor,
Pampanga, a copy of the said Baptismal Certificate is hereto attached as
ANNEX "D";
6.

xxx
7. These facts were discovered only by the herein complainant in the year 1974
where they separated from each other because of her illicit relations with
several men continued use of her alias name "DELIA", without proper
authority from the Courts; and committing a series of fraudulent acts; her
previous marriage to a certain "Reynaldo Quiroca" is evidenced by a
certification issued by the Local Civil Registrar of Manila, a copy of which is
hereto attached as ANNEX "F";
[9]

In its 29 June 1992 order, the trial court granted the motion to quash and
dismissed the criminal case, ruling in this wise:
[10]

This court believes that since the penalty prescribed under Article 349 of the Revised
Penal Code for the offense of bigamy is prision mayor, which is classified as an
afflictive penalty under Article 25 of the same Code, then said offense should
prescribe in fifteen (15) years as provided in Article 92 of the Code. The complainant
having discovered the first marriage of the accused to one Reynaldo Quiroca in 1974
when he was informed of it by one Eugenia Balingit, the offense charged has already
prescribed when the information was filed in this case on November 15, 1991. The
argument presented by the prosecution that it was difficult for the complainant to
obtain evidence of the alleged first marriage, hence, the prescriptive period should be
counted from the time the evidence was secured will not hold water. Article 91 of the
Revised Penal Code specifically provides, thus:
"The period of prescription shall commence to run from the day on which the crime is
discovered x x x"
it did not state "on the day sufficient evidence was gathered," thus this Court cannot
change the requirements of the law.
The petitioner moved for reconsideration of the above order on 26 August
1992, to which he filed "numerous" supplements thereto, focusing on the
private respondent's many trips abroad which the petitioner claimed
suspended the running of the prescriptive period. These trips were
enumerated in the certification issued by Associate Commissioner Ramon M.
Morales of the Bureau of Immigration (BID), which reads as follows:
[11]

[12]

This is to certify that the name GARCIA/DELIA/S. appears in the Bureau's files of
Arrivals and Departures as having the following travel records:
Departed for HKG on

06/03/77

aboard PR

Arrived from HKG on

07/02/77

aboard PA

Arrived from SYD on

07/09/77

aboard BR

Arrived from GUM on

06/14/80

aboard PA

Arrived from MEL on

07/17/81

aboard PR

Arrived from TYO on

05/20/83

aboard BA

Departed for HKG on


Arrived from SIN

09/22/83

on

aboard PR

09/28/83

aboard PR

Departed for TYO on

04/30/84

aboard PA

Arrived from SFO on

07/03/84

aboard PA

Departed for TYO on

11/19/84

aboard PA

Departed for TYO on

08/05/85

aboard PA

Departed for TYO on

11/17/86

aboard UA

Arrived from LAX

on

12/12/87

aboard UA

Departed for LAX

on

11/30/87

aboard UA

Departed for CHI

on

11/14/88

aboard UA

The trial court disallowed reconsideration of its 29 June 1992 order, finding
"no urgent or justifiable reason to disturb or set [it] aside." As to the sojourns
abroad of the private respondent as shown in the certification, the trial court
held that the same "is not that kind of absence from the Philippines which will
interrupt the period of prescription of the offense charged . . . "
[13]

The petitioner then appealed to the Court of Appeals which docketed the
appeal as CA-G.R. CR No. 14324. He contended therein that: (a) the trial
court erred in quashing the information on the ground of prescription; and (b)
the counsel for the accused was barred from filing the motion to quash the
information against the accused. As to the first, the petitioner argued that
bigamy was a public offense, hence "the offended party is not the first or
second (innocent) spouse but the State whose law/policy was
transgressed." He tried to distinguish bigamy from private offenses such as
adultery or concubinage "where the private complainant isnecessarily the
offended party," thus, the prescriptive period for the former should commence
from the day the State, being the offended party, discovered the offense,
[14]

