Criminal Jurisdiction

G.R. No. L-40527 June 30, 1976

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HERMOGENES MARIANO and HON. AMBROSIO M. GERALDEZ, in his
capacity as Presiding Judge of the Court of First Instance of Bulacan,
Branch V, respondents.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Nathanael P. Pano, Jr., Solicitor Oswaldo D. Agcaoili, Provincial P.C.
Kliachko and Assistant Provincial Fiscal C. G. Perfecto for petitioner.

Eustaquio Evangelista for respondent Hermogenes Mariano.

MUÑOZ PALMA, J:

This petition for certiorari postulates a ruling on the question of whether or
not civil courts and military commissions exercise concurrent jurisdiction
over the offense of estafa of goods valued at not more than six thousand
pesos and allegedly committed by a civilian. 1

On December 18, 1974, the office of the Provincial Fiscal of Bulacan filed
an Information (Criminal Case No. SM-649) accusing private respondent
herein Hermogenes Mariano of estafa alleged to have been committed as
follows:

That on or about and during the period from May 11 and June
8, 1971, in the municipality of San Jose del Monte, province of
Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Hermogenes Mariano,
being then appointed as Liaison Officer by the then incumbent
Municipal Mayor, Constantino Nolasco, acting for and in behalf
of the municipality of San Jose del Monte, Bulacan and
authorized to receive and be receipted for US excess property
of USAID/NEC for the use and benefit of said municipality,
received from the said USAID/NEC the following items, to wit:

150 ft. electric cable valued

at $15 or P100.50

525 ft. cable power valued at

$577-50 or P3,859.35

250 ft. electric cable at

$125.00 or P837.50

with a total value of $717.50 or P4,797.35, involving the duty of
making delivery of said items to the said Municipal Mayor, but
the said accused Hermogenes Mariano once in possession of
the said items and far from complying with his aforesaid
obligation and in spite of repeated demands, did then and there
wilfully, unlawfully and feloniously, with grave abuse of
confidence and with deceit, misappropriate, misapply and
convert to his own personal use and benefit the said items
valued at $717.50 or P4,797.35, belonging to the said
USAID/NEC, to the damage and prejudice of the said owner in
the said sum of $717,50 or P4,797.35. (pp. rollo).

On February 19, 1975, Hermogenes Mariano thru his counsel Filed a
motion to quash the Information on the following grounds:

1. That the court trying the cause has no jurisdiction of the
offense charged or of the person of the defendant;

2. That the criminal action or liability has been extinguished;

3. That it contains averments which , if true, would constitute a
legal excuse or justification. (p. 19, rollo)

In his motion to quash, Mariano claimed that the items which were the
subject matter of the Information against him were the same items for
which Mayor Constantino A. Nolasco of San Jose del Monte, province of
Bulacan, was indicted before a Military Commission under a charge of
malversation of public property, and for which Mayor Nolasco had been
found guilty and sentenced to imprisonment at hard labor for ten (10) years

and one (1) day to fourteen (14) years and eight (8) months with perpetual
disqualification plus a fine of P19,646.15 (see pp. 23-24, rollo), and that
inasmuch as the case against Mayor Nolasco had already been decided by
the Military Tribunal, the Court of First Instance of Bulacan had lost
jurisdiction over the case against him. (pp. 19-20, Ibid)

On March 14, 1975 respondent Judge issued an Order granting the motion
to quash on the ground of lack of jurisdiction reasoning as follows:

Considering that the Military Commission had already taken
cognizance of the malversation case against Mayor Nolasco
involving the same subject matter in its concurrent jurisdiction
with this Court, the case involving the subject properties had
already been heard and decided by a competent tribunal, the
Military Commission, and as such this Court is without
jurisdiction to pass upon anew the same subject matter. (pp.
30-31, rollo, emphasis supplied)

Respondent Judge did not rule on the other grounds invoked in the motion
to quash.

The people now seeks a review of the aforesaid Order and presents the
sole issue of jurisdiction of respondent Court over the estafa case filed
against respondent Mariano.

"Jurisdiction" is the basic foundation of judicial proceedings. 2 The word
"jurisdiction" is derived from two Latin words "juris" and "dico" — "I speak
by the law" — which means fundamentally the power or capacity given by
the law to a court or tribunal to entertain, hear, and determine certain
controversies. 3 Bouvier's own definition of the term "jurisdiction" has found
judicial acceptance, to wit: "Jurisdiction is the right of a Judge to pronounce
a sentence of the law in a case or issue before him, acquired through due
process of law;" it is "the authority by which judicial officers take
cognizance of and decide cases." 4

In Herrera vs. Barretto, September 10, 1913, 25 Phil. 245, 251, this Court,
in the words of Justice Moreland, invoking American jurisprudence, defined
"jurisdiction" simply as the authority to hear and determine a cause the right
to act in a case. "Jurisdiction" has also been aptly described as the right to
put the wheels of justice in notion and to proceed to the final determination
of a cause upon the pleadings and evidence. 5

"Criminal Jurisdiction" is necessarily the authority to hear and try a
particular offense and impose the punishment for it. 6

The conferment of jurisdiction upon courts or judicial tribunals is derived
exclusively from the constitution and statutes of the forum. Thus, the
question of jurisdiction of respondent Court of First Instance over the case
filed before it is to be resolved on the basis of the law or statute providing
for or defining its jurisdiction. That, We find in the Judiciary Act of 1948
where in its Section 44 (f) it is provided:

SEC. 44. Original jurisdiction. — Courts of First Instance shall
have original jurisdiction:

xxx xxx xxx

(f) In all criminal cases in which the penalty provided by law is
imprisonment for more than six months,or a fine of more than
two hundred pesos, (emphasis supplied)

The offense of estafa charged against respondent Mariano is penalized
with arresto mayor in its maximum period to prision correccional in its
minimum period, or imprisonment from four (4) months and one (1) day to
two (2) years and four (4) months. 7 By reason of the penalty imposed
which exceeds six (6) months imprisonment, the offense alleged to have
been committed by the accused, now respondent, Mariano, falls under the
original jurisdiction of courts of first instance.

The above of course is not disputed by respondent Judge; what he claims
in his Order is that his court exercises concurrent jurisdiction with the
military commission and because the latter tribunal was the first to take
cognizance of the subject matter, respondent court lost jurisdiction over it
.That statement of respondent court is incorrect.

In People vs. Fontanilla, this Court speaking through then Justice now
Chief Justice Fred Ruiz Castro, categorically reiterated the settled rule that
the jurisdiction of a court is determined by the statute in force at the time of
the commencement of the action. 8 In the case at bar, it is rightly contended
by the Solicitor General that at the time Criminal Case No. SM-649 was
filed with the Court of First Instance of Bulacan, that was December 18,
1974, the law in force vesting jurisdiction upon said court was the Judiciary
Act of 1948, the particular provision of which was not affected one way or

9* Respondent court therefore gravely erred when it ruled that it lost jurisdiction over the estafa case against respondent Mariano with the filing of the malversation charge against Mayor Nolasco before the Military Commission. 49 dated October 4. redefines the jurisdiction of military tribunals over certain offense. 1975. Estafa as described in the Information filed in Criminal Case No. SM. Estafa and malversation are two separate and distinct offenses and in the case now before Us the accused in one is different from the accused in the other. SM-649 falls within the sole exclusive jurisdiction of civil courts. which repeals General Order No. the appealed Order dated March 14. .the other by any Presidential issuances under Martial Law. 10 The Military Commission as stated earlier is without power or authority to hear and determine the particular offense charged against respondent Mariano. SO ORDERED. But more fundamental is the fact that We do not have here a situation involving two tribunals vested with concurrent jurisdiction over a particular crime so as to apply the rule that the court or tribunal which first takes cognizance of the case acquires jurisdiction thereof exclusive of the other. PREMISES CONSIDERED. 12 and the latter's amendments and related General Orders inconsistent with the former. hence. there is no concurrent jurisdiction between it and respondent court to speak of. 9 In other words the Military Commission is not vested with jurisdiction over the crime of estafa. and estafa and malversation are not among those enumerated therein. is set aside and respondent Judge is directed to proceed with the trial of Criminal Case No. 1974.649 without further delay. General Order No.

1990. 102342 July 3. 2. vs. respondents. The offense was allegedly committed on May 11. Violations of municipal or city ordinances.RULE 110 G. Violations of traffic laws. the petitioner first argues that the charge against her is governed by the following provisions of the Rule on Summary Procedure: Sec. REYES.. The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of Ordinance No. 3 The petitioner moved to quash the information on the ground that the crime had prescribed. the denial was sustained by the respondent judge. Rizal. Fourth Judicial Region. 2. 1990. 4 In the present petition for review on certiorari. HON.1 The referral-complaint of the police was received by the Office of the Provincial Prosecutor of Rizal on May 30. of the Municipality of Rodriguez. J. Scope — This rule shall govern the procedure in the Metropolitan Trial Courts. CRUZ. and the Municipal Circuit Trial Courts in the following cases: xxx xxx xxx B. 1990. in his capacity as Acting Presiding Judge of the Regional Trial Court. Series of 1988. in the Province of Rizal. Branch 76. the Municipal Trial Courts. 2 The corresponding information was filed with the Municipal Trial Court of Rodriguez on October 2. petitioner. ZALDIVIA.: The Court is asked to determine the applicable law specifying the prescriptive period for violations of municipal ordinances.R. Criminal Cases: 1. JR. ANDRES B. On appeal to the Regional Trial Court of Rizal. rules and regulations. San Mateo. No. and PEOPLE OF THE PHILIPPINES. . but the motion was denied. 3. Violations of rental law. 1992 LUZ M. 1.

For its part. . and if the same be not known at the time. 1. or both. the prosecution contends that the prescriptive period was suspended upon the filing of the complaint against her with the Office of the Provincial Prosecutor. the Solicitor General also invokes Section 1. 4. from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. . unless provided in such acts.) xxx xxx xxx Sec. All other criminal cases where the penalty prescribed by law for the offenses charged does not exceed six months imprisonment. the charge against her should have been dismissed on the ground of prescription. Agreeing with the respondent judge. Violations penalized by special acts shall. 3326. Sec. as amended. Prescription shall begin to run from the day of the commission of the violation of the law.000. That when the offense cannot be prosecuted de oficio. 9. She then invokes Act. Sec. accessory or otherwise. and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. . (Emphasis supplied) Her conclusion is that as the information was filed way beyond the two-month statutory period from the date of the alleged commission of the offense.00). further. or of the civil liability arising therefrom. such cases shall be commenced only by information. No. How commenced. providing as follows: . special acts shall be acts defining and penalizing violations of law not included in the Penal Code. Violations penalized by municipal ordinances shall prescribe after two months. . or a fine of one thousand pesos (P1. entitled "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run." reading as follows: Sec. — The prosecution of criminal cases falling within the scope of this Rule shall be either by complaint or by information filed directly in court without need of a prior preliminary examination or preliminary investigation: Provided. prescribe in accordance with the following rules: . the corresponding complaint shall be signed and sworn to before the fiscal by the offended party. 2. The prescription shall be interrupted when proceedings are instituted against the guilty person. 3. however. Provided. That in Metropolitan Manila and chartered cities. . For the purposes of this Act. (Emphasis supplied. Rule 110 of the 1985 Rules on Criminal Procedure. irrespective of other imposable penalties.

should. has arrived at the conclusion that the true doctrine is. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint. or a complaint with the fiscal's office. or for action on the merits. without distinction.) Emphasis is laid on the last paragraph. . in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely. by filing the complaint with the appropriate officer for the purpose of conducting the requisite preliminary investigation therein. according to the respondent. even if the court where the complaint or information is filed can not try the case on its merits. Second. it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. after mature consideration. the one established by the decisions holding that the filing of the complaint in the Municipal Court. Sec. and should be. in Metropolitan Manila and other chartered cities. b) For offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts. However. interrupt the period of prescription of the criminal responsibility. the complaint may be filed only with the office of the fiscal. How Instituted — For offenses not subject to the rule on summary procedure in special cases. this Court has re-examined the question and. Third. The said paragraph. and in order to provide guidance for Bench and Bar. including those falling under the Rule on Summary Procedure. In all cases such institution interrupts the period of prescription of the offense charged. even if it be merely for purposes of preliminary examination or investigation. even if the court where the complaint or information is filed may only proceed to investigate the case. was an adoption of the following dictum in Francisco v. and does. by filing the complaint directly with the said courts. its actuations already represent the initial step of the proceedings against the offender. the institution of criminal action shall be as follows: a) For offenses falling under the jurisdiction of the Regional Trial Court. Court of Appeals: 5 In view of this diversity of precedents. 1. the text of Article 91 of the Revised Penal Code. The respondent maintains that the filing of the complaint with the Office of the Provincial Prosecutor comes under the phrase "such institution" and that the phrase "in all cases" applies to all cases. (Emphasis supplied. Several reasons buttress this conclusion: first.

or a fine of not more than four thousand pesos. having been incorporated therein with the revision of the Rules on Criminal Procedure on January 1. This interpretation conforms to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure. "for offenses not subject to the rule on summary procedure in special cases. that is. including the civil liability arising from such offenses or predicated thereon. 1985. the case shall be deemed commenced only when it is filed in court. This means that the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that. As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of municipal or city ordinances." the obvious reference is to Section 32(2) of B. Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts. value. On the other hand. those offenses not governed by the Rule on Summary Procedure. regardless of other imposable accessory or other penalties. nature." 6 Both parties agree that this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants to. to discover the true legislative intent. whether or not the prosecution decides to conduct a preliminary investigation. or both such fine and imprisonment.It is important to note that this decision was promulgated on May 30. Provided. it should follow that the charge against the petitioner. which was added on October 1. 129. irrespective of kind. That section meaningfully begins with the phrase. except for the last paragraph. which is for violation of a municipal ordinance of Rodriguez. These offenses are not covered by the Rule on Summary Procedure. 1988." which plainly signifies that the section does not apply to offenses which are subject to summary procedure. "the complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation. Under Section 9 of the Rule on Summary Procedure. That in offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction where the imposable fine does not exceed twenty thousand pesos. The phrase "in all cases" appearing in the last paragraph obviously refers to the cases covered by the Section. 1983. or amount thereof. No. Section 1 of Rule 110 is new.P. 3326 which says that the period of prescription shall be suspended "when proceedings are instituted against . 1983. however. vesting in such courts: (2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and two months. This interpretation is in consonance with the afore-quoted Act No. is governed by that rule and not Section 1 of Rule 110. However. two months before the promulgation of the Rule on Summary Procedure on August 1.

His contention is that we must not distinguish as the law does not distinguish. And if there be a conflict between Act. Prescription in criminal cases is a substantive right. No. and the challenged Order dated October 2. on July 11. the Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure. is not allowed to "diminish. it does. for which the penalty cannot exceed six months. and ended two months thereafter. in accordance with Section 1 of Act No. the petition is GRANTED. It is so ordered. Criminal Case No. as this was not a judicial proceeding. increase or modify substantive rights" under Article VIII. However. . WHEREFORE. the latter must again yield because this Court. 1990. The remedy is not a distortion of the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected. we find it not irrelevant to observe that the decision would have been conformable to Section 1. after the crime had already prescribed. 1990." The proceedings referred to in Section 2 thereof are "judicial proceedings. the prosecution in the instant case is for violation of a municipal ordinance. 8 and is thus covered by the Rule on Summary Procedure. 90-089 in the Municipal Trial Court of Rodriguez. Section 5(5) of the Constitution. as the offense involved was grave oral defamation punishable under the Revised Penal Code with arresto mayor in its maximum period to prision correccional in its minimum period. 1990. intentionally or not. It was not interrupted by the filing of the complaint with the Office of the Provincial Prosecutor on May 30. 3326. The judicial proceeding that could have interrupted the period was the filing of the information with the Municipal Trial Court of Rodriguez. that possibility should not justify a misreading of the applicable rules beyond their obvious intent as reasonably deduced from their plain language. he delays the institution of the necessary judicial proceedings until it is too late." contrary to the submission of the Solicitor General that they include administrative proceedings. 1991 is SET ASIDE. a crime may prescribe even if the complaint is filed seasonably with the prosecutor's office if. is hereby DISMISSED on the ground of prescription. Rule 110. At any rate. 1990. in the exercise of its rule-making power.the guilty party. Rizal. but this was done only on October 2. the former should prevail as the special law. 7 Going back to the Francisco case. 3326 and Rule 110 of the Rules on Criminal Procedure. By contrast. Our conclusion is that the prescriptive period for the crime imputed to the petitioner commenced from its alleged commission on May 11. The Court realizes that under the above interpretation. As a matter of fact.

follow.2 The facts. in fact.459. all three (3) checks bore the signatures of both Cawili and Tongson.. Jr. He averred that he was not Cawili's business associate. Tongson denied that he . Cawili and his business associate. Blg.P. respondents. but to no avail. he himself had filed several criminal cases against Cawili for violation of B. 2008 LUIS PANAGUITON. Ramon C. Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1. the checks were dishonored. jointly issued in favor of petitioner three (3) checks in payment of the said loans.G. During the preliminary investigation.00 from petitioner.P. as culled from the records. like petitioner. he was offered to be an officer of Roma Oil Corporation. SP No. Blg. CAWILI. 22)5 before the Quezon City Prosecutor's Office.: This is a Petition for Review1 of the resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 in CA G. J. Tongson (Tongson).R. DEPARTMENT OF JUSTICE. Moreover. which dismissed Luis Panaguiton. On 8 January 1993. JR. he had lent various sums to Cawili and in appreciation of his services. No.6 Tongson claimed that he had been unjustly included as party-respondent in the case since petitioner had lent money to Cawili in the latter's personal capacity.979. 167571 November 25. RAMON C.3 On 24 August 1995. In 1992. 87119. petitioner vs. Significantly. TONGSON and RODRIGO G.'s (petitioner's) petition for certiorari and his subsequent motion for reconsideration. Upon presentment for payment on 18 March 1993. only Tongson appeared and filed his counter-affidavit. petitioner filed a complaint against Cawili and Tongson4 for violating Batas Pambansa Bilang 22 (B. 22. either for insufficiency of funds or by the closure of the account.R. Petitioner made formal demands to pay the amounts of the checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995. DECISION TINGA.

but his motion was denied for lack of merit.9 City Prosecutor III Eliodoro V.had issued the bounced checks and pointed out that his signatures on the said checks had been falsified. In her resolution. Zuño directed the City Prosecutor of Quezon City to conduct a reinvestigation of the case against Tongson and to refer the questioned signatures to the National Bureau of Investigation (NBI). To counter these allegations.P.12 which provides that violations penalized by B. and not administrative proceedings. or on 20 January 1993 and 18 March 1993. Thus. the four (4)-year period started on the date the checks were dishonored.P. 3326.7 He also showed a copy of an affidavit of adverse claim wherein Tongson himself had claimed to be Cawili's business associate. petitioner presented several documents showing Tongson's signatures. 22 imputed to him had already prescribed.8 In a resolution dated 6 December 1995. 22 shall prescribe after four (4) years. ACP Sampaga stated that the order of the Chief State Prosecutor to refer the matter to the NBI could no longer be sanctioned under Section 3. Assistant City Prosecutor Ma. The filing of the complaint before the Quezon City Prosecutor on 24 August 1995 did not interrupt the running of the prescriptive period. Lelibet S. On 15 March 1999.11 ACP Sampaga held that the case had already prescribed pursuant to Act No. Blg. In a letter-resolution dated 11 July 1997. the alleged violation of B. which were purportedly the same as the those appearing on the checks. more than four (4) years had already elapsed and no information had as yet been filed against Tongson. as amended. Tongson moved for the reconsideration of the resolution.10 after finding that it was possible for Tongson to co-sign the bounced checks and that he had deliberately altered his signature in the pleadings submitted during the preliminary investigation. Lara found probable cause only against Cawili and dismissed the charges against Tongson. as the law contemplates judicial.13 Moreover. Rule 112 of the Rules of . In this case. Petitioner filed a partial appeal before the Department of Justice (DOJ) even while the case against Cawili was filed before the proper court. Chief State Prosecutor Jovencito R. Sampaga (ACP Sampaga) dismissed the complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's resolution. considering that from 1993 to 1998. Blg.

24 wherein the Supreme Court ruled that the proceedings referred to in Act No.14 Finally. Reyes. in a resolution dated 9 August 2004. 22.19 On 8 July 2003. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached to the petition is a mere photocopy. 3326. does not provide for the prescription of the offense it defines and punishes. Jr.26 Petitioner moved for the reconsideration of the appellate court's resolution. Since B. the Office of the City Prosecutor of Quezon City was directed to file three (3) separate informations against Tongson for violation of B. the City Prosecutor's Office filed an information20 charging petitioner with three (3) counts of violation of B. ruled that the subject offense had already prescribed and ordered "the withdrawal of the three (3) informations for violation of B.23 The DOJ also cited the case of Zaldivia v. Blg. this time through then Undersecretary Ma. Teehankee.22 the DOJ. are judicial proceedings. ruled in his favor and declared that the offense had not prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the prescriptive period citing Ingco v. presumably acting on a motion for reconsideration filed by Tongson. 3326 applies to it. But the DOJ. 3326. dismissed the same. 22. and not Art. ACP Sampaga found that Tongson had no dealings with petitioner.18 Thus. Act No.P. through Undersecretary Manuel A. Blg. Merceditas N. The petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of non-forum shopping. attaching to said motion an amended Verification/Certification of Non-Forum . as a special act.P. 22" against Tongson.P. as amended. Sandiganbayan. Petitioner thus filed a petition for certiorari25 before the Court of Appeals assailing the 9 August 2004 resolution of the DOJ. In justifying its sudden turnabout. the DOJ explained that Act No. 3326 applies to violations of special acts that do not provide for a prescriptive period for the offenses thereunder. 22.P.15 Petitioner appealed to the DOJ.. 90 of the Revised Penal Code which governs the prescription of offenses penalized thereunder. Blg.Criminal Procedure because the initiative should come from petitioner himself and not the investigating prosecutor. Gutierrez. Blg.16Petitioner filed a motion for reconsideration of the DOJ resolution. On 3 April 2003.21 However. stating that the offense had already prescribed pursuant to Act No. and not the one before the prosecutor's office.17 the DOJ.J.

He points out that this Court has held in a number of cases that a deficiency in the verification can be excused or dispensed with. Cawili and Tongson submitted their comment. Petitioner submits that the verification attached to his petition before the Court of Appeals substantially complies with the rules. Blg. in its comment.30 The petition is meritorious. violated their constitutional right to speedy disposition of cases. Besides. attributable to petitioner and the State. they claim that the long delay. 3326. the petition is patently without merit and the questions raised therein are too unsubstantial to require consideration. the defect being neither jurisdictional nor always fatal. In addition.27Still.P. offenses prescribe in four (4) years in accordance with Act No. 31 Indeed. Blg. petitioner claims that the Court of Appeals committed grave error in dismissing his petition on technical grounds and in ruling that the petition before it was patently without merit and the questions are too unsubstantial to require consideration. Blg. 22. They claim that the offense of violation of B. the Court of Appeals added.Shopping.P. The DOJ.29 states that the Court of Appeals did not err in dismissing the petition for non-compliance with the Rules of Court. the verification is merely a formal requirement intended to secure an assurance that matters which are alleged are true and correct–the court may simply order the correction of unverified pleadings or act on them and . arguing that the Court of Appeals did not err in dismissing the petition for certiorari. First on the technical issues. It argues that under B.28 In the instant petition. 22. a special law which does not provide for its own prescriptive period. the Court of Appeals denied petitioner's motion. 3326. 22 has already prescribed per Act No. stating that subsequent compliance with the formal requirements would not per se warrant a reconsideration of its resolution. the verification being intended simply to secure an assurance that the allegations in the pleading are true and correct and not a product of the imagination or a matter of speculation.P. It also reiterates that the filing of a complaint with the Office of the City Prosecutor of Quezon City does not interrupt the running of the prescriptive period for violation of B.

(b) after four years for those punished by imprisonment for more than one month. appropriately entitled An Act to Establish Prescription for Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin. prescribe in accordance with the following rules: (a) x x x. In the case at bar.36 wherein this Court ruled that the filing of the complaint with the fiscal's office for preliminary investigation suspends the running of the prescriptive period. otherwise known as the Anti-Graft and Corrupt Practices Act. A plain reading of the petition before the Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9 August 2004. 3326. Reyes. According to petitioner. the Court of Appeals committed a grievous mistake."34 Obviously. what is applicable in this case is Ingco v. The pertinent provisions read: Section 1. is the law applicable to offenses under special laws which do not provide their own prescriptive periods. but less than two years.37 He argues that sustaining the DOJ's and the Court of Appeals' pronouncements would result in grave injustice to him since the delays in the present case were clearly beyond his control. Republic Act (R.) No. Violations penalized by special acts shall. Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground that there was failure to attach a certified true copy or duplicate original of the 3 April 2003 resolution of the DOJ.A. on the substantive aspects.waive strict compliance with the rules in order that the ends of justice may be served. unless otherwise provided in such acts.35 a case involving the violation of a municipal ordinance.32 as in the instant case. Sandiganbayan. petitioner sufficiently complied with the verification requirement.38 There is no question that Act No. Now. we find that by attaching the pertinent verification to his motion for reconsideration. 3019. petitioner notes. We agree. Petitioner also notes that the Ingco case similarly involved the violation of a special law. (c) x xx .33 a certified true copy of which was attached as Annex "A. Petitioner assails the DOJ's reliance on Zaldivia v. in declaring that the prescriptive period is tolled only upon filing of the information in court.

An offense under B.44 These cases were followed by our declaration in People v. in People v.46 Subsequently. Blg. It must be pointed out that when Act No. Nevertheless. No. Blg. Blg. and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. The prescription shall be interrupted when proceedings are instituted against the guilty person. under Act No. 22. "institution of judicial proceedings for its investigation and punishment. 22 prescribes in four (4) years from the commission of the offense or. Olarte. Thus. 22 merits the penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine. 3226 was approved on 4 December 1926 at a time when the function of conducting the preliminary investigation of criminal offenses was vested in the justices of the peace. thus.40 The historical perspective on the application of Act No. from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. and if the same be not known at the time. the prevailing rule at the time.S. v. as shown in the cases of U. a violation of B. 2.P. 3326 applies to offenses under B.P."39 and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for preliminary investigation. 3326. the prescription of the offense is halted.41 Act No.P. even if it be merely for purposes of . Joson. Prescription shall begin to run from the day of the commission of the violation of the law. from the discovery thereof.47 we held that the filing of the complaint in the Municipal Court. preliminary investigation of criminal offenses was conducted by justices of the peace. We agree that Act. Parao and Parao45 that the first step taken in the investigation or examination of offenses partakes the nature of a judicial proceeding which suspends the prescription of the offense. Sec. the phraseology in the law. 3326 is illuminating. hence.43 is that the prescription of the offense is tolled once a complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the complaint signifies the institution of the criminal proceedings against the accused. we cannot uphold the position that only the filing of a case in court can toll the running of the prescriptive period. if the same be not known at the time. 3326 was passed on 4 December 1926. Lazada42 and People v.

51 the Court ruled that the nature and purpose of the investigation conducted by the Securities and Exchange Commission on violations of the Revised Securities Act. to rule otherwise would deprive the injured party the right to obtain vindication on account of delays that are not under his control.50 which involved violations of the Anti-Graft and Corrupt Practices Act (R. even if the court where the complaint or information is filed may only proceed to investigate the case. and thus effectively interrupts the prescriptive period.A. the prescriptive period should be interrupted. 3019) and the Intellectual Property Code (R.52 another special law.48 and hence. No. thus: While it may be observed that the term "judicial proceedings" in Sec. No. and does. 2 of Act No. even if the court where the complaint or information is filed cannot try the case on the merits. with the subsequent change in set-up whereby the investigation of the charge for purposes of prosecution has become the exclusive function of the executive branch.54 Indeed. The following disquisition in the Interport Resources case53 is instructive. et al. its actuations already represent the initial step of the proceedings against the offender. In the more recent case of Securities and Exchange Commission v. Lim. In Ingco v. the Court ruled that the prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the accused. Interport Resources Corporation. With this clarification. 8293). should. 3326 appears before "investigation and punishment" in the old law. the term "proceedings" should now be understood either executive or judicial in character: executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage. which are both special laws. In addition.A. is equivalent to the preliminary investigation conducted by the DOJ in criminal cases.preliminary examination or investigation. interrupt the period of prescription of the criminal responsibility. any kind of investigative proceeding instituted against the guilty person which may ultimately lead to his prosecution should be sufficient to toll prescription.55 A clear example would be this case. Sandiganbayan49 and Sanrio Company Limited v. wherein petitioner filed his complaint-affidavit ..

like the accused's delaying tactics or the delay and inefficiency of the investigating agencies. only to suffer setbacks because of the DOJ's flip-flopping resolutions and its misapplication of Act No. Petitioner 's filing of his complaint-affidavit before the Office of the City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had been charged under B. After all. We rule and so hold that the offense has not yet prescribed. Clearly. from the time petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the time the DOJ issued the assailed resolution. the delay was beyond petitioner's control.on 24 August 1995. 3326. he had already initiated the active prosecution of the case as early as 24 August 1995. WHEREFORE. Blg. especially those who do not sleep on their rights and actively pursue their causes. Aggrieved parties. with the debunking of the claim of prescription there is no longer any impediment to the filing of the information against petitioner. . He likewise timely filed his appeals and his motions for reconsideration on the dismissal of the charges against Tongson. the petition is GRANTED. He went through the proper channels. an aggregate period of nine (9) years had elapsed. The Department of Justice is ORDERED to REFILE the information against the petitioner. well within the four (4)-year prescriptive period. The resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also ANNULLED and SET ASIDE. However.P. since there is a definite finding of probable cause. SO ORDERED. No costs. within the prescribed periods. should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control. 22. Moreover.

Pampanga. L-6481 May 17. 1954 JESUS GUIAO. that Esguerra told to him that the person (who was Felix Lampa) was brought by them to the backyard of one Iscong Lacsamana. 1453 of said court. Melchor Esguerra. in his capacity as Provincial Fiscal of the Province of Pampanga. Macapagal. and the latter approached and talked with Esguerra. and that after that Dizon left the three in said place. Punsalan and Yabut for appellee. while he was going home. J. he saw Benjamin Tolentino.chanroblesvirtualawlibrary chanrobles virtual law library The record discloses that in the trial of Criminal Case No. Liwag and Assistant Solicitor General Francisco Carreon for appellant. LABRADOR. Office of the Solicitor General Juan R. vs. G. the accused Atilano Gopez. 1273. petitioner-appellee. ordering the provincial fiscal to include Emiliano Manalo and Porfirio Dizon as accused in Criminal Case No. Porfirio Dizon testified that in the morning of November 23.: This is an appeal from a judgment of the Court of First Instance of Pampanga in an action of mandamus. that he asked Tolentino why Felix Lampa was with . ALBINO L. that while he was on guard. 1950. et al. No. for the crime of kidnapping with murder (against one Felix Lampa). respondent-appellant. a certain person passed by and Esguerra whistled at him.chanroblesvirtualawlibrary chanrobles virtual law library Emiliano Manalo testified that in the afternoon of November 23.. Atilano Gopez. Melchor Esguerra.R. and Felix Lampa near the house of Francisco Lacsamana. FIGUEROA. that he was asked by them to act as guard for a certain sugar plantation. Bacolor. that the three accused carried firearms. 1950. and Benjamin Tolentino went to his house in Dolores. the provincial fiscal introduced said Porfirio Dizon and Emiliano Manalo as witnesses for the State. People of the Philippines vs.

1273. that Serrano. and Melchor Esguerra passed by his house. Esguerra. that he went home and changed his working clothes. and Atilano Gopez called him. Gopez. that Serrano charged Lampa with trying to convince Guiao to testify on the Maliwalu incident. Atilano Gopez. a motion for contempt was filed against the fiscal. but this motion was dismissed on the ground that if the fiscal committed an error of judgment. Tolentino. and Serrano ordered Gopez to shoot him. that thereafter Felix Lampa was brought to the hole. Due to this order of the court. asked Manalo to do so. that upon reaching the place. or even an abuse of discretion. and the three of them did so. notwithstanding the protestation of innocence on the part of Lampa. the action for mandamus was filed by Jesus Guiao to compel the fiscal to include Porfirio Dizon and Emiliano Manalo as accused in . Jesus Guiao and Eulogio Serrano. and in the house of Iscong Lacsamana they saw Benjamin Tolentino and Felix Lampa. (See Annexes A and B attached to Petition. including Manalo. reaching it between eight and nine o'clock in the evening. and after a while Eulogio Serrano. who asked him to bring his gun along with him. that he went with them. the lower court ordered a reinvestigation of the case and suspended its trial. But Porfirio Dizon and Emiliano Manalo were not included. the recourse against him was not an action for contempt but one of mandamus.)chanrobles virtual law library In view of the testimonies given by Porfirio Dizon and Emiliano Manalo in said Criminal case No. namely. that the captain was Eulogio Serrano. and Tolentino answered that Jesus Guiao and Eulogio Serrano wanted to talk to him. and Manalo brought Lampa to a place called alfareza. and two new accused were included. Serrano ordered Atilano Gopez to tie Felix Lampa. After the reinvestigation an amended information was filed.them. telling him that the captain wanted to see him. and Atilano Gopez in turn. and upon Guiao ratifying this charge. Jesus Guiao. they were ordered to dig a hole. which he did. with a view to including as accused all persons who might be guilty of the crime. Guiao. In view of the failure of the provincial fiscal to include these two persons.

L-2286 promulgated June 17. G. It. citing the cases of Monroe vs. in Criminal Case No. 1273 is attached to the petition for mandamus as Annexes A and B. 58 provided that all prosecutions shall be "against the persons charged with the . granted the petition. and that if any or some of them are the least guilty. it is the duty of the fiscal to include all the persons who are responsible for the crime." No trial was held and the Court of First Instance decided the petition for mandamuson the pleadings.his information. 1453 because they are indispensable witnesses for the prosecution aside from the fact that they are the least guilty. the determination of this fact rests in the sound discretion of the trial court and not upon the fiscal. On the basis of the pleadings the lower court held that in accordance with section 1 of Rule 106 of the Rules of Court." The original provisions contained in General Orders No. he included Eulogio Serrano and Jesus Guiao in the amended information. Sanchez. 1948.R. No.chanroblesvirtualawlibrary chanrobles virtual law library In his answer to the petition for mandamus. but whom the fiscal believes to be indispensable witnesses for the State. He alleges that after the reinvestigation ordered by the court had been conducted. 1453. but "did not include Porfirio Dizon and Emiliano Manalo as co-accused in said Criminal Case No. therefore.chanroblesvirtualawlibrary chanrobles virtual law library It will be noted that the transcript of the testimonies of Porfirio Dizon and Emiliano Manalo in Criminal Case No. the provincial fiscal admits the substance of the testimonies of Porfirio Dizon and Emiliano Manalo as above indicated.chanroblesvirtualawlibrary chanrobles virtual law library The question now before this Court is whether a fiscal may be compelled by mandamus to include in an information persons who appear to be responsible for the crime charged therein. The provision of Section 1 of Rule 106 of the Rules of Court expressly states that criminal actions shall be brought "against all persons who appear to be responsible therefor.

2. The pertinent provision of section 1 of Rule 106 is taken from section 1. 2709. while section 9 of Rule 115 from section 2. two of whose provisions were as follows: SECTION 1. that he may be witness for the Government when in the judgment of the Court:chanrobles virtual law library (a) There is absolute necessity for the testimony of the accused whose discharge is requested. may direct any of them to be discharged.chanrobles virtual law library (e) Said accused has not at any time been convicted of the crime of perjury or false testimony or of any other crime involving moral turpitude.chanrobles virtual law library (d) Said accused does not appear to be the most guilty.chanroblesvirtualawlibrary chanrobles virtual law library SEC. When two or more persons are charged with the commission of a certain crime. Every prosecution for a crime shall be in the name of the United States against all persons who appear to be responsible therefor.offenses.chanrobles virtual law library (c) The testimony of said accused can be substantially corroborated by its material points.chanrobles virtual law library (b) There is no other direct evidence available for the proper prosecution of the crime committed. except in the cases determined in section two of this Act.chanroblesvirtualawlibrary chanrobles virtual law library A perusal of Act 2709 discloses the legislative intent to require that all persons who appear to be responsible for an offense . the competent court at any time before they have entered upon their defense. except the testimony of the accused." The change in the law was introduced in Act No.

namely. Abanzado.S. which implies that those against whom no sufficient evidence of guilt exists are not required to be included.chanroblesvirtualawlibrary chanrobles virtual law library . and (4) that the exclusion of accused from prosecution. (U. the procedure provided in the law must be followed. that prosecuting officers have no discretion at all. 37 Phil. in order that they may not shield or favor friends.)chanrobles virtual law library In short. or favorites. (2) that even if it is necessary to utilize any of the above persons as State witness. The use of the word "shall" and of the phrase "except in cases determined" shows that section 1 is mandatory. and to rest the manner of the enforcement of the regulations in the sound discretion of the courts. however. is lodged in the sound discretion of the competent court. What the rule demands is that all persons who appear responsible shall be charged in the information. protegees. not in that of the prosecuting officer. but that if it becomes necessary to do so. (3) that fiscals have no discretion in excluding from prosecution persons who appear responsible for a crime.. he shall nevertheless be included as accused. (1) that all persons who appear to be responsible for an offense be included in the information charging that offense. in order that they may be used as State witnesses. This does not mean. their discretion lies in determining whether the evidence submitted is sufficient to justify a reasonable belief that a person has committed an offense. 658. vs. not directory merely. The mandatory nature of the section is demanded by a sound public policy.should be included in the information. Act 2709 has laid down four principles. which would deprive prosecuting officers of the use of their discretion.chanroblesvirtualawlibrary chanrobles virtual law library The other aim of act 2709 is a complement of the mandatory provision: to regulate the manner in which any of the accused may be excluded in order that he may be utilized as a State witness. The law makes it a legal duty for them to file the charges against whomsoever the evidence may show to be responsible for an offense.

a right to demand that all of them be accorded equal treatment and be made to suffer the penalties imposed by law. Without deciding the question as to whether or not any private citizen may demand compliance by the fiscal with the provisions of section 1 of Rule 106. . The judgment appealed from is hereby affirmed. or perhaps more expedient. When the fiscal chose to ignore his legal duty to include the said Porfirio Dizon and Emiliano Manalo as accused in the criminal case. because he has no clear right to the performance of the alleged legal duty by the provincial fiscal. to do so. it became proper and necessary for the competent court to require him to comply therewith." we hold that the other accused have an interest in the inclusion of their two other companions in the commission of the crime. and that the only reason why the fiscal excluded them from the amended information is because he thought it more convenient. and that is the point raised in the brief of the Solicitor General that the petitioner- appellee Jesus Guiao has no right to institute the action of mandamus. and to follow the procedure outlined in the rules by which said persons may be discharged in order that they may be utilized as witnesses for the prosecution. requiring him to file the information "against all persons who appear to be responsible for an offense. because they are jointly and severally liable with them for indemnities that may be imposed upon them for the offense they may have committed together. We find no merit in this contention. without costs. Every person accused of a crime has a positive interest in the inclusion of all his co-conspirators. there is no question that Porfirio Dizon and Emiliano Manalo participated either as principals or accomplices in the kidnapping and murder of Felix Lampa.In the case at bar. One minor point needs to be considered.

based upon the affidavits subscribed and sworn to by Catalino Malanum and Laureano Pasag (Annexes B and C. respondents-appellants. Quirino Ambrosio and Apolonio Carambas. entitled "People of the Philippines vs. in their capacity as Provincial Fiscal and Assistant Provincial Fiscal.R. then special counsel in criminal case No. petitioners-appellees.." for violation of section 11 in connection with section 76. Exhibits 2 and 3). CASTAÑEDA and RAMON G. Act No. respectively. averring that on 12 June 1958 the appellant assistant provincial fiscal. of Pangasinan. Quirino Ambrosio and Apolonio Carambas) filed a petition for mandamus in the Court of First Instance of Pangasinan. A-148. 4003. Jr. ordering the appellants (Provincial Fiscal and Assistant Provincial Fiscal of Pangasinan) to include Catalino Malanum and Laureano Pasag as defendants in the information filed by the assistant provincial fiscal. on the same day. 4003. as amended for fishing with the use of poison (crim. as amended (civil No. Act No. Castañeda and Ramon Liceralde for respondents-appellants. Enrique Braganza and Rodolfo Aquino for petitioners-appellees. On 22 October 1958 the appellees (Felix de Castro. Felix de Castro. L-15139 April 28. that acting upon the said Motion. that on 16 July 1958 the appellees filed a motion in Court praying that the appellants be ordered to conduct a reinvestigation of the case and thereafter to include in the information all persons who appear to be responsible therefor. that the said appellant filed a motion for . 16 July 1958. the Court directed the appellant assistant provincial fiscal to conduct a reinvestigation of the case. Exhibits A & 1). No. then special counsel. QUIRINO AMBROSIO and ANTONIO CARAMBAS. EMITERIO M. LICERALDE.: This is an appeal from a judgment of the Court of First Instance of Pangasinan.. Branch VII. PADILLA.. JR. A-147). Annex A. vs. 1961 FELIX DE CASTRO. Emiterio M. case No. Branch VII. Exhibits B and C. A-147. subscribed and filed an information charging them with violation of section 11 in connection with section 76. Jr. J.G.

that in the latters' affidavits (Annexes B and C. falls within the exclusive prerogative of the prosecuting officer. holding that a reinvestigation was necessary because from the affidavits accompanying the information and attached to the record of the case it was apparent that many persons had incurred criminal liability arising from the incident complained of. They further prayed for other just and equitable relief (civil No. 732 and 1799." and praying that a writ of mandamus be issued directing the appellants to include Catalino Malanum and Laureano Pasag as defendants in criminal case No." and that they "have no other plain. On 7 November 1958 the appellants filed an answer to the petition for mandamus. upon the evidence presented during the preliminary investigation. that after carefully weighing the evidence the appellants believed that there was no . speedy and adequate remedy in the ordinary course of law. as amended by Republic Acts Nos. the truth being that the former did nothing but witnessed what happened and gathered fishes that would be used as evidence in the future. A-147). one of the defendants therein and one of the appellees herein. Jr. 8 and 9 and setting up the following affirmative and special defenses. that the petition has no factual basis because the information filed was based not only upon the affidavits of Catalino Malanum and Laureano Pasag but also of other persons who had been investigated during the preliminary investigation conducted by the appellants. that the appellants had refused to grant the appellees' request and by that refusal had "unlawfully neglected and/or refused the performance of an act which the law specifically enjoins as a duty resulting from their office. A-148 and to pay the costs.reconsideration of the foregoing order but the Court denied it. Exhibits 2 and 3) it appears that they had actively and directly taken part in the commission of the offense with which the appellees had been charged. and has no legal basis because before the information was filed the appellants has conducted a preliminary investigation pursuant to the provisions of section 1687 of the Revised Administrative Code. Exhibits B and C. and had found that only the herein appellees had committed the crime charged. that at the reinvestigation conducted by the appellants the appellees asked them to include Catalino Malanum and Laureano Pasag as additional defendants. admitting the material averments of the petition except paragraphs 3. that the determination of who are the persons to be charged with the commission of an offense. that Laureano Pasag and Catilino Malanum did not actively and directly participate in the commission of the offense. and the latter merely acted upon orders of Felix de Castro..

On 30 January 1959 the Court. Exhibits B and C. On 12 November 1958 the appellees filed a reply to the appellants' answer disputing the veracity of their allegations and validity of their defenses. On 10 November 1958 the Court entered an order setting the case for hearing on 12 November 1958 at 2:00 o'clock in the afternoon. that if it is necessary to utilize any of the defendants as a witness for the prosecution. 4828. At the hearing held on the same day. and that it is prima facie shown by the affidavits of Catalino Malanum and Laureano Pasag that they are responsible for the commission of the same offense with which the appellees had been charged (Annexes B and C. in his own behalf and in behalf of his co- appellant. After the oral arguments. Gaz. relying upon the doctrine laid down in Guiao vs. Exhibits 2 and 3). From the foregoing judgment. granting the writ prayed for and ordering the appellants to include Catalino Malanum and Laureano Pasag as defendants in the information filed by the appellant provincial fiscal in criminal case No. rendered judgment holding that the power of the prosecuting officer to determine the persons probably guilty of the commission of an offense and to include them in the information to be filed in court cannot extend to the point of encroaching upon the prerogative of the court. the appellants prayed that they be given ten days from date within which to file a memorandum and the Court granted them the period prayed for. A-148. supra this Court held: . the appellant assistant provincial fiscal. Figueroa. 50 Off. Figueroa (promulgated 17 May 1954). the appellants have interposed this appeal. provided that there would be no extensions for that purpose. the provisions of the law for his discharge from the information should be followed. appeared. except the appellees.sufficient evidence to hold Catalino Malanum and Laureano Pasag or any other person responsible for the commission of the crime charged. and that in view of the foregoing the appellees had no cause of action. On 22 November 1958 the appellants filed their memorandum. 12 November 1958. In Guiao vs. The appellants prayed for the dismissal of the petition with costs against the appellees. that persons who appear responsible for the commission of a crime should be included in the information. and the appellees by counsel.

The question now before this Court is whether a fiscal may be compelled by mandamus to include in an information persons who appear to be responsible for the crime charged therein. The use of the word "shall" and of the phrase "except in the cases determined" shows that section 1 is mandatory.. 58 provided that all prosecutions shall be "against the persons charged with the offenses.. as where from the evidence submitted and gathered by the prosecuting officer a person appearing responsible for the commission of an offense is not included in the information. altogether absolute. their discretion lies in determining whether the evidence submitted is sufficient to justify a reasonable belief that a person has committed an offense. A perusal of Act 2709 discloses the legislative intent to require that all persons who appear to be responsible for an offense should be included in the information. which would deprive prosecuting officers of the use of their discretion. however. The provision of section 1 of Rule 106 of the Rules of Court expressly states that criminal actions shall be brought "against all persons who appear to be responsible therefor. It is for the prosecuting officer to determine whether the evidence at hand is sufficient to engender a reasonable belief that a person committed an offense. or favorites. This power and prerogative of the prosecuting officer is not however. therefore. What the rule demands is that all persons who appear responsible shall be charged in the information. but whom the fiscal believes to be indispensable witnesses for the State. in order that they may not shield or favor friends. The question. 2709)." The change in the law was introduced in Act No.. It is subject to judicial review in proper cases. The mandatory nature of the section is demanded by a sound public policy. while section 9 of Rule 115 from section 2 (of Act No. This does not mean. . protegees. The law makes it a legal duty for them to file the charges against whosoever the evidence may show to be responsible for an offense." The original provisions contained in General Orders No. not directory merely. that prosecuting officers have no discretion at all. 2709. which implies that those against whom no sufficient evidence of guilt exists are not required to be included. The pertinent provision of section 1 of Rule 106 is taken from section 1. for determination in this appeal is whether there is sufficient evidence against Catalino Malanum and Laureano Pasag to warrant their inclusion in the information .

he poured the solution into the river and the same procedure was repeated . that when the deponent saw the fishes dying after throwing the solution into the river.filed in criminal case No. that about five petroleum cans of dead fishes were gathered by them. Apolonio Carambas and Felix de Castro. I would abide by his wish. that upon reaching the river de Castro asked him to borrow pail from one of the nearby houses. Catalino Malanum swore that at about 2:00 o'clock in the afternoon of 17 April 1958." that he went with them. Jr. that after securing a pail. de Castro told him to fill it with water from the river. that until about a week after the incident the fishes in the river continued to die. that when they arrived there. and that a few days after he was investigated by fishery agents about the incident. about 300 meters away from his house." (Annex B. he saw de Castro hand two bottles of liquid whitish in color to Catalino Malanum and told him to drop a little of their contents into the pail of water. while he was taking a nap. he suspected the liquid mixed with water to be poison. that de Castro and his men also picked up the fishes and the former took the big fishes and gave to the deponent and others the small ones as their share. that the dead fishes were picked up by the people in the vicinity numbering about 100. but he told de Castro that "if he (de Castro) could destroy his affidavit that was already in the hands of the agents. Exhibits B & 2. that the former woke him up and invited him to go fishing. that upon order of de Castro he poured the solution in the pail into the river. that after doing so. that after about 10 to 15 minutes the fishes in the river were disturbed and later on died. that he accepted the invitation and went with the to Bolo River.) Laureano Pasag stated under oath that about 2: 00 o'clock in the afternoon of 17 April 1958 Quirino Domenden and Apolinario Domenden came to his house and invited him to join them in going to Bolo River because de Castro would "poison the river so that I can help them gather the fishes. that he did not inquire from de Castro whether or not the liquid was poison because he was excited in picking up the fishes. de Castro told him to pour in the pail of water the liquid contents of two bottles that h took from a buri bag held by Carambas. that this process was repeated until the contents of the two bottles of liquid had been exhausted. A-148 and whether the appellants gravely abused their discretion in not including them in the information. came to his house. that after doing so. de Castro sent for him and requested him to change the affidavit he had subscribed and sworn to before them and assured him that he would take care of the agents.

Whether he knew beforehand that the liquid he was told to pour. Catalino Malanum took direct part in the commission of the violation of section 11 in connection with section 76. that after a few days he furnished his landlord with the list and brought to him the two bottles found on the bank of the river. that "the fishes continued to die for one week until I noticed no more fish left alive. Yet he took his share in the large number of fishes that were poisoned. that believing that the fishpond owned by Sergio Reinoso. 4003. But then to avail of their testimony because no evidence. available to prove the violation charged. the appellant should follow the provisions of the Rules on exclusion defendants . Exhibits C & 3). From this it maybe inferred the first two being eyewitnesses of the violation were necessary.until the contents of the two bottles were exhausted. the fishes in the river were disturbed and later on died. as he did. he (Pasag) also gathered some fishes to show to his landlord. into the pail of water was poison must be determined by taking into account all the circumstances that attended the act of transgression.000 bangus fry in the fishpond of his landlord had died. Act No. He suspected the liquid mixed with water that caused the death of the fishes in the river was poison. Going over the information filed against the appellees. His purpose in taking his share may well be doubted. of which he was the overseer. that after the solution was poured into the river. that the next day he saw that all the fishes and 20. and that he did not remonstrate to De Castro about what he (De Castro) did because the latter assured him that the fishes in his landlord's pond would not be affected by his act (Annex C. Catalino Malanum and Laureano Pasag appear as the first two witnesses listed therein other three named witnesses being a fishery agent owner of the fishpond referred to by Laureano Pasag his statement sworn to before one of the appellants and a deputy fish warden. This may have been the reason why they we not charged with the violation by the appellants. as amended. In his sworn statement Laureano Pasag admitted he was invited by Quirino and Apolinario surnamed Domenden to go to Bolo River where de Castro would "poison the river so that I can help them gather the fishes" knowingly that the fishes were poisoned he took his share in the large number of poisoned fishes gathered on the bank of the river. would be adversely affected." that he reported the matter to his landlord who ordered him to make a list of persons who saw the incident and to look for the empty bottles containing the liquid. that De Castro and his companions gathered the big fishes and brought them to his motorboat while the rest of the persons in the neighborhood picked up the small ones.

. is the least guilt because he was in charge of running the motorboat a helped only and the fishes thereon and was under order of the appellee de Castro. mentioned twice by Catalino Malanum in his affidavit and referred to but not named Laureano Pasag in high sworn statement. There being no reason why the judgment appealed from should be disturbed. the same is affirmed without pronouncement as to costs. yet he was included in the information. Although Quirino Ambrosio.from the information in criminal cases.

Tuguegarao. one of the passengers sustained fatal injuries. and FLORENTINO DE LA PEÑA Provincial Fiscal of Cagayan. Cagayan. 371. No. RUIZ. 371 filed against the petitioner and one Dante Custodia be annulled and that respectively. three others were injured. petitioner prays that the order1 dated April 23. 1974 ROMERO ESTRELLA y DE VENECIA. Branch I. 1973. JESUS B. Jose J. an owner jeep with a trailer driven by herein petitioner and a motorized tricycle driven by Dante Custodio both coming from opposite directions on the national highway of Barrio Ugac.:p In this original action of certiorari and prohibition with preliminary injunction. On July 21. petitioner (driver of the jeep) filed a complaint4 in the Office of the Provincial Fiscal against Dante Custodio (driver of the tricycle) . and. Came August 3. Hon. L-38621 August 30. petitioner. 1974 of the Court of First Instance of Cagayan (Branch I) in its Criminal Case No. Jesus B. collided with each other.. Florentino de la Peña for and in his own behalf. vs. on July 25. Ruiz be prohibited permanently from proceeding with the reinvestigation of the case and from hearing the same. The vehicular accident was investigated by a patrolman of the Tuguegarao Police Department. as a result.R. 1973. 1973. Estrella Jr. for petitioner. FERNANDEZ. respondents.m. J. and the two vehicles were damaged. a complaint2 for "Homicide through Reckless Imprudence" against the herein petitioner was filed before the Municipal Court. respondents Provincial Fiscal Florentino de la Peña and Judge G. at about 2:30 p. The latter did not conduct any preliminary investigation on the strength of a "Waiver"3 signed by the petitioner wherein the same was numbered as Criminal Case No.G. and. CFI of Cagayan First Judicial District. Cagayan. Tuguegarao. G. Presiding Judge.

for "Criminal Negligence Resulting to Homicide.6 On December 19. after the investigation. 1973. referred to Dante Custodio alone. On March 15. 1974." That same day. on the ground that the information was. in his present petition for a writ of certiorari filed with Us. . embodied at the bottom of the information. 1974. the respondent Provincial Fiscal filed an information7 for "Homicide with Multiple Physical Injuries and Damage to Property through Reckless Imprudence" against both petitioner and Dante Custodio before the Court of First Instance of Cagayan. through his counsel requested the Provincial Fiscal to conduct a reinvestigation of the complaint filed against him before the Municipal Court and remanded to the Court of First Instance and the preliminary investigation of the complaint filed by him against Dante Custodio before the Provincial Fiscal. maintains that the information filed against him and his co-accused Dante Custodio is null and void insofar as he is concerned. because the certification of the Investigating Fiscal. 10 but directed the Office of the Provincial Fiscal to re-investigate the complaint with respect to the herein petitioner for "the satisfaction of defense counsel. The motion was heard and argued on April 23.5 The latter granted the request and directed Assistant Provincial Fiscal Leonardo Guiyab. invalid in view of the fact that the certification of the Fiscal with respect to the preliminary investigation conducted by him was limited to his co-accused Dante Custodia. Jr. 1974. with the Fiscal opposing the same. petitioner filed a motion to dismiss the case9 ." 11 Petitioner. petitioner was arraigned and he pleaded not guilty to the charge. with Multiple Physical Injuries and Damage to Property. The respondent Judge denied the motion and the motion for reconsideration which was filed afterwards. to conduct an investigation of both cases. 12 Petitioner then concludes that the respondent Judge acted with grave abuse of discretion in not dismissing the case against him and in further ordering the reinvestigation of the complaint insofar as he is concerned. petitioner. which states that a preliminary investigation was conducted and that there exists a probable cause.8 On April 19.

as already stated. the injunction refers to the non-holding of the preliminary investigation. speaking through Mr. After all. therefore. section 14 of Rule 111 14 enjoin that "no information .The present case may be compared with the case of People vs. what is not allowed is the filing of the information without a preliminary investigation having been previously conducted. Justice Barredo. if not properly raised before the accused enters his plea. and if the omission of the fact itself to be certified is waived. what was the effect of appellee's failure to object to the information before or at the time he entered his plea of not guilty. why should the omission merely of the certification be given more importance than the absence of the fact itself to be certified to? Is it to be sustained that if in a given case. such certification is nothing but evidence of a fact. such an omission is not necessarily fatal. notwithstanding the absence of a certification as to the holding of a preliminary investigation in the information. without first giving the accused a chance to be heard in a preliminary investigation. and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted. (Emphasis Supplied) . there were such a certification although in fact no preliminary investigation has been held. wherein.. not the absence of the certification. Assuming that said information was defective because it did not contain the requisite certification regarding the fiscal's having held a preliminary investigation where the accused was given an opportunity to be present personally or thru counsel. that the absence of the certification in question is also waived by failure to allege it before the plea.. this Court is going to hold that the requirement of a preliminary investigation has been complied with? To ask the question is to immediately expose the absurdity of the affirmative answer to it. In other words." but. Logically. It should be observed that section 3 of Rule 110 defines an information as nothing more than an "accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court. it is deemed waived. True. held: . it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate such. the question to determine in this case is. inasmuch as the settled doctrine in this jurisdiction is that the light to the preliminary investigation itself must be asserted or invoked before the plea. it stands to reason. for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. Marquez 13 . This Court. as can be seen. shall be filed.. We declared the information to be valid.. otherwise." Thus.

The Assistant Provincial Fiscal Leonardo Guiyab." . therefore. when he entered a plea of not guilty. he "saw no necessity in including the name of the petitioner in his certification in the Information.. and of his own complaint against Dante Custodia have been ordered investigated by the Provincial Fiscal. As a matter of fact. the actual holding thereof.Furthermore. The basis thereof is not a certification that a preliminary investigation has been held. he waived his right to a preliminary investigation. when the case was remanded to the Court of First Instance. at the time of the entry of his plea in the Court of First Instance. to whom the investigation of said two cases had been assigned. Consequently. but more so. Thus. otherwise. it is deemed waived. And the Comment of the respondent Fiscal clearly states that he concurred with the findings of the investigating Fiscal that there is prima facie evidence against both respondents. 16 It is true that the certification with respect to preliminary investigation makes mention only of the petitioner's co-accused Dante Custodia. as ordered by the respondent Judge. cannot say that there is no basis for accusing him along with Dante Custodia. except lack of jurisdiction or failure of the information to charge an offense 15 . the fact is that he has already previously waived his right to a preliminary investigation when the case was still with the Municipal Court. in the Comment of the respondent Fiscal he notes that the herein petitioner made an express waiver of his right to a preliminary investigation in the Municipal Court. He filed his motion to quash only after 1½ months thereafter. so. petitioner's objects to the holding of another reinvestigation insofar as the case against him is concerned. In a long line of decisions. at least. 17 Petitioner. must have conducted the necessary reinvestigation of the case against the petitioner and the investigation of the case filed by him against Dante Custodia. Jr. he thereby waived all objections that are grounds for a motion to quash. herein petitioner did not question the validity of the information on the ground of defective certification already adverted to above with respect to preliminary investigation before he entered a plea of not guilty. specifically. And even granting that no reinvestigation of the ease against herein petitioner was conducted by the Office of the Provincial Fiscal. We have previously held that the right to a preliminary investigation must be asserted and invoked before or. But petitioner does not deny the fact that a reinvestigation of the case filed against him originally in the Municipal Court and remanded to the Court of First Instance.

in connection with the death of Mamerto Camayang. (Emphasis supplied) marks out the clear intention to include petitioner and Dante Custodio as the two accused in the information. . concur. without pronouncement as to costs. which reads in its dispositive portion: WHEREFORE. let an information be filed against the respondent Dante Custodio. On the contrary. is of no import. for homicide. Barredo." . Zaldivar (Chairman). the same to be incorporated in the information to be filed against Romero Estrella in Criminal Case No. this resolution. defined and penalized under Article 365 of the Revised Penal Code.Petitioner claims that the resolution 18 of the investigating fiscal. finding no error in the order of the. "considering the existence of a prima facie case. the herein petition is hereby dismissed with the modification that a new reinvestigation of the complaint need not to be made. thru Reckless Imprudence. SO ORDERED. respondent Judge denying petitioner's motion to dismiss. Bernando. Antonio and Aquino. JJ." WHEREFORE. recommending the incorporation of the information against Dante Custodio to that against petitioner. considering the existence of a prima facie case. 371.

The Solicitor General for respondents. 18425 and entitled: The People of the Philippines vs. Rizal. and LUCIO ADRIANO. Rodolfo Ceñidoza.: On October 9. Baricua. JR.G. then Rizal Provincial Fiscal Benjamin H. HERMINIO C. vs.R. Jr. docketed as Criminal Case No. J. petitioner. Aquino filed an information in the then Court of First Instance at Pasig. Cesario B. Ong. Lucio Adriano. and . MARIANO. as Provincial Fiscal of Rizal. Jose R. 1984 BENJAMIN H. HON.. AQUINO. respondents. No. Judge of the Court of First Instance of Rizal (Branch X). RELOVA. 1968. L-30485 May 31.

for estafa thru falsification of official and/or public documents. in the meantime. 18425 (not 18245) of this Court. 1968. Commissioner Antonio Noblejas of the Land Registration Commission. 18425. Aquino. 18425 (not 18245) — all persons of whom he found a prima facie case as stated by him in Annex "B " of his Petition. dated March 28. one of the defendants in said Criminal Case No. this petition for review by certiorari praying that the decision of respondent Court of First Instance be set aside and declaring that herein petitioner cannot be compelled to include former Commissioner Antonio Noblejas as one of the accused in Criminal Case No. Mariano. docketed as Civil Case No. against whom he found a prima facie case as stated by him in his second indorsement dated June 20. rendered a decision. 1968 address to the Secretary of Justice. Rizal. Let the corresponding Writ of mandamus issue. Hence. The mandamus case.Adriano Castillo. resigned from the office. directing the respondent Benjamin H. Provincial Fiscal of Rizal. decision is hereby rendered in favor of the petitioner and against the respondent. . was assigned to Branch X. instituted a petition for mandamus in the then Court of First Instance of Rizal praying for an order directing Fiscal Aquino to include as defendants in the information filed by him in Criminal Case No. thereafter. On October 27. 18425. was assigned to the branch of the then Court of First Instance of Rizal presided by Hon. 1969. Jr. the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING. granting the petition for mandamus. all persons. who. 11307. including Commissioner Antonio Noblejas. particularly. Lucio Adriano. presided by herein respondent Judge Herminio C. a copy of which is attached to the present petition as Annex "B" thereof. who.. and the approval by certain officials of the Land Registration Commission of the corresponding plans and technical descriptions prepared by the surveyor who resurveyed and subdivided the property. Said criminal case. granting petitioner's prayer for the issuance of a Writ of Mandamus. which arose from the huge expansion in the area after a resurvey and subdivision of a certain parcel of registered land in Muntinlupa. Pedro Revilla. to include as accused in the information filed by him in Criminal Case No.

among others. he (herein petitioner) found the responsibility of said commissioner.There is merit in the petition. recommended strongly that he be allowed to file the corresponding information against said commissioner and all other persons whom he found in his investigation to be criminally liable for the offense complained of. or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled. dated June 20. to do the act required to be done to protect the rights of the petitioner. speedy and adequate remedy in the ordinary course of law. 18425 with prayer for an order directing Fiscal Aquino to include in the information Commissioner Antonio Noblejas as one of the defendants therein? The Revised Rules of Court (Section 3. or station. immediately or at some other specified time. an action for mandamus. after a period of more than two months from the tune he made his second indorsement. Rule 65) on Petition for mandamus provides that "[w]hen any tribunal. corporation. addressed a memorandum. However. that in view of the offer of Commissioner Noblejas to resign from office and in the fight of the Commissioner's explanation. As stated in the decision sought to be reviewed. to the then Secretary of Justice stating. Thus. board. or a simple motion in Criminal Case No. is the proper remedy of private respondent Adriano. adequate and speedy remedy. he had expressed the view that a strong prima facie case exists against Commissioner Noblejas and. in a second indorsement to the then Secretary of Justice. and to pay the damages sustained by the petitioner. 1968. In the light of the foregoing facts. mandamus is an extraordinary remedy that can be resorted to only in cases of extreme necessity where the ordinary forms of procedure are powerless to afford relief where there is no other clear. trust. and there is no other plain. Fiscal Aquino. if any. Jr. herein petitioner conducted the corresponding preliminary investigation in the case assigned to him and. the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant. dated September 2. by reason of the wrongful acts of the defendant. to be only administrative in nature. . therefore. the information was filed without including Commissioner Noblejas as one of the accused. 1968." Stated differently.. or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office.

Before a writ of mandamus may be issued, it is obligatory upon the
petitioner to exhaust all remedies in the ordinary course of law. He must
show that the duty sought to be performed must be one which the law
specifically enjoins as a duty resulting from an office. (Quintero vs.
Martinez, 84 Phil. 496; Perez vs. City Mayor of Cabanatuan, 3 SCRA 431;
Alzate vs. Aldana, 8 SCRA 219; and, Caltex Filipino Managers and
Supervisors Association vs. Court of Industrial Relations, 23 SCRA 492).

Thus, if appeal or some other equally adequate remedy is still available in
the ordinary course of law, the action for mandamus would be improper. In
the case at bar, private respondent Adriano, Jr. did not request Fiscal
Aquino to include in the information Commissioner Noblejas as one of the
accused. Had he done so and the same was met with a denial Adriano, Jr.
could have appealed to the Secretary of Justice who may reverse petitioner
and designate another to act for the purpose. That way, the filing of a
simple motion with the Fiscal to include or to amend the information is
much more speedy and adequate than a petition for mandamus. As aptly
stated by the Solicitor General in his brief for the petitioner:

... By just presenting the motion, there will be no need of paying
any docket fee and the numbering of another case; there will be
no issuance and service of a summons or of an order
equivalent thereto; there win be no more raffles to determine
the sala of the court to which the case will be assigned; and
there will be no pre-trial all of which necessarily consume time.
At least, there is no prohibition in the rules against this
procedure. After all, a motion is defined as 'every application for
an order not included in a judgment' (Sec. 1, Rule 15, of the
Revised Rules of Court).

xxx xxx xxx

The conclusion is therefore inevitable that the filing of a mere
motion in the criminal case to achieve the same purpose as
prayed for in the petition for mandamus is not only an adequate
remedy but even a plainer, speedier, and more adequate
remedy in the ordinary course of law than mandamus.

Another substantial argument in favor of filing only a motion in
the criminal case instead of the petition for mandamus is that it

will avoid multiplicity of suits which modern procedure abhors (3
Moran's Comments on the Rules of Court, 1963 ed., p. 134)

Otherwise stated, before filing the present action for mandamus in the court
below, private respondent Adriano, Jr. should have availed of this
administrative remedy and his failure to do so is fatal. To place his case
beyond the pale of this rule, it must be shown that his case falls — which it
did not — within the cases where, in accordance with this Court's
decisions, the aggrieved party need not exhaust administrative remedies
within his reach in the ordinary course of the law (Tapales vs. the President
and the Board of Regents of the U.P., G.R. No. L-17523, March 30, 1963;
Mangubat vs. Osmena, G.R. No. L-12837, April 30, 1959; Baguio vs.
Honorable Jose Rodriguez, G.R. No. L-11078, May 27, 1959; Pascual vs.
Provincial Board, G.R. No. L-11959, October 31, 1959; Marinduque Iron
Mines, etc. vs. Secretary of Public Works, G.R. No. L-15982, May 31,
1963; Alzate vs. Aldaba, G.R. L-14407, February 29, 1960 and Demaisip
vs. Court of Appeals, G.R. No. L-13000, September 25, 1959).

Neither is there merit in the argument that if a motion is presented before
the trial judge he would be prejudging the case if he should grant the same
because such a resolution win be presented only on a prima
facie evidence, while a judgment of conviction must be based on evidence
beyond reasonable doubt.

WHEREFORE, the petition is GRANTED and the decision dated March 28,
1969, of respondent judge is SET ASIDE.

SO ORDERED.

G.R. No. 111399 November 14, 1994

ODON PECHO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

A.M. Navarro Law Office for petitioner.

DAVIDE, JR., J.:

Is the attempted or frustrated stage of the offense defined in Section 3(e) of
R.A. No. 3019, 1 as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, punishable? If it is not, may an accused be,
nevertheless, convicted for an offense penalized by the Revised Penal
Code which is included in that of the former as charged?

These are the core issues in this case. The first was resolved in the
affirmative by the Sandiganbayan. The petitioner and the Office of the
Solicitor General disagree. The second is an outcrop of the first.

In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one
Jose Catre were charged in an information2 with the violation of Section
3(e) of R.A. No. 3019, as amended, allegedly committed as follows:

That on or about March 16, 1989 and/or sometime prior thereto
at Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused ODON PECHO, a
public officer being then the Customs Guard, Miscellaneous
Bonded Warehouse Division, Bureau of Customs, South
Harbor, Manila, with the indispensable cooperation and
assistance of the accused JOSE CATRE, whose position,
whether public or private, and address are unknown but
representing himself to be a representative of Eversun
Commercial Trading of Cotabato City, a corporation, firm or
partnership which turned-out to be non-existent, fake or
fictitious as it is not registered in the Department of Trade and
Industry nor in the Securities and Exchange Commission and
with a fake, spurious or fictitious Tax Account No. as it was not
issued by the Revenue Information Systems, Inc., Bureau of

Internal Revenue, acting in the capacities aforesaid, with the
former taking advantage of his official position and both
accused, motivated and impelled by personal gain, financial
and pecuniary interest, with deliberate intent to cause damage
and undue injury to the Government, through manifest partiality
and evident bad faith, conspiring, confabulating, conniving,
confederating and mutually helping one another, did then and
there wilfully, unlawfully and feloniously act, pretend and feign
to be agents or representatives of Eversun Commercial Trading
in the importation of 5 x 20 foot containers STC agricultural disc
blades and irrigation water pumps, and engage, solicit and
contract the services of one Constantino Calica of Labatique, a
CPA Customs Broker for the release of said shipment and/or
preparation of the necessary import entry with the two (2)
accused, furnishing, presenting and producing the necessary
shipping documents such as packing list, commercial invoice,
bill of lading and import entry declaration, which led and
prompted said Customs Broker to file BOC Import Entry No.
14081-89 with the computed taxes and duties amounting to
P53,164.00 declaring the shipment as five (5) containers STC
agricultural disc blades and irrigation water pumps, more
particularly described as follows:

5 CONTAINERS STC:

200 pcs. Agricultural Disc Blades 24 inches in
diameter
100 pcs. Agricultural Disc Blades 30 inches in
diameter
50 sets Centrifugal Water Pump 5 HP
25 sets Centrifugal Water Pump Diesel Engine 10
H.P.
100 sets Centrifugal Water Pump Diesel engine 25
H.P.

but contrary to the entry declaration, the subject shipment
before its release, upon examination was found and/or
discovered to contain 300 units diesel engines Model 4DR50A,
to wit, viz.:

He posted bail.00.080. that there is a reasonable ground to engender a well-founded belief that a crime has been committed and that the accused are probably guilty thereof.00. said offense having been committed in relation to the office of the above-named accused. CONTRARY TO LAW. KXTU-2027369 20' — containing 60 pcs. the Sandiganbayan (Second Division) found the petitioner guilty as charged and. ITLU-6078177 20' — containing 60 pcs. The investigating prosecutor3 made the following certification in the information: This is to certify that a preliminary investigation has been conducted in this case. KLTU-1010988 20' — containing 60 pcs./units 4DR50A diesel engines 4. applying the Indeterminate Sentence Law.027./units 4DR50A diesel engines 5. No.321. Contr. EKLU-2673966 20' — containing 60 pcs.6 trial on the merits as against him ensued.485. 1. In its decision 7 promulgated on 28 June 1993./units 4DR50A diesel engines 3.5 After the petitioner had pleaded not guilty at his arraignment on 20 March 1991. Contr. Only the petitioner was brought under the Sandiganbayan's jurisdiction when he voluntarily surrendered on 15 March 1991./units 4DR50A diesel engines 2. Contr. 4 Warrants for the arrest of the accused were issued. No. Contr. sentenced him "to suffer imprisonment for an . No. UFCO-3976925 20' — containing 60 pcs. to the damage and prejudice of the government in the difference of said amounts or to be exact in the amount of P1. Contr./units 4DR50A diesel engines and the correct taxes and duties is P1. No. No.

by way of civil liability.027. the Office of the Solicitor General submits that there is no merit to the petitioner's claim that the information is invalid for non-compliance with Sections 3 and 4. No. to wit: (1) Invalidity of the information as a consequence of non- compliance with the mandatory provisions of Sections 3 and 4. and. but agrees with the petitioner that the prosecution failed to prove the elements of the crime charged and the consummation thereof. 07). he should be acquitted. to Ten (10) years and One (1) day. However.D. . the sum of P1. as maximum penalty. (2) Failure of the prosecution to overcome by proof beyond reasonable doubt the presumption of innocence in favor of accused Odon Pecho. 9 Rules of Court. 11 he now comes before us with a reiteration of the said grounds. and to pay the Bureau of Customs. it recommends that the petitioner be charged administratively for the violation of Section 36(b) [28] of P.321. and of Sections 6 and 7. (3) Failure of the prosecution to establish the attendance of the concurring essential elements of the crime charged. 10 having been denied in the resolution of the Sandiganbayan of 12 August 1993. with perpetual disqualification to hold public office. Rules of Procedure of the Office of the Ombudsman (Administrative Order No. RA 3019. 807.00 and to pay the costs.indeterminate period of Six (6) years and One (1) month as minimum penalty. hence. otherwise known as the Civil Service Decree of the Philippines. Rule 112 of the Rules of Court and with Sections 6 and 7 of the Rules of Procedure of the Ombudsman (Administrative Order No." 8 The petitioner's motion for reconsideration based on the following grounds. and (4) There is no such crime as attempted violation of Section 3(e). Rule 112. or for a total of one hundred and fifty days. In its Manifestation in Lieu of Comment 12 filed after having obtained six extensions of time to file its Comment. 07).

" he gave the solemn assurance that such preliminary investigation conformed with the requirements set forth in the said sections. The accused's argument that he did not realize his purpose of depriving the government in the form of customs tax and duties is of no moment.Marquez 15 that the absence of a certification as to the holding of a preliminary investigation does not invalidate an information because such certification is not an essential part of the information itself.In the challenged resolution. When the Prosecutor stated under oath that. hence: violation of Section 3(e) of RA 3019 is always consummated irrespective of whether or not the accused has achieved his purpose. is untenable. Sandiganbayan 14 which this Court explicitly declared to be sufficient. it ruled that the decision "is supported with proof beyond reasonable doubt. This Court also reiterated therein the doctrine laid down in People vs." Thus. His failure to state therein that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence. the procedural issue raised is without merit. which the petitioner claims is fatal because it is mandatorily required by Sections 3 and 4. "a preliminary investigation has been conducted in this case. As to the second and third grounds. It is enough that the accused committed an act that would cause undue injury to the government to make him liable. this Court held: It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." And as to the fourth ground. having voluntarily entered his plea of not guilty. it held that the provisions of the Revised Penal Code on attempted or frustrated felonies do not apply to offenses penalized by special laws. it is obvious that such certification is . Firstly. The certification in question is similarly worded as that involved in Alvizo vs. participated at the trial. inter alia. and offered his evidence. 13 We agree with the respondent Sandiganbayan and the Office of the Solicitor General that. the certification of the investigating Prosecutor in the information is sufficient. indeed. In Marquez. Rule 112 of the Rules of Court. the Sandiganbayan rejected the first ground invoked by the petitioner in his motion for reconsideration because of waiver. like the Anti-Graft and Corrupt Practices Act.

the failure to furnish the respondent with a copy of an adverse resolution pursuant to Section 6 which reads: Sec. Notice to parties. True. not the absence of the certification. he is deemed to have foregone the right of preliminary investigation and the right to question any irregularity that surrounds it. Rule II of the Rules of Procedure of the Office of the Ombudsman. Moreover. as can be seen. what is not allowed is the filing of the information without a preliminary investigation having been previously conducted. The rule is also settled that the right to a preliminary investigation may be waived by the failure to invoke the right prior to or at least at the time of the accused's plea. In other words. does not affect the validity of an information thereafter filed even if a copy of the resolution upon which the information is based was not served upon the respondent. — The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the proper Deputy Ombudsman. although deficient because of some missing clauses or phrases required under Section 4. 17 The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. the injunction refers to the non-holding of the preliminary investigation. section 14 of Rule 112 enjoins that "no information . and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted. If the absence of a certification would not even invalidate the information. 18 Equally devoid of merit is the alleged non-compliance with Sections 6 and 7. 16 Where the accused pleaded to the charge. then its presence. as already stated. The contention that the provision is mandatory in order to allow the respondent to avail of the 15-day period to file a motion for ." but. The presumption of regularity in the performance of official duty 19 on the part of the investigating Prosecutor was not rebutted. . without first giving the accused a chance to be heard in a preliminary investigation. can do nothing worse than the former. 6. shall be filed. not an essential part of the information itself and its absence cannot vitiate it as such. Rule 112 of the Rules of Court. .

Consequently. 1989 by the Customs Senior Agent Ruperto Santiago. the felonious plan of the two accused to defraud the government was exposed and foiled through the combined efforts of the employees of the Bureau of Customs. E).627. From the facts proved by the prosecution. A spot check on the shipment was conducted on March 9. be filed and acted upon by the Ombudsman if so directed by the court where the information was filed. 1989.reconsideration or reinvestigation is not persuasive for under Section 7 of the said Rule. the plan of the petitioner and his co-conspirators to defraud the government was foiled.A. His failure to do so amounted to a waiver or abandonment of what he believed was his right under Sections 6 and 7. Finally. The Sandiganbayan stated: However. such motion may. viz. 21 The evidence for the prosecution. nevertheless. should have seasonably questioned the procedural error at any time before he entered his plea to the charge.00 20 (Exh. more particularly as follows: xxx xxx xxx On March 30. A-6) filed with the Bureau of Customs. as summarized in the challenged decision 22 and in the Manifestation of the Office of the Solicitor . 3019 is punishable. a random computation was made by Customs Appraiser Mamerto Fernandez based on the information provided by the Legal Division and he found out that a discrepancy exists in the total amount of taxes equivalent to P1. We shall now direct our attention to the core issue in this case. just as in the case of lack of or irregularity in the conduct of the preliminary investigation.321. No.. whether the attempted or frustrated stage of the crime defined in Section 3(e) of R. a party. They discovered that the contents are automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration (Exh. Rule II of the Rules of Procedure of the Office of the Ombudsman. like the petitioner herein. a hold order and also a warrant of seizure and detention were issued by the District Collector of Customs covering said goods.

for the processing of the delivery permits. Intramuros. the commercial invoice (Exhibit "A-4"). Dennis agreed. The shipment was declared as agricultural disc blades and irrigation water pumps more particularly described as follows: 200 pcs. to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration covering Eversun's shipment. and then engaged him. went to the office of Constantino Calica. 23 established beyond doubt how the petitioner and his co- accused. Agricultural Disc Blades 30 inches in diameter 50 sets Centrifugal Water Pump Diesel engine 5 HP 25 sets Centrifugal Water Pump Diesel engine 10 HP 100 sets Centrifugal Water Pump Diesel engine 25 HP Based on the foregoing information and the unit HCV in currency per invoice. carried out their plan to defraud the Government. Manila. South Harbor. at Magallanes Street. Metro Manila.00. Dennis first dropped by at K-Line Shipping where he was approached by the petitioner and Catre who introduced themselves as the clients of his father. Upon . for an amount equal to fifty percent (50%) of the authorized brokerage fee. Manila. the customs duties and taxes due were computed at P53. Calica instructed his son Dennis. to file the documents with the Manila International Container Port (MICP) and to proceed to K-Line Shipping in Makati.164. a certified public accountant and a customs broker. On 16 March 1989. Jose Catre. They invited Dennis to ride with them in petitioner's car in going to the MICP. The petitioner and Catre are from Surigao del Norte. They introduced themselves to Calica as the duly authorized representatives of Eversun Commercial Trading. also a customs broker. then a Customs Guard of the Bureau of Customs assigned at the Miscellaneous Bonded Warehouse Division. Catre and the petitioner. the bill of lading (Exhibit "A-5").General. The petitioner and Catre submitted to Calica the packing list (Exhibit "A-3"). Agricultural Disc Blades 24 inches in diameter 100 pcs. On 15 March 1989. and the sworn import entry declaration (Exhibit "A-6").

Dennis handed to the petitioner and Catre a copy of the import entry and internal revenue declaration. Contr. Ruperto Santiago. ITLU-6078177 20' — containing 60 pcs. Dennis did not join anymore in the actual examination of the containers. KLTU-1010988 20' — containing 60 pcs. Contr. No. Chief Intelligence Officer of the Bureau of Customs. EKLU-2673966 20' — containing 60 pcs. Contr. On 29 March 1989. Two days after the documents were submitted to the Entry Processing Division. Customs Senior Agent. UFCO-3976925 20' — containing 60 pcs. Baltazar Morales./units 4DR50A diesel engine 3. Dennis proceeded to the Entry Processing Division of the Bureau of Customs and filed the import entry and internal revenue declaration (Exhibit "A") and other supporting documents. On 21 March 1989 Dennis met again with Catre for the processing of the examination request. conducted a spot check on the questioned shipment to verify the contents of the container van. Dennis checked the respective serial numbers of each container. They then proceeded to Section 6.arrival at the MICP. of the Bureau of Customs for further processing./units 4DR50A diesel engine 4. After filing the request with the arrastre operator. No. addressed a formal request (Exhibit "B") to the District Intelligence Officer of the Bureau for a 100% examination of the shipment consigned to Eversun Commercial Trading. The engines are more particularly described as follows: 1. No. Catre called up Calica and requested Calica to assist him and the petitioner when the cargo will be submitted for actual examination. On 27 March 1989./units DR50A diesel engine 2. the Examiner's Group. Contr. No. It was discovered that the contents were automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration. Calica agreed./units 4DR50A diesel engine .