which in this case was on 28 August 1991 when the petitioner filed his
complaint before the Prosecutor's Office. The petitioner added that the
"interchanging use" In Article 91 of the RPC of the terms "offended party,"
"authorities," and "their agents" supports his view that the State is the
offended party in public offenses.
Additionally, the petitioner referred to the general rule stated in
People v. Alagao "that in resolving the motion to quash a criminal
complaint or information[,] the facts alleged in the complaint or
information should be taken as they are." The information in this case
mentioned that the bigamy was discovered in 1989. He admitted, however,
that this rule admits of exceptions, such as when the ground for the motion to
quash is prescription of the offense, as provided in Section 4 of the old Rule
117 of the Rules of Criminal Procedure. Nonetheless, he advanced the view
that this exception is no longer available because of the implied repeal of
Section 4, as the amended Rule 117 no longer contains a similar provision
under the rule on motions to quash; and that granting there was no repeal, the
private respondent failed to introduce evidence to "support her factual
averment in her motion to quash," which is required by Rule 117. He further
asserted that the factual bases of the motion to quash, viz., the petitioner's
testimony in Civil Case No. 90-52730 and his complaint filed with the CSC are
not conclusive because the testimony is hearsay evidence, hence
inadmissible, while the complaint is vague, particularly the following portion
quoted by the private respondent:
[15]

7. These facts where discovered only by the herein complainant in the year 1974
when they separated from each other because of her illicit relations with several
men continued use of her alias name "DELIA", without proper authority from
the Courts; and committing a series of fraudulent acts; her previous marriage to
a certain "Reynaldo Quiroca" is evidenced by a certification issued by the
Local Civil Registrar of Manila, a copy of which is hereto attached a ANNEX
"F";
The petitioner alleged that the phrase "These facts" in said paragraph 7 does
not clearly refer to his discovery of the private respondent's first
marriage. Moreover, he doubted whether the term "discovered" in the said
paragraph was used in the sense contemplated by law. At best, the petitioner
theorized, the discovery only referred to the "initial, unconfirmed and
uninvestigated raw, hearsay information" which he received from Balingit.
Finally, the petitioner reiterated that the prescriptive period was interrupted
several times by the private respondent's numerous trips abroad.
As regards his second contention, the petitioner argued that the counsel
for the private respondent had already stated that he represented only Delia
S. Garcia and not Adela Teodora P. Santos. Consequently, the private
respondent's counsel could not ask for the quash of the information in favor of
Adela Teodora P. Santos alias Delia Santos. The petitioner opined that the

counsel for the private respondent should have sought a dismissal of the case
in favor of Delia Garcia alone.
The Court of Appeals gave credence to the private respondent's evidence
and concluded that the petitioner discovered the private respondent's first
marriage in 1974. Since the information in this case was filed in court only on
8 January 1992, or eighteen years after the discovery of the offense, then the
15-year prescriptive period had certainly lapsed. It further held that the
quash of an information based on prescription of the offense could be invoked
before or after arraignment and even on appeal, for under Article 89(5) of
the RPC, the criminal liability of a person is "'totally extinguish[ed]' by the
prescription of the crime, which is a mode of extinguishing criminal
liability." Thus, prescription is not deemed waived even if not pleaded as a
defense.
[16]

[17]

[18]

Undaunted, the petitioner is now before us on a petition for review


on certiorari to annul and set aside the decision of the Court of Appeals and to
compel the respondent court to remand the case to the trial court for further
proceedings. He submits the following assignment of errors:
I

BIGAMY IS A PUBLIC OFFENSE, CONSEQUENTLY, PRESCRIPTION SHOULD


HAVE BEEN COUNTED FROM THE TIME THE STATE DISCOVERED ITS
COMMISSION;
II

A MOTION TO QUASH CANNOT ALSO GO BEYOND WHAT IS STATED IN


THE INFORMATION;
III

BY THEMSELVES, THE FACTUAL BASES OF THE MOTION TO QUASH ARE


NOT ALSO CONCLUSIVE;
IV

ASSUMING THE PRESCRIPTIVE PERIOD STARTED IN 1974, SAID PERIOD


HOWEVER WAS INTERRUPTED SEVERAL TIMES.
We notice that except for the first two pages of the petition, the deletion of
a few paragraphs, the substitution of the term "petitioner" for "appellant," and
the deletion of the contention on the counsel for the private respondent being
barred from filing a motion to quash, the herein petition is a reproduction of
the Appellant's Brief filed by the petitioner with the Court of Appeals. Verily
then, the instant petition is a rehash of an old tale. However, the Court of
Appeals failed to-sufficiently address several issues raised by the petitioner,
most probably prompting him to seek redress from this Court.