/units 4DR50A diesel engine The computation of the taxes due thereon made on 30 March 1989 by Mamerto Fernandez. As a result. and a certain Pablito Ampal pursuant to Section 3602 of the Tariff and Customs Code of the Philippines and the filing of criminal charges against the petitioner under Section 3610. Consequently. among which were the filing of criminal charges against the petitioner. He did not appear to explain his side. Tugday and Tamparong issued two subpoenas to the petitioner to appear before them. in relation to Section 3512. a hold order and a warrant of seizure and detention were issued by the District Collector of Customs. KXTU-2027369 20' — containing 60 pcs. The accused is a public officer or private person charged in conspiracy with him. Customs Appraiser. 2. to wit: 1. 3019. showed a discrepancy in the total amount of P1. the Sandiganbayan concluded that all the elements of Section 3 (e) of R. Said public officer commits the prohibited acts during the performance of his official duties or in relation to his public position. Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and Prosecution Division conducted an investigation on the circumstances surrounding the interception and seizure of the shipment. . after appropriate preliminary investigation. the information was filed with the Sandiganbayan. Their verification with the Securities and Exchange Commission (SEC) and the Department of Trade and Industry (DTI) disclosed that Eversun Commercial Trading is a non-existent firm and that the tax account number used by Eversun in making the Import Entry Declaration was non-existent. Jose Catre.027. Tugday and Tamparong prepared an Investigation Report (Exhibit "I") containing their findings and recommendations.00 (Exhibit "E").A. Attys. 5. Contr.321. Subsequently. No. No. Per the directive of the Commissioner of Customs dated 20 April 1989. On the basis of the evidence. During their investigation.

whether the government or private party. a breach of sworn duty through some motive or intent or ill will. 895. Jose Catre in misleading the government on the actual contents of the shipments belonging to Eversun Commercial Trading and thereby evading the payment of correct taxes due to the government. Beacon Participations 8 NE 2nd Series. The accused's participation is positively established by the testimonies of Messrs. Evident bad faith connotes a manifest deliberate intent on the part of accused to do wrong or cause damage. He causes undue injury to any party. Nonetheless. and 5. he allowed himself to be used in this illegal scheme to give unwarranted benefits or advantage to the importer at the expense of the government. the accused is supposed to safeguard the interest of the government particularly the Bureau of Customs to which he is employed. Carrascoso. 3. Such undue injury is caused by giving unwarranted benefits. it said: Accused Odon Pecho acted in bad faith from the very start when he conspired with his co-accused Mr. As Customs Guard. it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong. advantage or preference to such parties. 1007). Constantino Calica and his son Dennis Calica. evident bad faith or gross inexcusable negligence. Catre to prepare and file with the Bureau of Customs the required import entry declaration. 24 are present in this case. Calica's office and introduced themselves as the duly authorized . It contemplates a statement of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes (Air France vs. The two accused went straight to Mr. 18 SCRA 155). The public officer has acted with manifest partiality. (Spiegel vs. it partakes of the nature of fraud. "Bad faith" does not simply connote bad judgment or negligence. 4. More specifically. Pecho and Mr. These two represent the Calica Brokerage contracted by the two accused Mr.

These documents declare the shipment as five (5) containers of STC agricultural disc blades and irrigation water pumps more particularly described as follows: xxx xxx xxx Based on the information given by the two accused.00. Constantino Calica may be said to be peculiar from the usual contract of this kind. the taxes and duties was computed at P53. Bureau of Customs. two men approached him and introduced themselves as Mr. It was the two accused who handed Mr. A-3). On March 16.representatives of Eversun Commercial Trading which is based at Surigao del Norte. . Pecho's car and the three of them proceeded to the Manila International Container Port. his father instructed him to file the import entry declaration covering the importations of Eversun Commercial Trading with the Bureau of Customs. 1989. While he was there. The contract of services entered into by the two accused and Mr. A-6) was filed with the Entry Processing Division. the computation of taxes due to the Bureau of Customs and filing the same with the latter. the commercial invoice (Exh. He dropped first at the head office of K Line Shipping Company in Makati to process the delivery permits. The two accused accompanied him when the import entry declaration (Exh. It is limited only to the preparation of the import entry declaration. As the customs representative of Calica Brokerage. bill of lading (Exh. Catre. Calica the shipping documents necessary for the preparation of an import entry declaration such as the packing list (Exh. The two accused invited him to go with them and they boarded Mr. on March 21.164. 1989. Dennis Calica met again with the two accused for the said purpose. The services of the Calica Brokerage were again solicited by the two accused in the actual examination of the goods. the clients of his father. Dennis Calica is in-charge with the filing and posting of documents with the Bureau of Customs. Pecho and Mr. A-3) and the importer's sworn statement. A-4). So.

This may be inferred from the actuations of two accused. Their concerted actions show that they cooperated with each other towards the accomplishment of a common felonious purpose.00 corresponding to the deficiency in taxes. There is a deliberate intent on the part of the accused to do wrong or cause damage to the government.027. Except then as to the third requisite of the offense penalized by Section 3 (e) of R. No. Moreover. At most then. 3019 reached only the attempted stage because the perpetrators had commenced the commission of the offense directly by overt acts but failed to perform all the acts of execution which would have produced the felony as a consequence by reason or some cause other than their own spontaneous desistance. the timely intervention of alert customs officials before the release of the cargoes. 3019. this is tantamount to an act of betrayal of the confidence reposed in him when he was employed as Customs Guard of the Bureau of Customs. No. Such discovery and the immediate issuance of a hold order and a warrant of seizure and detention by the District Collector of Customs against the said articles effectively prevented the consummation of the offense. 26namely. 195 SCRA 505).A. The Government incurred no undue injury or damage. viz. including the Government. Catubig.A. as laid down in Ponce de . in this case. the violation of Section 3(e) of R.321. the defraudation of the government through non-payment of the correct amount of taxes and duties to the latter (People vs. Accused Pecho assisted his co- accused Catre in his official capacity as a customs guard in processing the documents required to insure that the goods consigned to Eversun Commercial Trading be released without delay and without arousing suspicion from the government authorities. 25 There is no doubt in our minds that without the early discovery of the fraud through the timely recommendation by the Chief Intelligence Officer for a 100% examination of the shipment and the spot check of the shipment by Customs Senior Agent Ruperto Santiago. the Government would have been defrauded in the sum of P1. as amended." we agree with the findings and conclusion of the Sandiganbayan that the requisites thereof.: "causing undue injury to any party. Accused Pecho's act defeats the very objective of the government to upgrade the system of collection with regard to taxes and duties due to the government.

Ngan Te. No." declared: This section explicitly applies to "any person desiring to export gold" and. 30 this Court also held that an accused cannot be convicted of a frustrated violation of a crime punished by a special law (Section 4 of the Gold Reserve Act of Congress of 30 January 1934)." i. must obtain a license from the Central Bank. which is involved in this case. this Court. including jewelry. as amended. Sandiganbayan. Applicants for export licenses must present satisfactory evidence that the import of the gold into the country of the importer will not be in violation of the rules and regulations of such country. subject him to the same penalty as if he had committed the consummated crime? The answer would depend on whether Article 6 28 of the Revised Penal Code is applicable to offenses punished by special laws.e. Basa. Jolliffe. Indeed. 265.Leon vs. more specifically to that covered by Section 3(e) thereof. like R. In People vs. In People vs. Would the absence of the third requisite. 29 this Court held that the last paragraph of Article 3 of the Old Penal Code relating to attempts to commit crimes is not applicable to offenses punished "by acts of the Commission. it contemplates the situation existing prior to the consummation of the exportation. and over the guilty party. in rejecting the contention of the defense that the penalty for violations of the circular refer to consummated exportation not to "attempted or frustrated exportation.A. 31 involving a prosecution for the violation of Section 34 of R. In United States vs. special laws. whether for refining abroad or otherwise. in relation to Section 4 of Central Bank Circular No. No.. for jurisdiction over it. 21 which provides: Any person desiring to export gold in any form. which. hence. 27 are present in this case. its purpose would be defeated if the penal sanction were deferred until after the article in question had left the Philippines. It may thus be said that the application of Article 6 of the Revised Penal Code to offenses penalized by special laws would depend on how the latter . therefore. makes the petitioner's act only an attempted violation of Section 3(e). would be lost thereby.A. 3019.

in acquitting the accused declared: Moreover. perpetual disqualification from office." could only mean actual injury or damage which must be established by evidence. In the case of Section 4 of Central Bank Circular No. to make to induce. People. not proper. the penalty imposed therefor per Section 9 is "imprisonment for not less than six years and one month nor more than fifteen years. Secondly. can be said to penalize only consummated offenses. No. as amended. 35 which involves a prosecution for the violation of Section 3(e) of R. one of the elements of the crime described in Sec. The penalty of perpetual disqualification is only from office." The imposable imprisonment penalty does not have the nomenclature and duration of any specific penalty in the Revised Penal Code. As a verb.. either in his person.defines the offense.A. as amended. it is clear from the phrase "desiring to export" that even a mere attempt to export — which is necessarily included in desiring — is punishable.A. to compel. There are two principal reasons why Section 3(e) of R. Accordingly. Thus. the latter means "to be the cause or occasion of. in the 30 July 1987 decision of the respondent Sandiganbayan. there can be no valid basis for the application of." 34 Taken together. rights. this Court. to effect as an agent. to bring about. No. 3(e) of the Anti-Graft and Corrupt Practices Act is that there should be undue injury caused to any party. to bring into existence. Articles 50 and 51 on the penalty to be imposed on the principal of a frustrated and attempted felony. the third requisite of Section 3(e). including the government. However. The word causing is the present participle of the word cause. inter alia." 33 And the word injury means "any wrong or damage done to another. proof of actual injury or damage is required. 3019." 32 The word undue means "more than necessary. reputation or property. unless the latter should specifically provide the contrary. unlike either the perpetual absolute and perpetual special disqualifications under Articles 30 and 31 of the Revised Penal Code. 3019. This would give life to Article 10 thereof which provides that the Code shall be supplementary to special laws. inAlejandro vs. it is recognized that there was no proof of damage caused to the . The invasion of any legally protected interest of another. 21. "causing undue injury to any party. illegal. Firstly. and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. viz.

Who is the party injured? There is nothing in the records to show injury to any party. The Bureau of Customs personnel and the public dealing with them were benefited but nobody was injured. xxx xxx xxx 2. In Fernando vs. or falsely pretending to possess power. Article 315. or by means of other similar deceits. agency. 315. Swindling (estafa). the offense charged in the information in Criminal Case No. qualifications. Article 315 reads: Art.A. Fortunately. property. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name. least of all the government. influence. No. — Any person who shall defraud another by any of the means mentioned herein below. for the State. No actual injury or damage having been caused to the Government due to the timely 100% examination of the shipment and the subsequent issuance of a hold order and a warrant of seizure and detention. 14844 necessarily includes the complex crime of estafa (under paragraph 2(a). the petitioner must. business or imaginary transactions. there was no evident partiality. 3019. credit. be acquitted of the violation of Section 3(e) of R. also stated: There is no evidence whatsoever to show that the acts of the petitioners were done with evident bad faith or gross negligence. Revised Penal Code) through falsification of public documents (under Article 171. quoting the ruling in Alejandro. perforce. Sandiganbayan. But most of all. The urgent repairs were completed. employees of the hospital since they were in fact paid on 27 October 1982 their salaries for the entire third quarter of 1982. 36 this Court. . Revised Penal Code). Neither is there proof that there was undue injury caused to any party.

(2) the false pretenses or fraudulent acts were executed prior to the commission of the fraud. the alleged importer of agricultural disc blades and irrigation water pumps in the container van when. If duly proved by the evidence for the prosecution that satisfies the quantum of proof required for conviction. commercial invoice and bill of lading. — When there is variance between the offense charged in the complaint or information. an accused may be convicted of an offense provided it is included in the charge. viz. the petitioner can.. included in that which is charged. an . (1) false or fraudulent representation of co-accused Jose Catre that he was the duly authorized representative of Eversun Commercial Trading. packing list. or of an offense charged which is included in that proved. and (3) the defraudation of the Government in the amount of P1. the accused shall be convicted of the offense proved included in that which is charged. The information alleges in no uncertain terms the essential ingredients of estafa under said paragraph 2 (a). 4. Still stated differently. and that proved or established by the evidence. and the offense as charged is included in or necessarily includes the offense proved. this Court stated in Esquerra vs.00 in taxes representing the difference between the correct taxes and duties due and that earlier computed on the basis of the false declaration. as stated earlier. or of the offense charged included in that which is proved.321. and that the cargoes imported were not as declared but 300 units of diesel engines. an offense which is. In other words some of the essential ingredients of the offense charged constitute the essential requisites of estafa through falsification of official documents.027. Analyzing this provision. under the information be convicted of estafa through falsification of official and commercial documents. which fraudulent acts were done with the use of falsified documents such as import entry declaration. Judgment in case of variance between allegation and proof. Rule 120 of the Rules of Court provides: Sec. People: 37 Stated differently. said importer is non- existent or fictitious with an equally spurious Tax Account Number. Section 4. in truth and in fact.

In view of the aforesaid rules. when the essential ingredients of the former constitute or form a part of those constituting the latter. 8 Phil. when some of the essential elements or ingredients of the former. And an offense charged is necessarily included in the offense proved. variance between the allegation and proof cannot justify conviction for either the offense charged or the offense proved unless either is included in the other. the accused cannot be convicted thereof. Guzman. constitute the latter. the offense charged (as when the offense proved is homicide and the offense charged is murder). In other words. or if it is not proved although charged. . When the offense proved is less serious than.). and is necessarily included in. it follows then that: a. 2 Phil. as this is alleged in the complaint or information. b.S. accused can be convicted of an offense only when it is both charged and proved. When an offense includes or is included in another. Ltd. Macalintal. . 5. 38 As earlier adverted to.). 448. . Section of Rule 120 states when an offense includes or is included in the other: Sec. 21 . Kowa Tsusho Co. When the offense proved is more serious than and includes the offense charged (as when the offense proved is serious physical injuries and the offense charged is slight physical injuries). the evidence established by the prosecution proves beyond reasonable doubt that the crime of estafa was only at its attempted stage and that it was sought to be consummated through the falsification of the following documents: the packing list (Exhibit "A-3") and Invoice (Exhibit "A-4"). If it is not charged although proved. its general manager. . Bill of Lading (Exhibit . vs. . vs. through one Masayuki Higuchi.S. — An offense charged necessarily includes that which is proved. in which case the defendant shall be convicted of the offense proved (U. which appear to be prepared by the exporter. in which case the defendant shall be convicted only of the offense charged (U.

he may be validly convicted of both or either of the offenses charged and proved. (b) a duly licensed customs broker acting under authority from a holder of the bill of lading.."A-5") which appears to be issued in Yokohama by the Kisen Kaishe Ltd. had no participation in the importation. being the holder of the bill of lading. since it was . it is non- existent and. the sworn Import Entry Declaration (Exhibit "A-6") all of which show that the cargoes imported were "agricultural disc blades and irrigation water pumps. 3019 and the complex crime of attempted estafa through falsification of official and commercial documents. 39 The Import Entry Declaration (Exhibit "A-6"). and in the untruthful statements that what were imported were agricultural disc blades and irrigation water pumps when in truth they were automotive diesel engines. as well as the Import Entry and Internal Revenue Declaration signed by customs broker Constantino Calica and prepared on the basis of the foregoing documents. or (c) a person duly empowered to act as agent or attorney in fact for such holder. There was no direct proof that the petitioner and his co-conspirator. The falsifications then of the aforesaid official and commercial documents were the necessary means for the commission of the attempted estafa. the parties authorized to make the import entry are (a) the importer. Such statements under oath shall constitute prima facie evidence of knowledge and consent of the importer of a violation against applicable provisions of the Code should the importation turn out to be unlawful or irregular. The information in this case can also be considered as charging two offenses: the violation of Section 3(e) of R. is required by Section 1301 of the Revised Tariff and Customs Code of the Philippines. Jose Catre. were the authors of the falsification. the importer shall himself be required to declare under oath and under penalties for falsification or perjury that the declarations and statements contained in the entry are true and correct. If the entry is filed by a party other than the importer. The accused having failed to object before trial to the duplicitous information. therefore.A. The falsifications consist in making it appear that the importer-consignee indicated is a legitimate importer or an existing importer which had participated in such importation and authorized the accused to request the release of the imported articles although. Nevertheless. in truth. a public and official document. 40 Under the said section. No.

45 Phil.S. People vs. De Lara. 19 SCRA 688. the presumption is that he is the material author of the falsification. when so accomplished. Domingo. People vs. however. they are deemed to be the forgers thereof. 60 Phil.shown with moral certainty from the testimony of the Calicas that the petitioner and Catre were in possession of the falsified documents and personally delivered them to Dennis Calica and that they showed extraordinary personal interest in securing the release of the cargoes for a fictitious importer. . Castillo. Caragao. L- 28258. probable proof of complicity in the forgery. March 31. 105 Phil. 41 It is. had complicity in the forgery. 1253). 1969. December 27. 453. vs. or to have close connection with the forgers. (U. People vs. 49 Phil. Astudillo. Sendaydiego. People vs. 1967. one who is found in possession of a forged document and who used or uttered it is presumed to be the forger (Alarcon vs. 43 this Court reiterated the rule thus: The rule is that if a person had in his possession a falsified document and he made use of it (uttered it). 338. 754. In the absence of a satisfactory explanation. Court of Appeals. A rule. Manansala. therefore. is that in the absence of satisfactory explanation one found in possession of and who used a forged document is the forger and therefore guilty of falsification. No explanation at all having been given by the petitioner as to why he and his co-accused were in possession of and used the falsified official and commercial documents. L- 21846. 42 In People vs. People vs. 30 SCRA 993). and. then the petitioner and Catre are presumed to be the authors of the falsified documents. 6 Phil. taking advantage of it and profiting thereby. or such close connection with the forger that it becomes. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery. essential that the use must be so closely connected in time with the forging such that the utterer or user may be proved to have the capacity of forging. well-buttressed upon reason. 28.

000. viz. the petitioner is liable for and can be validly convicted of the complex crime of attempted estafa through falsification of official and commercial documents under paragraph 2(a) of Article 315 and Article 171 of the Revised Penal Code. If the crime of estafa had been consummated.027. Thus.Accordingly. Obviously then.00 in excess of the first P22.00. the penalty for the more serious crime shall be applied in its maximum period. in relation to Article 61(5). the penalty for falsification under Article 171 is prision mayor and a fine not exceeding P5. the Government would have been defrauded in the amount of P1. 3019. and one (1) day of prision correccional medium as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum and a fine of P2.00. Since he is entitled to the benefits of the Indeterminate Sentence Law. this is the more serious crime which shall be imposed upon the petitioner pursuant to Article 48.00.00. They should note that the offenses enumerated in Section 3 of the Anti-Graft and Corrupt Practices Act (R. Hence. the applicable penalty under Article 315 of the Revised Penal Code would have been prision correccional in its maximum period to prision mayor in its minimum period. The maximum of the duration is in conformity with Article 48 which mandates that the penalty for the more serious crime shall be applied in its maximum period.000. as amended) are but in addition to acts or omissions of public officers already penalized by existing law. The foregoing disquisitions clearly suggest that those in charge of investigating criminal complaints against public officials and employees and of filing the corresponding informations in court must carefully determine under what law the offenders should be prosecuted. to attain the very purpose of said law and further enhance the constitutional mandate that a public .000.. On the other hand.000. Since what was established was only attempted estafa. four (4) months. provided. 44 he can be sentenced to an indeterminate penalty ranging from two (2) years. No.A. of the Revised Penal Code.321. arresto mayor in its medium period to arresto mayor in its maximum period. Pursuant to Article 48. with an additional one (1) year for every P10. that the total penalty should not exceed twenty years. then the applicable penalty would be that which is two degrees lower than that prescribed by law for the consummated felony pursuant to Article 51.

FOUR (4) MONTHS. the judgment of the Sandiganbayan in Criminal Case No.00). they should initially consider if the questioned acts are already penalized by the Revised Penal Code and should the rule on double jeopardy be inapplicable. It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense. loyalty. serve them with utmost responsibility. integrity. and efficiency. and ONE (1) DAY of prision correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor maximum as maximum.office is a public trust and all public officers and employees "must at all times be accountable to the people. . the petitioner is hereby declared guilty beyond reasonable doubt of the complex crime of attempted estafa through falsification of official and commercial documents and. applying the Indeterminate Sentence Law. SO ORDERED. however." 45 prosecutors should not limit their action to the additional offenses. 14844 is modified. with the accessories thereof and to pay a fine of Two Thousand Pesos (P2. to exhaust all the available remedies of the State against the offender. To be more logical. 46 WHEREFORE. as modified. the instant petition is DENIED. Costs against the petitioner. and. is hereby sentenced to suffer an imprisonment penalty ranging from TWO (2) YEARS.000.

1963. try and decide the case. 3544. Vicente Marquez. No. appellee entered a plea of not guilty to the charge. appellee filed a motion to dismiss on the ground that the information filed by the Provincial Fiscal of Albay — based on the complaint signed by Consolacion Musa Solano in behalf of her victim-son or offended party — was null and void and the court had no jurisdiction to hear. defendant-appellee. . Alafriz.G. A warrant of arrest was issued. 1962. On the day of the trial on September 25. a complaint for frustrated homicide was filed with the then Justice of the Peace Court of Camalig.R. plaintiff-appellant. vs. Albay. Fernandez for plaintiff-appellant. granting the motion to dismiss filed by the appellee. Assistant Solicitor General Antonio G. J. Ibarra and Solicitor Oscar C.: Appeal by the People from the order of the Court of First Instance of Albay in its Criminal Case No. the record of the case was remanded to the court a quo. VICENTE MARQUEZ. mother of the offended party.00. and on July 9. The said complaint was signed by one Consolacion Musa Solano. L-23654 March 28. Madrid Law Office for defendant-appellee. accordingly. When the case was later called for purposes of conducting the second stage of the preliminary investigation. but this was not carried out because the accused had filed a bail bond in the amount of P12. 1964. Upon being arraigned on August 22. the accused. waived his right thereto. Office of the Solicitor General Arturo A. 1964. thru counsel. in consequence of the crime charged. Wenceslao Solano. without asking for leave to withdraw his previously-entered plea. against appellee Vicente Marquez. who was then confined in the Albay Provincial Hospital. the Provincial Fiscal of Albay filed the corresponding information with the said court.000. 1969 THE PEOPLE OF THE PHILIPPINES. BARREDO. On November 12.

a complaint may be subscribed and sworn to only by "the offended party. II. On the other hand. and ordered the cancellation of the bail bond of appellee. the main point of appellee which was sustained by the trial court is that the complaint signed by the mother of the offended party which initiated the proceedings in the justice of the peace court was invalid because under Section 2 of Rule 110. without said fiscal having conducted another preliminary investigation. consequently. The lower court erred in holding that it did not acquire jurisdiction to try the case. The Assistant Provincial Fiscal concerned has appealed from the dismissal aforesaid directly to this Court. being based. he waived the preliminary investigation proper. It may be conceded that. Resolving the grounds raised in said motion to dismiss as well as those in the oppositions thereto. the filing of a complaint is personal to the offended party. The lower court erred in dismissing the case after the appellee had already pleaded to the information. as appellee argues. separately filed by the private prosecutor and the Assistant Provincial Fiscal of Albay. where. apart from what is provided in the Rule cited. We do not hesitate to agree with the Solicitor General that the trial court's questioned order of dismissal is erroneous. on the contrary. as herein earlier intimated. The People's appeal is premised on the following assignment of errors: I. 1964. It must be remembered that appellee did not attack the said complaint while his case was still in the justice of the peace court. he allowed the case to be remanded to the court of first instance . the only principle involved under the complete factual setting of this case. as it is. any peace officer or other employee of the government or governmental institution in charge of the enforcement or execution of the law violated" and. the court dismissed the case. on the ground that it had no jurisdiction over this case because the initial complaint filed with the justice of the peace court was not signed by the offended party and was. 1 This is not. with costs de oficio. except as to the government officers authorized by said Rule. on October 1. invalid. did not grant jurisdiction to the court. the information based on the said complaint filed by the Provincial Fiscal of Albay. The People's appeal should be sustained. there are precedents to the effect that. however. therefore.

In this circumstances. shall be filed. and the injunction that there should be a certification is only a . We do not lose sight of the fact that in the truth the fiscal did not conduct any preliminary investigation of his own and." Thus. not the absence of the certification. In other words.. True. the filing of the information without a preliminary investigation having been previously conducted. appellee sought the dismissal of this case long after he had already entered his plea of not guilty to the information filed by the fiscal.and folded his arms when the provincial fiscal filed the corresponding information. We hold that the initial complaint has lost his importance and the case can be viewed only in the light of the information subsequently filed by the provincial fiscal. the injunction refers to the non-holding of the preliminary investigation. it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. such an omission is not necessarily fatal. the objections to the procedure followed were opportunately raised before here. as suggested by the Solicitor General. without first giving the accused a chance to be heard in a preliminary investigation. the information filed by him with the court a quo did not carry with it the sworn certification of the fiscal. It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court. section 14 of Rule 112 enjoin that "no information . as can be seen. instead he merely entered a plea of not guilty at said arraignment." but. for while there. what is not allowed is. required by section 14 of Rule 112. that the appellee was "given a chance to appear in person or by counsel at said examination and investigation. as already stated. as a matter of fact.. Assuming that said information was defective because it did not contain the requisite certification regarding the fiscal's having held a preliminary investigation where the accused was given an opportunity to be present personally or thru counsel." Neither are We overlooking precedents to the effect that absence of a preliminary investigation is a grave irregularity which nullifies the proceedings because it violates the right to due process. however. the question to determine in this case is. and. he did not object to his being arraigned. Therefore. that the situations involved in those precedents cannot be equated with the circumstances obtaining here. what was the effect of appellee's failure to object to the information before or at the time he entered his plea of not guilty. 2 We perceive.

that the absence of the certification in question is also waived by failure to allege it before the plea. such certification is nothing but evidence of a fact and if the ommision of the fact itself to be certified is waived. and this case is hereby remanded to the lower court for further proceedings. and the absence of a preliminary investigation may only be raised before the accused enters his plea. After all. the filing of the information in question with the court a quo made the issue of validity of said complaint already academic. if not properly raised before the accused enters his plea. considering that the said complaint held already been superseded by the said information. for the sake of argument. the order appealed from is reversed. as contended by appellee.ñet WHEREFORE. therefore. To be sure. otherwise. why should the omission merely of the certification be given more importance than the absence of the fact itself to be certified to? Is it to be sustained that if in a given case. it is waived. it is waived. with costs against appellee. inasmuch as the settled doctrine in this jurisdiction is that the right to the preliminary investigation petition itself must be asserted or invoked before the plea. the situation of appellee may be compared with another case where the fiscal. (section 3. a criminal action may also be initiated by the fiscal filing an information with the proper court. there were such a certification although in fact no preliminary investigation has been held. it is deemed waived. 3 it stands to reason. And since the said information is sufficient in form and substance. that the complainant in the justice of the peace court was void. After all. otherwise. as already stated. .consequence of the requirement that a preliminary investigation should first be conducted. this Court is going to hold that the requirement of a preliminary investigation has been complied with? To ask the question is to immediately expose the absurdity of the affirmative answer to it. under the Rules.lâwphi1. otherwise. on the other hand. files an information without holding any preliminary investigation and without any such preliminary investigation having been conducted by the municipal court concerned. for one reason or another. Logically. Rule 110) On the other hand. Accordingly. it follows that appellee forfeited his right to question both the complaint and the information under discussion by entering his plea of not guilty and otherwise submitting to the jurisdiction of the court for trial. this Court hag consistently held that the defense of absence of a preliminary investigation must be raised before the entry of the plea. even assuming.

DUMA. defendant-appellees. G. No. ATILANO. plaintiff-appellant. Castillo. No. No. Prudencio N. defendants-appellees. 3083. PRUDENCIO N. JESUS F. L-29089 September 30. plaintiff-appellant. Criminal Case No. defendants-appellees. 1982 THE PEOPLE OF THE PHILIPPINES. plaintiff-appellant. G. defendants-appellees. They were as follows: 1. No. ATILANO. RELOVA. 1982 THE PEOPLE OF THE PHILIPPINES.R.R. JOHN DOE and RICHARD DOE. CESAR V. J. EDILBERTO GOMEZ.: In 1962.G. PRUDENCIO N. 1982 THE PEOPLE OF THE PHILIPPINES.—On May 24. The case was docketed as Criminal Case No. CASTILLO. vs. 1962. 3083. vs. Cichon. CICHON and PAULINO T. G.R. JESUS F. 1982 THE PEOPLE OF THE PHILIPPINES. L-29087 September 30. L-29086 September 30. PRUDENCIO N. CICHON and PEDRO CUENTO. LORENZO DELANTAR. Cesar V. CICHON. PEDRO CUENTO and JOHN DOE. PRUDENCIO N. Edilberto Gomez. four (4) informations were filed by the prosecuting fiscals before the Court of First Instance of Zamboanga City. L-29088 September 30. Pedro Cuento and John Doe were charged in the Court of First Instance of Zamboanga City with the crime of Estafa thru falsification of public/official documents. CICHON. . plaintiff-appellant vs. vs.R.

—On May 24. filed their respective bond for provisional liberty (pp. . The accused Prudencio Cichon and Lorenzo Delantar. 11. The case was docketed as Criminal Case No. 15.). After their arrest.). This case was docketed as Criminal Case No. Rec. Prudencio Cichon.00 each (pp. Richard Doe and John Doe. 3088.The prosecuting officers certified under oath that they had conducted a preliminary investigation of the case in accordance with law. 16-17. 1962. another information for Estafa thru falsification of public/official documents was filed in the Court of First Instance of Zamboanga City against Prudencio Cichon and Paulino Duma. 14-15. Rec. 10.18. the accused Pedro Cuento and Cesar Castillo pleaded not guilty to the information (p.000.). the state prosecutors filed another information in the lower court for the crime of Estafa thru falsification of public/official documents against Lorenzo Delantar. The corresponding warrant of arrest for each of the accused was accordingly issued and the accused subsequently filed their bond for provisional liberty (pp. and that they believed that the offense charged had been committed and the accused were probably guilty thereof.). Rec. On June 26. in accordance with law. The information carries also the certification of the State Prosecutors that they had conducted a preliminary investigation in the case and that they believed that the offense charged had been committed and that the accused were probably guilty thereof (pp. 1-3. On April 26. 23- 24. Jesus Atilano. 33. 1964 (p. 70. Rec. 3. Prudencio Cichon and Lorenzo Delantar pleaded not guilty to the offense charged in the information (pp. Rec. 1-3. 2930. Criminal Case No. Jesus F. Upon arraignment. Atilano and two other unidentified persons. As in the preceding case. the two accused pleaded not guilty to the charge (p. 1964.). the prosecution certified under oath that they conducted a preliminary investigation of the case. 3084. that they believed the offense was committed and the accused were probably guilty thereof (pp. 3088. Criminal Case No.). 54. 1964. Rec.).). 1962. 60. Rec.21. Edilberto Gomez and Prudencio Cichon pleaded not guilty on October 21. 2. 25-26. Rec.—On May 24. 3084. the accused were released provisionally upon filing a bond of P1. 61.). Rec.

1966. rec. Upon a motion for reconsideration filed by the accused. Rec.). in relation to Rule 144 of the Revised Rules of Court.). This case was docketed as Criminal Case No.—Upon complaint filed . the District Judge himself made the preliminary investigation and once satisfied that a prima facie case against the three accused existed. 9-10.4. 3083. From the said order of dismissal. 3084. 1 112. On June 22. Preliminary examination and investigation by the judge of the Court of First Instance. 1966. Rec. 31-32. were released on a bail of P1. on November 2.00 each (pp. Since the information did not contain a certification that a preliminary investigation of the case had been made by the prosecutors. and 15-16. At the arraignment on June 26. the lower court. 1962 (p. Prudencio Cichon. the prosecution appealed to this Court alleging that the trial court erred "in dismissing Criminal Cases Nos.000. filed a MOTION TO DECLARE INFORMATIONS AND WARRANTS OF ARREST null and void on the ground that the prosecution failed to observe the provisions of Section 13 and 14 of Rule 112 of the New Rules of Court regarding preliminary investigation and prayed the court to cancel the warrants of arrest issued. Jesus F Atilano and Pedro Cuento were charged in an information for Estafa thru falsification of public/official documents in the Court of First Instance of Zamboanga City (pp. reversed its former ruling and ordered the dismissal of all the four (4) cases against them. The People's appeal should be sustained.—On October 1. denied the aforesaid motion. 3128. issued warrants for their arrest on the same day. and ordered the cancellation of the bonds posted for the provisional liberty of the accused. however. 3088 and 3128 on the ground that the preliminary investigations conducted therein were not in accordance with Sections 13 and 14 of Rule 112. 6.). The trial court's questioned order of dismissal is erroneous. the lower court. 1962. Rec. thru their counsel. the accused in the four (4) cases. 1966. without prejudice to the refiling of the same. Sections 13 and 14 of Rule 112 of the New Rules of Court provide: SEC. 1966. 3128. The accused. October 1. On September 27. thru counsel.). for lack of merit. 1-2. Criminal Case No. 13. all the accused pleaded not guilty to the charge (pp.

and thereafter refer the case to the fiscal for the filing of the corresponding information. SEC. therefore. and to adduce evidence in his favor. no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal. 1964. the government prosecutors certified under oath that they had conducted a preliminary investigation in said case . the investigation shall proceed without him. Rules 112 and 113 thereof cannot. and should he find reasonable ground to believe that the defendant has committed the offense charged. without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. he shall issue a warrant for is arrest.—Except where an investigation has been conducted by a judge of first instance. or if subpoenaed he does not appear before the fiscal. The fiscal or state attorney shall certify under oath in the information to be filed by him that the defendant was given a chance to appear in person or by counsel at said examination and investigation. directly with the Court of First Instance. without previous preliminary examination and investigation conducted by the fiscal. 3803. apply to these cases at bar. Besides. 14. The preliminary investigations in these four (4) cases were terminated in 1962. If the accused appears the investigation shall be conducted in his presence and he shall have the right to be heard. If he cannot be subpoenaed. in Criminal Case No. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance. or state attorney. municipal judge or other officer in accordance with the provisions of the preceding sections. or himself conduct both preliminary examination and investigation simultaneously in the manner provided in the preceding sections. or before the New Rules of Court took effect on January 1. the judge thereof shall either refer the complaint to the municipal judge referred to in the second paragraph of section 2 hereof for preliminary examination and investigation. to cross- examine the complainant and his witnesses.

in accordance with law. the court." (People vs. they thereby waived all objections that are grounds for a motion to quash. 1 SCRA 478). or at least at. that the required investigations were complied with. the omissions are not necessarily fatal. and Special Counsel Vicente G. therefore. Likewise. The absence of preliminary investigations does not affect the court's jurisdiction over the case. in Criminal Cases Nos. But then. the time of the entry of their plea in the Court of First Instance. it stands to reason. Consequently. Inasmuch as the settled doctrine in this jurisdiction is that the right to the preliminary investigation itself must be asserted or invoked before the plea. and on the basis thereof. assuming that the informations did not contain the requisite certificates regarding the Fiscal's having held a preliminary investigation. except lack of jurisdiction or failure of the information to charge an offense. they waived the right to a preliminary investigation when they failed to invoke it prior to. it is deemed waived. It is clear. Ruiz. Nor do they impair the validity of the information or otherwise render it defective. They filed the motion to declare informations and warrants of arrest null and void only after more than one (1) year thereafter. Casiano. should conduct such investigation. "instead of dismissing the information. invite the attention of the court to their absence. Thus. 58 SCRA 779) . The defendants in these cases did not question the validity of the informations on the ground of defective certifications or the right to preliminary investigations before they entered the plea of not guilty. 3128. then Judge Carmelo Alvendia issued the corresponding warrant of arrest against all the accused. 3084 and 3088. Jr. in Criminal Case No. If there were no preliminary investigations and the defendants." (Estrella vs. finding the existence of a prima facie case. And. otherwise. there appear the certifications of Special Prosecutor Edilberto Barot. it was District Judge Gregorio Montejo who conducted the preliminary investigation and. Largo. order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted. that the absence of the certification in question is also waived by failure to allege it before the plea. when they entered a plea of not guilty. before entering their plea. ordered the arrest of the defendant.

1966 of the Court of First Instance of Zamboanga is set aside and the said court is hereby ordered to proceed with the trial of the said criminal cases. . SO ORDERED. ACCORDINGLY.All the defendants in the four (4) cases had already entered the plea of not guilty when they filed the motion to declare the informations and warrants of arrest null and void. the order dated November 2.

the sisters decided to take a tricycle to convey them to the house of Pedro Mula. and her sister. South Cotabato. L-37836 : July 31. to perform an errand for their father. Polomolok. In the afternoon of December 5. Their destination was Barrio Kiblat. left their house at Barrio Landan. South Cotabato where they were going to collect an account from a person named Tamigo. Delena Segapo. 1979. CLAUDIO BULAONG and FONSO LAURECIO. Rollo). 1973 of the Court of First Instance of South Cotabato. J. Plaintiff-Appellee.R. [G. In this Court’s resolution of February 1. Delena Segapo. their relative residing at Laurel Street in that city. 183. In that same decision. Nena. 559). . 1981. Accused- Appellants. a total indemnity cranad(including attorney’s fees) of P130. Malungon. vs. General Santos City Branch I. sentencing him to eight penalties of reclusion perpetua and ordering him to pay the victim.000 cranad(Criminal Case No. two months and one day of prision correccional as minimum to ten years and one day of prision mayor as maximum and to pay the same indemnity to Delena Segapo. No. But as there was no more jeepney going to Malungon at that hour.] THE PEOPLE OF THE PHILIPPINES. they boarded a passenger jeepney and arrived in the public market of General Santos City at around six o’clock in the evening.: Claudio Bulaong appealed from the decision dated September 28. After walking for about forty minutes. Alfonso Laurecio was convicted as an accomplice and sentenced to an indeterminate penalty of four years. 1972. 8cranad(both Bilaans). convicting him of eight complex crimes of forcible abduction with rape. 14. DECISION AQUINO. Laurecio’s petition to withdraw his appeal was granted cranad(p.

She was crying. as an only son. inserted his penis into her vagina and made push- and-pull movements. He undressed. He conducted them to the New Bay View Hotel in the city where Bulaong forced them to enter Room 304. spitting at him and kicking and scratching him. he stripped her of her blouse and bra and placed himself on top of her. December 6. Bulaong alighted from his jeep. He brought them in his jeep to his parents’ bungalow in Barrio Landan which was then unoccupied. When Delena was on the bed. They were locked in a room. He succeeded in having sexual congress with her. Nena. He was well-known to the two sisters because. held Delena’s neck and forced her and her sister to board his jeep. Bulaong went out of the room. It was bleeding. he held Delena’s arm. Bulaong locked the door. Bulaong had sexual intercourse with Delena eight times in the hotel. Bulaong spread Delena’s legs. was also in tears. a helpless spectator of the ravishment being committed against Delena. After they had entered the room. She resisted. Claudio Bulaong. 35- year-old married man with five children. Bulaong and the two sisters left the hotel. he administered his family lands in Barrio Landan where many Bilaans resided. He reentered the room with the food. . Bulaong had sexual intercourse with Delena in that place. a houseboy armed with a gun. He took the precaution of locking it to prevent the two sisters from escaping. Her sister. He threatened to kill the two sisters if they would escape and refuse to enter the hotel room.Before the two girls could ride in a tricycle. He removed Delena’s jeans and panties and pushed her to one of the beds. She suffered pain in her genital organ. He was still holding his gun with one hand and with his other hand. guarded them. Delena refused to eat. Fonso Laurecio. After satisfying his lust. At about six o’clock in the afternoon of the following day. appeared at the market place. He obtained food from the restaurant on the ground floor. pointed his gun at the two sisters.

1972. On January 23. was filed in the city court against Bulaong as principal and Laurecio as an accomplice. Dalama took her home. when he arrived on January 2. The next day the city judge conducted a similar examination of Nena and Dalama. Bulaong and Laurecio surrendered voluntarily on January 10 and 12. 1973. a barrio councilor. On January 9. the eight-year-old Nena cranad(who had already been detained for twenty-six days) was able to escape by passing through the ceiling and holding on to the pipe which led to the ground. Dalama reported the incident to Lieutenant Torcuator of the city police department who. respectively cranad(pp. the city fiscal filed in the Court of First Instance against . Delena. Dalama asked Bulaong to deliver to him his daughter. advised Dalama to complain to the barrio captain who in turn told Dalama to ask Rudy Ante. She traversed the savanna with cogon grass and followed the creek leading to her house. 1973. the city judge interrogated Delena. while Bulaong and Delena were taking lunch. signed by Delena and Dalama. 1973 from Malungon. armed with a gun. 1973. a complaint for forcible abduction with rape. A Constabulary investigator took the statements of Dalama and his two daughters. the city health officer examined Delena and found that there were recent multiple lacerations in her hymen which admitted two fingers. Dalama and Ante repaired to Bulaong’s house. No bail was recommended. He concluded that she was no longer a virgin and that she was the victim of “recent sexual intercourse” chanroblesvirtualawlibrary(Exh. Laurecio. A warrant was issued for the arrest of Bulaong and Laurecio. to accompany him to Bulaong’s house. She did not take the road. At past four o’clock in the afternoon of that day. Nena recounted the outrage to her mother. brought Delena to her father. The examination was reduced to writing in the form of searching questions and answers. Maria Malid. 31 and 46.On December 31. Dalama Segapo. Two days later. or on January 8. They waived the preliminary investigation. On January 6. Record). instead of taking direct action. and later to her father. A).

the lower court rendered the judgment of conviction already stated. He could file an information on the basis of the preliminary investigation conducted by the inferior court because the prosecution of the offense is under his direction and control. the fiscal is not called upon to conduct another preliminary investigationcranad(People vs. 734.Bulaong and Laurecio an information for forcible abduction with rape. The judge examined the witnesses under oath. On the basis of that examination. cranad(Valdepeñas vs. There is no need to file an . It was the basis of the preliminary examination. Bulaong contends through his counsel de oficio that the lower court did not acquire jurisdiction over the case because the information filed by the city fiscal is fatally defective for not containing the verification required in Form 24 of the Appendix to the Rules of Court. The forms prescribed in the Rules of Court “serve as mere illustrations”. He could not have certified that he held a preliminary investigation because the preliminary examination was actually conducted by the city court and the second stage of the preliminary investigation was waived by the accused. After trial. 214). The two accused entered a plea of not guilty.) In this case. a warrant of arrest was issued. B). In a case. In such a case. like the instant case. The accused waived in writing the second stage of the preliminary investigation. not by the complaint or information which is merely the means by which jurisdiction is invoked or which gives the court the occasion for exercising its jurisdiction. People. involving crimes against chastity. 110 Phil. 123 Phil. That contention has no merit. Jurisdiction over the crime charged in this case is conferred by law. Pervez. The examination was reduced to writing in the form of searching questions and answers. the prosecution may be conducted by the fiscal on the basis of the complaint filed in the inferior court. the complaint for abduction with rape against Bulaong was filed in the city court by the offended girl and her father. In this appeal. That complaint was sworn to before the city judge cranad(Exh.

cranad(People vs. People vs. 1973” and.) Hence. Counsel then argues that. The testimonies quoted by counsel show that the victim’s father pretended to agree to a dowry of one carabao and two thousand pesos just to be able to secure the release of his daughter who was held in captivity by Bulaong. 1973. which was filed on the following day. consequently. 64 Phil. Bulaong is not guilty. is that it is not alleged in the information that the forcible abduction with rape was committed with lewd design. 37 SCRA 565. Zurbano. It is appropriate pardon that extinguishes criminal liability for a crime against chastity. Evidently. Varela. 60 Phil. That contention is baseless and preposterous. He did not examine the record carefully. is void because it was “received and filed on January 9. Garcia. 1013. The argument is feeble and flimsy. Imas. People vs. the other contention of the accused that the information should have been signed by the offended girl is wrong. because of such a compromise. does not require that the offended girl in a crime against chastity should sign the information filed by the fiscalcranad(People vs. Rule 110 of the Rules of Court. 570).S. 254. reproduced in section 4. The accused contends that the information dated January 22. People vs. vs. L-32673. The incontestable fact is that in both complaint and information “lewd design” is explicitly averred. not on January 9. Roa. Cerena. January 23. 64 Phil. February 22. There is no showing that Bulaong was pardoned by the victim and her father. Counsel de oficio’s fifth assignment of error is that the trial court erred in not finding that the victim’s father and accused Bulaong entered into a compromise. 106 Phil.information. U. which shows his failure to peruse the record with due care. counsel de oficio is mistaken. The other assignments of error of counsel de oficio involve the issue of whether the crime of forcible abduction with rape was . the case against the accused was “railroaded”. Article 344 of the Revised Penal Code. The information was filed on January 23. Another baseless contention of counsel de oficio. 1066. 1971. 419. 27 Phil.

He planned to ask his wife to consent that Delena would be his mistress. cranad(Bulaong’s daughter was the first princess. Nena and Delena went to the . 855. 1972. 1972. Bulaong testified that it was Dalama who borrowed one hundred pesos from him. 1972 while they were in the house of Palaguyan Lakim. They allegedly agreed to have an assignation in General Santos City.) About the end of October. on cross-examination. When Bulaong allegedly told Delena that he loved her. She borrowed from Bulaong one hundred pesos to be used in buying a dress for her sister Nena cranad(783-4). cranad(However. she replied that she had liked him for a long time already cranad(782). Dalama said that he should talk with Delena. Nena was to participate as a second princess in the barrio fiesta to be held on November 24. 1973 cranad(896 tsn). cranad(On cross-examination. Dalama’s neighbor. set up the defense that Delena was his mistress. He went to Delena’s house and stayed there from ten in the morning up to one o’clock in the afternoon. He was infatuated with Delena. Bulaong. He told her that he wanted her to be his second wife. On November 21. 1972 to January 6. The resolution of that issue requires an examination of Bulaong’s evidence.proven beyond reasonable doubt. Maria Segapo saw Bulaong kissing Delena cranad(857). who with her parents’ consent. 856).) Nena’s dress would be made by Bulaong’s wife who was operating a dress shop in the city. who finished the third year high school. He testified that it was customary among the Bilaans to have a second wife. Bulaong and Delena allegedly became sweethearts on November 16. On that occasion Bulaong kissed Delena several times while they were seated on the floor and he touched her private parts cranad(883). he informed Dalama that he wanted Delena to be his second wife. He did not deny that he cohabited with Delena in his father’s house at Barrio Landan from December 6. lived with him. Nena Segapo told Bulaong that Delena wanted to talk with him. Bulaong said that he never told Delena that he loved her.

They met on November 28 or December 28. Bulaong and Delfin brought them to Satea’s restaurant located on the ground floor of the New Bay View Hotel where they took a merienda. a barrio councilor. He told Delena that he could not take her as his second wife but if she behaved. namely.city in the afternoon of November 21. After they had finished eating. 917). Bulaong Enterprises. Bulaong went to the office of the family corporation. the family houseboy cranad(a Bilaan. When the sisters arrived. Bulaong and Delena had sexual intercourse twice in the other bed. 1972 in Barrio Landan. . he would support any offspring that they might beget. her cousins Kamad and Nonoy and her uncle cranad(911-913). Delena asked for a dowry. 870). On December 6. near the creek behind the sheller of the Bulaong family and had sexual intercourse on the ground cranad(809-10. He waited for them near the theater on Pioneer Street. his friend. He asked her to dance with him but she allegedly refused because his wife was present. He did not offer any breakfast to the two girls. At Ante’s behest. where he met Moreno Delfin. the father of Delena. He discovered that she was not a virgin. They were sitting beside his mother who was also going to Landan cranad(803). Fonso Laurecio. he met Delena at the dance on the coronation night. fetched Dalama. He took breakfast in his mother’s house in the city. Bulaong directed Delfin to take the girls to Room 304 of the hotel. According to Bulaong. Bulaong followed later. November 24. Roberto Daniel. 1972. Bulaong allegedly stayed with the two girls in Room 304. They checked out of the hotel in the morning. Delena was allegedly brought to Bulaong in his father’s house in Barrio Landan by Rudy Ante. Nena slept in one bed. He later saw them near the public market seated in a jeepney bound for Barrio Lamdan. Bulaong denied the request. She allegedly confessed that she had sexual relations with four men.

After Dalama received the sardines and salmon. having gone there at the end of November and returned before January 10. Nena sometimes slept with Delena in that housecranad(835). he did not insist anymore on the dowry cranad(822). Delena. Bulaong testified that four days later Delena went home because her father was no longer angry. At that time his parents were allegedly in Manila. Bulaong testified that on Christmas day and New Year’s day he was in the house of his father-in-law in the city cranad(835-6). Bulaong said that Delena did not stay all the time with him in his father’s house in Barrio Landan: “just come and go”. Dalama left the place. After Bulaong discovered that Delena was not a virgin. remained with Bulaong. 1973 when Bulaong was arrested cranad(331). . Bulaong talked with her parents. Elon cranad(Maria’s brother) and Lakim. Ante. He wanted to kill his daughter. if she went home. They allegedly agreed to entrust Delena to Bulaong because. Bulaong and Delena and their companions left Dalama’s house at nine o’clock in the evening. he lost interest in making her his second wife cranad(873). Dalama told Bulaong not to abandon Delena and to help the Segapo family. Dalama went with them because Bulaong was going to give him sardines. His wife stayed in her dress shop in the city. then leave and go home and then return to Bulaong’s house. Delena said that she would stay with Bulaong wherever he would go because she loved him cranad(816-7). she would be killed by Dalama. Maria Segapo. a relative of Delena. Delena would stay for sometime. 1973 because Bulaong told her to return to her father’s house before his parent’s arrival. They had sexual intercourse on December 6 cranad(892). Dalama was infuriated. He gave her ten pesos cranad(838-40). Delena left Bulaong on January 7.Dalama allegedly asked Bulaong to give a dowry cranad(sungod) consisting of two thousand pesos cash and a carabao. Bulaong also denied the request.

which was prepared by her as the Grade two teacher of Nena Segapo. 2) and as rebutted by his own witness. admitted. that according to the school registercranad(Exh. . socially and economically inferior to Bulaong and his family. are ethnically.The trial court characterized the foregoing version of Bulaong as improbable. testified that as Delena’s first cousin. This circumstance serves to explain why it took Dalama a long time to recover custody of Delena from Bulaong and why the two girls were easily cowed and frightened into submission by Bulaong. a defense witness. Mildred Areno. Mildred Areno. according to Bulaong and his witness Moreno Delfin. as such. he treated her as a sister. She did not know Daniel. Nonoy. when asked to testify as a rebuttal witness for the prosecution. She did not have sexual congress with her two cousins and her uncle because. He denied having had sexual intercourse with Delena. That testimony of Bulaong. as she said: “I am not an animal” chanroblesvirtualawlibrary(1042). her father Dalama and her sister Nena returned to the witness stand to rebut Bulaong’s testimony. Nena was with Delena in the afternoon of November 21. one of the two richest families in Barrio Landan. whose full name is Reynaldo Dueñas. Delena denied that she had lost her virginity by having had sexual intercourse with a certain Daniel and with her two cousins and her uncle. incredible and contrary to human experience. is false as shown in the school register cranad(Exh. 2 or F). which is the core of his defense in this case. a veritable “fairy tale” Delena. It should be borne in mind that Delena and the members of her family are Bilaans or non-Christians and. 1972 when Bulaong and Delena allegedly had an assignation in the New Bay View Hotel and that the sisters returned to their residence on the following day. One serious discrepancy in Bulaong’s evidence shows its untrustwortiness and fabricated character. the latter was present in class on November 21. Yet. 1972 cranad(1005).

Bereft of artificiality and hesitancy. Alto. they were frank and straight- forward in answering questions. usually detected in one who testifies a concocted story. still smiling and professing to be in love with him. The reasons are: “1. South Cotabato. It was vigorously denied by Delena. stayed willingly with him as a wife for about a month and thereafter filing a case of forcible abduction with rape against him. 1972. The following observations and conclusions of the trial court are well-taken: “One need not stretch his imagination to conclude that this strange story of a love affair. with the woman choosing to remain in the house of her lover. also known in the locality as a dressmaker. Defendant having been publicly known to be a married man in Landan.We agree with the trial court’s evaluation of the evidence and with its conclusion that Bulaong’s guilt was proven beyond reasonable doubt. their tender age cranad(with respect to Delena and Nena Segapo) and his illiteracy cranad(with respect to Dalama Segapo). Nena and Dalama Segapo in their rebuttal testimonies and directly opposed to their story narrated in the direct evidence whereby in spite of their being native Bilaans. 357). a married man. is very unusual and improbable. cra . aside from the couple having a house of their own in . contrary as it is to human experience. with five children. “x x x “3. some of whom were studying in Landan Elementary School cranad(were transferred to North Elementary School at General Santos City after the present incident) to Flora Manansala. 26 SCRA 342. . as in fact Nena Segapo herself with Delena had her dress sewed by her immediately before their barrio fiesta on November 24. Polomolok. to deserve any modicum of credence cranad(People vs. dismissed outright by the man. followed by a demand of a dowry by the parents accompanying their daughter. they stuck to their versions notwithstanding the long and searching cross-examinations of two defense attorneys.

All that he admitted was his statement to Delena’s father that he wanted her to be his second wife and his statements to Delena that he liked her. The third party will make it a crowd.Landan. That is not courtship. he had been conscious that he had promised the same love and fulfilled it in that grand wedding of May 1. On its face. as we are made to believe in this case. “5. an eight-year-old sister of Delena. considering his admission of the presence of Nena Segapo. youth. No comfort can be had of the registry book for guests of the New Bay View Hotel showing that on November 21. and elementary education. would allow herself to be rightly called his sweetheart. nay. with her beauty. “6. Throughout his testimony. would have avoided the presence of strangers. in charge of the hotel. “4. For our judicial records are replete with incidents of killings by Bila-ans to protect the honor and integrity of their women. 1972 can easily be dismissed as an outright lie. Claudio Bulaong checked in at the hotel in the evening and checked out in the following morning. the exhibition of a very wonderful memory of Carlos Ma. as all the time. said entry belied the claim that Claudio Bulaong was with somebody as he appeared to be alone in Room 304. defendant vehemently denied having expressed his love and promise of marriage to Delena Segapo. to corroborate his story. knowing very well that he will not be in a position to marry her. more especially a close relative of the girlcranad(in this case a sister of the victim). That they had agreed to have a date and sleep as man and wife in the New Bay View Hotel on November 21. Experience has taught us that sweethearts bent on satisfying their lusts. even in answers to questions of the court. That her parents would give aid and comfort to such an illicit relationship is impossible. it will be very difficult to believe that Delena. 1972. even under Bila-an traditions. remembering Claudio . 1960 with Flora Manansala. both in the direct and in the cross. Love begets love and there can be no sweethearts where one does not confess to be in love. “Secondly.

And to make this Court believe that in spite of the refusal of Claudio Bulaong to pay the dowry in the presence of Delena. the class record of Grade II pupils identified by Mrs. Claudio Bulaong outrightly dismissed the demand of a dowry by Dalama Segapo. there having been no proposal of marriage previous to said date by Claudio Bulaong who in the first place could not have done so. Nena Segapo was present in her classes for said days cranad(See Exh. 114.00 and a carabao is rather extraordinary. this documentary evidence of the defense is contradicted by its other evidence. 2-B. marked as Exhibit 8-B). that is. The demand initiated by Maria and Delena Segapo as mother and daughter accompanied by barrio councilman Rudy Ante in the morning of December 6. “8. we cannot understand why this conversation commenced at eight o’clock in the morning lasted until about three o’clock in the afternoon when Dalama Segapo left and until four o’clock when his wife left. 1972 for a dowry of P2. the parties not being served with lunch and merely made to content themselves with soft drinks and biscuits. she was still happy and smiling. 1973 is futile.000. J-1. “That is beyond the realm of realities. school register in connection with hotel register. made the plot of a date very unbelievable. . It is a fairy tale when taken with the very serious case of forcible abduction with rape commenced soon after her liberation in the court below. telling her parents that she would not leave his house because she loved him. “7. For a dowry is only demandable after there is a proposal of marriage by a man to the parents of the woman. 1972. thus she voluntarily and consciously lived with him as man and wife until January 6. “Thirdly. In such a setting. at the same time forgetting all his recent guests. Mildred Areno which shows that on November 21 and 22.Bulaong to be with Delena Segapo and her sister on November 21. considering that was the first time that they were his guests who never returned. p. 1972 in checking in and checking out.

on April 12. This affidavit is self- serving and could have been executed by him at any time with an antedated date before aforesaid notary public because an examination of the records of this Court will show that Atty. his parents were in Manila. 1973. To buttress his testimony. Charlie Dimalantacranad(Exh. if it did succeed at all. “And as the only son of Eusebio Bulaong. p. its veracity is nil. Jr. aside from being denied by Delena herself and rebuttal witness. Polomolok. . as a notary public has not submitted any notarial report from February 16. 1972. it was in itself a lie. Jose Alvarado. Jr. Reynaldo Dueñas. in the New Bay View Hotel that she was not a virgin and the latter freely confessed about the four men in her life. That he was the administrator of a vast agricultural land in the distant barrio of Landan. It succeeded only. 11). “Such a very unkind charge of the defendant is controverted by the medical findings of Dr. in adding insult to a very painful injury . The story of the defendant should not have been dignified by an exhaustive dissertation. some of whom were her own relatives. 105). It is only because we are faced with a crime involving a capital punishment that we have chosen to do so.cra . its body was fully exposed to public view.Inherently improbable. South Cotabato and at the time. Gregorio Daproza. pure and simple. when we take into account his accusation of Delena after his alleged first carnal knowledge of her on November 21. “Neither is his denial of the use of a gun and of their own Toyota jeep convincing. taking cranad(into account) the mentality of Filipino parents who have so many children but with only one son. For like an ostrich which hid its head into the sand. 1972 was offered as evidencing the transfer of his gun to his brother-in-law. his own affidavit subscribed and sworn to before Notary Public Gregorio Daproza. who examined Delena on January 8. his claim that at the time he was not using their Toyota jeep does not ring true. 1971 cranad(See Record.

some of whom were billeted in the New Bay View Hotel like Barrio Captain Venancio Dianga and Barrio Councilman Rudy Ante. written in perfection. Her hold on her job was at the whims and caprices of the powers that be that soon after she finished testifying in this case. Hotel Register. “As stated at the outset.“As the principal and basic evidence upon which the defense rests its case fails. she was rewarded with a transfer to a school in her residence in Spring Camp. Considering further that . 166. but with a filler. South Cotabato. in their own Toyota jeep cranad(used in the commission of the crime). “Armed with school register and her pupil’s test papers. Exh. we have these observations: “1. Not a civil service eligible and teaching in a barrio school built in a place controlled by the Bulaong family. as correctly observed by the public prosecutor. 478-479). a retinue of public school and barrio officials were marshalled in an effort to destroy. Marcos. 468. evidently showing how the defendant has been a customer of said hotel in a city riddled with hotels cranad(See pp. 70 Phil. all evidence intended to support or corroborate must likewise fail cranad(See People vs. 14 and 18. It is only for more enlightenment that we will attempt to take them one by one. not even used one- millionth cranad(Exhibits 2-C). was absent only thrice. without any erasure and uniformly by one ballpen which she used from September until she testified on March 6. 1972. her grade two pupil. demanded by the gravity of the offense involved. Mildred Areno declared that for the school days in December. Nena Segapo. these were on December 11. The school register itself and its pages are very clean. In short. Unfortunately. Mrs. it was impossible for her to be with Delena from December 5 to December 31 when she escaped from the defendant’s clutches. 156. “2. Polomolok. her impartiality is debatable. if not minimize. 1). the credibility of the People’s witnesses. 1973. brought to Court by the mother of the accused.

its neatness is quite surprising. This school register does not bear the signature of any public school official or any official mark when issued or inspected that it can be changed at will at anytime by its possessor.she has to travel everyday from her residence to the school and return on public conveyances along a dusty road during sunny days and muddy during rainy season. Nena Segapo appears to be present on November 21 and 22. Mauro Espe. it can be bought at anytime in any store dealing with school supplies. she said that she was not interviewed by anyone of them nor by any relative of the defendants as equally neither had she shown them the school register and the test papers . were of the same category — no signature of its receipt and the date thereof cranad(See Exhs. 1973. Indeed. 1972 when she was supposed to be with Delena in the afternoon of November 21 and was seen by Claudio Bulaong in the parking place in General Santos City about nine o’clock in the morning of November 22. This cam either be a case of negligence or mass intercalations. it was bought by her in a store by her declaration in the cross on March 7. No. their head teacher. “4. It appears to be accomplished in a day! It is not so with the Class Records cranad(Exh. Given to her by Mr. 7). it did not show her absence when in court awaiting for her turn to testify. whom to believe? “5. Far more important is the fact that all documentary evidence submitted by the District Office of said school to this Court from the Landan Elementary School. D). Which is which? Only God knows. The $64 question is. such is not the regular procedure in dealing with official records. “3. to support the school register. 1973. In either. As a faithful record of attendance of her pupils including hers. in her testimony on March 6. Not only that. To our knowledge. Picturing the defense counsel to be prophets. it cannot deserve official integrity.

“Granting in gratia argumenti that the testimony of Nena Segapo is seriously impeached. which we are far from believing that it was. et al. 421.R. She cannot be a model pupil. “Mauro Espe. Ganal. February 27. Selfaison. and 2. 4. p. . such a blind request for the issuance of a subpoena and subpoena duces tecum is beyond comprehension cranad(See. 243). brought to Court Form 137-B. Having in mind the seriousness of the offenses involved. 8. 16 of which belong to Nena Segapo. cranad(U.. the rule in this jurisdiction is well-settled that in crimes of rape the sole testimony of the offended parties is sufficient to sustain a conviction. Rebecca Julie. G. People vs.R. 81. the latter being evidently written by one who is not a Grade II pupil in a barrio school. 8. Macaya. the school register of Delena Segapo. Record. Ana Gulada. No. where she appears to be born on September 21. cited in People vs. the affluent client defended and the experience of the principal counsel.S. Apart from the tearful denial of Nena that those test papers in December were not her own.. 62). 1950. pp. People vs. Besides. G. Dazo. 1-B-75%. 1972 will speak for themselves. L-1990. 56. the grades on the test papers before December. supra. Her reason that Nena was a bright and a model pupil that she preserved her test papers as samples was a contradiction to her subsequent testimony that Nena was always absent and a liar. 1970. of her pupils saved by her and brought to Court. No. she presented 46 test papers.’cralaw cranad(Exhs. 1-D-95% & 1-E-95%). Roberto Palate. 1-90%. People vs. 58 Phil. March 15. teacher in charge of Landan Elementary School. Of the 30 pupils she had in Grade II. “6. while her classmates Mercy Ante. L-925. et al. Ramos. 1-C-90%. respectively cranad(Exhibits 1 to 1-0. vs. 7. one need not use a magnifying glass to decipher that the handwriting of Nena when she signed her affidavit and those on the test papers denied by her is an ocean of difference. 1- A-85%. 3 to 3-Z). 1 Phil. Antonia Villalon and Merlyn Tel have 9.

Dalama. 1958. especially after Rebecca Julie. whether Delena Segapo was 14 years old as she appears to the Court while testifying or 17 years old. Mirabueno and thereafter to this Court as sur-rebuttal witnesses. That enrollment was almost 9 years ago when he testified on March 7. 10). It could not have been furnished by Dalama Segapo whose name appears there as Dalama Segapo and whose wife. the entries in Exhibit 5 will speak for themselves. exaggerated his memory by declaring that during the enrollment of Delena on August 3. identified B. Dalama Segapo.5-A). Decano. an effort to increase the enrollment in this school. district supervisor of Polomolok. one of the five cranad(5) grade two pupils of the Landan Elementary School. is an immaterial issue. Mauro Espe. that she was 14 years old at the time of the incident for she was born on November 10. Maria Malid cranad(Record. Form No. p. Espe to the house of Atty. At any rate.1955 cranad(Exhs. At any rate. was identified as Maria Dilion. Dalama Segapo. 1964. “That the date of birth of Delena was simply placed there by the school teacher to comply with the school age. Its purpose is to contradict the testimony of Delena and her father. the enrolling teacher. is possible. one of which is Landan Elementary School. having in mind the complex crime charged. “Francisco Mandar. whom we noticed to have taken a very unusual interest in defending the accused. could not tell us the days of the week and months of the year when he testified in Court. South Cotabato. 1973 that she and four cranad(4) of her classmates were brought by Mr. testified on July 2. being an illiterate Bila-an. It appears . it is worthless for impeachment purposes. 9 years old. There being no showing that this entry was furnished either by Delena Segapo or by her father.P. 5. 1973 while the declaration of Martial Law was less than a year. he heard and still remembers that Dalama Segapo was the one who furnished aforesaid date of birth to Mr. 3 which is the principal’s report of enrollment and attendance of all the schools in his district. “He failed though to tell us the date when Martial Law was declared by the President.S.

he is a rehearsed witness. 1972. Elected as such barrio captain from 1968 until 1973 with the help or at least with the acquiescence of this controlling family in Landan. The same can be said of Form No. Exhibit 8). Mildred Areno even after this case was commenced. 2 identified by Mr. and was not telling the truth. this was done because he requested the mother of Claudio Bulaong to take that jeep and it was not otherwise.that the subpoena calls for him to bring Form 2 which is the record of pupils’ attendance prepared by the classroom teacher. 3. 156. “To us. 166. “As supposed protector of his people. hotel register. He refused because he had a misunderstanding with Claudio Bulaong and that existed until he testified on April 2. he checked in at Room 202 with Mrs. Adronico Sotelo. No such signature of the receiving clerk appears on the face of the document and the same could have been submitted by Mrs. It appears that when this case was called in the first week of March 1973 and the second week of April 1973. asserted that on December 5. Dalama Segapo went to his house asking his help in getting a dowry from Claudio Bulaong because his daughter and Claudio Bulaong were often going together. his claim for having a quarrel is shallow. if not biased. barrio captain of Landan. principal teacher of Polomolok Central School. “Venancio Dianga. being a barrio captain. 7). 1973. he wanted to make us believe that while he took the Toyota jeep of Claudio Bulaong in going to General Santos City in order to testify in this case. As a piece of evidence.00 each for accomplishing their sworn statements of the current and fair . Instead he brought this Form No. Dianga and thence in Room 208. Exhibit 6 is worthless as it did not show the specific attendance of Nena Segapo in her classes as a grade two pupil. with his departure in both not specified cranad(See pp. Sotelo categorically stated that he was not the one who personally received Form No. he collected from the landowners P5. 2 as it was received by a clerk under the office of the district supervisor cranad(Exh. And to bolster that cause. Mr.

He cried to convince Claudio Bulaong . Jr. Upon his suggestion. “Rudy Ante. to make such collection. is so harmless as to deserve the cross-examination of the prosecuting Fiscal. He opened the conversation by telling Claudio Bulaong that the parents of Delena were willing to ‘enter into an amicable settlement’ if defendant would pay them P2.. declared that on December 6. and he obliged.000. “He could not even tell us the dates when all his eight children were born and his claim for a serious altercation with the defendant is directly opposed to his admission that before he testified. 76. “The testimony of Juan Barieses. Polomolok. South Cotabato. he conversed with Claudio Bulaong.market value of their properties in compliance with Presidential Decree No. at about eight o’clock in the morning of December 6. a barrio councilor of Landan. “The indictee outrightly refused because he could not afford that amount and went to the extent of even warning Dalama as follows: ‘If you are a father you should not sell your daughter for that price’. 1972. We are unaware if there is any law which allows him. earning as much as P1. his wife. A public official with such a corrupt mind is not worthy of credence. Delena with one named Bong. daughter. Maria Segapo and her daughter Delena went to his house with Delena complaining to him that the accused had carnal knowledge of her in the hotel and asked his help for a settlement. Thus.00. Ading cranad(accused) and himself were in the house of Eusebio Bulaong. his memory for dates is very treacherous.000. 1972. He accompanied her to the house of Eusebio Bulaong and there met Claudio Bulaong informing him about the complaint of Maria and Delena.00 and one carabao. Delema Segapo. even as a barrio captain. Maria. Ilong. 1973 as testified to by Dalama Segapo. defendant asked him to call for Dalama Segapo. considering that he is only a first year high school. 1972 and not January 6. While vigorously maintaining that the date was December 5. public school teacher of Alegria Elementary School.

and the fact that Delena was in the house of Eusebio until she left their house on January 6. two or four days. 1973 instead of December 5.to settle but he failed. so he left the house at about 4:00 o’clock in the morning with Gorio Lakim and Maria Segapo. G). That this can happen to defendant considering their being publicly known . G-1). We leave him. In other words. executing an affidavit on January 24. he checked in with Venancio Dianga as early as April 1. 1973 and the hotel register did not state when did he check out of Room 217. he is a Bila-an barrio official who owed his election to the defendant. 1973. especially during the whole month of December 1972 has been sufficiently alluded by us. without registering their names. Taking cue from what happened to witness Venancio Dianga. But if more is needed. 1972 and he had never returned thereto. he came to Court ready to tell us the respective dates of birth of his children. leaving Delena in the house who told them that she did not like to go home anymore because she wanted to stay with Ading as she was afraid because her father was mad. except for the date.00 and one carabao cranad(See Exh. as all other matters were already discussed by us with regards to the testimony of the defendant Bulaong himself. Until April 4. January 6. 1973. 1973 upon regaining her freedom. 1973 cranad(Exh. Testifying on April 3. “He never talked about Claudio Bulaong marrying Delena as he emphasized that he was the one who tried to settle the case by convincing Claudio Bulaong to pay P2. no one occupied Room 217.000. to stay in their hotel. “This practice is a matter of public knowledge. the testimony of Rudy Ante in a way confirmed that of Dalama Segapo and Delena Segapo as to what happened in the afternoon of January 6. he admitted that he allowed customers who are his friends from General Santos City under a short-time basis. 1972. “The testimony of Carlos Ma that Claudio Bulaong checked in at the hotel only on November 21. He was already a defense witness before the trial. that is. “Like Venancio Dianga.

a scrutiny of the hotel register readily shows that from December 5. 1973. while Nena was a frequent visitor. in the afternoon up to December 6. 1973. He denied having guarded. both being childhood playmates and children of original settlers. exhibiting a demeanor of one who was made to narrate a rehearsed testimony. “That is the only date he remembers and he failed to tell us of all the other dates directly involving his family as the dates when his brothers were incarcerated at the city jail as well as their release and the dates he visited them. “Moreno Delfin. and was made to take care of the house while his master was in the City of Manila from the later part of November. Room 304. He was very positive that it was only on June 2. an airconditioned room. was not occupied by anybody cranad(See pp. Then. Exh. with the use of a shotgun. Delena Segapo and Nena Segapo as the former stayed in the house of his master voluntarily and slept with Claudio in one of the rooms from December 6. their taking a tricycle to the Satea House with Delena and Nena. now entangled for ravishing a young Bila-an and whose witnesses were billeted in their own hotel as a loyal customer. “Defended by a counsel de parte. these were. 1973. engaged by the Bulaongs. 1972 to the early part of January. 8). 1972 up to January 6. a close friend of Claudio. was very evasive. their eating in the aforesaid restaurant and his conducting the two girls to Room 304 after he was given by the accused the key of the room. We dismiss him with those observations. that he was requested to testify regarding the incidents on November 21. he admitted that there was in fact a shotgun in the house of . when he met the defendant in the city jail.in General Santos City as members of the rich family is very much reasonable. This is confirmatory of an actual occupation by a close friend of Carlos Ma. in the afternoon. has been the faithful servant of Eusebio Bulaong. “Alfonso Laurecio. hotel register. like Benito. 101-102. father of the defendant. 1972. their meeting at the Pioneer Theater.

“Taken as a whole and with due fidelity to the constitutional mandate that all accused shall be presumed innocent until the contrary is proven. As the rape was committed with the use of a deadly weapon. for lack of necessary votes. absent at any important motive shown convincingly for these witnesses to testify falsely against him and Claudio Bulaong in prosecuting so serious a crime as forcible abduction with rape. 56 Phil. and that Delena was in that house from December 6. The trial court erred in imposing eight reclusion perpetuas. WHEREFORE. SO ORDERED. Costs de oficio. Eusebio Bulaong. 1973. the lower court’s judgment is modified. the same is commuted to reclusion perpetua.” The trial court found that Bulaong committed the eight complex crimes of forcible abduction with rape. and the crime is complex. Delena Segapo and Dalama Segapo. However. Bulaong committed the continuing complex offense of forcible abduction with rape cranad(People vs. the People’s evidence has complied with the statutory requirement of proof beyond reasonable doubt. aggravated by the use of a motor vehicle and mitigated by voluntary surrender to the authorities. the death penalty should be imposed. locked in one of the rooms. . Manguiat and Sanqui. we regret to conclude that in the case at bar. Pineda. the trial court imposed eight reclusion perpetuas out of compassion for Bulaong because he is a married man with five minor children. 406. People vs. His denial on other points cannot be at par with the positive testimonies of Nena Segapo. 1972 up to January 6. 688). 51 Phil. Although the imposable penalty is death. Bulaong is sentenced to reclusion perpetua and to pay an indemnity to the offended girl in the sum of fifty thousand pesos.

Concepcion.. JJ. Teehankee. 4. 1972..J.m.. concur. But they did not.Fernando. I take notice of the fact that at that time of the day many persons are still in public markets and yet neither Delena nor Nena shouted for help. Barredo. Fernandez. The two girls were allegedly detained by the appellant from December 5 to 31. Hence he must have registered when he arrived with the two girls. The trial court’s decision should be affirmed in its entirety. At that time the two girls had the opportunity to cry for help but they remained silent. Separate Opinions ABAD SANTOS. 2. it is inconceivable that the girls had no opportunity to cry for help during the long ride. The alleged abduction is said to have taken place at the public market of General Santos City at 6:00 p. dissenting: I dissent. De Castro and Melencio- Herrera.. When the group left the hotel in General Santos City for Barrio Landan the following day on board the appellant’s jeep. Similarly the two sisters did not cry for help when the appellant allegedly brought them to the New Bay View Hotel and forced them to enter Room 304 while holding his gun. My mind cannot rest easy that the appellant committed the crime of abduction with rape and I base my doubts on the following: 1. 3. The appellant could not have pre-registered at the hotel for his meeting with the girls was casual if we are to believe the evidence for the prosecution. Guerrero. J. Jr.. on December 5. 1972. Makasiar. J. C. until Nena Segapo was able to .

cra . 5. I find it equally inconceivable that neither of the two could have escaped during that long period if there was a will to do so. it was only on January 6. Polomolok. 1973. The relaxed and nonchalant attitude of the parents is incredible. Judge Pedro Samson C. the Martial Law regime was relatively new and it is a fact that during the early days of martial law the people were very obedient to its strictures one of which was the prohibition against the carrying of firearms even if licensed outside one’s residence. but also in Landan. a rich man’s son whose parents acquired and owned valuable properties not only in General Santos City. Where is the gun? It was never presented during the trial. But the Segapo parents appeared unconcerned and unaffected. Dimalanta on April 12. As to Delena. 1972. after Nena was supposed to have escaped from the appellant’s bungalow when she returned home to tell her mother what happened. a corn sheller and two residential houses cranad(one for his . In fact the loss of only a dog is sufficient to cause the concern. on December 5. and it was only on December 31. As a parent I would have gotten excited and moved heaven and earth so to speak in order to locate a missing child. Moreover. 1972. 6. The appellant is supposed to have used a gun when he committed the crime imputed to him. where the family has a vast agricultural land.22 caliber revolver to Charlie B. And yet the parents did nothing to locate the two girls of tender age who failed to return home over a long period. escape on the latter date. South Cotabato. Exhibit 11 shows that the appellant had transferred his Smith and Wesson . when her father was said to have gone to the appellant’s house to ask for her return. Exhibit 11 was executed ante litis motam and deserves credence. Animas who convicted the appellant describes him thus: “. 1972. 1972. Delena and Nena left the family home on December 5. On the contrary. 7.

The incontestable fact is that in both complaint and information ‘lewd design’ is explicitly averred. nay. Counsel then argues that. thus: “The accused contends that the information dated January 22. counsel de oficio is mistaken. . before his incarceration. “That contention is baseless and preposterous. even for barrio officials. “Another baseless contention of counsel de oficio. parents and another for him). and the tragedy of it is that the appellant’s counsel does not appear to possess the requisite competence to handle the serious charge if we judge him on the basis of statements made in the main opinion.” I wonder if the good judge did not get carried away by his rhetoric. which was filed on the following day. determinative of the result of any election. the case against the accused was ‘railroaded’. For such status of wealth amounted to control during the aegis of the old Society. Defendant as the only son. Before us the appellant is represented by a counsel de oficio. is void because it was ‘received and filed on January 9. had been administering these properties in Landan. Evidently. populated mostly by Bila-ans. Bulaong is not guilty. consequently. not on January 9. 1973’ and. no public function moved in this remote place without the nod of this oligarch. is that it is not alleged in the information that the forcible abduction with rape was committed with lewd design. which shows his failure to peruse the record with due care. national and local. The information was filed on January 23. because of such a compromise. 1973. Awed and revered by the constituents. January 23. “Counsel de oficio’s fifth assignment of error is that the trial court erred in not finding the victim’s father and accused Bulaong entered into a compromise. if not feared. Schools were opened. He did not examine the record carefully. roads were constructed and all public improvements were materialized upon their proddings. not de parte.

1979. and that on February 1. I will hazard the statement that he has long been released on parole. But the withdrawing his appeal as he did. 2 months and 1 day of prision correccional as minimum and 10 years and 1 day of prision mayor as maximum. For if Laurecio had not withdrawn his appeal. It is the appropriate pardon that extinguishes criminal liability for a crime against chastity. he immediately became eligible for parole and having served as a member of the Board of Pardons and Parole for over eight years cranad(not to mention being its ex-oficio chairman for a like period).” I am not bothered by the fact that in the decision dated September 28. In view of the foregoing. The testimonies quoted by counsel show that the victim’s father pretended to agree to a dowry of one carabao and two thousand pesos just to be able to secure the release of his daughter who was held in captivity by Bulaong. the trial court found Alfonso Laurecio guilty as an accomplice and sentenced him to an indeterminate penalty of 4 years. Did Alfonso Laurecio admit guilt thereby and by inference should we consider the appellant guilty also because there can be no accomplice without a principal? Not necessarily. I vote to acquit on reasonable doubt. its resolution would have to be linked to the resolution of the principal’s appeal which is time consuming. “The argument is feeble and flimsy. he was allowed to withdraw his appeal. There is no showing that Bulaong was pardoned by the victim and her father. 1973. .

Petitioner contends that said resolutions were rendered without or in excess of jurisdiction and/or with grave abuse of discretion. petitioner. 1983. GARCHITORENA. RESOLUTION FERNAN. petitioner. 9777 promulgated on September 23. 1986 which denied the motion for reconsideration thereto. FRANCIS E. J. represented by HON. respondents. petitioner Arturo Quizo assails the resolution of the respondent Sandiganbayan in Criminal Case No.R.G. It appears that after an audit conducted by the Commission on Audit on September 13.74. SANDIGANBAYAN. Galledo for petitioner. JABSON.720. No.00 disallowed Accommodated 700. RAMON V. as follows: Vales granted to various employees but P16. vs.: In this petition for certiorari. JOSON. The HON. LUCIANO A. Mamerto P. 1987 ARTURO QUIZO.421. the Money Order Teller of Cagayan de Oro Post Office. 77120 April 6. 1986 which denied the motion to dismiss filed by the Tanodbayan as well as the resolution of October 22.74 shortage P17. was found to have incurred a shortage in his cash and other accounts of P17.74 .421.00 private checks Actual cash 1.