We resolved to give due course to the petition and required the parties to
submit their respective memoranda. The Office of the Solicitor General was
the last to submit a Memorandum for the public respondent. Both the private
and public respondents ask for the dismissal of this petition and the
affirmance of the challenged decision.
Petitioner's position is untenable. Denial then of this petition is all it merits.
We shall take up the assigned errors in seriatim.
I

It is true that bigamy is a public offense. But, it is entirely incorrect to


state, as the petitioner does, that only the State is the offended party in such
case, as well as in other public offenses, and, therefore, only the State's
discovery of the crime could effectively commence the running of the period of
prescription therefor. Article 91 of the RPC provides that "[t]he period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their
agents . . . ." This rule makes no distinction between a public crime and a
private crime. In both cases then, the discovery may be by the "offended
party, the authorities, or their agents."
Article 91 does not define the term "offended party." We find its definition
in Section 12, Rule 110 of the Rules of Court as "the person against whom or
against whose property, the offense was committed." The said Section
reads as follows:
[19]

SEC. 12.
Name of the offended party. -- A complaint or information must state the
name and surname of the person against whom or against whose property the offense
was committed, or any appellation or nickname by which such person has been or is
known, and if there is no better way of identifying him, he must be described under a
fictitious name.
More specifically, it is reasonable to assume that the offended party in the
commission of a crime, public or private, is the party to whom the offender is
civilly liable, in light of Article 100 of the RPC, which expressly provides that
"[e]very person criminally liable for a felony is also civilly liable." Invariably
then, the private individual to whom the offender is civilly liable is the offended
party.
[20]

This conclusion is strengthened by Section 1, Rule 111 of the Rules of


Court which reads:
SEC. 1.
Institution of criminal and civil actions. -- When a criminal action is
instituted, the civil action for the recovery of civil liability is impliedly instituted with
a criminal action, unless the offended party waives the civil action, reserves his right
to institute it separately, or institutes the civil action prior to the criminal action

Such civil action includes recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines
arising from the same act or omission of the accused. x x x
It is settled that in bigamy, both the first and the second spouses may be the
offended parties depending on the circumstances.
[21]

The petitioner even admits that he is the offended party in Criminal Case
No. Q-92-27272. The information therein, which he copied in full in the
petition in this case, describes him as the "offended party" who suffered
"damage and prejudice . . . in such amount as may be awarded under the
provisions of the Civil Code."
[22]

[23]

The distinction he made between public crimes and private crimes relates
not to the discovery of the crimes, but to their prosecution. Articles 344 and
360 of the RPC, in relation to Section 5, Rule 110 of the Rules of Court, are
clear on this matter.
II

The petitioner's contention that a motion to quash cannot go beyond the


information in Criminal Case No. Q-92-27272 which states that the crime was
discovered in 1989, is palpably unmeritorious. Even People v. Alagao, which
he cites, mentions the exceptions to the rule as provided in paragraphs (f) and
(h) of Section 2, and Sections 4 and 5 of the old Rule 117 viz., (a) extinction of
criminal liability, and (b) double jeopardy. His additional claim that the
exception of extinction can no longer be raised due to the implied repeal of the
former Section 4, Rule 117 of the Rules of Court occasioned by its nonreproduction after its revision, is equally without merit. No repeal, express or
implied, of the said Section 4 ever took place. While there is no
provision in the new Rule 117 that prescribes the contents of a motion to
quash based on extinction of criminal liability, Section 2 thereof
encapsulizes the former Sections 3,4, and 5 of the old Rule 117. The said
Section 2 reads as follows:
[24]

[25]

SEC. 2.
Form and contents. - The motion to quash shall be in writing signed by
the accused or his counsel. It shall specify distinctly the factual and legal grounds
therefor and the court shall consider no grounds other than those stated therein, except
lack of jurisdiction over the offense charged. (3a, 4a, 5a). (underscoring supplied for
emphasis)
It is clear from this Section that a motion to quash may be based on
factual and legal grounds, and since extinction of criminal liability and double
jeopardy are retained as among the grounds for a motion to quash in Section
3 of the new Rule 117, it necessarily follows that facts outside the
information itself may be introduced to prove such grounds. As a matter
of fact, inquiry into such facts may be allowed where the ground invoked is
that the allegations in the information do not constitute the offense charged.
Thus, in People v. De la Rosa, his Court stated:

As a general proposition, a motion to quash on the ground that the allegations of the
information do not constitute the offense charged, or any offense for that matter,
should be resolved on the basis alone of said allegations whose truth and veracity are
hypothetically admitted. However, as held in the case of People vs. Navarro, 75 Phil.
516, additional facts not alleged in the information, but admitted or not denied
by the prosecution may be invoked in support of the motion to quash. Former
Chief justice Moran supports this theory.
[27]

In Criminal Case No. 92-27272, the trial court, without objection on the part of the
prosecution, allowed the private respondent to offer evidence in support of her
claim that the crime had prescribed. Consequently, the trial court, upon
indubitable proof of prescription, correctly granted the motion to quash. It would
have been, to quote De la Rosa, "pure technicality for the court to close its eyes to [the
fact of prescription] and still give due course to the prosecution of the case" - a
technicality which would have meant loss of valuable time of the court and the parties.
As noted by Dr. Fortunato Gupit, Jr., consultant of the Rules of Court Revision
Committee, the aforequoted Section 2 of the new Rule 117 on "factual and legal
grounds" of a motion to quash is based on the De la Rosa case.
[28]

III

The petitioner likewise claims that the factual bases of the private respondent's
motion to quash are inconclusive. The petitioner cannot be allowed to disown
statements he made under oath and in open court when it serves his
purpose. This is a contemptible practice which can only mislead the courts and
thereby contribute to injustice. Besides, he never denied having given the pertinent
testimony. He did, however, term it vague in that it was not clear whether the prior
marriage which Eugenia Balingit disclosed to him was that entered into by the private
respondent with Reynaldo Quiroca. It is immaterial to whom the private respondent was
first married; what is relevant in this case is that the petitioner was informed of a prior
marriage contracted by the private respondent.
Neither may the petitioner be heard to cast doubt on the meaning of his statements
in his sworn complaint filed before the CSC. We find no hint of vagueness in them. In
any event, he has not denied that he in fact discovered in 1974 that the private
respondent had been previously married.
Finally, the petitioner draws our attention to the private respondent's several trips
abroad as enumerated in the certification of the Bureau of Immigration, and cites the
second paragraph of Article 91 of the RPC, viz.: "[t]he term of prescription shall not run
when the offender is absent from the Philippine Archipelago." We agree with the Court
of Appeals that these trips abroad did not constitute the "absence" contemplated in
Article 91. These trips were brief, and in every case the private respondent returned to
the Philippines. Besides, these were made long after the petitioner discovered the
offense and even if the aggregate number of days of these trips are considered, still the
information was filed well beyond the prescriptive period.
WHEREFORE, the instant petition is DENIED for lack of merit and the challenged
decision of 13 February 1995 of the Court of Appeals in CA-G.R. CR No.14324 is
AFFIRMED.
Costs against the petitioner.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

[1]

Original, Record (OR), CA-G.R. CR No. 14324, 39-40; Rollo, 40-41.

[2]

Rollo, 54.

[3]

OR. 11-12.

[4]

The said Article provides as follows:

ART. 91.
Computation of prescription of offense. - The period of prescription shall commence to run
from the day on which the crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or information, and shall commence
to run again when such proceedings terminate without the accused being convicted or acquitted,
or are unjustifiably stopped for any reason not imputable to him.
The term of the prescription shall not run when the offender is absent from the Philippine Archipelago.
[5]

Article 349, Revised Penal Code.

[6]

Article 25, Id.

[7]

According to the petitioner, the motion to quash included a copy of the transcript of stenographic notes
(TSN) taken on 23 January 1991 (Appellant's Brief, 10-11; OR, 33-34). However, neither the
motion to quash nor the TSN is in the records. We therefore quote the petitioner's testimony as
told by the private respondent in her Brief filed with the Court of Appeals.

[8]

Appellant's Brief, 8; OR, 72, quoting TSN, 23 January 1991, 26-29.

[9]

Id., 9, Id., 73.

[10]

OR, 13-15. Per Judge Estrella T. Estrada.

[11]

No copy of the petitioner's motion for reconsideration is included in the record.

[12]

OR, 18.

[13]

Id., 16.

[14]

Appellant's Brief, 1; Id., 24.

[15]

16 SCRA 879 [1966].

[16]

OR, 101-107. Per Luna, A., J., with Garcia C., and Jacinto, G., JJ. concurring.

[17]

Citing People v. Castro,95 Phil. 462 [1954]; People v. Balagtas,105 Phil. 1362 [1959].