2. 1983. The accused never pocketed the money. The petition is impressed with merit. . p.the same was noti nexcusable. being 'vales' of his co-employees.On the same day. (Annex A. three days thereafter.500.56. the Tanodbayan filed a motion to dismiss on the following grounds: 1. 3. A motion for reconsideration was filed but it was denied on October 22. and on September 19. 1986. 1986. P10. There was no criminal intent. no malice or any animus lucrandi. There was full restitution made within a reasonable time. Notwithstanding full restitution.18. No damage was inflicted on the government as there was full restitution of the malversed funds within a reasonable time. the shortages. 2. Petitioner questions the propriety and advisability of the Sandiganbayan's actuation in seeming to substitute its judgment on matters within the discretion of the prosecution. the Sandiganbayan denied the prosecutor's motion to dismiss. namely: 1.00. and 4. Petitioner further argues that there are sufficient and compelling reasons for the dismissal of the criminal case. It ruled that damage to the government is not an essential element of the crime of malversation and that restitution of the malversed funds before the filing of a complaint is neither a defense that would exempt the offender from criminal liability nor a valid ground for dismissal. On September 23. an information for malversation of public funds against petitioner was filed by the Tanodbayan before the Sandiganbayan.515. If there was negligence. Hence this petition. it is admitted. Similar cases were dismissed at the Sandiganbayan and Tanodbayan level on the ground of restitution. Rollo). 14. petitioner reimbursed the amount of P406. the balance of P6. On a motion for reinvestigation and/or reconsideration.

the Court ruled: A prosecuting attorney. it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so. or that the evidence at hand points to a different conclusion. 98 SCRA 406. is not absolute and subject to judicial review. In case of doubt. the Court further held: It is the rule that a fiscal by the nature of his office. or he is not convinced of the merits of the case. The question of instituting a criminal charge is one addressed to the sound discretion of the investigating Fiscal. .. by the nature of his office. reiterated in Bautista vs. we should give him the benefit thereof. (Emphasis supplied.) In Alberto vs... those of the Fiscal's should normally prevail . is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. 20 SCRA 748. A contrary rule may result in our courts being unnecessarily swamped with unmeritorious case. Pineda. is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegrations thereof. because in his opinion he does not have the necessary evidence to secure a conviction. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction.. Although this power and prerogative of the FiscaL to determine whether or not the evidence at hand is sufficient to form a reasonable belief that a person committed an offense.In the case of People vs. . The information he lodges in court must have to be supported by facts brought about by an inquiry made by him It stands to reason then to say that in a clash of views between the judge who did not investigate and the fiscal who did or between the fiscal and the offended party or the defendant. Worse stilt a criminal suspect's right to due process — the sporting idea of fair play — may be transgressed. City Fiscal of Dagupan 131 SCRA 132. de la Cruz.

upon demand by any duly authorized officer. Catolico. People. an accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to explain satisfactorily (De Guzman vs. Rollo). 119 SCRA 337)." p. In the case at bar. However. then that presumption is at an end and the prima facie case destroyed (US vs. He satisfactorily proved that not a single centavo of the missing funds was used by him for his own personal interest. The accountable officer may overcome the presumption by proof to the contrary. shall be prima facie evidence that he has put such missing funds or property to personal uses. he has not put said funds or property to personal use. 18 Phil. In fact.Against the foregoing and considering that after a reinvestigation conducted by a prosecutor. 504). If he adduces evidence showing that. Article 217 of the Revised Penal Code provides that the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable. in fact. 39. the Court is inclined to sustain petitioner's contention that the Sandiganbayan gravely abused its discretion when it refused to grant the motion to dismiss. the presumption is merely prima facie and a rebuttable one. no less than the Tanodbayan himself directed the dismissal of the case based on findings that "it is clear that the accused never pocketed the money" and that "the shortage were vales of co- employees" (Annex "D. the Court is convinced that there is no sufficient evidence to show a prima facie case against petitioner. a fact conceded by the Tanodbayan 'the bulk of the reported shortage actually referred to the items disallowed by the Audit Team representing cash advances extended to co- employees. It is not fair to compel the prosecutor to secure the conviction of an accused on evidence which in his opinion. petitioner successfully overthrew the presumption of guilt. is insufficient and weak to establish even a prima facie case. Rollo) was verified and found to be correct by an . evidence disclosed that the itemized list of the cash advances (Annex "B " of Motion for Re-Investigation and/or Reconsideration. p. 31. This is because the law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima facie evidence of conversion. Hence. Besides.

68268.R.Auditing Examiner. together with the disallowed items. No. Arturo C. with no intent to gain and borne out of goodwill considering that it was a practice tolerated in the office. Quizo" is hereby DISMISSED. No costs. Significantly. Criminal Case No. Also to be considered is the circumstance that the actual cash shortage was only P1. negligence evidentiary of malice or intent to defraud the government cannot be imputed to him. in the recent case of Villacorta vs. SO ORDERED. G. the writ of certiorari is granted and the resolutions of the respondent Sandiganbayan dated September 23. 1986 and October 22. 1986. was fully restituted within a reasonable time from date of audit. 9777. Catanduanes. entitled "People of the Philippines vs. WHEREFORE. of the crime of malversation of public funds on grounds that he did not put the missing funds to personal uses. Such being the case. that his having "allowed others to freely participate of the chits/vouchers" was a practice which seemed to have been tolerated even during the time of his predecessor and that there was no negligence approximating malice or fraud because the wrong payments were made in good faith. the Court acquitted the accused. the municipal treasurer of Pandan. November 12. .74 which. People. Petitioner explained that the granting of the cash advances was done in good faith. 1986 are SET ASIDE.

ET AL.R. CIRCUIT CRIMINAL COURT OF LUCENA CITY. His Honor. 1977. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. the presiding judge. SP No.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review. No. petitioner.G. denied the motion. J. MOGUL. CRESPO. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course.. 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from . Leodegario L. 1977 but the arraignment was deferred to August 18. vs. Presiding Judge. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. 2 A motion for reconsideration of the order was denied in the order of August 5. GANCAYCO. L-53373 MARIO FL.. LEODEGARIO L. 6 On May 15. respondents. CCCIX-52 (Quezon) '77. represented by the SOLICITOR GENERAL. RICARDO BAUTISTA. 06978. 9th Judicial Dist. On April 18. 4 In an order of August 17. HON. 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. may refuse to grant the motion and insist on the arraignment and trial on the merits. 1977 Assistant Fiscal Proceso K. Mogul.R. THE PEOPLE OF THE PHILIPPINES. In an order of August 1. 1977 to afford time for petitioner to elevate the matter to the appellate court.

7 On March 22.R. a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity. as it is hereby set for December 18. WHEREFORE. 9 attaching thereto a copy of the letter of Undersecretary Macaraig. No. 1978 the private prosecutor was given time to file an opposition thereto. Jr. 1978 the Judge denied the motion and set the arraigniment stating: ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence. prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.. SP-08777. SO ORDERED. let the arraignment be. as suggested by the Undersecretary of Justice. 1978 then Undersecretary of Justice. 1978 with the trial court. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10. 1978 at 9:00 o'clock in the moming. In an order of August 2.Catalino Macaraig. 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of .10 On November 24. Hon. 12 On January 23. 11 The accused then filed a petition for certiorari. resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. Jr. the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. among other things.enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. evident from Annex "A" of the motion wherein. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice. the motion is considered as without merit and therefore hereby DENIED.

1981. and declaring the obligation of petitioner as purely civil. declaring the information filed not valid and of no legal force and effect. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. follow or not fonow that presented by the offended party. not to file a motiod to dismiss. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. is sufficient or not to establish the guilt of the accused beyond reasonable doubt. He may or may not file the complaint or information. In the resolution of February 26. 20 Prosecuting . 13 In a decision of October 25. the Court En Banc resolved to give due course to the petition. In the comment filed by the Solicitor General he recommends that the petition be given due course. 19 It cannot be controlled by the complainant. 1980. 1979. the Second Division of this Court resolved to transfer this case to the Court En Banc. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. 16 In a resolution of May 19. it being meritorious. according to whether the evidence in his opinion. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19. In the resolution of February 5. ordering respondent Judge to dismiss the said case. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside. respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case.the accused until further orders from the Court. 1980. 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. within ten (10) days from notice. 1981. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition.

28 On the other hand. a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so. are shown to be guilty of a crime committed within the jurisdiction of their office. neither an injunction. 30 However. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. or between the fiscal and the offended party or the defendant. according to the evidence received from the complainant. which is the authority . not only have the authority but also the duty of prosecuting persons who. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima faciecase. that an information be filed in Court. 25 Thus. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information. the action of the fiscal or prosecutor is not without any limitation or control. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. and Courts that grant the same commit no error.officers under the power vested in them by law. modify or reverse the action or opinion of the fiscal. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise. preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. since this would interfere with the fiscal's discretion and control of criminal prosecutions. 27 In a clash of views between the judge who did not investigate and the fiscal who did. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time. those of the Fiscal's should normally prevail. The Court thereby acquires jurisdiction over the case. if he finds that the evidence relied upon by him is insufficient for conviction. 31 The filing of a complaint or information in Court initiates a criminal action.

In turn. However.1âwphi1 The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not. as above stated. 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 33 The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 36 or the right of the People to due process of law. the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. Should the fiscal find it proper to conduct a reinvestigation of the case. at such stage. one may ask. The answer is simple. in spite of his . the Court thereby acquired jurisdiction over the person of the accused.to hear and determine the case. the filing of said information sets in motion the criminal action against the accused in Court. 36a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court. once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for the consideration of the Court. if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. the permission of the Court must be secured.

Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. SO ORDERED. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. 38 The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. the Secretary of Justice should. refrain from entertaining a petition for review or appeal from the action of the fiscal. . 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control.opinion to the contrary. 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. when the complaint or information has already been filed in Court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court. WHEREFORE. it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. as far as practicable. The matter should be left entirely for the determination of the Court. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. the petition is DISMISSED for lack of merit without pronouncement as to costs.

CFI Branch I. this case is hereby DISMISSED with costs de oficio. ARISTON ANADILLA. On 10 August 1964. On the same date. (PEOPLE OF THE PHILIPPINES).R. dated 20 March 1974. Complainant versus Ariston Anadilla. respondent Rafael Anadilla who had not yet been arrested by the police authorities. DELFIN VIR. entitled "People of the Philippines. Branch I. an information for Attempted Homicide was filed by the Provincial Fiscal of Camarines Sur against accused-private respondents Rafael Anadilla. the court a quo issued the now assailed order which reads: Considering that the offended party. Accused. however. No. 1988 REPUBLIC OF THE PHILIPPINES. Trial of the case was set on 11 and 12 March 1974. RAFAEL ANADILLA and JOSE ANADILLA. petitioner. Camarines Sur.G. The hearing set on 11 March 1974 was.: This is a petition for review on certiorari of the order * of the Court of First Instance of Camarines Sur. dismissing motu proprio Criminal Case No. The facts are not disputed. Ariston Anadilla and Jose Anadilla. the court a quo issued an order for the arrest of said accused. Jose Dadis is no longer interested in the further prosecution of this case and there being no objection on the part of the accused Ariston Anadilla. Rafael Anadilla and Jose Anadilla." as well as of the order dated 22 April 1974 of the same court denying the motion for reconsideration of said earlier order. and at the same time set the trial of the case for 29 and 30 July 1974. HON. . PADILLA. On 20 March 1974. J. SUNGA. L-38634 June 20. respondents. L-244. 10th Judicial District. as Presiding Judge. vs. Rafael Anadilla and Jose Anadilla. postponed in view of the absence of one of the accused.

The issue in this petition is whether the courta a quo may dismiss a criminal case on the basis of an affidavit of desistance executed by the offended party. relied upon by the aforequoted order.. The issue presented is not novel. the order of arrest issued by this Court against the accused Rafael Anadilla dated March 11. entitled. SO ORDERED. he requests the Prosecuting Fiscal for the dismissal of the said case. Consequently. after the complaint or information has been filed in court. In Crespo v. the Court had occasion to state the rule in regard to the respective powers of the prosecuting fiscal and the court. the issue . 1974. that he is no longer interested in the further prosecution of this case and that he has already forgiven the accused for their acts. Torrecampo. for Attempted Homicide. Ariston Anadilla. that: That he was the complainant in Criminal Case No. and that in view of these circumstances. It alleged. 3 This petition was thereupon filed before this Court. the Provincial Warden is hereby ordered to release said accused from their detention immediately upon receipt of this order. 4 promulgated on 30 June 1987.B. et al. is hereby ordered lifted and has no force and effect. People vs. that his material witnesses could no longer be contacted and that without their testimonies. L-244. R. The bail bond posted for the provisional liberty of the accused is hereby ordered cancelled. In said case. among others. was executed by the offended party on 20 March 1974 and subscribed and sworn to before the branch Clerk of Court Atty. the guilt of the accused cannot be proven beyond reasonable doubt. 1 The affidavit of desistance. This was denied by the court a quo in an order dated 22 April 1974. In the case of Ariston Anadilla and Jose Anadilla. but without a motion to dismiss filed by the prosecuting fiscal. 2 The Provincial Fiscal moved to reconsider the order of dismissal. which case is pending before the first branch of this Court. Mogul.

deferred because of a pending appeal by the accused/respondent to the Secretary of Justice. On a certiorari recourse to the Court of Appeals. the Court held: xxx xxx xxx The filing of a complaint or information in Court initiates a criminal action. Arraignment of the accused and trial of the case were. the Court thereby acquired jurisdiction over the person of the accused. may refuse to grant the motion and insist on the arraignment and trial of the case on the merits. at such stage. however. an information for Estafa had already been filed by the Assistant Fiscal before the Circuit Criminal Court of Lucena City. which is the authority to hear and determine the case. In the Crespo case.raised was whether the trial court. the permission of the Court must be secured. In turn. While it . the petition was dismissed. Review of the Court of Appeals decision was then sought by the accused with this Court. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. the filing of said information sets in motion the criminal action against the accused in Court. The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. Reversing the resolution of the Office of the Provincial Fiscal. Upon such instructions. raising the issue previously stated herein. acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review. Resolving. as above stated. the Provincial Fiscal filed a motion to dismiss for insufficiency of evidence. The Judge denied the motion and set the arraignment. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested. Should the fiscal find it proper to conduct a reinvestigation of the case. The Court thereby acquires jurisdiction over the case. the Undersecretary of Justice directed the fiscal to move for immediate dismissal of the information filed against the accused.

in his affidavit of desistance manifested that his material witnesses could no longer be contacted. 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. the guilt of the accused could not be proved beyond reasonable doubt. 5 In the case at bar. while the Crespo doctrine has settled that the trial court is the sole judge on . The determination of the case is within its exclusive jurisdiction and competence. is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not [sic]. the Court takes the view that. the Court has taken note that before the case was set for trial." (Emphasis supplied). therefore. once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. without their testimony. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. but. almost ten (10) years had elapsed from the date of filing of the information. unusual that the complainant-offended party. The prosecuting fiscal in his motion for reconsideration of the order dismissing the case. To avoid similar situations. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. obviously believed that despite such manifestation of the complainant. he (fiscal) could prove the prosecution's case. The only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law. The Court is the best and sole judge on what to do with the case before it. It was not.

whether a criminal case should be dismissed (after the complaint or
information has been filed in court), still, any move on the part of the
complainant or offended party to dismiss the criminal case, even if without
objection of the accused, should first be referred to the prosecuting fiscal
for his own view on the matter. He is, after all, in control of the prosecution
of the case and he may have his own reasons why the case should not be
dismissed. It is only after hearing the prosecuting fiscal's view that the
Court should exercise its exclusive authority to continue or dismiss the
case.

WHEREFORE, the petition is hereby DISMISSED. Without costs.

SO ORDERED.

G.R. No. 74231 April 10, 1987

CORAZON J. VIZCONDE, petitioner,
vs.
INTERMEDIATE APPELLATE COURT & PEOPLE OF THE
PHILIPPINES, respondents.

NARVASA, J.:

Corazon J. Vizconde has appealed as contrary to law and the evidence,
the Decision of the Court of Appeals 1affirming her conviction of the crime
of estafa by the Court of First Instance of Rizal Quezon City Branch, in
Criminal Case No. Q- 5476.

Vizconde and Pilar A. Pagulayan were charged in the Trial Court with
misappropriation and conversion of an 8-carat diamond ring belonging to
Dr. Marylon J. Perlas in an information which avers that they:

* * * wilfully, unlawfully and feloniously, with intent of gain and
with unfaithfulness and/or abuse of confidence, defraud(ed)
DRA. MARYLOU J. PERLAS in the following manner, to wit:
the said accused received from the offended party one (1) 8-
karat solo diamond ring, white, double cut, brilliant cut with
multiple bentitos, valued at P85,000.00, to be sold by them on
commission basis, with the obligation to tum over the proceeds
of the sale to the offended party, or to return the said ring if
unsold, but the Id accused, once in possession thereof,
contrary to their obligation, misapplied, misappropriated and
converted the same to their own personal use and benefit, and
in spite of repeated demands made upon them, both accused
failed, omitted and refused, and still fait omit and refuse up to
the present, to comply with their aforesaid obligation, to the
damage and prejudice of the offended party, in the
aforementioned amount of P85,000.00, Philippine currency. 2

After trial both accused were convicted and each sentenced to serve an
indeterminate prison term of from eight (8) years, four (4) months and one
(1) day to ten (10) years and two (2) months of prision mayor, with the
accessory penalties provided by law, and jointly and severally to indemnify

the offended party in the sum of P55,000.00 for the unaccounted balance
of the value of the ring with legal interest from April 22, 1975, the further
sum of P30,000.00 as and for moral damages and the sum of P10,000.00
for attorney's fees. 3

Both accused appealed to the Court of Appeals, but as Pilar A. Pagulayan
had evaded promulgation of sentence in the Trial Court and had appealed
only through counsel the Appellate Court vacated her appeal as
ineffectual. 4 On Vizconde's part, the Court of Appeals affirmed the
judgment of the Trial Court in all respects except the penalty of
imprisonment, which it increased to a term of from ten (10) years and one
(1) day of prision mayor to twelve (12) years ten (10) months and twenty-
one (21) days of reclusion temporal. A motion for reconsideration was
denied. Vizconde thereafter filed the present petition for review on
certiorari. 5

Required to comment on the petition, the Solicitor General, despite having
argued for affirmance of Vizconde's conviction in the Court of Appeals, now
recommends that she be acquitted, but nonetheless held civilly liable to the
complainant in the sum of P55,000.00 (the unaccounted balance of the
value of the ring as found by the Trial Court) " * * * or whatever portion
thereof which remains unpaid. * * * 6

From the record and the findings of the courts below, it appears that
sometime in the first week of April, 1975, the complainant, Dr. Marylon J.
Perlas, called up the appellant Vizconde, a long-time friend and former high
school classmate, asking her to sen Perlas' 8-carat diamond ring. Shortly
afterwards, Perlas delivered the ring to Vizconde to be sold on commission
for P 85,000.00. Vizconde signed a receipt for the ring. 7

About a week and a half later, Vizconde returned the ring to Perlas, who
had asked for it because she needed to show it to a cousin However,
Vizconde afterwards called on Perlas at the latter's home, with another
lady, Pilar A. Pagulayan, who claimed to have a "sure buyer" for the
ring. 8 Perlas was initially hesitant to do so, but she eventually parted with
the ring so that it could be examined privately by Pagulayan's buyer when
the latter' gave her a postdated check for the price (P 85,000.00) and,
together with Vizconde, signed a receipt prepared by Perlas. This receipt-
people's Exhibit "A"- reads as follows:

RECEIPT

Received from Dra. Marylon Javier-Perlas one (1) solo 8 karat
diamond ring, white, double cut, brilliant cut with multiple
brilliantitos, which I agree to sell for P85,000.00 (eighty-five
thousand pesos) on commission basis and pay her in the
following manner:

P85,000.00 — postdated check

PNB check 730297

dated April 26, 1975

for P85,000.00

It is understood that in the event the above postdated check is
dishonored for any reason whatsoever on its due date, the total
payment of the above item shall become immediately due and
demandable without awaiting further demand.

I guarantee that the above check will be sufficiently funded on
the respective due date.

Quezon City, Philippines

22 April 1975

(SGD.) PILAR A.
PAGULAYAN

PILA
R A.
PAG
ULA
YAN

16
Rd. 8
Proje
ct 6

The latter suggested that Perlas re-deposit the check while she (Vizconde) followed up the sale of the ring. white. Pagulayan paid Perlas P5.000. which she also made the two sign.000. Pilar Pagulayan and Mrs.00). VIZCONDE COR AZO N J. the sum of FIVE THOUSAND PESOS ONLY (P5. Pilar Pagulayan. Perlas re-deposited the check. double cut. 434909. Corazon de Jesus Vizconde on 22 April 1975. 10 So Perlas took the matter to counsel who sent separate letters of demand to Vizconde and Pagulayan for return of the ring or payment of P85. 434910. VIZC OND E9 After Pagulayan's postdated check matured." stated in the debit advice. 11 After nine days. brilliant cut w/multiple brilliantitos.000. "No arrangement.000.five thousand pesos (P85. Perlas deposited it to her account at Manila Bank. 434907. which will be returned upon delivery of the . Vizconde and Pagulayan called on Perlas. Perlas then called up Vizconde to inform her about the dishonor of the check. It was dishonored for the reason. but again it was dishonored because drawn against insufficient funds.00 against the value of the ring. I guarantee jointly and severally — (SGD. to be sold on commission basis for eighty. 12 The receipt — Exhibit "D" of the prosecution — reads: Received from Mrs.00. Received also owner's duplicate copies of TCT Nos.00) representing part of the proceeds of the sale of one (1) solo 8 carat diamond ring. She also gave into Perlas' keeping three certificates of title to real estate to guarantee delivery of the balance of such value.) CORAZON J. given to Mrs. A receipt for the money and the titles was typed and signed by Perlas.

left a balance of P55.00).000. Philippines 7 May 1975 (Sgd. together with the P5. remaining balance of the proceeds of the sale of said diamond ring for eighty five thousand pesos (P85. This receipt is being issued without prejudice to legal action.) Corazon J. Pagulayan Pilar A.000.000. 14 Both the Trial Court and the Court of Appeals found istilln these facts sufficient showing that Vizconde and Pagulayan had assumed a joint . Quezon City.00 earlier paid. Vizconde Corazon Vizconde 13 Vizconde and Pagulayan having allegedly reneged on a promise to complete payment for the ring on the very next day.00 still owing. Perla s Dra.000. Perlas filed with the Quezon City Fiscal's office a complaint against them for estafa This notwithstanding. ) Maryl on J. Maryl on J.) Pilar A. Pagulayan stin paid Perlas various sums totalling P25. Pagulayan (Sgd.00 which. Perla s Conforme: (Sgd.

of the Revised Penal Code. As the Solicitor General correctly puts it. Exhibit "A". to the prejudice of another. the joint and several undertaking assumed by Vizconde in a separate writing below the main body of the receipt. par. one cannot be held criminally liable for the act or default of another. . Exhibit "A". To warrant anything more than a mere conjecture that the receipt also constituted Vizconde the agent of Perlas for the same purpose of selling the ring. 315. upon failure to return the ring or deliver its agreed value. it was one between Perlas and Pagulayan only. the receipts Exhibits A" and "D". as principal. as agent. 15 He is correct. or in the proven circumstances attending its execution can logically be considered as evidencing the creation of an agency between Perlas. which rendered them criminally liable. be construed as assuming any criminal responsibility consequent upon the failure of Pagulayan to return the ring or deliver its value." or the text of the receipt containing that clause should also have carried Vizconde's signature. in conjunction with the fact that the part of the receipt in which the clause appears bears only the signature of Pagulayan. Nothing in the language of the receipt. for defraudation committed " * * * with unfaithfulness or abuse of confidence * * * by misappropriating or converting. merely guaranteed the civil obligation of Pagulayan to pay Perlas the value of the ring in the event of her (Pagulayan's) failure to return said article. or under any other obligation involving the duty to make delivery of or to return the same. But it is clear that if any agency was established. the cited clause should at least have used the plural "we. for the sale of the former's ring. True. in any sense. reference to what may be taken for an agency agreement appears in the clause " * * * which I agree to sell * * * on commission basis" in the main text of that document. disagrees and submits in his Comment that the appellant cannot be convicted of estafa under a correct interpretation of the two principal exhibits of the prosecution. under Art. It cannot. this being the only logical conclusion from the use of the singular "I" in said clause. and Vizconde. It is fundamental that criminal responsibility is personal and that in the absence of conspiracy. from an earlier stance. l(b).agency in favor of Perlas for the sale of the latter's ring. as already stated. * * * personal property received in trust or on commission. * * * " The Solicitor General falling back.

that Vizconde was present on the two occasions when the ring was entrusted to Pagulayan and when part payment of P5. and the check that she had issued in payment therefor (or to secure payment. A person to be guilty of crime. she must be shown to have acted in concert and conspiracy with Pagulayan. such as the fact that Vizconde and the complainant were friends of long standing and former classmates. more than her mere guarantee written on Exhibit "A" is necessary. At the least. They are not inconsistent with what Vizconde has asserted to be an innocent desire to help her friend dispose of the ring." on those occasions are. the circumstances from which a reasonable inference of conspiracy might arise. * * * 16 Thus. participate in its commission or in the fruits thereof. It is of course true that direct proof of conspiracy is not essential to convict an alleged conspirator. appears to confirm that the ring "* * * was given to Mrs. Corazon de Jesus Vizconde on 22 April 1975.000. or in the misappropriation or conversion of the same. 17Here.00 was made.000.00). or in undertaking to return the same or delivery its value. Exhibits "A" and "D. and that conspiracy may be established by evidence of acts done in pursuance of a common unlawful purpose. must commit the crime himself or he must. but no adequate proof thereof has been presented. The ring had already been given to Pagulayan. to be sold on commission basis for eighty five thousand pesos (P85. and that she signed the receipts. that it was Vizconde who introduced Pagulayan to Perlas. the theory that by standing as surety for Pagulayan. Now. and staked her very liberty on Pagulayan's fidelity to her trust is utterly unacceptable. That the . the information charges conspiracy between Vizconde and Pagulayan. nor do they exclude every reasonable hypothesis other than complicity in a premeditated swindle. in some manner. either in obtaining possession of the ring. 18 The foregoing conclusion in nowise suffers from the fact that the second receipt. at best. inconclusive. To render Vizconde criminally liable for the misappropriation of the ring. as the complainant would have it) had already been dishonored twice." 19 The implications and probative value of this writing must be considered in the context of what had already transpired at the time of its making. Exhibit "D". however. Pilar Pagulayan and Mrs. it strikes at the very essence of guaranty (or suretyship) as creating purely civil obligations on the part of the guarantor or surety. Vizconde assumed an obligation more than merely civil in character.

that Vizconde was constituted. or agreed to act as. at least another factor reinforcing the hypothesis of Vizconde's innocence. upon default of the principal. Exhibit "D". since.Integrity. . however. The conflict in the recitals of the two receipts insofar as concerns Vizconde's part in the transaction involving Perlas' ring is obvious and cannot be ignored. which needed only the signature of Perlas as an acknowledgment of the P5. cannot be considered as anything other than an attempt to "cure" the lack of mention of such an entrustment in the first receipt. What is clear from Exhibit "A" is that the ring was entrusted to Pilar A.000. In view of the conclusions already reached. Neither. It is. the later receipt was made under circumstances which leave no little doubt of its truth and . and the delivery of the land titles to secure the balance. on the other hand. there is no mention therein that it was simultaneously delivered to and received by Vizconde for the same purpose or. Exhibit "D". and thereby bind Vizconde to a commitment far stronger and more compelling than a mere civil guarantee for the value of the ring. insofar as it purports to confirm that Vizconde had also received the ring in trust. agent jointly with Pagulayan for the sale of the ring. consideration of the Solicitor General's argument — also quite persuasive — that Exhibit "D" in fact evidences a consummated sale of the ring for an agreed price not fully paid for. which yields the same result. Given that situation. The undisputed fact that Exhibit "A" was executed simultaneously with the delivery of the ring to Pagulayan compellingly argues for accepting it as a more trustworthy memorial of the real agreement and transaction of the parties than Exhibit "D" which was executed at a later date and after the supervention of events rendering it expedient or desirable to vary the terms of that agreement or transaction. Pagulayan to be sold on commission. There is otherwise no explanation for requiring Vizconde and Pagulayan to sign the receipt. What Vizconde solely undertook was to guarantee the obligation of Pagulayan to return the ring or deliver its value. without more. as the Court sees it. would make out Vizconde an agent for the sale of the ring. is no longer necessary. should these writings be read together in an attempt to reconcile what they contain.00 given in part payment. and that guarantee created only a civil obligation.complainant then already entertained serious apprehensions about the fate of the ring is evident in her having had her lawyers send Vizconde and Pagulayan demands for restitution or payment. therefore. as already pointed out. Exhibit "A". with threat of legal action.

000. Whatever liability was incured by Pagulayan for defaulting on such obligation — and this is not inquired into — that of Vizconde consequent upon such default was merely civil. SO ORDERED. of the obligation assumed by Pilar A. Pagulayan. the Solicitor General however maintains. Again. therefore. except insofar as it affirms the judgment of the Trial Court ordering appellant Corazon J. It was. to which the amount of the indemnity adjudged may be justly subject. with costs de oficio. on the authority of People vs. 21 which may have resulted in further reducing the abovestated balance. there being no question — as in fact admitted by her — that the appellant executed the guarantee already referred to. error to convict her of estafa. Vizconde was a mere guarantor. Padilla. the appellant may. As already stated. for the value of the ring. to indemnify the complainant Marylon J. WHEREFORE.00. prove any reductions. Perlas for the return of the latter's ring or the delivery of its value. upon remand of this case to the Trial Court.000.Upon the evidence. Pagulayan to complainant Marylon J. Vizconde. a solidary one to be sure. this is a correct proposition. Perlas in the amount of P55. solidarity with Pilar A. by the operation of said levies or otherwise. and said appellant is acquitted. 20 that the appellant should be held hable to pay the complainant the amount of P55. the appellant pealed Decision of the Court of Appeals is reversed and set aside. not criminal.00 for the unaccounted balance of the value of the latter's ring. MISSING: PEOPLE VS RAMOS . As the record indicates that levies on preliminary attachment and on execution pending appeal have been made on behalf of the complainant. appellant Corazon J. or whatever part of such amount remains unpaid.

.. in the exercise of sound judicial discretion and in furtherance of justice. it may. March 30. INCREASE IN PENALTY AFTER ENTRY OF JUDGMENT. — A court has the power to revise and increase the sentence imposed upon a convict before it becomes final and before any part of the original sentence has been performed. Plaintiff-Appellee. [G. E. CRIMINAL LAW. 3. v. revise and increase or diminish such sentence within the limits authorized by law. Defendant-Appellant. : . ID.R. SYLLABUS 1. J. ID. JOSE VAYSON. No. DECISION TRENT.. — The general principle reaffirmed and held applicable to both civil and criminal cases that courts in this jurisdiction have control over their judgments until they become final. 2. ID.. — Where a court in passing sentence has acted under a misapprehension of the facts necessary and proper to be known in fixing the penalty. and may set them aside or modify them as law and justice may require. ID.. Acting Attorney-General Harvey for Appellee. 1914. DISCRETION. G. before the judgment has become final and before the original sentence has gone into operation. REVISION OF JUDGMENTS. ex mero motu. Campbell for Appellant. 9397. ID. ] THE UNITED STATES.

you being delinquent in the sum of P56. on or about the 4th day of June. Guilty. section 30.com. on September 29th. You are accused of having violated paragraph 4 of section 30. September 29.ph "Jose Baison is accused by the undersigned of a violation of paragraph 4.88 in the payment of your land taxes for the years 1908. 1913. — Misamis. What do you say to this charge: Do you plead guilty or not guilty? DEFENDANT. 1913.com. 1909. Upon recommendation of the fiscal the defendant was then. 1909. committed as follows:jgc:chanrobles. at which time the court asked him the following question:chanrob1es virtual 1aw library JUDGE. the said Jose Baison being then and there delinquent in the payment of land taxes in the amount of P56. 1913. sentenced to imprisonment of the costs. the defendant was called into court and the following proceedings were had in his presence:chanrob1es . 1910. knowing that he was not entitled so to do. 1912.An appeal by Jose Vayson from a judgment of the Court of First Instance of Misamis. sentencing him to six month’s imprisonment and to the payment of the costs of the cause for a violation of the Election Law. and 1911. 1912. did then and there maliciously and unlawfully vote at the general elections for delegates to the Philippine Assembly. and 1911. On the 3d of October."cralaw virtua1aw library The defendant was arraigned on September 29. in that you did maliciously and intentionally vote in the general election held on June 4. contrary to the statute in such cases made and provided. and provincial and municipal officials. of the Election Law. The original information is as follows:jgc:chanrobles. of the Election Law. Province of Misamis.88 for the years 1908. at the municipality of Misamis.ph "That the said Jose Baison. 1910.

Yes.) I ask permission of the court to amend the information presented in this case by changing the word "Baison" to "Vayson" and the number "4" just after the word "paragraph. Were you elected vice-president in 1912? DEFENDANT.virtual 1aw library FISCAL (addressing the court. Are you the vice-president of the town of Misamis. owing to their want of education. Province of Misamis? DEFENDANT. yes. Both sentences were within the discretion reposed in the trial court under the first paragraph of section 30 of the Election Law. The motion is admitted. I presented my resignation in the month of May. but now. The court then revoked the sentence dated September 29. so that the same will read "Paragraph number 1." The proceedings had on the 3d of October developed that the defendant had been vice-president of his municipality."cralaw virtua1aw library COURT. In our opinion the imposition of six month’s imprisonment is not excessive. defining and penalizing the offense of which the defendant was guilty. and had been delinquent in his taxes for four years. was a candidate for that office when he committed the offense for which he was charged. no. Formerly. and imposed in lieu thereof a sentence of six month’s imprisonment. The court considered these facts sufficient to call for the imposition of a heavier penalty. sir." substituting therefor number 1. The first sentence was imposed upon the recommendation for leniency made by the fiscal on the ground that the defendant was one "of a class of poor ignorant persons whose violations of the Election Law should not be punished too severely. COURT. This punishment is now questioned on that . COURT (addressing the defendant).

as above indicated. recently been affirmed in De Fiesta v. as also of judgments therein.. to have execution thereon.ground.."cralaw virtua1aw library This doctrine. as to civil cases. while the first paragraph penalizes any person who votes or attempts to vote. Llorente (18 Phil. in the exercise of a sound discretion. We will now inquire whether the court had the power under the facts and circumstances above set forth to set aside its original judgment and impose the penalty of six months. after the defendant had entered his plea. and. In determining this question it must be borne in mind that the defendant had served no part of the original sentence when the second sentence was pronounced. the courts may take such action touching the vacation and amendment of these judgments as truth and justice may require. Rep. and Broce v. The information was amended. this Court said: "When not otherwise provided by statute. but the changes made were mere corrections of clerical errors and did not change the allegations concerning the commission of the crime. Apurado (26 . Llorente (25 Phil. Rep. The result is that the correction of the clerical errors in the complaint could not and did not prejudice the rights of the defendant. The defendant was charged originally with a violation of paragraph 4 of section 30 of the Election Law. The fourth paragraph penalizes the act of taking or subscribing to any false oath concerning any material fact in any registration or election proceedings. all courts in the Islands have plenary control over the proceedings had before them. In the case of Arnedo v. 554). 257). until such judgments become final in the sense that the party in whose favor they are rendered is entitled as of right. knowing that he is not entitled so to do. but he allegations which follow in the second paragraph of the original information and the explanation given the defendant by the court show that it was the first paragraph of section 30 which was violated and not the fourth.

this court held that the Court of First Instance had no power to modify its judgment in a criminal case after the expiration of the period for appeal. orders and decrees.. set aside this judgment and entered another. vol. The case of Ex parte Lange (85 U. On January 31. the court. This case negatively admits the proposition that a Court of First Instance would have the power to modify its judgment in a criminal case before it became final."cralaw virtua1aw library That case. This exception to the general rule has been recognized in a number of cases. we are not aware of any precedents in this jurisdiction. the court had imposed imprisonment and a fine. which was contrary to the jeopardy clause of the Constitution. in both civil and criminal cases.. Is it true that the accused may not object to such action on the part of the court when the proposed change is not desired by him? Upon this precise question. 872). must be considered as an exception to the general rule thus announced. during the same term. as the present defendant had served no part of the original sentence. S.Phil. sentencing the defendant to imprisonment . 157). called him to the bar and amended its judgment so that it called for imprisonment only.. Rep. before the expiration of the time allowed for an appeal. the statute provided for imprisonment or a fine. Crossfield (24 Phil. ed. 163. on its own motion.. states the general rule as follows: "The general power of the court over its own judgments. the majority of which are referred to in the Notes of United States Reports. 581). People (22 Colo. is undeniable. judgment calling for imprisonment for one year was pronounced on January 28. he cannot bring himself within the exception. 159. Does it apply to criminal cases? In United States v. Rep. The prisoner had paid the latter and had served five days of the prison sentence.. 21 L. Whereas. In Bradford v. that is. when the court. 8. 321). The Supreme Court held that the payment of the fine was an authorized punishment for the crime and that the revision of the sentence was in effect subjecting the prisoner to a second punishment. during the existence of the term to which they are first made. however. p. But it is apparent that.

The appellate court said: "The question in the case is whether the court. 439). to set that judgment aside. which imposed a greater fine. in order that the defendant might not escape until he could be safely conveyed to and lodged in the state penitentiary."cralaw virtua1aw library In Tillman v. the aggregate of the sentences in the revised judgment was the same as the first. State (58 Fla. At the same term and before any part of the judgment had been complied with. had the power.. 113). and before anything has been done under them. The sentence in this case was for the full term of one year in the state penitentiary. and his incarceration in the country jail of Arapahoe county. the court set the judgment aside and entered another judgment. at the same term and before any part of the judgment had been performed."cralaw virtua1aw library In State v.for one year on each of three counts. it was simply a means to an end. however. after it had entered a judgment in regular from against the defendant. and the time so spent could not be deducted from his term. at the term at which they are pronounced. temporarily or otherwise could not be credited upon his term. judgment was entered against the defendant on his plea of guilty for a fine and costs. The court said: "In cases where the defendant has entered upon the execution of a valid sentence. It was no part of his sentence under the statute. that all of these sentences should run concurrently. as it is provided that the term shall be computed from and including the day on which he is received into the penitentiary. it is well established that such sentence cannot be set aside and a new sentence entered. and enter another judgment against him imposing a heavier penalty. has long been . Dougherty (70 Iowa. As it was specifically provided. The power of the courts to revise. correct and change their sentences. the trial judge has the power to modify such sentence. before the defendant had begun serving such sentence. it was said that "during the same term of court at which the sentence is imposed.