[18]

Citing People v. Serapio, 23 Phil. 584 [1912]; People v. Moran, 44 Phil. 387 [1923]; Section 81, Rule
117, Rules of Court.

[19]

See also concurring opinion of Feria, F, J., in Guevarra v. Del Rosario, 77 Phil 615, 621 [1946].

[20]

This civil liability includes restitution, reparation of the damage caused, and indemnification for
consequential damages (Article 104, Revised Penal Code).

[21]

People v. Nepomuceno, 64 SCRA 518, 522 [1975]; Lerum v. Cruz, 87 Phil. 652, 656 [1950].

[22]

OR, 11.

[23]

Rollo, 18-19.

[24]

Supra note 15, at 883.

[25]

It provided as follows:

Sec.4. Contents of the motion to quash when based on extinction of criminal liability. - If the ground of
the motion to quash is the extinction of criminal liability, the motion shall state whether by
amnesty, pardon or marriage of the offender with the offended party in cases where such pardon
or marriage extinguishes criminal liability, prescription of the offense or the penalty, and the facts
constituting such extinction.
[26]

98 SCRA 190, 196-197 [1980].

[27]

Citing MORAN, Comments on the Rules of Court, [1963 ed.] 139.

[28]

GUPIT, Rules of Criminal Procedure, [1986 ed.] 281.

RULE 117 (7)


1.
First jeopardy
must have
attached prior to
the second
REQUISITES of
first jeopardy
attached:
1. There is a valid
complaint/info

2.
First jeopardy
must have been
validly
terminated
Terminated
through the
following:
A. Accused
acquitted

2. complaint/info
filed in a
competent court

B. Accused
Convicted

An appeal by
the accused
implies a
waiver of the
constitutional
safeguard
against DJ as it
throws the
whole case
open for review

3. the accused has


been arraigned
and pleaded

Successive
and
concurrence
needed
Requisite 2 & 3
requires any
one of the subrequisites

(Rondero Case)
C. Case DISMISSED
W/O EXPRESS
consent of the
accused otherwise
right does not attach
Motion for
reinvestigation
not equivalent to
express consent

EER: even if WITH


EXPRESS
CONSENT: when
there is a grant of
1. Motion of Demurrer
to evidence
2. Motion to dismiss
information by reason
of denial of the right of
accused to speedy
trial
(Sta. Rita Case)

3.
Second jeopardy must be for the (a) same
offense or (b) same acts

A. there is 2nd
jeopardy for the same
OFFENSE when:
A. Two offense
identical
B. 2nd Attempt to
commit the 1st
jeopardy
Consummated
(first), attempted
(second)

C. 2nd is the frustration


to commit the 1st
jeopardy
Consummated
(first), Frustration
(second)

D. 1st necessarily
includes the 2nd
jeopardy (Same
provision of law)

Big offense(first),
Smaller offense
(second)

E. 1st necessarily
included the 2nd
jeopardy (Different
provision of law)
Small
offense(first),
Bigger offense
(second)

B. there is 2nd
jeopardy for the
same ACT when:
1st jeopardy under
law or ordinance
2nd jeopardy under
either of them
REQ:
1. Same acts in
statute and
ordinance
2. Same acts
committed in the
same day and
place

GR: Req(3a) same offense test requires the same elements constituting the
crime otherwise right against DJ does not attach (Saley, Perez Case)

EXCEPTION WHEN RIGHT AGAINST DJ DOES NOT ATTACH:


A. Graver offense develop due to supervening facts

The exception presupposes that req. (1) & (2) is complied but (3) is affected
Victim becomes insane after arraignment and plea. Prosecutor amend the info, and in effect increase
the penalty (Degamo Case)

B. Graver charge became known or discovered only after plea (newly discovered
evidence)
C. Plea of guilty to lesser offense was made without the required consent

Exception B&C presupposes that req. (1) is complied and (2) affected

OTHER INSTANES WHEN RIGHT AGAINST DJ DOES NOT ATTACH: (CASES)

D. When state is deprived of due process, the judgement rendered is void:


When there is a clear disregard of the ROC where arraignment and plea is invalid.
(Villon Case)
Arraignment and Plea bargain to a lesser penalty contrary to the ROC which
expressly provides lesser offense is not allowed. (Magat Case)
Prosecutor did not present evidence, refuse to discharge a state witness did not
participate actively in the proceeding (Merciales Case)
Setting up of schedule for trial but late reschedule without knowledge of the
prosecution (Gordion Case)
Dismissal of the case due to prosecutions failure to offer the exhibit (Alberto Case)
BUT, conditional arraignment does not affect the first jeopardy to attach,
considering that right against DJ is a constitutional right. Waiver must be clear,
categorical and with the knowledge of the accused

R1: Error of judgement such as wrong penalty imposed and wrong appreciation of
evidence in effect acquitted the accused however obvious they are. Right against DJ
attaches acquittal immediately final upon promulgation
E. ER: Grave abuse of discretion the characteristic of this act is when a person
whimsically knew what is applicable and appropriate but nevertheless do the
opposite
Mistrial, wherein there is no actual proceeding (Galman Case)
When there is a clear disregard of the ROC where arraignment and plea is
invalid. (Villon Case)

RULE 115
Rights of Accused
Section 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled to
the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The accused may, however, waive his presence at
the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered
by the court for purposes of identification. The absence of the accused without justifiable cause at
the trial of which he had notice shall be considered a waiver of his right to be present thereat.
When an accused under custody escapes, he shall be deemed to have waived his right to be
present on all subsequent trial dates until custody over him is regained. Upon motion, the
accused may be allowed to defend himself in person when it sufficiently appears to the court that
he can properly protect his right without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered
by direct examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize
as part of its evidence the testimony of a witness who is deceased, out of or can not with due
diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another
case or proceeding, judicial or administrative, involving the same parties and subject matter, the
adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of
other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law. (1a)

THE RIGHTS OF THE ACCUSED DURING TRIAL [Consti art. III sec.2 (14) ]
1. Rights to due process
2. Right to presumption of innocence
GR: the one who charges a crime has the burden of proof to prove the commission of an offense
ER: (a) Malversation (b) Ant Fencing law (c) Intellectual property law (d) plunder
Only prima facie, hence not conclusive and rebuttable
There must be rational connection of fact proved and fact presume
3. Right to be heard accused given an opportunity to depend himself
INCLUDES (1) right to testify in thy behalf (2) Right to call the witness

4. Right to Counsel

As to counsel

As to waiver of
counsel

As to the
nature of right

During pre-trial
[ Consti art III
sec2 (12) ]

During trial
[ Consti art III
sec2 (12) ]

Right to an
independent
counsel
preferably oh
his own choice
Cannot be
waived
UNLESS
theres
assistance of a
lawyer
ABSOLUTE,
right involves
the accused
and the interest
of the state
because of
public policy

Right to a
counsel de
oficio/ private
counsel
May be waived,
can even
represent
himself

NOT absolute,
right is purely
personal to the
accused.

5. Right to be informed all elements must be stated in relation to the facts in the
information
R1: the allegation of the information qualifying a crime must control in the conviction of a crime
otherwise VOID
R2: however when the allegation charge a crime of a higher degree, a conviction of a lower
degree is valid

6. Right to a speedy trial

Speedy trial
[ Consti art III
sec2 (14) ]
As to
applicability
As to the
stages of
proceeding
As to Tribunal

Criminal cases
only
Trial stages

As to waiver

May be waived
by failure to
invoke

Courts only

7. Right to an impartial trial


8. Right to a public trial
9. Right to meet the witnesses
10. Right to compulsory process

Speedy
disposition
[ Consti art III
sec2 (16) ]
All kinds of
cases
All stages

All kinds of
tribunal
GR: maybe
waive
ER: right
involves the
accused and
the interest of
the state
because of
public policy

RULE 118
Pre-Trial
Section 1. Pre-trial; mandatory in criminal cases. In all criminal cases cognizable by the
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Court, the court shall after arraignment and within thirty (30) days
from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is
provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the
following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a lawful
defense; and
(f) such other matters as will promote a fair and expeditious trial of the criminal and civil aspects
of the case. (secs. 2 and 3, cir. 38-98)
Section 2. Pre-trial agreement. All agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be
used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall
be approved by the court. (sec. 4, cir. 38-98)
Section 3. Non-appearance at pre-trial conference. If the counsel for the accused or the prosecutor
does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of
cooperation, the court may impose proper sanctions or penalties. (se. 5, cir. 38-98)
Section 4. Pre-trial order. After the pre-trial conference, the court shall issue an order reciting the
actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to
matters not disposed of, and control the course of the action during the trial, unless modified by the court
to prevent manifest injustice. (3)