Ennis. the defendant was first sentenced to two year’s imprisonment in a house of correction.. 556. Regina v. and cases cited. Within an hour after sentence was pronounced. Rex v. 325. 626). 411. 3 Sawy. 2 Allen. Hughes (35 Kan. Weymouth. the prosecuting attorney moved for a revision of the sentence and. 1 Maule & S. (1 Bish.) As nothing had been done under the sentence first pronounced. 442. Ex parte Sawyer. 715. the rights of the defendant were not infringed upon.’ (Com. Dec. in contemplation of law.. 94 U.)" In State v. Harmison. nor has he any ground for complaint. Memphis v. additional testimony was heard."cralaw virtua1aw library In Commonwealth v. the attention of the court was called to the fact that no person could be sentenced to imprisonment at hard labor in the state prison for less than one year. On the next day. 144. (See Com. Rex v. S.. on Cr. 21 Wall... Fitzgerald. after which the original judgment was revised and the defendant sentenced to imprisonment in the state prison for three and one- half years. in the breast of the court. Burnside v. Weymouth (2 Allen. The supreme court said: "The sentence first pronounced against the defendant was not executed or put into operation and ’so long as it remained unexecuted. and subject to revision and alteration. and the cases are numerous in which the power has been exercised. and as the final sentence did not impose a penalty in excess of that provided by law. Price. 6 East. the first two days of which were to be solitary. Brown. 43 Ind. 1 Salk. over the prisoner’s protest.recognized both in this country and in England. the defendant was sentenced to imprisonment at hard labor in the penitentiary for six months. Proc. 2 Allen.) We think it was clearly within the discretion and power of the court until the end of the term. 147. it was. 776). 1298. v. sec. Mass. After .. U. The court thereupon proceeded to sentence the prisoner to imprisonment for a term of one year.. 323. v. Leicestershire Justice.. to amend and revise or increase the sentence which had not gone into effect. 144. Weymouth. S.. v. 79 Am. 401.

according to the statutes of 1859. If it had appeared that the petitioner had actually been taken and committed under the first sentence. Prisoner remanded. was the same as if it had never been passed. 1874. Until something was done to carry the sentence into execution. we might have arrived at a different result. by subjecting the prisoner to the warrant in the hands of the officer. but no steps were taken to carry the sentence into execution. there is no good reason for refusing to vacate the judgment for sufficient cause and substituting a new one in its place. or if he had been thereby condemned to imprisonment in the state prison. So long as it remained unexecuted. but on the record as it stands. the defendant was again before the court. the defendant pleaded guilty to a charge of illegally selling intoxicating liquor and was sentenced to pay a fine and costs of the cause. 113). He was never taken or charged on the warrant which was issued on the sentence as originally pronounced. chapter 248. so that the term of his sentence would be computed from the time he was first ordered to remain in the custody of the sheriff. this time on a charge of selling liquor to a minor. we are all of opinion that the order must be. no right or privilege to which he was entitled was taken away or invaded by revoking the sentence first pronounced and substituting in its stead the one under which he now stands charged. and in effect. in contemplation of law. These proceedings were had on May 12. in the breast of the court. That sentence never went into operation. the court held the rule to be that if no action has been taken. State (32 Ohio. and the court then finding that in passing the said . On the 15th of the same month."cralaw virtua1aw library In Lee v. He was not injured or put in jeopard by it any further than he would have been by a conclusion or judgment of the court as to the extent of his punishment. it was. The court said: "The petitioner in the present case is not subjected by the amended sentence of the court to any punishment for his offense other or greater than that allowed by law. and subject to revision and alteration. which had not been announced.citing authorities.

in fixing the sentence. and. we must presume that there were sufficient reasons addressing themselves to the sound judicial discretion of the court for such action."cralaw virtua1aw library "In the absence of a showing to the contrary. The court said: "The single question is. had the court the power to revise and increase its judgment. and that no portion of said fine and costs had been paid or secured.sentence it had acted under a misapprehension of the facts of the case. to correct errors and mistakes is necessary for the protection of the defendant. is settled by a long line of decisions of the highest authority. and that it was deemed to be necessary in furtherance of justice and the due administration of the law. . This is equally as true of the discretion exercised in the first instance. when the court has been misled by mistake or fraud. set aside the same. and that the defendant had not been taken into custody under said judgment. that in passing the first sentence. The same may be said of the exercise of all judicial discretion. no greater danger of abuse exists than in the exercise of judicial discretion in rendering its first judgment. "If the court in revising its own sentence confines itself to such information as it has the right to have in the first instance. the court acted a misapprehension of the facts. and may be exercised as well in his favor as against him. and before any steps had been taken to execute it? "That this power exists. to sentence him to a heavier fine. ."cralaw . before execution has commenced. "The power to revise judgments of the same term. at the same term before any part of the fine and costs had been paid. and proceeded. as in that exercised in revising it. It is said this is a dangerous power. as well as the public. . over the defendant’s objection. "It appears from the record.

ed. The Circuit Court said: "The extent of the punishment to be inflicted on the defendant. The imposition of the first sentence did not put an end to the exercise of this discretion. because the defendant had declared his intention of appealing the case. 672). based upon such a reason.. understanding that it was not. who was still within the bar. rested in the sound judicial discretion of the court.. doubling the period of imprisonment. when it was set aside and the second sentence imposed. upon reflection. and had not satisfied or suffered any part of the punishment thereunder. did so from right and proper motives. The defendant had not yet left the bar. 21 L. 163. with enhanced punishment. and the second imposed. the court stated that he would enter a fine of $100 against the defendant and imprisonment for six months. within the limit prescribed by the statute for the offense. Thereupon counsel said that he intended to prosecute an appeal. United States (106 Fed. 18 Wall. (Ex parte Lange. and the court called up the defendant. Under these conditions. and would call for the severest censure. in recalling its first and imposing a second and more severe sentence. A new sentence. and directed the clerk to enter a fine of $100 and imprisonment for twelve months.. This court is bound to presume that the lower court. it deemed better suited to the offense. it was competent for the court to reconsider its sentence and impose a different one. would be a flagrant violation of the rights of the defendant. The first sentence was not recorded. 872.virtua1aw library In Nichols v. and. It would be the infliction of a penalty for the exercise of a clear legal right. the judge called the attorney for the defendant to the bar and asked if it was the intention to prosecute the matter any further.) The bill of exceptions does not show that the first sentence was set aside. the Circuit Court of Appeals for the Eight District had under consideration the act of a district judge under the following circumstances: After verdict and before rendering sentence. and for the purpose of imposing a punishment which. But no such motive can be imputed to the court below."cralaw virtua1aw library .

the defendant was convicted of illegally voting at an election and was sentenced to one month’s imprisonment in Newgate and to be then transported beyond the seas for seven years. 1310). 102 Eng. the court proceeded to impose a more severe sentence. 439. section 153 (citing State v. it is said: "At any time during the term the court has the power to reconsider the judgment. and may impose a greater fine than was imposed by the first judgment. 70 Iowa. sec. where the original sentence has not been executed or put into operation. Black on Judgments. affirms the rule as follows: "The court may at any time during the same assizes or sessions. At the same term and upon further consideration of the law governing the case.ph "It is even held that the court. In King v. during the same term at which the judgment was rendered."cralaw virtua1aw library In 12 Cyc. p. The recently compiled encyclopedia. in a criminal action. Procedure. says:jgc:chanrobles. Price (6 East.. 9.com. but where the prisoner has paid his fine or his imprisonment has begun. and to revise and correct it by mitigating and even by increasing its severity. before the judgment has been entered on the record. Rep. 323. Dougherty. 1298. and before any part of it has been performed. it is said: "The power of the court to alter its docket entries and records during the term wherein they are made includes the right within such . supra). imposing on the defendant a fine and the costs of the proceedings. entitled the Laws of England (vol. the court has no power to recall him to revoke his former sentence and impose one which inflicts a greater punishment.In England the authorities are the same way."cralaw virtua1aw library And in 1 Bishop’s New Crim.. may set aside a judgment made in regular course. 783."cralaw virtua1aw library American textwriters are also in full accord with the doctrine under discussion. vacate the judgment passed and substitute another. 377).

even during the term. concur.. concurs in the result. . and with the expiration of the term the power expires. Moreland. The power of the courts in this country over their judgments expires when they become final. affords no basis for complaint on the part of either the prosecution or the defendant. correct and change its sentences. if nothing has been done under them. Arellano." The facts developed upon the second hearing show clearly that the court did not abuse its discretion in revising his sentence. the court may revise its judgment by either increasing of decreasing the penalty imposed. But steps taken under a sentence — for example.time to revise. J. the term system in vogue in the United States and England has no place in this country. In the present case the revised judgment of the court relates that the defendant "has not yet begun to serve the sentence imposed upon him. a substantial part execution thereof — will cut off the right to alter it. so long as it keeps within the limits of the penalty provided by law. C. The authorities we have reviewed above demonstrate that until a criminal judgment has become final and unless the defendant has complied in whole or in part with the penalty imposed. JJ... Carson and Araullo. It is during this period of time and to the same extent as the courts of England and America. and unless a review of the evidence shows that such discretion has been abused.J."cralaw virtua1aw library As was said in the Arnedo case. There is therefore no reversible error in the judgment appealed from and it is hereby affirmed. however formally pronounced. that our courts have control over their judgments to modify and revise. Such a modification of the sentence is within the sound discretion of the court. Between the entry of the judgment and the date it becomes final is a period allowed by law for appeal or vacation of the judgment entered. with costs against the Appellant.

GUTIERREZ. Branch VII. at Sitio Putat.:ñé+. dismissing on a motion to quash Criminal Case No. a government corporate body charged with the planning and development of tourism projects. The Solicitor General for petitioner. William Española" on the ground that from the language used in the information in relation to the Presidential Decrees punishing the alleged offense. JESUS ARLEGUI. Branch VII. Philippines and within the jurisdiction of this Honorable Court. vs. the above-named accused did then and there. No. Renaldo B. and WILLIAM ESPANOLA. Judge — Court of First Instance of Batangas. it is not clear that an offense was committed and that the supposed penal statutes "are not prohibitive but rather permissive and preceptive statutes. THE HON. 381 in relation to Section 4-B of Presidential Decree No. as amended.G.£îhqw⣠The undersigned Third Assistant Provincial Fiscal accuses William Espanola of the violation of Presidential Decree No. manage and operate development projects for tourism purposes on a land under the administration and supervision of the Philippine Tourism Authority. Barangay Papaya. 1984 PEOPLE OF THE PHILIPPINES. L-62117 April 2. construct. 189. respondents. Castelo for private respondent. committed as follows: That during the month of May 1979 and continuously up to the present. establish. and situated . J. petitioner. JR. Municipality of Nasugbu. Province of Batangas..£ªwph!1 This is a petition for review on certiorari of the order of the Court of First Instance of Batangas.R." Respondent Española was charged in an information which reads:têñ. wilfully. 2170 entitled "People of the Philippines v. unlawfully and feloniously and without authority of law.

Batangas. was duly given due course by the said body as stated in Annex "A". otherwise known as the Peco de Loro Beach Resort. but. Nasugbu. Instead of charging the accused. Section 4 provides that any person violating or causing another to violate any provision of this decree or the rules and regulations promulgated by the Phillippine Tourism Authority pursuant to the next preceding . In fact. No. he ought to be commended for assisting the government in the promotion of tourism. The grounds in the Fiscal's opposition to the motion to quash are:têñ. The land covered by the beach resort was also given due course by the Bureau of Lands and covered by a Foreshore Lease Application as clearly reflected in Annexes "B" and "C".000 square meters. 189. 4-B do not impose Criminal liability against the offender. Respondent Espanola moved to quash the information on the following grounds:têñ. without the prior approval of the said Authority. Sec. 381 which was made principally as the basis of the charge against the herein accused provides under Section I thereof 'that no development project for tourism purposes shall be undertaken by any person without prior approval of the Philippine Tourism Authority. That the accused has overlooked the fact that Presidential Decree No. containing an area of 30. in Putat. more or less.£îhqw⣠1. because Sec.' As a corollary thereto. granting that the area is within the jurisdiction of the Philippine Tourism Authority. more of administrative in nature. No.D.D.£îhqw⣠The accusation against the accused is not a penal offense. the beach resort has become so famous that foreigners have been continuously and regularly patronizing the place. in accordance with the provisions and guidelines prescribed by the Department of Tourism. 381 as well as P. 4 of P. The accused did not commit any offense in the development of the beach resort because his application.

259 in which Section 4-B was specifically incorporated providing for the penalty of any violation of P. . Section 4-b as we have stated is an amendment to Section 4 of PD No. as supposed to be providing the penalty as mentioned by P. the penalty of which is provided in Section 4-B of P. Barangay Papaya.D. Batangas. 189...D. 189 which section is now included under PD 259 as an amendatory act to PD No. 1973 which among others provides the penalties for the violation of any provision of the said decree or of the rules and regulations or circulars of the Department of Tourism is now known as Section 4-B of PD No. xxx xxx xxx 2. as amended by P. as amended. . 259. 189.D. 189. 189. No. Nasugbu.D. 259 which took effect on August 1. P. 381 mentions Sec. 381. 259.. The allegation of the accused that he did not commit the offense because his application for beach resort was duly given . 4-b (not capitalized) of P. 189 was the one quoted by the accused. 189 has been amended by P. 189.D. No. Section 4-b has been misquoted because Section 4 of PD No.£îhqw⣠The charge against the accused is an offense punishable by Special Law. 1979 does not indicate approval of the authority of his application in the sense that the implications of the phrase "we may give due course to your proposal" do not altogether give a guarantee and assurance to the accused that his application will be approved. 4-B (capitalized letter) of P.D. 381 is an error because P.D. section wig suffer the penalties provided for under Section 4-B of P. Presidential Decree No. The citation of the accused of Sec. for tourism purposes because the letter itself dated February 14.D.D.D.D. That it is not true that the Philippine Tourism Authority gave due course to the application of the accused for the undertaking of a particular development project at Sitio Putat. 189 as amended particularly by P. It should be noted that P. 381. Complainant Philippine Tourism Authority likewise interposed an opposition to the motion to quash and argued:têñ.D..

due course by the Authority. no development project for tourism purposes shall be undertaken by any person without the prior approval of the Philippine Tourism Authority. through the Provincial Fiscal and the Philippine Tourism Authority. is a matter of defense which. in . decrees.£îhqw⣠(i) Respondent Lower Court erred in resorting to interpretation and construction of the information and the law subject of violation despite the unambiguous provisions thereof. The prosecution. .) are — têñ. (ii) Respondent Lower Court erred in declaring P. 381 as a permissive statute despite the mandatory nature of the provisions and the penalty provided for violation thereof.. or rules to the contrary notwithstanding.D. at this stage. 2170.. 381 (Requiring the Approval of the Philippine Tourism Authority on Certain Development Projects and Loans Applied for to Finance their Construction. in a twelve-page order resolved to dismiss the case. No. Asked to comment on the case at bar. The pertinent provisions of P. 381 is not a permissive statute and violation of its provisions constitutes a criminal offense. is misleading and definitely not a ground for a Motion to Quash. Any provision of existing laws. raised the matter to this Court in this petition and made the following assigment of errors:têñ.D.D. The respondent court. etc.£îhqw⣠Section 1. (iii) Respondent Lower Court erred in dismissing Criminal Case No. No. the Solicitor General stated that the respondent judge did not properly apply the correct provisions of the law allegedly violated by the private respondent and agreed with the prosecution that P.

which shall read as follows: (Italics supplied) . 189 (Amending Part IX Of The Integrated Reorganization Plan by Renaming the Department of Trade and Tourism as the Department of Trade.£îhqw⣠SECTION 2. No. Any person violating or causing mother to violate any provision of this decree or of the rules and regulations promulgated by the Philippine Tourism Authority pursuant to the next preceding section shall suffer the penalties provided under Section 4-B of Presidential Decree No.D. Section 4-b (not capitalized) of P. 189 dated May 11. Section 2 of the latter decree provides that:têñ. Effect the removal of unnecessary barriers to travel. as amended (Empahsis supplied). a new section to be known as Section 4-B is hereby added. No. xxx xxx xxx P. and Creating the Department of Tourism with a Philippine Tourism Authority attached to it in lieu of Philippine Tourism Commission) provides:têñ. No. as well as their efficient. 259 (Amending Certain Provisions of Presidential Decree No. the integration and simplification of travel regulations.D. — The Department shall be responsible for the following functions: xxx xxx xxx b. To provide penalties for the violation of any provision of the said Decree or of the rules and regulations or circulars of the Department of Tourism.D.£îhqw⣠Section 4. Functions. 1973). 189 was later amended by P. accordance with the policies and guidelines prescribed by the Department of Tourism. 189. xxx xxx xxx Section 4. fair and courteous enforcement to assure expeditious and hospitable reception of all visitors.

fair. 189. In addition thereto. SEC. one with a capitalized "B" and the other with a non-capitalized "b". constitute a valid ground for the revocation of all privileges. businesses. 4-B. ("Section 4-B" and "Section 4-b") since these sections caused the confusion encountered by the respondent court and the misreading and misapplication of the law. as the case may be. Under "Section 4-b" of P. No. To that extent respondent Espanola was correct when he said that the provision was not a penal offense but that it was more administrative in nature.D. in addition to the penalties herein prescribed. the penalty shall be imposed upon the guilty officer or officers. as well as their efficient. " We purposely emphasize that there are two sections numbered almost Identically. and if such guilty officer or officers is an alien. however. The two sections must be distinguished from each other. The respondent court citing Section 4-b (not capitalized) of P. or have anything to do with travelers and tourists. such violation shall ipso facto. Any person violating or causing another to violate any provision of this Decree. of the corporation. Provided. No. or both. at the discretion of the Court. classify. 189. suffer the penalty of imprisonment of not less than two (2) years nor more than five (5) years or a fine of not less than two thousand pesos nor more than five thousand pesos. permits and authorization granted to such person or entity under this Decree by the Department of Tourism. facilities and services that cater to. both international and domestic shall. 7' It does not provide for any penalty. . firm or association.D. firm. partnership or association. regulate and/or supervise the operation of all persons. and courteous enforcement to assure expeditious and hospitable reception of all visitors. he or they shall be deported without further proceedings on the part of the Commission on Immigration and Deportation. the integration and simplification of travel regulations. establishments. much more impose any criminal liability. That if the offender is a corporation. arrived at the same conclusion. the Department of Tourism was empowered to "effect the removal of unnecessary barriers to travel. or of the rules and regulations or circulars promulgated by the Department of Tourism pursuant to its power and authority to license. upon conviction by a court of competent jurisdiction.

Moreover. Such is the case at bar. 381 in relation to Section 4-B of P. But interpretation may be required and justified by various factors. Respondent Espanola created ambiguity where there was none. the information clearly and expressly accuses respondent Espanola for the violation of P. 189 has been amended by P. No. No. . Section 4-B. interpretation is required in order to ascertain what the writer meant. a bare reading suffices and interpretation is unnecessary or stated conversely. No. No. the Court honestly believe that the language used exceeds or falls short of expressing the meaning intended. if the writing is ambiguous. Besides the doubt created by doubtful meaning of words used do not express the Prosecutor's Information intent perfectly. Assuming the information to have been vague and ambiguous. the information appears sufficiently explicit.D.However. therefore.D. unnecessary. In dismissing the case. Contrary to the respondents' claim. For one thing. P. the respondent court relied on rules of statutory construction and held that:têñ. 189. alternative courses of action could have been taken.D. 259 and a new provision.D. It does not suffer from the obscurity. or its meaning uncertain. added. An examination of the information shows on its face that it does not suffer from any material or substantial defect or any so-called ambiguity or double meaning as to warrant the dismissal of the case. unintelligibility.D.£îhqw⣠It is basic that if the writing is plain. 189 before it was amended This means that "upon conviction of a court of competent jurisdiction" the "penalty of imprisonment of not less than two (2) years nor more than five (5) years or a fine of not less than two thousand pesos nor more than five thousand pesos. Resort to statutory construction or interpretation was. as amended. No. or vagueness alleged by the respondents. certain and free from ambiguity. in which case interpretation is needed. at the discretion of the court' shall be imposed. Respondent Espanola could have filed a motion for a bill of particulars if he did not feel like researching into a Presidential Decree with a Section 4-b and a Section 4-B. not Section 4-b of P. A bill of particulars while provided for under Section 6 of Rule 116 is not a popular procedure among lawyers for the accused in criminal cases. or both.

as far as defendant Plaza was concerned.S. This Court stated in People v. move for or demand a more definite statement or a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to plead or prepare for trial. That under the provisions of said rule the trial court may order the filing of another information or simply the amendment of the one already filed is clearly in accordance with the rule in this jurisdiction (U. at the time of or before arraignment.£îhqw⣠But even assuming that the lower court was right in holding that the facts alleged in the information do not constitute a punishable offense.£îhqw⣠SEC. Plaza (117 Phil. pursuant to the provisions of Section 7. the lower court should have given the prosecution an opportunity to amend the information. it would have clarified and corrected at an early stage the kind of doubt which the accused in this particular case alleged to have entertained. 6. Bill of Particulars. Instead. But the ruling of this Court was not followed. The more appropriate procedure under the circumstances would have been an order from the court directing the Fiscal to amend the information because the defect. where we found that the real defect of the information was not that the facts alleged therein did not constitute a punishable offense but that its allegations were vague. that:têñ.it may invite an amended information which is not only clearer but may also be stronger and more incriminating. People v. 177. — Defendant may. There was no basis to grant the motion to quash and dismiss the case. 877. if there ever was one. Rule 113 of the Rules of Court. Muyo. Section 6 of Rule 116 provides:têñ. the same was . The motion shall point out the defects complained of and the details desired. was curable by the simplest of amendments or clarifications. Instead. 627). the case should not have been dismissed with respect to him. 880). after Espanola filed a motion to quash to which the respondent Fiscal together without complaint Phillippine Tourism Authority interposed an opposition. Tan 48 Phil. v. 2 Phil. However.

No. And even if the respondent was sincerely confused at the start. 252). For it is a well-settled rule that the real nature of the crime charged in an information or complaint is determined not by the title of the complaint. but by the facts alleged in the complaint or information (People v. . The correct action to take on the motion to quash was obvious.. 744) it would be unwise to change the battleground in criminal cases from issues to guesses and from facts to fancy. 67 Phil. Respondent Española contends that the phrase "as amended" found in the information cannot be the subject of guessing by the accused.D. He knew very well or should have known what law amended P. 427).. A fortiori should an imagined ambiguity not vitiate the information. He argues thattêñ. 189. We have held that an error which specifies the wrong provision of applicable law does not necessarily vitiate the information (People v. not only the liberty but even the life of the defendants may be at stake. No. Abad Santos. the purpose of the designation of -the offense "is to secure a clear specification of the offense charged And inasmuch as in criminal cases.and interests"(People v.£îhqw⣠. which might be detrimental to their rights. Oliveria.granted. it is always wise and proper that they should be fully apprised of the charged against them. nor by the specification of the provision of law alleged to have been violated. 76 Phil. the amendatory decree in its order. Arnault. The filing of this petition and the resultant unnecessary addition to the heavy docket of this Court could have been avoided by the simple expedient of ordering the heavy docket of this Court could have been avoided by the simple expedient of ordering the filing of an amended information. To make matters worse. he was properly apprised of the present status and applicable provision of the decree when the present status and applicable provision of the decree when the Fiscal and the complainant Philippine Tourism Authority filed their separate oppositions to the motion to quash. 259. The respondent was not caught in a speculative guessing game. the case had to be brought to this Court on certiorari. and thus avoid any and all possible surprise. The respondent court quoted P. 92 Phil.D.

No. as amended is not prohibitive but rather is a permissive and preceptive provision of law A perusal of the decrees involved shows the contrary.ñët . 381 since the Philippine Tourism Authority gave due course to his application. Moreover. . 526). No.". SO ORDERED. No. The designation by name of the crime in the caption of the information constitutes a conclusion of law on the part of the fiscal. . In addition." Most important. It would be incongruous for permissive provision of law to be sanctioned by stiff criminal penalties. The appropriate Regional Trial Court is directed to proceed with the arraignment of the private respondent and. that he be informed of the technical name of the crime of which he stands charged (People v.D. The respondent court further erred in holding that P. It is not necessarily essential.e. When all these are combined. the effect is to clearly express the prohibitive intent of the law. it uses the word "shall" instead of "may" evincing the mandatory nature of the provision itself. 103 Phil.. 381 is worded in the negative. No costs. the petition is given due course. Respondent Espanola adamantly insists that he has not violated P. for the protection of the substantial rights of the accused or for the effective preparation of his defense.D. ".e. No. i. . .. the decree carries a penalty of imprisonment or fine or both for a violation of its provisions. .What is important is not the designation of the offense charged in the caption of the information but the facts alleged therein (People v. 189. decrees or rules to the contrary notwithstanding.D. Agito. The questioned order of the respondent court is REVERSED and SET ASIDE. it contains a "no-exemption clause". Section 1 of P.1äwphï1.D. This is a matter of defense on the part of the accused and should be properly ventilated during the full-dressed trial on the merits of the case below. Cosare. "any provision of existing laws. to proceed with the trial of the case. i. . WHEREFORE. no development project for tourism purposes. 95 Phil. thereafter. 381 in relation to Section 4-B of P. 656).

Philippines. 1972. L-36471 November 19. while the latter was responding to a robbery-snatching case. No. Reynaldo Gongora y Sta. 1.. REYNALDO GONGORA y STA. (Expediente.R. and therefore. the said accused. to indemnify the heirs of the deceased herein. J. an agent of a person in authority. with a dagger wrapped with a comics magazine. Before the Circuit Criminal Court of Manila. p. Reynaldo Gongora y Sta. Ana.) After trial. did then and there willfully. a qualified and duly appointed member of the Manila Metropolitan Police and acting as such. vs.00 for the death of the latter. assault and stab one Pat. 1984 THE PEOPLE OF THE PHILIPPINES. CAMBA. 5. accused-appellant. accused is hereby found guilty beyond reasonable doubt as principal of the crime of murder qualified by treachery with assault upon an agent of a person in authority and there being no modifying circumstance to consider. and another whose Identity and whereabouts are still unknown. he was sentenced as follows: WHEREFORE. Ana a mortal wound which was the direct cause of his death thereafter. CARLOS CAMBA y VELASQUEZ.000. 1972. (Id. thereby inflicting upon said Pat. ANA. and helping one another with intent to kill and with treachery and evident premeditation. the sum of P12. Camba was accused of murder with assault upon an agent of a person in authority said to have been committed in the following manner: That on or about October 10. ABAD SANTOS. unlawfully and feloniously attack.: Automatic review of a decision which imposed the death penalty on CARLOS V. who has also been charged of same offense with the Juvenile Court. the sum of .) Camba pleaded not guilty when arraigned on October 20. the Court sentences him to DEATH.G. in the City of Manila. conspiring and confederating with Rolando Dungon y Miranda. p. plaintiff-appellee. a minor 15 years of age.

101-102. One (1) in the testicle.00 by way of moral damages.00 by way of exemplary damages and to pay the costs. 1972. Near Tejeron street. Patrolman Gongora was brought to the Makati Medical Center where he died on the same day. Two (2) in the right arm. two lacerating the stomach. (3) Swelling of the ankle joint. INTERNAL FINDINGS: Two stab wounds at the apex of the heart.000.. who was tasked to service it. 200 was on its usual Guadalupe. According to Eser who was seated at the rear. One stab wound in the lower lobe . the sum of P10. It was then about 5:40 p. The post-mortem examination revealed the following: EXTERNAL INJURIES: (1) Hematoma. and return run on October 10. a mechanic.000. Manila. One (1) thru and thru the left arm. One (1) at the palmar surface of the left hand. (2) Multiple seven (7) stab wounds located as follows: Two (2) at the left anterior chest both penetrating and causing downward both lacerating the apex of the heart. lateral surface of the neck measuring 2l0 x 3. pp. (Id. Makati. P10. One of those in the bus was Rodrigo Eser.0 cm.) A "Bluebirds Bus" with plate No. the assailant was Carlos Camba who was able to escape. one lacerating the left lung and liver. to Quiapo. many of the passengers debarked. A passenger shouted that his wrist watch had been snatched whereupon Patrolman Reynaldo Gongora who was in uniform and also a passenger went to the rear of the bus in order to assist the victim of the snatching but before he could do so the third man who was left behind stabbed Patrolman Gongora. including two of the three men who had boarded under Quezon bridge. three men boarded the bus under the Quezon bridge in Quiapo on its return trip to Guadalupe. one not penetrating into the chamber of the heart.m.

et al. namely: I. (Brief. II. p. People vs. One stab wound thru the diaphragm. The person killed may even be one of the robbers (People vs. THE COURT ERRED IN FINDING THAT THE PROSECUTION WITNESSES POSITIVELY IdENTIFIED THE ACCUSED DESPITE THE NUMEROUS INCONSISTENCIES AND IMPROBABILITIES IN THEIR TESTIMONIES CONSEQUENTLY DISREGARDING THE DEFENSE OF ALIBI PUT UP BY THE ACCUSED. pp.. it is useful to note the comment of the court a quo as follows: It is the observation of the Court that the crime committed is more of robbery with homicide for the reason that Pat. (Expediente. 3404). Reynaldo Gongora was killed while responding to the call for help of a victim of snatching and it has been held that in case of robbery with homicide. Carunungan.) In the light of the foregoing. of the left lung. Two stab wounds in the stomach.G. L. arraigned. CAUSE OF DEATH: Multiple seven (7) stab wounds lacerating the left lung. October 17. 9986-R. 1. CA-G. the appellant claims that he was charged.R. (Exh. it is not necessary that the person killed is the very victim of robbery. right ventricle of the heart. 1957. 100-101. tried and convicted for the crime of murder with assault upon an agent of a person in authority but the facts show that the crime committed . Cardon.) The appellant claims that the trial court committed the Following errors.) On the first assignment of error. CA 56 O. diaphragm and stomach. THE COURT ERRED IN CONVICTING THE ACCUSED ACCUSED OF THE OFFENSE CHARGED DESPITE THE FACT THAT WHAT WAS PROVEN WAS A DIFFERENT CRIME NOT NECESSARILY INCLUDED IN THE OFFENSE CHARGED NOR DOES THE OFFENSE CHARGED NECESSARILY IN-INCLUDE THE OFFENSE PROVED.

The first claim is partly correct. the appellant presented witnesses to support his alibi. the mistake in designating the crime both in the information and in the judgment is not fatal. 4) And it should be borned in mind in this connection that the label or caption in the information in respect of the crime committed is not controlling — what matters are the material allegations in the information. Hence his conviction for murder with assault should be set aside. Since the charge in the information is robbery with homicide and the evidence is to the same effect. p. the appellant's brief makes the same conclusion. Upon the other hand. This is manifest from the phrase. the prosecution had two witnesses. it says. namely: Rodrigo Eser and Eleazar Pangilinon. The second assignment of error questions the factual findings of the trial court as to the appellant's identity and as the person who caused the death of Patrolman Reynaldo Gongora. A careful scrutiny of the information will readily reveal that the charge against the appellant is robbery with homicide. the Solicitor General claims that there is no disparity between the offense charged and that which was preyed during the trial. He insists that the charge in the information spells the crime of murder. Also to be noted is the correct observation by the court a quo that the evidence proved that the crime committed was robbery with homicide and that there can be such a crime albeit the person killed was not the robbery victim. not robbery with homicide. The narration of facts given above is based primarily on Rodrigo Eser's testimony so that it is not necessary to re-state it. not the latter was committed. "while the latter (the deceased) was responding to a robbery- snatching case. and the evidence shows that the former. This witness positively Identified the appellant as the person who stabbed Patrolman Gongora on the basis of the following: (1) he had stared repeatedly at the three men ." (Brief. In support of the above. "a close scrutiny of the same information reveals that the crime committed is the special complex crime of Robbery with Homicide. To contradict them.was different-robbery with homicide." In fact. the second claim is completely wrong.

And in Pangilinon's statement (Exhibit F) he said that Camba wore a striped T- shirt and maong pants and said garments were recovered from Camba when he was apprehended in his house on October 12. and (3) he said that Camba had a mole on his chin which turned out to be true. He further testified that it was he who wrested the fatal weapon (Exhibit D) from Camba. or barely five hours after the incident and before the arrest of accused.m.who boarded the bus because they told the driver to stop several times but they did not alight. 1972.) As to Pangilinon. 92-93. Eser already executed a statement before the police (Exhibit "G") wherein he spontaneously narrated what he testified to in Court and emphatically stated. Accused and the victim even grappled for the possession of the bladed instrument causing the policeman to fall on the rearmost seat and thereafter. (Id. (2) he had seen Camba at the corner of Paz and Gregorio streets in Paco before the incident.) We are not prepared to disturb the findings of the trial court on the credibility of Eser and Pangilinon for the simple reason that it was in a better position to make the determination and there is nothing in the record to justify reversal of its findings. Commenting on Eser's testimony the trial court said: The Court has likewise observed that there is sincerity in the testimony of Eser for the reason that at 10:35 p. . 93. among other things. he was found to be around that height although he claimed to be only 5'2" and likewise with a mole on the chin. the trial court had this to say: The testimony of Eser is further strengthened by the testimony of Eleazar Pangilinon who likewise declared with the same spontaneity and frankness that when the victim who was then in a policeman's uniform went towards the rear of the bus when his attention was called by the victim of snatching. was still stabbed by the accused. pp. Pangilinon's testimony corroborated that of Eser. that the one who stabbed the police officer is around 5'3" and with a mole. of October 10. p. he was immediately stabbed by the accused. 1972. the date of the incident. Upon apprehension of the accused. (Expediente.

Paco Manila. January 17. Brioso. Ramos. he took a snack at his house and thereafter played badminton for "less than an hour" with William Tengson and Lorna [Maria Lorna Lemosnero]. October 29. He said that on October 10..m. February 24. January 30. a weak defense not only because of the facility with which it is fabricated but also because it is so easy for witnesses to get confused as to the dates (People vs. less than a kilometer away. 1972). when he returned home.. Paco. July 31. Tanjalali Gajali.. L- 28534. L-17402-03. it is not enough to prove that defendant was somewhere else when the crime was committed. 1971). 1972. et al. People vs. the defense of alibi of the accused does not measure up to that standard for he was positively Identified by Eser and Pangilinon whom the Court considered to have passed the test of credibility because they both appeared to be natural and truthful in their behavior. frank and straightforward answers to all materials questions in an easy and fluent manner. 1963. he was at home. but he must likewise demonstrate that it was physically impossible for him to have been at the scene of the crime at the time (People vs. 1968.m. We reject the defense of alibi and quote with approval the trial court's observation in respect thereto: Accused interposed the defense of alibi but it is. People vs. 1968. 1971).. There was no showing of physical impossibility for accused to be at the scene of the crime as he claimed that at the time of the commission of the offense.Camba's defense is alibi. however. No. he was only in Barrio San Jose. Manila." he worked from 1:15 p. Peralta. L-28533. L-1 9019. giving quick. It cannot prevail in the face of positive Identification by prosecution witnesses (People vs. William and Lorna testified that Camba played badminton with them. for alibi to prosper. et al. Esmael et al. In this particular case. L-28482. at about 1:00 p. he "stepped out to work near Peñafrancia. L-26103. where he lives and this Court can take judicial notice that from said place to the . he wore that afternoon a pink T-shirt and cream pants. Elmer Estrada. Moreover. August 31. to 5:15 p.m. et al. People vs.

. If it be held as We do that the crime committed was robbery with homicide. 97-98. according to the trial court. No special pronouncement as to costs. the result will be the same for the aggravating circumstances of treachery and contempt of public authority will have to be assigned. SO ORDERED.000. pursuant to Art. 48 of the Revised Penal Code. pp.) The trial court found the appellant guilty of murder qualified by treachery but without any other modifying circumstance. crime scene it will not take more than an hour to travel. is death. In this light the appropriate penalty. however. (Id.00. cannot be imposed on the appellant who was only 20 years old when he committed the crime for lack of the necessary votes. the judgment of the court a quo is modified by reducing the sentence on the appellant to reclusion perpetua and consolidating the damages in the amount of P30. WHEREFORE. The death penalty. The crime was compounded. with assault upon an agent of a person in authority.

G. G. JOHNSON.R. vs. 1912 THE UNITED STATES. L-6865 December 28. vs. 1912 THE UNITED STATES.R. 1912 THE UNITED STATES.R.R. defendant-appellant. MARTA SUMERA(alias SILVESTRA RIVERA). GERVASIA GO CHANCO. defendant-appellant. G. Nos. L-6861-65 December 28. L-6863 December 12. defendant-appellant. the prosecuting attorney of the city of Manila. for appellee. plaintiff-appellee. plaintiff-appellee. ANICETA REYES. W. L-6862 December 28. A. presented a separate complaint in the Court of First Instance against each of the said defendants. MARIANO GABRIEL.R. No. Mr. plaintiff-appellee.: On the 8th day of December. CARLOS ORTIZ. Kincaid. J. No. Thomas L. defendant-appellant. vs. plaintiff-appellee. Office of the Solicitor-General Harvey. 1912 THE UNITED STATES. No. L-6864 December 12. and Carl Kincaid. for appellants. vs. W. defendant-appellant.G. H. plaintiff-appellee. charging each of them . No. G. vs. Bishop. 1912 THE UNITED STATES. Hartigan. 1910.

as follows: "Q. 355 of the Philippine Commission in a case in which a law of the Philippine islands authorizes an oath to be administered. the five cases were consolidated and tried together. in the city of Manila. and sentenced to be imprisoned for a period of six months and to pay a fine of P500. did then and there take an oath before William C. By agreement between the respective attorneys in the court below. III. until said sentence should be reversed. and each was disqualified from holding any public office or giving testimony in any court in the Philippine Islands. 1910. she did testify under oath. Philippine Islands. a competent officer and person duly authorized by law to administer oaths under the provisions of section 21 of Act No. Do you know this woman?—A. the only difference being with reference to the particular declarations presented by each of the defendants. by the Honorable Charles S. The complaint against the defendant Gervasia Go Changco alleged: That on or about November 26.with the crime of perjury. The court erred in holding that the board of special inquiry before whom the oath was taken was a competent tribunal to hear and determine the case before it. II. Brady. The court erred in holding that the accused were guilty beyond a reasonable doubt.itc@alf The complaints filed in each of the respective causes were substantially in the same language. Yes. each of the defendants was found guilty of the crime charged in the complaint. the said Gervasia Go Chanco. and thereupon. . judge. that she would testify the truth in a case then pending before a board of special inquiry. being sworn. From that sentence each of the defendants appealed and made the following assignments of error in this court:. and there duly sitting and acting under the jurisdiction of the Bureau of Customs. After hearing the evidence. Lobingier. The lower court erred in overruling the demurrer to each of the complaints presented by the prosecuting attorney for the city of Manila. I. then.

not to that Chinaman. "Q. "Q. "Q. "Q. A long time. Agustin?—A. "Q. "Q. The oldest. No. One who is dead.) "Q.—A. How old is he?—A. . Silvestre Rivera. "Q. How old is he?—A. What was his name?—A. "Q. Who is the next?—A. Have you ever been in China?—A.—Asks mother who is the oldest. Cadamaris?—A. How long have you known her?—A. "Q. No. Did she have any children by him?—A. Yes. It was so long ago that I cannot remember the age. What is her name?—A. "(NOTE. No. one of the three has twenty-one digits. State their names and ages. "Q. Crispin?—A. The next?—A. Are you related to her?—A. Sia Hi. "Q. Is it Alberto?—A. "Q. Gavino is the youngest. "Q. No."Q. "Q. about twenty. Is Crispin the oldest or the second?—A. three. No. What Chinaman?—A. I do not remember the name of the oldest. Is she married?—A. No. "Q.1awphil. over twenty years. Irineo. Yes. Twenty-one.net "Q.

"Q.lawphi1. 234. How many years since those boys went to China?—A.. was she ever married to a Filipino?—A. Can you identify them now?—A. and that at the time of giving such testimony the accused did then and there wilfully and unlawfully and contrary to said oath so testify to such material matter which she did not believe to be true. No. "Q. Take a look at them. Contrary to the statutes in such cases made and provided. Who took them to China?—A.—She is given an opportunity to identify the detained from among a number of others present and picks out Irineo and Crispin. S. at the time they left here they were very small. 58. When the mother returned here she was a widow. but is unable to identify the youngest. "Q. Over ten years. The mother Silvestra Rivera. "Q. No. Gavino. about twelve years ago. (NOTE. Salcedo. She told me that she was the widow of a Filipino. With reference to the first assignment of error abovenoted. a complaint or information charging a person with a public offense will be sufficient if the facts are stated "in such form as to enable a person of common understanding to know what is intended and the court to pronounce judgment according to right. Rep. vs. Their father and mother. 4 Phil.(U. H. it may be said that under paragraph 3 of section 6 of General Orders. "Q.net W. Prosecuting Attorney." In numerous cases this court has announced the doctrine that a complaint will be sufficient if it describes the offense in the language of the statute whenever the statute contains all of the essential elements constituting the particular offense.) That all of said testimony above cited was material matter in such case and is false and untrue. BISHOP.) .

of the offense in the language of the statute is sufficient. Rep. with such particularity as to apprise the accused with reasonable certainty of the offense with which he is charged. The facts stated in the complaint are stated with sufficient clearness therein and certainty so that those who are charged with the crime therein described. . 1697 of the Philippine Commission. Gatmaitan. Vecina et al. Rep. The present prosecution is based upon a violation of section 3 of Act No.. to follow the language of the statute in the complaint. declaration. if the complaint sufficiently describes the crime defined by the law. 4 Phil. therefore. An examination of the complaint above quoted clearly shows that all of the essential elements of the crime described in said section 3 (Act No. S. officer. 4 Phil. (U. allege the falsity of the oath. An indictment for the crime of perjury. Said section is as follows: Any person who.It is not necessary. Perjury in the Philippine Islands is a statutory offense. if ordinary understanding. vs.. vs. Grant et al. In our judgment the complaint is sufficient. Rep. like an indictment for any other offense. U. specify the court or officer by whom the false oath was administered. and shall be punished by a fine. that he will testify. aver or show that such court or officer had authority to administer such oath. and assign perjury thereon. or certify truly. or person.U. or certificate by him subscribed is true. 697) are included. in any case in which a law of the Philippine Islands authorizes an oath to be administered. 529. Rep. 122.). 4 Phil. having taken an oath before a competent tribunal. however. It must state the substance of the controversy upon which the false oath was taken. etc. is guilty of perjury. All that is required is that the indictment shall be stated in plain and intelligible terms. depose. or that any written testimony. vs. S. Sarabia. vs. 265. 566. A description. declare. 18 Phil... S.. could have no difficulty in fully comprehending the exact offense with which they are charged. deposition. S. willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true. must allege specially and with sufficient certainty every fact and circumstance necessary to constitute said offense. U..

Shuster. As members of said board they had a right to inquire into the questions presented in the particular case submitted to it. to justify the present criminal action. if the following facts appear: First. called upon to pass upon that question in the present case." The record discloses the fact that during the investigation relating to the right of the three Chinese boys to enter the Philippine Islands. the same members of the board did not sit continuously during the entire examination. it affirmatively appears that all of the members who sat at any one time had been expressly authorized to act. the right of Chinese to enter the Philippine Islands. 2 Phil. (Ngo-Ti vs. however. 630. supra. 355 provides that members of said board may be authorized by the Collector of Customs to administer oaths. 355. They had a right to administer an oath to the witnesses examined.With reference to the second assignment of error. The fact that the personnel of the board was changed from day to day might affect the final decision of the board upon the right of the Chinese boys to enter the Philippine Islands.. Said oath was given by each of the defendants in an investigation which said board was holding with reference to the right of three Chinese boys to enter the Philippine Islands. By that appointment each had a right to act as a member of said board. Rep. This court has decided in numerous cases that the customs department of the Philippine Islands is charged with the duty of inquiring into and finally deciding. The record shows that each of the members of said board had been expressly appointed by the Collector of Customs. it will be noted that the alleged false oath was given before a board of special inquiry of the department of customs. We are not. . in our opinion. constituted a tribunal "in a case in which the laws of the Philippine islands authorized an oath to be administered. e. While this is true. in the first instance.) Section 21 of Act No... Such board. Rep. 7 Phil. Rep..) It has also decided in numerous cases that the conclusions of said department of the Government are final upon matters under its jurisdiction when there has been no abuse of authority. i. 8 Phil. therefore. Shuster. the personnel of the board was changed. It is sufficient. however. 343. They had a right to examine witnesses under oath. That the board was authorized to make investigation into the particular questions submitted to it. Lo Po vs. (In re Allen. Ngo-Ti vs. McCoy.

and 21 years and asked permission to enter the Philippine Islands. The board was not only a de facto board. to administer an oath and that. before the board of special inquiry. We think the record clearly shows that all of the foregoing facts existed and that said board constituted a tribunal. and Mariano Gabriel. Aniceta Reyes. or certify truly. were authorized to and did administer the oath to each of said defendants in accordance with the law. there arrived at the port of Manila three Chinese boys. under the laws of the Philippine Islands. authorized to conduct the investigation which it was making at the same time the said alleged false oaths were given and that said board. having taken an oath before said tribunal that he will testify. but a de jure board. That the members of said board were legally authorized to act as members at the time when the alleged false oath was given. Gervasia Go Chanco. any person who. With reference to the third assignment of error. was a legally constituted tribunal. The defendant Marta Sumera (alias Silvestra Rivera) appeared before the board and swore positively that her name was Silvestra Rivera. is guilty of perjury. under oath. and that they had been born in the city of Manila and baptized in the Quiapo Church of the city of Manila. duly authorized in a case in which the laws of the Philippine Islands authorized it. We find no reason for modifying the sentence of the lower court based upon the second assignment of error. 15. were duly authorized to administer an oath. or members of the same. In support of their right to enter the Islands. In our opinion the board before which the alleged false declarations under oath were made. appeared before the board and after being duly . the following facts are proven beyond a question of reasonable doubt: It appears from the record that on or about the 25th of November. the defendants in the present case appeared and gave testimony. on the steamship Yingchow. Carlos Ortiz. or its members. therefore. or its members. 1910. That said board.Second. and who willfully and contrary to such oath testifies to facts which he does not believe to be true. declare. of the respective ages of 13. that the three Chinese boys were her children. Third. depose. Each of the other defendants.

D. a woman who had always lived in the city of Manila and who was the real mother of the three boys mentioned in said certificates. had been baptized on the dates mentioned in said certificates.sworn. that the defendant Marta Sumera (alias Silvestra Rivera) was not the person whom she claimed to be. For all the foregoing reasons. that the defendants are guilty of the crime charged. showing that three boys of the same names which these three Chinese boys bore. . when the entire record is examined. Without a further discussion of the facts showing the falsity of the declarations made by the defendants. D. The falsity of the oath of each of the defendants. is so glaring that it is difficult to imagine how men and women could have secured the consent of their own conscience to have made them. in Quiapo Church of the city of Manila. the mother of the three Chinese boys who were seeking admission into the Philippine Islands. who were then and there living in the city of Manila and whose names were the same which the three Chinese boys had assumed. During the investigation a witness was called who was proved to be the real Silvestra Rivera. She swore positively that her three boys had been baptized in the Quiapo Church at the times mentioned in said Exhibits C. and E). to wit. Baptismal certificates were presented (see Exhibits C. the facts sworn to by the defendant. with costs. the judgment of the Court of First Instance of the city of Manila is hereby affirmed with reference to each of the defendants. we find that the record shows. Marta Sumera (alias Silvestra Rivera). They had always resided in the city of Manila. Her three boys were called as witnesses and their identity was proved beyond question. and E. supported by positive and direct declarations. There was no question that this woman was the real Silvestra Rivera and that the three boys whom she presented as witnesses were her sons and the persons mentioned in the three baptismal certificates. beyond any question of doubt.

PROVINCIAL FISCAL OF BULACAN. 1975. registered with the Register of Deeds of Bulacan on August 26. Judge of the Court of First Instance of Bulacan. Before arraignment. Celso B. petitioner. 1948 and as a consequence the original certificate of title was cancelled and a new transfer certificate of title issued.R. vs. Arturo Agustines for petitioner. BENIGNO M. The order of dismissal was predicated upon said court's finding that the factual averments contained in the notion to quash were supported by the evidence. 1948 the signature of Silvino San Diego in a deed of sale of a parcel of land. and since then Eugenio Cabral had publicly and continuously possessed said property and exercised acts of ownership thereon. After hearing said motion. 1975. Judge Juan F. On the complaint of private respondent Silvino San Diego. and SILVINO SAN DIEGO. who was not present during the hearing of the motion to quash. Private prosecutor.G. L-41692 April 30. the Provincial Fiscal filed an Information on September 24. 1976 EUGENIO CABRAL. No. Poblete for private respondent. J. PUNO. 1948. and to prohibit said court from conducting further proceedings on the case. Echiverri. HON. ANTONIO. respondents. filed a motion dated April 8. petitioner moved to quash the Information on the ground of prescription of the crime charge. as the said document of sale of Lot No. which facts are apparently admitted in the letter of San Diego's lawyer to Cabral on September 17. accusing petitioner Eugenio Cabral of the crime of Falsification of Public Document for allegedly falsifying on August 14. 1953. for the . granted the motion to quash and dismissed the Information on the ground of prescription. B-537-74 of the Court of First Instance of Bulacan.:p Certiorari and prohibition to nullify the Order of respondent Judge dated May 21. 1974 with respondent court. reviving the Information in Criminal Case No. in a Resolution dated March 25. 1975. 378-C was notarized on August 14. Baliwag Branch.

ordered on May 12. therefore. 1975. This motion was denied.. 1975. 1975. the Fiscal submitted his comment dated May 19. The issue being purely legal and considering that the matter has been amply discuss in the pleadings. having filed a civil action in April 1974 against the same accused (Eugenio Cabral) on the basis of the same factual averments contained in the criminal Information. and (b) by instituting Civil Case No. and reinstated the Information. respondent San Diego lost his right to intervene in the prosecution of the criminal case. because said Resolution had already become final and executory. arraignment and trial is proper to ventilate the respective evidence of both parties in their total meaning and import in determining once and for all the direction direction and thrust of these evidence of both parties." Two (2) days later on. be recalled for correction or amendment". raising the issue of whether or not the trial court had jurisdiction to set aside its Resolution of March 25. has not prescribed as Silvino San Diego stated that he only discovered the crime sometime in October 1970. 1975 dismissing the Information on the ground of prescription of the crime became a bar to another charge of falsification. According to the Solicitor General.reconsideration of said Resolution.." In compliance with said Order. 120-V-74. now presiding. hence this petition. in the interest of justice. and ". as well as the second motion for reconsideration. Petitioner moved for reconsideration of the Order on the ground that (a) "the judgment of acquittal which became final immediately upon promulgation and could not. 1 this case was deemed submitted for decision without need of memoranda. 1975 the Fiscal to "make known his position to the Court. reglementary period of fifteen (15) days after his receipt of a copy thereof on March 31. or on May 21. that. 1975. The Solicitor General was required to appear in this case. When the Fiscal moved to reinstate the case on May 21. inasmuch as the Fiscal neither sought its reconsideration nor appealed therefrom within the. or about . including the revival of the Information. expressing the view that the crime. respondent. This was opposed by petitioner on the ground that San Diego can no longer intervene in the criminal case. 1975. 1975. respondent Judge set aside the Resolution of March 25. Puno. and he recommends giving due course to the petition and the reversal of the challenged order. This is more so. Judge Benigno M. Acting on the motion for reconsideration. the Resolution of March 25.

5 it was held that "a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal.00. There is no law which requires notice to a private prosecutor. 1957. in People v.. Sanchez. 2 Article 89 of the Revised Penal Code also provides that "prescription of the crime" is one of the grounds for "total extinction of criminal liability. It appearing that the order already final. this Court held that the order was null and void for want of jurisdiction. can modify it even if erroneous . the sentence having become final. sub-paragraphs (1) and (2) of the Revised Penal Code. . which carries an imposable penalty of prision correccional in its medium and maximum periods and a fine of not more than P5. Pasicolan. Under the circumstances. no court. Petition for certiorari to set aside the order of the Court of First Instance of Pampanga setting aside its order of September 10. or on June 11. it does not follow that it can set aside its order dismissing the case even if the same has already become final. . While the court may find it necessary to hear the views of a private prosecutor before acting on a motion to dismiss filed by the fiscal. 1948." Petitioner was charged with the crime of falsification under Article 172. The issue is whether or not the court had jurisdiction to enter that order.. This crime prescribes ten (10) years. In Pangan v.000. not even this high Tribunal. because under the rules all criminal actions are prosecuted "under the direction and control of the fiscal" (Section 4.". The Rules of Court is explicit that an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. San Diego had actual if not constructive notice of the alleged forgery after the document was registered in the Register of Deeds on August 26.two (2) months from receipt of a copy of the order of dismissal. 3 Here.. 1956 dismissing the case against petitioners nine months thereafter. the court acted without jurisdiction in in issuing the the subsequent order. as the first order had already become final and executory.. We hold that these rulings are applicable to the case at bar. We agree with the Solicitor General. And likewise. the same had already long been final. Rule 106). 4 where the trial court set aside its own order dismissing the criminal case nine (9) months thereafter.

and only the motion for reconsideration or appeal filed by the Fiscal could have interrupted the period for appeal. 58 subjecting the direction of the prosecution to the right "of the person injured to appeal from any decision of the court denying him a legal right". and consequently cannot ask for the reconsideration of the order of dismissal. the fiscal has the direction and control of the prosecution. 1974 an action against Eugenio Cabral and Sabina Silvestre. (U)nder the new Rules of Court. filed a motion 'for reconsideration within the reglementary fifteen-day period. 7 More important. He did not have the legal personality to appeal or file the motion for reconsideration on his behalf.While it is true that the offended party. . without being subject to the right of intervention on the part of the offended party to appeal from an order dismis ing a criminal case upon petition of the fiscal would be tantamount to giving said party as much right the direction and control of a criminal proceeding as that of fiscal. Under Section 4 of Rule 110 which provides that the prosecution shall be "under the direction and control of the fiscal" without the limitation imposed by section 107 of General Order No. said right to appeal by an offended party from an order of dismissal is no longer recognized in the offended party. the spouses Silvino San Diego and Eugenia Alcantara. on the basis of the same allegations that San Diego's signature on the deed of August 14. Silvino San Diego. through the private prosecutor. or appeal from said order. with the Bulacan Court of First Instance (Civil Case No.. such move did not stop the running of the period for appeal. from the record that at the time the order of dismissal was issued there was a pending civil action arising out of the same alleged forged document filed by the offended party against the same defendant. 1948 was a forgery. he lost his right to intervene in the criminal case. It appearing.8 . 1974. 120-V- 74) for the recovery of the same property and damages. 6 The right of the offended party to appeal is recognized under the old Code of Criminal Procedure. The prosecution in a criminal case through the private prosecutor is under the direction and control of the Fiscal. the offended party has no right to intervene in the prosecution of the criminal case. filed on May 2.. Prior to the filing of the criminal case on September 24. therefore..

and Orders of May 21. of respondent Judge are hereby set aside. Jr. the petition is hereby granted. 1975. C. No pronouncement as to costs. 1975 and September 3. JJ. Fernando. . Barredo (Chairman). Aquino and Concepcion.J.. concur. 1975. August 4.WHEREFORE...

Acting Solicitor-General Pena for appellee. went to the house of said woman on the pretext of asking for a glass of water. she bit him on the right side of the chest thereby forcing him to release her instantly. stealthily approached her and. Realizing that his designs had been frustrated and having been surprised in such situation by Ariola. who is stronger and more agile than she. When Paula Bautista recovered from the shock. without giving her an opportunity to defend herself. defendant-appellant. the trial court sentenced the accused to an indeterminate penalty of from two months and one day of arresto mayor to two years. a young married woman. No. the accused.: Taking advantage of the fact that Paula Bautista. These are the facts as found by the trial court in which this court agrees after having carefully reviewed the record and the evidence. . A. A. with the corresponding accessories of the law. 1934 THE PEOPLE OF THE PHILIPPINE ISLANDS. In view of the above facts. she tried to strike him with it.R. the accused. embraced and kissed her and caught hold of her breasts. 1933. she cried for help and. plaintiff-appellee. Yaranon. R. fleeing from the scene of the crime with theutmost speed. the accused appealed therefrom to this court. However. she defended herself as best she could and in spite of the fact that the accused threatened to kill her with a dagger if she did not accede to his desires. between 3 and 4 in the afternoon of July 31. L. with costs. picking up a bolo nearby. J. was alone in her house which is situated in the eastern part of the town of Bacnotan. 41248 September 14. with no companion but her three- year old child who was then asleep. succeeded in holding he by the arms and they were found in this position by Crispulo Ariola who was the first to come to her aid. assigning in his brief four alleged errors as committed by the trial court. DIAZ. four months and one day of prision correccional. Simultaneously therewith.G. Apusen and Victoriano Yamzon for appellant. MARCELINO COLLADO (alias NINOY). of the Province of La Union. vs. Not agreeing with the sentence imposed upon him. he did not go down the stairs but jumped from the house to the ground.

the appellant cites some portions of his own testimony and later alleges that the crime imputed to him is absolutely improbable on the ground that at that time he knew that about 6 meters from the house of the offended party Paula Bautista. the witness for the defense Laureano Nebrija was in her house. in spite of the fact that they were only 6 meters away. because. at the same time showing her a dagger. not mentioning the appellant who. Furthermore. the accused had threatened to kill her if she did not accede to his desires. That the witness for the defense Laureano Nebrija was not in the offended party's house when the crime was committed. Crispulo Ariola and Luis Cariaso. which is referred to in her testimony. as was stated. The fact when he went to the house of the offended party the accused knew that said two witnesses Ariola and Palaroan were not far away. Moreover he might have thought that said two witnesses Ariola and Palaroan would not continue conversing at the same place after he had left them. thus conveying the idea that it would have been folly on his part to commit the crime with which he is charged. inasmuch as the offended party was alone in the house and furthermore her husband was absent. the other witness for the prosecution who was the second to come to the aid of the offended party. Ariola and Palaroan did not testify that they had seen said witness come out of the offended party's house either before or after the appellant had escaped therefrom. he must have believed that she would neither offer any resistance nor give a cry of alarm. and. there is nothing in the record to prove the contrary. Palaroan could not but admit . leaving aside the witness Palaroan's statement to the fiscal when the latter summoned him to testify on what he knew about the incident that he knew nothing about the case. fled as soon as he saw Crispulo Ariola come up into the house.In support of his contention that the trial court actually committed the errors assigned by him. should be believed notwithstanding the fact that he testified that he was present and witnessed said incident from the beginning. does not make it improbable for him to have committed the crime charged. Furthermore. testified that when they went up into the house they fond only said offended party and her small child. claiming furthermore that at the time when he is alleged to have committed the acts of lasciviousness on the offended party. having gone to Manila about a month ago to work as an agent. her cousin Crispulo Ariola and the witness for the defense Paulino Palaroan were conversing. in addition thereto. because aside from his testimony and that of the appellant.

otherwise. he was led into temptation. This shows that said offended party actually cried for help for. Her cry was heard by Crispulo Ariola and Luis Cariaso and. it does not account for the fact that before reproaching him she permitted him to drink water in her house. thus again proving the old age that "opportunity makes the thief". Palaroan testified that while he and Crispulo Ariola were 6 meters from the offended party's house and therefore nearer to said house than Agaton Ariola. Campo . The evidence shows that upon going up into the house. according to the appellant's version. This shows that the appellant actually came out of said house with the utmost speed and that Palaroan left Ariola when the appellant went to the offended party's house to ask for a glass of water. was alone. he saw the appellant walking rapidly. The foregoing proven facts really constitute the crime of facts of lasciviousness defined in article 336 of the Revised Penal Code and punished therein with prision correccional. the appellant asked the offended party for a drink which. could not have heard it. There is no doubt that the offended party cried for help notwithstanding the witness Palaroan's testimony that he heard no such cry coming from the offended party's house. it should have been taken into consideration by the trial court on the ground that the appellant had committed the crime in the offended party's own dwelling. all that happened consisted in the offended party having reproached him because she had heard.that after he had arrived at his boarding which is about 25 meters from Paula Bautista's house and also after said witness Ariola had gone up into the latter house. who was very much father than said witness Palaroan. On the other hand if. although in vain because she paid no attention to him. In the case of United States vs. Inasmuch as the aggravating circumstance of dwelling had been proven at the trial. is that the appellant upon seeing that the offended party. that he had been spreading false reports that she was his mistress or that the two were maintaining illicit relations. if we are to believe said witness Palaroan. according to the evidence. although it was not alleged in the information. whom he had courted before her marriage. according to him was given him. Agaton Ariola. What really happened. it was also heard by Ariola's father named Agaton Ariola at his house about 25 meters distant from that of the offended party. Palaroan heard Agaton Ariola tell his son Crispulo to go and find out what was happening at the offended party's house.

in view of the reasons therein stated.. two months and one day of prision correccional. . concur. with costs. JJ. Avanceña. this court. C. held that although a complaint or information contains no allegation that generic aggravating circumstance of any kind were present in the commission of the crime.J. Abad Santos and Vickers.. said circumstances may be proven at the trial and. must be taken into consideration in imposing the corresponding penalty. 368). if proven.(23 Phil. Street. the sentence appealed from is modified by imposing upon the appellant an indeterminate penalty of from six months of arresto mayor to four years. So ordered. Wherefore..

.] THE PEOPLE OF THE PHILIPPINE ISLANDS. Solicitor-General Hilado for Appellee. SYLLABUS 1.S. (U. 23 Phil. Monteli. Lim Sip. S. U. ROBBERY. CIRCUMSTANTIAL EVIDENCE. which cannot be logically inferred from the proven facts. ID. ID. v. — Although it is not alleged in a complaint or information that generic aggravating circumstances of any kind have been present in the commission of the crime. S. S. must necessarily be taken into consideration in imposing . U. 2. 10 Phil. and this is all the more true in the case of the appellant because the proven facts and his conduct both before and immediately after the commission of the crime are incompatible with his innocence. EMILIO H. v. APPRECIATION OF AGGRAVATING CIRCUMSTANCES NOT ALLEGED IN THE INFORMATION. DOMONDON.R. Levente. — Under the circumstances in which the appellant was found after the evidence for the prosecution had been taken.. v. said circumstances may be proven at the trial and. more or less probable.) 3. it is sufficient to warrant a judgment of conviction if the circumstances of which it consists are complete and convincing and lead to no other rational conclusion than that he is the author of the crime with which he is charged. ID.. U.. U. 383. Defendant-Appellant. CRIMINAL LAW. v. S. Aquino.. 462. ID. Flores and Appellant. 41523. — Although the evidence against an accused may be circumstantial in nature. Rivera.. 27 Phil. Rodolfo Baltazar and Delfin B. 15 Phil. 452. [G.. v. 1934. v. 18 Phil. if proven. No. this court cannot consider in his favor any fact. October 11.. Plaintiff- Appellee. 627. he should have given some explanation of his acts or omissions on the night in question and. having failed to do so.. 439. ID.

23 Phil. in spite of the objections of William Uliwac. Campo.889. that is. Domondon who was a postmaster and aspirant to the post of municipal treasurer assigned to the municipal district of Kabuyao. (U.67. who told him that it was already after office hours. the corresponding penalty. and assigns the four alleged errors relied upon in his brief as committed by the lower court. Mountain Province.: Emilio H. Therefore said two circumstances (subsections 1 and 6. declaring it to be incompetent. v. S. the chief clerk in the treasurer’s office said municipal district. at 5. The facts proven without dispute at the trial may be summarized as follows: After office hours on the afternoon of October 31. article 14 of the Revised Penal Code). and to indemnify the Government of the Philippine Islands in the sum of P1. Collado. 368. the appellant insisted upon delivering to him for deposit some funds ..05 p. convicted and sentenced by the Court of First Instance of said province to an indeterminate penalty of from four years. seeking the review of his case. should be taken into consideration. he appealed from the sentence imposed upon him. subprovince of Apayao. J. which are not qualifying circumstances but merely generic. and the testimony of the person who made it proved to be more damaging to him than anything else. p.m.. People v. with costs. two months and one day of prision correccional to ten years and one day of prision mayor with the corresponding accessories of the law. 610. Notwithstanding the fact that he had not presented any evidence favorable to himself at the trial. 1933.) DECISION DIAZ. was charged with the crime of robbery. because the affidavit (Exhibit 1) which he attempted to present as such was rejected by the court. ante.

was being counted. While the money which the appellant delivered to Uliwac and which consisted.55.774. of checks.062. amounting to P1. After attending to two igorots who had gone to his office that afternoon for the purpose of legalizing the transfer of certain large cattle. bills and coins. and among the notations made by him on one of said bills was one reading: "39 x 20 = 780" which meant that the bundle to which said bill belonged was composed of 39 twenty-peso bills amounting to P780. consisting of checks in the amount of P187. After all the money had been counted and Uliwac had issued the corresponding receipt to the appellant. As he had no available paper for said purpose. as above stated. 8 inches wide and 4 inches deep.15. giving as a pretext that they were in a hurry to return to their barrio.70.which he had in his office as postmaster and which amounted to P2. he made his notations on the back of one of the paper bills of each bundle. The reason then given by the appellant which induced said clerk Uliwac to accede to his wishes was that. Uliwac kept in the said brass box some collections for that afternoon amounting to P15 plus P3 road tax which a policeman delivered to him for . passing through the main door thereof. and then put the money in a wooden box which he later placed in a brass box 12 inches long. several bundles of bills of various denominations from P1 to P20. Said door could be opened only from inside the post office. and Uliwac noted on each bundle the amount thereof. he would have no time to deliver said funds to the municipal treasury. it was arranged in bundles or rolls according to its nature and value. Uliwac went to the appellant’s office to receive and take charge of the money which the latter was going to deliver to him. the former took it to his office. The municipal treasurer’s office and the post office under the appellant’s charge occupied two adjoining rooms on the ground floor of the municipal building of Kabuyao and were separated only by a wall with a door the key to which was in the possession of the appellant. as it was the last day of the month and he was expecting the mail that night or on the following day. In addition to the money which he received from the appellant. and silver and other fractional coins amounting to P101.

After Uliwac had closed the main door of the municipal treasury. Uliwac locking the main door thereof with the key in his possession. the appellant returned to the municipal building with no other apparent purpose than to request the chief of police to buy him two packages of a certain brand of cigarettes from the store of one Marques. it was naturally dark in the storeroom and the numbers on the dial of the combination safe could not be seen. he requested policeman Gawang. and that the brass box where said money was kept could not be placed in the safe because as night had already fallen. The two immediately left the municipal. carried said box thus locked to the storeroom inside the same room occupied by the municipal treasury. Tapiru who was charged jointly with the appellant in this case but was later released from the information by dropping the case against him for lack of evidence before the trial actually began. who was then present. When Gawang stated that he could not leave because the municipal building would then be left unguarded. the appellant had already left the municipal building. He afterwards locked said brass box with a key which he had in his possession and policeman Gawang.safekeeping. to buy him a package of another kind of cigarettes at the store of one Guzman. It was likewise proven at the trial that when policeman Gawang took the brass box containing the money in question and the other sums above stated to the storeroom and placed it on top of the safe therein. who was the only one left to guard the building. the door of which he later closed with a padlock ordinarily used for that purpose in the presence of Uliwac. the appellant told him not to worry as he would take care of it while he was away. At about 6 o’clock on that same evening. who was later joined by the chief of police Vicente Daoang. Said main door could only be opened by municipal treasurer Enciso. Both policeman were out on said errand for about 30 or 40 minutes . and by clerk Florentino A. in the municipal building. he went home leaving policeman Gawang. As soon as the chief of police was gone. who was then in another town.

on that occasion he had neither seen nor noticed any brass box or any other object that might have attracted his attention inside or around said toilet. showing the amount of money in each bundle. containing then only the checks for said amount of P187. However. who was under detention at the municipal building. After Uliwac. Lieutenant Johnson questioned the appellant in the latter’s office where the former. On the following day. who had already returned. had already cleaned the employees’ toilet which is situated behind said building. Johnson of the Constabulary was the first to reach Kabugao to conduct the necessary investigation and among the first to be questioned by him was Uliwac.30 o’clock on that same morning when Florentino A. he found there the same brass box where the money which the appellant had delivered to Uliwac the afternoon before had been kept.15 together with the envelope which contained P3 and some stubs of certain Bureau of Internal Revenue forms. Notwithstanding the fact that the appellant was the first to arrive at the municipal building that morning. in Uliwac’s handwriting written thereon. and the latter official reported the matter to the proper authorities for investigation. went to examine the appellant’s accounts and books and at the same time to find out how much money he actually had in his possession. with the following numbers: "39 x 20 = 780". A. he was not seen in his office on that occasion. the two found the twenty-peso bill (Exhibit D). he immediately informed Enciso. which evidently had been forced open. he left them. In one of the drawers in said appellant’s office. Lieutenant W. and. Tapiru went to the toilet. the first to arrive at the municipal building long before office was the appellant. at about 7. who was called by the .and upon their return and after they had delivered to the appellant the cigarettes which he had requested them to buy for him. When Uliwac became aware of the disappearance of the money which he received for safekeeping. from whose testimony he learned the fact that he (Uliwac) had made some notations on each of the several bundles of bills representing the money which the appellant delivered to him for safekeeping. accompanied by municipal treasurer Enciso. but then the boy Benigno Gorio. Uliwac.

said bill was later discovered in the municipal treasury. which he had never done before. it was found that the bill in question had disappeared from the appellant’s possession and upon being asked to explain the matter. After two days however. and the force thereof is all the more insuperable because the appellant dared not even testify in order to explain said facts or some of them."cralaw virtua1aw library The proven facts constitute a real complete chain of circumstances that necessarily lead us to the conclusion that the appellant was the author of the crime charged in the information.com.ph "He might have paid any voucher to somebody outsider and paid him this twenty-peso bill and because the town of Kabugao is very small and hard to make some change. recognized and identified said bill (Exhibit D) as one of those which the appellant had delivered to him on the afternoon in question by means of the notation in his own handwriting appearing thereon. in the absence of another. In answer to one of the questions asked him for the purpose of learning from him how the marked bill came into the possession of the municipal treasury. Lieutenant Johnson requested the appellant in an almost commanding tone to keep said bill in his safe. Said circumstances are: the appellant’s insistence in leaving the lost money in Uliwac’s possession after office hours on the afternoon in question. saying that it formed part of the bundle of 39 twenty-peso bills. he merely gave the excuse that he did not know what had happened to it. seems reasonable to this court. especially a twenty- peso bill. Luckily enough. That is the only possibility why this bill was found in the safe of the treasurer. having been found among the bills received in said office. Lieutenant Johnson’s explanation thereof. his returning to the municipal building at 6 o’clock in the evening of the same day for no other than the childish . said officer said:jgc:chanrobles. at least. and he might have exchanged it in the office of the treasurer. when he could have made delivery thereof during office hours.municipal treasurer and Lieutenant Johnson while they were investigating the appellant. Considering his suspicion still unfounded.

It is true that the evidence shows that when policeman Gawang took the brass box containing the lost money to the storeroom of the municipal treasury. and placed it on top of the safe therein. it being a fact that said door could be open only from the inside of his office. 1933. one after another. his failure to explain why he did not personally go to buy said cigarettes inasmuch as he himself could have done so. gives rise to the belief that it was during the absence of said two policemen that he entered his office and opened the door connecting it with the municipal treasury with the key in his possession in order to find out in the latter office where Uliwac kept the money which he had just . Considered together. and finally his having disposed of the bill (Exhibit D) against Lieutenant Johnson’s express request to keep it in his safe. his offer to policeman Gawang to take care of the municipal building while the latter was away when said policeman told him that he could not go out and leave the municipal building unguarded. There is no doubt but that the crime committed is robbery on the ground that it took place under the circumstances provided in article 299 (subsection 2). as there was no necessity of sending both of them. the day after he delivered his funds to clerk Uliwac. of the Revised Penal Code. the appellant was already out of the municipal building. his presence in the municipal building long before the opening hour for his office situated therein on the morning of November 1. 1933. for the same purpose. these circumstances lead whomsoever considers them to the same conclusion arrived at by this court. the unexplained finding in his possession of one of the twenty-peso bills belonging to the bundle of bills of said denomination which formed part of the money which he delivered to clerk Uliwac for safekeeping on the afternoon of October 31.purpose of requesting the chief of police Daoang and policeman Gawang to buy him three packages of cigarettes at two different stores. but it is also true that the appellant’s unexplained presence in the building at the time he requested the chief of police and policeman Gawang to buy him some cigarettes. he alone had the key to the door connecting his office with that of the municipal treasury.

it is sufficient to warrant a judgment of conviction if the circumstances of which it consists are complete and convincing and lead to no other rational conclusion than that he is the author of the crime with which he is charged. arrive at the municipal building. The appellant failed to explain where he was on that night or to state that he could not have been the individual who had visited the municipal building at the hour stated by said boy. and having failed to do so. after the two had delivered the cigarettes which he had requested them to buy for him. he should have given some explanation of his acts or omissions on the night in question. that at about 8 o’clock on that same night he saw a man. this court cannot consider in his favor any fact more or else probable. but it is a fact proven by the testimony of the boy Benigno Gorio.delivered to him a few moments ago.. Said man must have been the accused who went there to take away the brass box with the contents in order to open it in the manner shown by its condition when it was presented as evidence. . he carried something which might have attracted their attention. It could not have been policeman Gawang and his companion because they were asleep then. He neither denied that he had the key to said door nor that he had opened it. Under the circumstances in which the appellant was found. S. by means of force. Lim Sip. that is. Although the evidence against an accused may be circumstantial in nature. v. 10 Phil. It is likewise true that the evidence fails to show that when the appellant left the chief of police and policeman Gawang on the afternoon in question. and this is all the more true in the case of the appellant because the proven facts and his very conduct both prior to and immediately after the commission of the crime are incompatible with his innocence. who had slept in the municipal building that night and who was presented as a witness by the same appellant. (U. after the evidence for the prosecution had been taken. 627. whom he said he could not recognize due to the darkness of the night. it must be taken for granted that he opened it. which cannot be logically inferred from the proven facts. Therefore.

In the case of United States v.67 on the ground that of the amount taken from it this is the only sum which the Government did not recover.. The reason given by said court was that said circumstances were not alleged in the information. ante).. Collado (p. that although it is not stated in a complaint or information that generic aggravating circumstances of any kind have been present in the commission of the crime. The lower court failed to consider two aggravating circumstances which had been clearly proven at the trial. v. that is. 15 Phil. 383. Levente. v. it being clear that the crime committed by the appellant is of the nature of that provided in the second case of said article. Campo (23 Phil. 452. said two circumstances (subsections 1 and 6 of article 14 of the Revised Penal Code).S. to wit: nocturnity and the appellant taking advantage of his public position as postmaster. and reiterates herein.. Monteli. 27 Phil. said circumstances may be proven at the trial and. it should be stated that the lower court committed an error. Said requisite is not essential.S.S. As to the penalty which should be imposed. it is clear that the appellant is guilty of the crime with which he is charged. 23 Phil. U. v. 18 Phil. should be taken into consideration. if proven. U. The same should be prision correccional in its medium period to prision mayor in its minimum period..) For the foregoing reasons and considerations. from two years. must necessarily be taken into consideration in imposing the corresponding penalty. this court stated.S.889. because this is the penalty next lower in degree to that prescribed for the first case of robbery provided in article 299 of the Revised Penal Code. Aquino. 462. and in that of People v. Rivera. four months and one day to eight years. 610. 368). Therefore. although his civil liability should be understood to be reduced to that of paying an indemnity of only P1. v. The appealed judgment is hereby modified by sentencing the . which are not qualifying circumstances but merely generic. 439. U.U..

concur. C. JJ.J.. Avanceña. Abad Santos. Hull and Vickers. 4103. the minimum of said penalty is fixed at two years. with costs against the appellant. So ordered. affirming said judgment in all other respects.. . and in conformity with the provisions of Act No.appellant to six years and one day of prision mayor.

. 3. nevertheless that fact may be proven at the trial. 4. The Attorney-General for Appellee. November 5. Chas. McDonough for Appellant. ID.R. wherein a contrary view appears to have been taken apparently without extended discussion. v. ID. [G. — Although a complaint or information contains no allegation as to the fact that the commission of the crime charged therein was marked with one or more of the generic aggravating circumstances set out n chapter 4. SUFFICIENCY OF INFORMATION. Plaintiff-Appellee. book 1 of the Penal Code. Rep.. ID. — Evidence as to the existence of these . — Except in a very early case (U. 1 Phil. v. A. RIGHTS OF ACCUSED. and if proven must be taken into consideration in imposing the penalty. PATRICIO CAMPO. would be an unauthorized denial of that right. Dinsing. 1912. — The accused in a criminal case has a right to be informed as to the nature of the offense with which he is charged before he is put on trial. S. ADMISSIBILITY OF PROOF OF CIRCUMSTANCES. CRIMINAL PRACTICE AND PROCEDURE. CONVICTION. 738). ID. we have uniformly and frequently laid down the rule that an accused person may be convicted of "any crime described and charged by the facts set out in the information" irrespective of and without regard to the designation or characterization of the crime set forth in the title of the complaint or information by the private complainant or the public prosecuting officer. ] THE UNITED STATES. SYLLABUS 1. but which has long since been overruled. ID. and to convict him of a higher offense than that charged in the complaint or information on which he is tried.. 7321. ID.. No. 2... Defendant-Appellant.

ID. proof of its existence is nevertheless admissible. 5. under the provisions of the Penal Code. CONSIDERATION OF CIRCUMSTANCES. ID. aggravating circumstances is admissible for the purpose of showing the precise manner in which the offense actually charged in the complaint was committed.. but it cannot be used for the purpose of changing the legal characterization or designation of the offense actually charged in the complaint or information. ID. ID. and in that even... — Where an aggravating circumstance. ID. — In those cases wherein. but in that event such circumstance is not to be treated as a qualifying circumstance justifying the conviction of the defendant of a higher offense than that with which he is charged. it should not be again taken into consideration as an aggravating circumstance marking the commission of this higher offense. or in order to show that the offense committed was in fact a higher offense than that charged in the complaint or information. NUMEROUS QUALIFYING CIRCUMSTANCES. which when charged and proven becomes a qualifying circumstance under the provisions of the Code. 6.. and it appears that the unlawful taking of the life of another was marked with two or more of the qualifying . this aggravating circumstance when alleged and proven is treated as a qualifying circumstance. having once been taken into consideration for the purpose of giving to the acts committed by the convict a legal qualification or characterization higher than they would otherwise have had. has not been alleged in the complaint or information.. 7. but merely as an aggravating circumstance justifying the imposition of the penalty in a severer form but within the limits prescribed for the less serious offense charged in the complaint or information. — When a conviction is had on a complaint or information charging the crime of assassination. ID. the legal designation or characterization of an offense is modified by an allegation set forth in the complaint or information showing that such offense had been marked with one of the above-mentioned generic aggravating circumstances.

(2) for a price or promise of reward. other than parricide. which. It is very clear therefore that the crime actually committed by the appellant. and sentenced to twenty years of reclusion temporal and to the payment of the costs of the proceedings. when the act is marked by any of the following qualifying aggravating circumstances: (1) With treachery (alevosia). Patricio Campo. by deliberately and inhumanly . any one of these circumstances may be treated as a qualifying circumstance which raises the unlawful taking of the life of anothers are then treated as generic aggravating circumstances to be taken into consideration in determining the degree of severity with which the penalty prescribed for the crime of assassination should be imposed. The penalty prescribed by law was imposed in its maximum degree because the trial judge was of opinion that the commission of the crime was marked with the aggravating circumstances of alevosia (treachery). the findings of the court below as to the credibility of the witnesses. (5) with cruelty. was that of asesinato (murder). as disclosed by the evidence. or poison. Accepting. : The appellant. we are of opinion that the evidence of record leaves no room for reasonable doubt that the appellant unlawfully and treacherously (con alevosia) took the life of one Isidro Palejo. DECISION CARSON. as defined and penalized in article 403 of the Penal Code. (4) with deliberate premeditation. was convicted in the court below of the crime of homicide as defined and penalized in article 404 of the Penal Code. is the unlawful taking of the life of another. at or about the time and place mentioned in the information. J. circumstances mentioned in article 403 defining and penalizing the crime of assassination. (3) by means of an inundation. as we do. fire.

. when speaking in this connection of the offense charged in the complaint. S.. Rep. U. v. Rep. 15 Phil. v. 158. Rep. 5 Phil. S. but with homicide (homicidio). U. 8 Phil. v. marked with the generic aggravating circumstance of treachery (alevosia). S. S. v. S. not with murder (asesinato). however. U. it should be observed that. or necessarily included therein. v. 242.. Sevilla. 4 Phil. De Guzman. Rep. Rep. S. v. The action of the trial judge in this regard must be sustained. (U. 631.increasing the sufferings of the offended party. v. v. Rep. Rep. S. and to convict him of a higher offense than that charged in the complaint or information on which he is tried would be an unauthorized denial of that right.. in the information upon which the defendant was tried. 738). Rep.. v. properly convicted the defendant of the crime of homicide. v. U. S. U... 565. 1 Phil. 369. 4 Phil. unless it is charged in the complaint or information on which he is tried. Roque. 21. Phil. Torres. S. Rep. 120. 1 Phil. 15 Phil. except in a very early case (U. He has a right to be informed as to the nature of the offensed with which he is charged before he is put on trial. 34 Phil. nevertheless. Gellada. but which has long since been overruled. Andrada. Rep. 1 Phil. v. 4 Phil. 5 Phil. we refer to the offense of which the court would be justified in holding the defendant guilty on proof of the facts alleged in the body of the information. Rojo.. U. S. apparently without extended discussion. U. S. we have uniformly and frequently laid . v. he was charged. v. S. 5 Phil.. For. 114.. Jeffrey.. 343. Rep. It matters not how conclusive and convincing the evidence of guilt may be. 464.. U. Nery. Rep. De los Santos.. The trial judge. U. 391.) Perhaps. Ayao. 10 Phil. Rep. U. an accused person cannot be convicted in the courts of these Islands of any offense. Rep. Luzon. U. v. S.. wherein a contrary view appears to have been taken. U. Rep. 143. Dinsing.. and justified his action in this regard on the ground that. 501. Pascua. S. We have invariably held that an accused person cannot be convicted of a higher offense than that with which he is charged in the complaint or information on which he is tried.

S. De Guzman. v. U. P.. although the evidence introduced at the trial conclusively established the fact that he had committed it. Lim San. U. 1910. v. inflicting upon his head various words and bruises which caused the death of the said Isidro Palejo. 14 Phil. S. Rep. illegally and criminally and with a blunt instrument attack and strike Isidro Palejo. Province of Cagayan. and without regard to the designation or characterization of the crime set forth in the title of the complaint or information by the private complainant or the public prosecuting officer. Rep. U. Rep. An act committed in violation of the law. therefore. Treyes.. In support of this contention reference is made to a decision of the supreme court of Spain wherein that court. Rep. 19 Phil. 270. (U. it was improper for the court to take it into consideration in imposing the prescribed penalty for the homicide of which the appellant was convicted. Jeffrey. the trial judge properly declined to convict the defendant of that crime.down the rule that an accused person may be convicted of "any crime described and charged by the facts set out in the information. Manifestly."cralaw virtua1aw library It will be seen that the information does not charge that the unlawful taking of the life of the deceased was marked with treachery. or any one of the five qualifying circumstances in the absence of which the act cannot be held to be asesinato (murder) as defined in article 403 of the Code. Supila. S.com. It is suggested in the brief of the Attorney-General that since alevosia (treachery) is?? expressly charge in the complaint." irrespective of. in the municipality of Santo Nino. 13 Phil.. in discussing the penalty to be imposed on one convicted of . 671. in accordance with the doctrine laid down in the cases cited above.. v. S. 391. S. 273. 350. the said Patrico Campo did willfully.ph "That on or about December 7. v. v. U. Rep. 15 Phil. The information in this case charges the defendant with the commission of the crime as follows:jgc:chanrobles.. I. 17 Phil..

253.) But this comment of the supreme court of Spain is to be construed with reference to the judicial system of procedure in force in the jurisdiction wherein system of procedure in force in the jurisdiction wherein sufficient to establish the existence of the attendant circumstance alevosia. Penal Code. for that which is legally unjustified cannot in any way be regarded as aggravating. and if it is not sufficiently proved. although the information contains no allegation as to the fact that the commission of the crime charged was marked with one or more of these generic aggravating circumstances. when it appears that the commission of those offenses is attended by one or more of the generic aggravating circumstances expressly set out in chapter 4 book 1 of the Code: and we have uniformly held that. alevosia (treachery) had not been proven. held than the generic aggravating circumstance of alevosia (treachery) should not be taken into consideration "because if it really exists. p. I. and. for the same reason that it is rejected as constituent it must be rejected as generic. Under our Penal Code. if proven. or of showing that the offense . it would have been the duty of the court to convict the defendant of the crime of asesinato (murder). that in the case then under consideration.homicide. This rule of practice is justified on the ground that the introduction of such evidence is admitted only for the purpose of showing the precise manner in which the offense actually charged in the complaint was committed. the penalty prescribed for the offenses defined therein must be imposed in a more severe degree. must be taken into consideration in imposing the penalty. and what the court really held was. nevertheless that fact may be proven at the trial. and for that sufficient reason could not be taken into consideration either as a qualifying circumstance (circunstancia cualificativa) or as a generic aggravating circumstance." (Viada. it increases the penal responsibility by converting the homicide into murder. Vol. and not for the purpose of changing the legal characterization or designation of the offense charged in the information. within the prescribed limits.

when a conviction is had on a complaint or information charging the crime of assassination. any one of these circumstances may be treated as the qualifying circumstance which raises the crime to that of assassination. of course. Proof that the commission of an offense charged in the complaint or information was marked by an aggravating circumstance not mentioned therein should not and will not be denied its logical and normal effect in increasing the severity of the penalty to be imposed within the limits prescribed by law for that offense. within the limits prescribed for the offense charge in the complaint or information. is sufficient to sustain the action of the trial court in imposing the penalty in its maximum degree. attention is directed to the fact that. It follows. and the others are then treated as generic aggravating circumstances to be taken into consideration in determining the degree of severity with which the penalty prescribed for that crime should be imposed. not expressly charged in the complaint can and should serve no other purpose than that of aiding the court in determining whether the penalty should be imposed in a more or less severe form. Since the existence of this aggravating circumstance alone.committed was in fact a higher offense than that charged in the information. in the absence of proof of any extenuating circumstance. As throwing some light on this holding. and the conviction of the accused of a higher offense than that actually charged. then under the practice of this court. and it appears that the unlawful taking of the life of another was marked with two or more of the above set out circumstances. adhering to the practice established in the supreme court of Spain. proof of its existence would have justified the treatment of that circumstance as a qualifying circumstance. had the aggravating circumstance been set forth in the complaint or information. it is not necessary for us to consider the questions which have been raised as to the existence or . on the sole ground that. any one of which is sufficient to qualify the crime as that of assassination. that proof of the existence of one or more aggravating circumstances.

Johnson. and sentencing him therefor is affirmed. concur. Mapa.J.. The judgment of the court below convicting the defendant and appellant of the crime of homicide with which he was charged. and Trent.. C. JJ. with the costs of this instance against the Appellant. . marked with the aggravating circumstance of alevosia.nonexistence of other aggravating circumstances. Arellano.

there is no affirmative showing that the appellant was not advised of his right to have counsel. We. Claro Reyes for appellant. G. appellant. BRUNO OCBINA Y DE LOS SANTOS (alias BRUNO OCVINA) and MANUEL PAMERO. 975]. Upon his plea of guilty. BRUNO OCBINA Y DE LOS SANTOS (alias BRUNO OCVINA). and an additional penalty of six years and one day of prision mayor for habitual delinquency. 1936 [62 Phil. and (2) in sentencing him to suffer the penalty above indicated. he was sentenced to suffer four months and one day of arresto mayor. ABAD SANTOS. Escalante (36 Phil.R. R. In United States vs. vs. and that such a presumption can only be overcome by an affirmative showing to the contrary.G. No. The only allegation in the information concerning this matter is the following: . the second assignment of error is sufficiently broad to raise the question of whether the additional penalty of six years and one day of prision mayor for habitual delinquency was properly imposed. S. (U. find no merit in the first error assigned by counsel for the appellant. No. this court held that the failure the record to disclose affirmatively that the trial judge advised the accused of his right to have counsel is not sufficient ground to reverse a judgment of conviction. The reason for this doctrine is that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases.: Appellant was prosecuted in the Court of First Instance of Manila for the crime of theft. 45178 September 30. defendants. Del Rosario. 2. 44239. 1. Office of the Solicitor-General Hilado for appellee. vs. 27 Phil.. In support of this appeal counsel de oficio for the appellant contends that the lower court erred (1) in not advising the appellant of his right to have counsel. 743). Labial and Abuso. therefore. promulgated January 8. J. plaintiff-appellee. 1936 THE PEOPLE OF THE PHILIPPINE ISLANDS.) In the instant case. 82.. People vs. Although the point is not discussed in the brief of counsel for the appellant..

ante). p. this court held that an allegation of this nature in an information was too general and therefore insufficient to sustain a conviction for habitual delinquency upon a plea of guilty. 45141. Venus (G. In the recent case of People vs. R. by virtue of final judgments of a competent court. That the accused Bruno Ocbina y De los Santos (alias Bruno Ocvina) is an habitual delinquent. . the date of his last conviction being December 13. It follows that the additional penalty of six years and one day of prision mayor imposed on the appellant must be eliminated from the judgment below. Modified as above indicated the judgment is affirmed with costs de oficio in this instance. So ordered. No. 435. 1935. he having already been convicted three (3) times of the crime of theft.

ID. 5. January 16. JR. — It is elementary law that in any prosecution for libel the offensive expressions must be set out verbatim. [G.] THE PEOPLE OF THE PHILIPPINE ISLANDS. 38485. 3. Plaintiff- Appellee. ID.R. M.. Solicitor-General Hilado for Appellee. Such malice is not to implied from the mere fact of publication. "BONA FIDE" PUBLICATION. ID. S Ohnick for Appellant. SYLLABUS 1. — There is no proof of express or actual malice on the part of the appellant in the publication of the six news articles in the Philippines Herald. Defendant-Appellant. Benj. In the present case. they are buried under a mountain of valueless and irrelevant matter. X.. BURGOS. ID. 4. — Where an article is lengthy and contains matter that is libelous with much that is not. ID. ID. It is not incumbent upon the courts to mine them out. LIBELOUS EXPRESSIONS.. it there are any such nuggets in the information. LIBEL AND SLANDER. MALICE NOT TO BE IMPLIED FROM THE MERE FACT OF PUBLICATION. They are too clearly privileged to require any discussion. v. nor are they mentioned in the Solicitor-General’s brief on this appeal. the libelous matter must be singled out and the prosecution based thereon. 2. No. it is not clear that they were condemned. — As to the fifth and sixth articles which relate to the judicial proceedings. although they are possibly included indiscriminately in the term "los articulos" occurring so often in the decision of the court a quo. PRIVILEGED MATTER.. — There is not a scintilla of evidence in the record that impugns the bona fides of the . 1934...

com. a reputable daily newspaper published in the English language and of general circulation in the Philippine Islands.ph "1."cralaw virtua1aw library As a background for the understanding of the articles complained of. DECISION BUTTE. Philippines Herald or of the appellant as its managing editor.: This is an appeal from a judgment of the Court of First Instance of Manila convicting the defendant-appellant of the crime of libel and sentencing him to pay a fine of P100. J. both in his capacity as such Director of Posts and as a private citizen. and with the evident intent of exposing him to public hatred. It is alleged that the appellant published said articles "for the purpose of impeaching the virtue. 1929. he published in the Philippines Herald "a series of defamatory and libelous articles" which are reproduced in full and extend over seven typewritten pages in the information. 89. in the publication of the articles in question. it should be noted that on May 8. the Secretary of Commerce and Communications. contempt. During the years 1929 and 1930. the appellant was the managing editor of the Philippines Herald. reputation. including special issues. appointed a committee of investigators to report on the manner in which the Bureau of Posts was administered with respect to its various functions and activities and special reference to the following matters (Exhibit 20):jgc:chanrobles. by Department Order No. then Director of the Bureau of Posts. . and honesty of Jose Topacio. and ridicule. The information charges that as such managing editor. The manufacture and sale of postage stamps. integrity.

"2. The management and administration of the Post and
Telegraph Review;

"3. The method of requisitions for and use of supplies and
equipment in the central and provincial offices and the manner of
accounting therefor;

"4. The handling and delivery of mail subject to customs duty;

"5. The administration and handling of the registry systems,
money orders, telegraphic transfers, indemnity system, C.O.D.,
and insured parcels; and

"6. Any other feature or activities of the Bureau of Posts which
the committee may, in the course of its work, find it necessary
and advisable to investigate."cralaw virtua1aw library

On November 27, 1929, the committee of investigators made its
report (Exhibit 18), which is as follows: 1

On November 27, 1929, the Philippines Herald published
Topacio’s reply to the eight charges made by the investigating
committee.

On March 27, 1930 (Exhibit 1), the Governor-General called for
the resignation of Topacio as Director of Posts effective
immediately, stating that after careful consideration of the
complete record in the administrative investigation, Director
Topacio "lost the confidence of your Department Secretary and
myself and your usefulness to the Government has
terminated."cralaw virtua1aw library

It was during the course of the administrative proceedings
conducted by the investigating committee that the Philippines
Herald published the following four articles which are set up in
the information as being libelous:jgc:chanrobles.com.ph

"CHARGES AGAINST TOPACIO TO BE FILED BY PROBERS BEFORE
END OF OCTOBER

"Investigators To Hold Him Directly of Indirectly or Indirectly
Responsible for Nearly All Anomalies

"Concrete charges will be filed against Director of Post Jose
Topacio before the end of this month by the special investigating
committee of the post office in connection with the anomalies in
the various divisions of the Bureau as well as in different
transactions in which the Government is involved, it was learned
in official circles yesterday.

"The special investigating committee is now preparing the
different charges against Director Topacio, it was learned.
Director Topacio, according to the findings of the committee, is
either directly or indirectly involved in the various irregularities
committed in the Bureau of Posts particularly those in the
property and mailing divisions. The committee holds Director
Topacio responsible for the appellant shortage in the property
division amounting to more than P150,000, and for the apparent
lax in supervision over the different divisions which made possible
the existence of gross irregularities.

"Director Topacio has already been officially informed by the
investigating committee that his investigation is finished. He was,
however, made to understand by the chairman of the committee,
that the probe committee is ready at any time to listen to any
explanation or any witness he may present for his defense. The
posts head will be given five days by the committee to answer
the charges now being prepared against him.

"One of the gravest charges against Director Topacio is in
connection with the falsification of practically all requisitions for
supplies in the property division. According to testimonies of
former cashier Buenaventura and other postal officials, Director
Topacio signs all requisitions for supplies of the bureau, and
oftentimes what requisitions should be made.

"The committee, it was learned yesterday, is filing separate
charges against Director Topacio in connection with the following:
smuggling opium into the mails, the loss of stamps amounting to
P374,00, publication of the POST AND TELEGRAPH REVIEW
personally edited by Director Topacio, the shortage in the
property division, and various other anomalies.

"It was announced yesterday that no more suspensions or
dismissals will be ordered until after formal charges have been
filed against Director Topacio, before the end of the month. After
the committee is through with Director Topacio, it will
concentrate on the property division where practically all of the
officials and employees and laborers are reported to have directly
or indirectly participated in the falsification or requisitions which
resulted in a shortage of more than P150,000.

"The investigating committee has temporarily suspended the
investigation of the property division pending failure of several
laborers from that division to appear. The investigation will be
resumed early next month, it was indicated yesterday."
(Published October 18, 1929.)

Second Article

"POSTAL HEAD IMPLICATED IN EVERY IRREGULARITY, SPECIAL
PROBERS FIND

"Director To Be Given Five Days To Reply To Charges; Inquiry
Now Nearing Close

"Eight principal charges will be formally filed by the special
investigating committee of the Bureau of Posts, against Director
of Posts Jose Topacio on or before November 15 in connection
with the various anomalies in the administration of the post
office, it was learned from official circles yesterday.

"Director Topacio, the special investigators found, has some

connection either directly or indirectly with practically every
phase of the irregularities in the Bureau of Posts, particularly
those unearthed in the mailing, property and money order
divisions. The investigating committee is now busy preparing the
charges against the Posts head.

"The probe committee holds Director Topacio civilly responsible
for the shortage in the accounts of the Bureau which is estimated
conservatively at half a million pesos. Separate charged are also
being preferred against Director Topacio in connection with the
publication of the POST AND TELEGRAPH REVIEW, the
commemorative stamps, the smuggling of opium through the
mails, and the anomalies in the preparation of requisitions for
supplies in the property division, which resulted in the loss of a
considerable sum to the Government.

"Several minor charges will be filed against Director Topacio in
addition to the eight principal ones, it was learned. These charges
have something to do with the administration of the various
divisions of the Bureau of Posts and outside transaction in which
the post office is involved.

"Director Topacio will be given five days within which to answer
the charges preferred against him by the special investigating
committee. The recommendations of the committee will be
submitted earlier in order to give ample time for Secretary
Filemon Perez of Commerce and Communications to study the
matter, before the end of the month.

"It was indicated yesterday that the investigation of the post-
office anomalies is now practically through. Fiscal Arsenio Paez,
chairman of the committee, is working of the charges against the
Posts head. The two other members of the committee are in the
provinces on vacation. Colonel Francisco, whose leave expires
next Monday, is not expected in the city until the end of this
month in time for the ’finishing touches’ of the probe.

"Secretary Perez is expected to render his final decision on the

case before the end of this month. "The special auditors. in their recent report to the committee in connection with the inventory.) Third Article "NEW INQUIRY FOLLOWS PAEZ RECOMMENDATION TO COMMERCE SECRETARY "Valuable Portions of Collection Believed Missing. Five more employees connected with the property division are facing charges. the Government suffered losses in the purchase of supplies for the provinces in view of an unsystematic requisition system long practised in the bureau. 11 postal officials and employees were subsequently either dismissed or forced to resign. 1929." (Published November 10. "The investigation of the Bureau of Posts was started last May shortly after departure of Director Topacio as one of the two Philippine delegates to the World Postal Congress held in London. Quilon Designated for Job "Revision of the foreign stamps in stock in the Bureau of Posts was ordered yesterday by Secretary Filemon Perez of Commerce and Communications. As a result of the investigation. upon recommendation of Fiscal Arsenio Paez. superintendent of the inspection division of the . it was learned yesterday at the Ayuntamiento. His decision will be largely based on the findings of the special investigating committee and the auditors special investigating committee and the auditors specially detained at the property division to make an inventory of the supplies and materials. following alleged disappearance of foreign stamps. chairman of the special postal probe committee. According to the findings of the auditors. hold Director Topacio accountable for the shortage in the accounts amounting to more than P150.000. "Nicolas Quilon.

it was . "It was indicated yesterday that any loss which might be discovered in the foreign stamps collection will be charged against of the collection of foreign stamps in the post-office is reported to have disappeared. 1929. "It is understood that eight principal charged will be filed against Director of Posts Jose Topacio. for the irregularities. started the check-up yesterday. "The special investigating committee is now preparing the charges against the postal officials responsible for the various anomalies in the Bureau of Posts. and get his report ready sometime next week." (Published November 15.post office. SAYS COMMITTEE MAN "SPECIAL INVESTIGATORS HOLD HIM RESPONSIBLE FOR ANOMALIES AS CHIEF OF POSTS BUREAU "Committee Will Give J. Formal charges will be filed shortly. He is expected to be through with his work. Ruiz Clean Slate "Theory of Defense Director Is Expected To Put Up Is Not Sustained By Inquiry Board "The main line of defense which Director Jose Topacio is expected to pursue in answering the charges to be filed against him by the special investigating committee on the Bureau of Posts anomalies will fail as the investigators have virtually decided to give Acting Director Juan Ruiz a clean slate and to hold Mr. According to the findings of the committee. the Posts head is directly or indirectly connected with practically every phase of irregularities unearthed in the Bureau. Topacio responsible as Chief of the Bureau.) Fourth Article "DIRECTOR TOPACIO IS ’DOOMED’.

It was explained that the irregularities did not take place during Mr. "Two ranking members of the special committee have intimated to the Herald that Director Topacio is ’doomed’. will be filed by the committee within two weeks. Topacio liable to criminal prosecution. It is understood that many concrete charges. it is a understood that the special committee has come to the conclusion that Director Topacio and not Mr. is still going on.learned from a ranking member of the committee yesterday. now being conducted by the committee with the aid of Nicolas Quilon of the Bureau of Posts. Ruiz. Topacio’s absence. Director Topacio sought to clear himself by shifting the blame on the Acting Director.) . "After a careful study of the whole question. most of them administrative in nature. Ruiz should answer for the postal anomalies. It is reported that a great part of the collection have disappeared. 1929. however. but some of them making Mr. Director Topacio maintains that the anomalies may have taken place during his absence and further points out that he was given a certificate of clearance by Ruiz and other division chiefs before he left the Islands to attend the postal convention in London. Fiscal Arsenio Paez declared some time ago that the question involves a difficult point of law and admitted that Director Topacio’s contention may be justified by the accounting law." (Published November 19. "In his testimony before the investigators. and that he has ’not the slightest chance to escape’ from the charges to be presented by the committee. but while he was in the Bureau as director. The committee has also been informed that Mr. "In this connection. Topacio is now exerting all efforts to gather incriminating data and facts against Mr. "The investigation into the foreign stamps collection of the Bureau of Posts.

As a result of the findings of the investigating committee.63 FROM POSTS DIRECTOR JOSE TOPACIO "The photograph shows a view of the courtroom during the trial of Director Jose Topacio of the Bureau of Posts which opened before Judge Imperial of Manila yesterday.470.63 sustained by the Government through Topacio’s questionable conduct during his incumbency. which was accompanied by the following explanation:jgc:chanrobles. The accused is shown at the end of the table standing between his attorneys. Messrs.63 is stated in an issue of the Philippines Herald of June 2.000 Claim Also Dismissed "Attempt of Accused To Collect Damages Fails Also. Guevara and Del Rosario. 1930. A photograph taken during the trial of this case appeared in the Philippines Herald of February 14.63. The result of the Government’s suit for the said P153.ph "GOVERNMENT OPENS EFFORT IN COURT TO RECOVER P153.) The publication of the photograph and the explanation are set up in the information as a libelous publication. Judge Carlos A. Perez Comments "The Insular Government this morning lost its claim instituted in the City Court of First Instance against former Director Topacio of Posts in connection with alleged damages amounting to P153.com. .470. the Government of the Philippine Islands brought suit against Jose Topacio to recover P153.470.ph "COURT ACQUITS TOPACIO." (February 14. 1930. 1930. as follows and constitutes the sixth of the alleged libelous articles set out in the information:jgc:chanrobles.470.com. PAYS SALARY CLAIMS "Government Fails To Collect Big Sum From Former Director of Posts "P100.

"The court based its decision on the ground that it had not been shown that the defendant had been negligent in the performance of his duties. the former director will recover from the Government P2. rendered his decision this morning absolving the former director. also absolving the Insular Government of the demand for damages.Imperial.42 which represents the expenses he incurred when he went to London as Philippine delegate to the International Posts Convention held there in 1929. real and personal. "The court accepts the theory of the Office of the Attorney- General that the accounts of the former director could be reopened by the Insular Auditor. The judge says that there have been sufficient grounds for the attachment asked by the Government.773. who heard the case. Judge Imperial did not sustain the contention of the former director. and P4.000 he alleged to have sustained as a result of the attachment of all his properties. "In accordance with the decision. "Likewise the court sustains the contention that the former Director of Posts cannot be held liable for the negligence of his . Mr. "The court also contends that the damages supposed to have been sustained by the former director were not proven. being merely uncertain and speculative. "In his counterclaim.200 representing his salary from the date of his arrival from London to the time he submitted his resignation as Director of the Bureau of Posts. It was contended by the defendant that the reopening of the accounts of the former director after they had been approved was illegal. among the incidents mentioned being the sale of certain shares owned by the defendant during the pendency of his case. Topacio asked for damages amounting to P100. resulting in the loss alleged to have been sustained by the Government.

This morning no official notice was yet received by the Office of the Attorney-General. the decision says that there has been no proof that he was under suspension from the time of his arrival from London to the date of his resignation. probably to the Federal Supreme Court. "Immediately after Solicitor-General Alex. from tomorrow. that the case will be appealed to the local Supreme Court and. therefore. "Former Director Topacio refused to make any comment when he was asked this noon to comment on the decision of the court. "With regard to the salary of the former chief of the Bureau of Posts. he should be paid the corresponding salaries for that period of time. The 30-day period will hold good only if no appeal is taken during that period of time. this order will not take effect until the decision becomes final. At any rate in which to appeal from the judgment. and. The decision of the court will be thoroughly studied a definite step will be taken by the Government. So the 30-day period will be counted. "The former director refused the plaintiff holds that there is sufficient ground for an appeal. however. he went to the office of the Secretary of Justice for a conference. Reyes. The decision will become final 30 days after the Office of the Attorney-General receives official notice of the judgment. However. "It is very likely. was advised of the decision of the court. "The court orders the attachment of his properties discharged.subordinates. To sustain the contrary is inconceivable under the present system of government. most probably. This ruling is in conflict with an opinion rendered by the corresponding Department Secretary that the chief of an office is responsible for the losses which may be caused through the negligence of his subordinates. who is acting in the place of Attorney-General Delfin Jaranilla who was out this morning. His .

phrase. This board has been the subject of bitter criticism on the part of Mr. It is believed. most of which are admittedly non-libelous. against Mr. that. Wright. former Director of Posts. "Whether or not the defendant will appeal from the decision of the court in view of the ruling with regard to the damages of P100. however. and Pantaleon del Rosario. ’refers only to the disallowances made by the former Insular Auditor. stated that the court decision in no way has anything to do with the administrative case which resulted in the forced resignation of Mr. Topacio. Ben.’ explained Secretary Perez. The committee was charged with being biased and being ignorant of the real facts of the case. Francisco. in order to sift out expressions . Topacio. unless the plaintiff appeals. Mr. Topacio and one of his lawyers. "The case against the former Director of Posts aired in the local court in accordance with the recommendations of the postal investigating board which inquired into alleged irregularities in the Bureau of Posts. it could not be definitely ascertained this morning. covering seven typewritten pages. Neither in the information nor in the decision of the court below nor in the brief of the Solicitor-General in this court is any specific word. "Filemon Perez. the decision will become final.lawyers. Attorneys Guillermo B. commenting today on the acquittal of Jose Topacio. sentence or paragraph quoted or discussed that is thought to be libelous. We are left to grope through a mass of published statements. F.00. Guevara of the law firm of Guevara. The administrative case investigated by the special postal investigating committee and decided by the Governor-General has not been submitted to the consideration of the court. will be notified tomorrow of the decision of the court. Secretary of Commerce and Communications. "‘The case decided by the court. Guevara.’" The court below concluded that "los articulos" are libelous.

(Jackson v. Where an article is lengthy and contains matter that is libelous with much that is not. Nowhere does the prosecution single out of this mass any expression alleged to be of libelous character. 223. whereas upon their face. It is not incumbent upon the courts to mine them out. they are buried under a mountain of valueless and irrelevant matter. This court is left to grope its way through all these pages to arrive at a surmise as to what statements the prosecution and the court below had in mind when the entire articles were denounced and condemned as libelous.) The first four articles are reports of proceedings had or to had in the administrative investigation of the Bureau of Posts and in the courts. the libelous matter must be singled out and the prosecution based thereon. sentence. That they are not so in their entirety is obvious. had the parties carefully scrutinized the facts instead if indulging in temperamental irrelevancies of fact and nebulous generalities of law. if there are any such nuggets in the information. both as a matter of fact and as a matter of law. It evidently considered "los articulos" libelous in their entirety. The merest glance at their contents shows that the articles which appeared in the news columns of the Herald were published as news items without comment or expressions of . The court below did not concern itself to single out any specific word.which we might guess the prosecution and the court below had in mind as being "defamatory and libelous." Had any previous effort been made to discover and single out supposedly libelous words. the greater part thereof is not libelous. State. In the present case. phrase. or paragraph that is libelous. this painful litigation (which so far from alleviating actually irritated the sore spots) might have been avoided. It is elementary law that in any prosecution for libel the offensive expressions must be set out verbatim. 77 Southwestern Reporter. The information is fatally defective — and this defect was not cured by the evidence — in that it sets out seven pages of published statements alleging in effect that they are all and singly libelous.

com. is as follows:jgc:chanrobles. which shall not be implied from the mere fact of publication. some resolution or conclusion of the committee. there is nothing in the Secretary’s Order No. upon information of a member of the investigating committee. Moreover. that required or authorized secrecy in the proceedings. nor are they mentioned in the Solicitor-General’s brief on this appeal. argument. speech. They are too clearly privileged to require any discussion. Nor was there anything in the nature of the subject matter that required secrecy in the interest of public morals or public welfare — indeed. the reports are amply confirmed by the formal charges published on November 27."cralaw virtua1aw library There is no proof of express or actual malice on the part of the appellant in the publication of the six news articles in the Philippines Herald. Section 7 of Act No. agreed upon but not yet formulated. except upon proof of malice in making such report. legislative. it is not clear that they were condemned. This court stated in the case of United States . or other public official proceedings. 89 (Exhibit 20). editor. quite the contrary seems to be true. The assumption that the proceedings were secret is not borne out by the evidence. There is no evidence in the record tending to show that they were in any way unfair. state. although they are possibly included indiscriminately in the term "los articulos" occurring so often in the decision of the court a quo. or of any statement. As to the fifth and sixth articles which relate to the judicial proceedings. 1930 (Exhibit 18). or debate in the course of the same. 2277 being an act to define the law of libel. by way of anticipation. in so far as the reports. or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial. either adverse or favorable. by which the investigation was governed.ph "No reporter.opinion whatever of the appellant. Such malice is not to be implied from the mere fact of publication.

the judgment of the court below is reversed with costs de oficio. Such excessive scrutiny would defeat the protection which the law throws over privileged communication.. pages 385 et seq. Heath [1831]. 1. Bongartz [1885]. Street. Foundations of Legal Liability. 3 How. Newell. 12 Pick. 163. 226.. 15 R. Nicholls [1845].. Bradley v.. Slander and Libel. (See White v. 308.ph "A privileged communication should not be the subjected to microscopic examination to discover grounds of malice of falsity. Kent v. 309.v. 25 Cyc. vol. . various citations.)" There is not a scintilla of evidence in the record that impugns the bona fides of the Philippines Herald or of the appellant as its managing editor. 743):jgc:chanrobles. 72. For the reasons stated. ]. The ultimate test is that of bona fides. I.com. in the publication of the articles in question. 731. Bustos (37 Phil. pp. [Mass.

G.R. No. L-35366 August 5, 1931

THE PROVINCIAL FISCAL OF PAMPANGA, petitioner,
vs.
HERMOGENES REYES, Judge of First Instance of Pampanga, and
ANDRES GUEVARRA, respondents.

Provincial Fiscal Daza in his own behalf.
Monico R. Mercado for respondent judge.
Francisco Lazatin for respondent Guevarra.

VILLAMOR, J.:

The petitioner prays for a writ of mandamus to compel the respondent
judge to admit Exhibits A, B, C, and D (attached to the petition), as
evidence for the prosecution in criminal cases Nos. 4501 and 4502 of the
Court of First Instance of Pampanga.

The provincial fiscal of Pampanga filed two informations for libel against
Andres Guevarra. The informations alleged that the defendant, with
malicious intent, published on page 9 of the weekly paper Ing
Magumasid in its issue of July 13, 1930, a squib in verse, of which a
translation into Spanish was included therein, intended to impeach the
honesty, integrity, and reputation of Clemente Dayrit (information in criminal
cause No. 4501) and of Mariano Nepomuceno (information in criminal
cause No. 4502).

The defendant demurred on the ground of duplicity of informations, he
having published only one libelous article in the Ing Magumasid for July 13,
1930. The court overruled the demurrer.

A joint trial was held of criminal cases Nos. 4501 and 4502. The fiscal
attempted to present as evidence for the prosecution, the aforementioned
Exhibits A, B, C, and D, which are copies of the Ing Magumasid containing
the libelous article with the innuendo, another article in the vernacular
published in the same weekly, and its translation into Spanish. Counsel for
the defendant objected to this evidence, which objection was sustained by
the court.

The respondents answered the petition for mandamus, praying for its
dismissal with costs against the petitioner.

At the hearing of this case, both parties appeared and moved that they be
allowed to present memoranda in lieu of an oral argument, which
memoranda are in the record.

The petitioner contends that the exhibits in question are the best evidence
of the libel, the subject matter of the information, and should therefore be
admitted; while the respondents maintain that, inasmuch as the libelous
articles were not quoted in the information, said evidence cannot be
admitted without amending the information. The prosecution asked for an
amendment to the information, but the court denied the petition on the
ground that it would impair the rights of the defendant, holding that the
omission of the libelous article in the original was fatal to the prosecution.

The first question raised here is whether an information charging a libel
published in an unofficial language, without including a copy of the libelous
article, but only a translation into Spanish, is valid or not. It is true that in
United States vs. Eguia and Lozano (38 Phil., 857), it was stated: "The
general rule is that the complaint or information for libel must set out the
particular defamatory words as published, and a statement of their
substance and effect is usually considered insufficient." But this general
rule does not exclude certain exceptions, such as, cases where the libel is
published in a non-official language. "When the defamation has been
published in a foreign tongue, it is proper, and in general, necessary, to set
out the communication as it was originally made, with an exact translation
into English; and if from the translation no cause of action appears, it is
immaterial that the foreign words were actionable. In some jurisdictions,
however, under the influence of the liberality of laws on practice, it is held
unnecessary to set out the communication in the foreign language in which
it is alleged to have been published, so long as the foreign publication is
alleged, with an English translation attached." (37 C. J., 27, sec. 336.)

If the libelous article had been published in one of our official languages,
English or Spanish, it would have been necessary to follow the general
rule; but since the article in question was published in the Pampango
dialect, it is sufficient to insert a Spanish translation in the information. The
justice of this exception to the general rule becomes more evident if we
consider a libelous article published, for instance, in Moro or Chinese, who
use characters different from our own.

The second question refers to the admissibility of the aforesaid exhibits.
The general rules regarding the admissibility of evidence are applicable to
cases of libel or slander. The evidence must be relevant, and not hearsay.
(37 C.J., 151, sec. 688.) This being so, the rule of procedure which requires
the production of the best evidence, is applicable to the present case. And
certainly the copies of the weekly where the libelous article was published,
and its translation, constitute the best evidence of the libel charged. The
newspaper itself is the best evidence of an article published in it.
(Bond vs. Central Bank of Georgia, 2 Ga., 92.).

The respondent judge undoubtedly has discretion to admit or reject the
evidence offered by the fiscal; but in the instant case his refusal to admit
such evidence amounts to an abuse of that discretion, which may be
controlled by this court by means of mandamus proceedings. In so far as
the jurisdiction of this court is concerned, we believe the doctrine is
applicable which was held in Orient Insurance Co. vs. Revilla and Teal
Motor Co. (54 Phil., 919), namely, that the Supreme Court has jurisdiction
to entertain an application for a writ of mandamus to compel a Court of First
Instance to permit the attorney of a litigant to examine the entire written
communication, when part of the same has been introduced in evidence by
the other party.

Wherefore, the writ prayed for against the respondent judge of the Court of
First Instance of Pampanga should be issued, requiring him to admit
Exhibits A, B, C, and D, in question in criminal cases Nos. 4501 and 4502
of that court, and it is so ordered, without special pronouncement of costs.

[G.R. No. 7969. October 5, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. CHUA
MO, Defendant-Appellant.

Jos. N. Wolfson, for Appellant.

Solicitor-General Harvey, for Appellee.

SYLLABUS

1. OPIUM LAW; EVIDENCE; JUDICIAL NOTICE. — The complaint
charged that the defendant did "on or about the 19th of March,
1912, in the city of Manila, Philippine Islands, voluntarily,
illegally, and criminally have in his possession and under his
control a certain quantity of opium." The lower court found that
the crime had been committed "at No. 717 Calle Sacristia in the
city of Manila." An examination of the evidence shows that the
crime was committed "at No. 717 Calle Sacristia." None of the
witnesses stated where or in what city No. 717 Calle Sacristia was
located. Held: Under the provisions of section 275 of the Code of
Procedure in Civil Actions (Act No. 190) that the lower court was
duly authorized to take judicial notice of the fact that said house
and said street were within its jurisdiction. Cities and
municipalities are created by public law. Their limits are also
prescribed by public law. The streets are laid out, surveyed and
established by virtue of public authority. Courts of justice are
bound to take judicial notice of the territorial extent of their
jurisdiction. Courts may take judicial notice that a certain city has
been surveyed into lots, blocks and streets and judicial notice
may be taken of such divisions.

DECISION

JOHNSON, J. :

in violation of the provisions of the Opium Law. made the following finding of facts:jgc:chanrobles. The complaint filed in the present cause alleges that "on or about the 19th of March. voluntarily. that the complaint charge that the crime was committed in the city of Manila.com. the Honorable A. judge. with subsidiary imprisonment in case of insolvency. found the defendant guilty of the crime charged in the complaint. I find that internal revenue agents went to the place described as 717 Calle Sacristia in the city of Manila.ph "From the evidence presented at the trial. The judge who tried the cause found from the evidence presented that the crime was committed in the city of Manila. and entering the premises there found the defendant. 1912.. S. The judge of the lower court.This defendant was charged with the illegal possession of opium. in the city of Manila. There is nothing in the record which shows where or in what political division of the . etc. The defendant alleged in his defense in this court that the Court of First Instance of the city of Manila did not have jurisdiction to try him. illegally and criminally was the owner and had in his possession and under his control" a certain quantity of opium. Philippine Islands. entered the residence at 717 Calle Sacristia. From that sentence the defendant appealed. An examination of the evidence adduced during the trial shows simply that the internal revenue agents. on or about the 19th of March. therefore. and sentenced him to pay a fine of P300 and the costs of the action. After hearing the evidence. after hearing the evidence. that the testimony adduced during the trial of the cause fails to show where the offense was committed. Crossfield. etc. the said Chua Mo. 1912. etc."cralaw virtua1aw library It appears.

public and private.com. that the trial court had a right to take judicial notice of the fact that a certain municipality or barrio was within its jurisdiction. and of the Philippine Islands. 232). the political constitutions and history of the United States and of the Philippine Islands. and of the several islands forming the Philippine Archipelago. 717 Calle Sacristia is located. of the . The judge of the lower court evidently took judicial notice of the fact that Calle Sacristia was one of the public streets of the city of Manila. was within a city in its jurisdiction. the laws of nations.. and judicial departments of the United States and of the Philippine Islands. the seals of the several departments of the Government of the United States. executive. this court held. and symbols of nationality. Udtujan (20 Phil. but the court may receive evidence upon any of the subjects in this section stated. upon a certain street. their forms of government. the admiralty and maritime courts of the world and their seals. and may resort for its aid to appropriate books. the laws of nature. and the measure of time. Rep.ph "Matters judicially recognized.Philippine Islands the said residence at No."cralaw virtua1aw library In the case of Marzon v. — The existence and territorial extent of states. 190) provides:jgc:chanrobles. under the provisions of section 275 above quoted. and of the States of the Union. We have then the question presented whether or not a trial judge can take judicial notice of the fact that a certain public street is located in a certain city or political division of the Philippine Islands. and official acts of the legislative. Said section 275 above quoted provides that trial courts may take judicial notice. In the present case the question presented is whether or not the trial court had a right to take judicial notice of the fact that a certain house. or evidence. Section 275 of the Code of Procedure in Civil Actions (Act No. the geographical divisions and political history of the world. documents. among other things. and all similar matters of public knowledge shall be judicially recognized by the court without the introduction of proof. when it shall find it necessary for its own information.

in his findings of fact "from the evidence.. they are judicially noticed as a part of the law. (Wigmore on Evidence. 1. in the case of Jones v. Cities and municipalities are created by public law. United States (137 U. Coffee v. 401-404. was located within the city of Manila. The court." We are of the opinion and so hold that the lower court was authorized..) So far as the facts of the political organization and operation of the State are determined by law. S. The streets are laid out. Dunwell. In the present case the complaint alleged that the crime was committed in the city of Manila. States v. State v.. Russell.ph "All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer . Grover. 61 Me. of the Supreme Court of the United States. S. Chambers. found that the crime was committed in the city of Manila. Barclay.geographical division of the state. S. Their limits are also prescribed by public law. 202) in discussing the right of the court to take judicial notice of territorial extent. Mr. 123 U. Reynes. Kennett v.. S. under the provisions of section 275. Courts should be permitted to give a liberal interpretation to the law permitting them to take judicial notice of the facts mentioned in such laws. 3 R. . 38. 213. 9 How. 127.. Justice Gray. 2575." (U. as appearing from the public acts of the legislature and executive. v. 2 Sim. 178. said:jgc:chanrobles. Taylor v. to take judicial notice of the fact that the house located at No.) . Wagner. I.com. 117 U.. although those acts are not formally put in evidence nor are in accord with the pleadings. 14 How. sec. 717 Calle Sacristia.. . Hoyt v. The chief difficulty comes in distinguishing between what is contained solely and abstractly in the law and what depends more or less on specific official acts done under the law or upon the application of the terms of the law to concrete things. 127. especially when a technical interpretation would have the effect of defeating the very purpose and object of the law.. surveyed and established by virtue of public authority.

172. 103 Mass. 48. 39 Me. The cases holding that courts may take judicial notice of the fact that certain towns are within the limits of the jurisdiction of the courts are almost innumerable. State. 113 Ga. 324-342). 170 Ill. as depending on the ebb and flow of the tide. In the case of "The Apollon" (9 Wheaton.. that we have authority for holding that the lower court committed .. Gilbert v.. 68 Mo. State v. 21) it was held that courts might take judicial notice that a certain city had been surveyed into lots.. 289. & S. the supreme court of Illinois held that trial courts had authority to take judicial notice of the subdivision of towns and city property into blocks. Morse (18 Utah. People v. Desmond...In the case of Master v. (See also Sever v. Ham v. M. 25 Conn. Etting. considering the ample provisions of said section 275 and the jurisprudence already established by reputable courts. blocks and streets and that judicial notice would be taken of such divisions. Eberhart (82 Ill. 316). 288. 577.. Perry v. 445. R. 176 Ill. State (147 Ind.) In the case of Gardner v. People v.. National C. Baumann v.. 99 Cal. Ham. Magness. Co.. Faust. In the case of Board v. Howard (7 Peters. (St. 476) the supreme court of the State of Indiana held that trial courts might take judicial notice of the area and boundary lines of a county. 362-374) the Supreme Court of the United States held that "public facts of geographical divisions might betaken judicial notice of.. Trust Co. 263. Ry. 113 Cal. Co. 395. etc. 66 Minn."cralaw virtua1aw library In the case of Peyrox v..) We believe. v. 227. Commonwealth v. Powers.. Lyons. the Supreme Court of the United States held that the court would take judicial notice of the fact that the port of New Orleans was within its jurisdiction. Louis I. 936. lots.

. J. dissents. C. Arellano. .J. So ordered. Torres. and Carson.. Therefore the sentence of the lower court is hereby affirmed. JJ. Mapa. concur. with costs.no error in taking judicial notice of the fact that the place where the crime was committed was within its jurisdiction.. Trent.

did then and there wilfully. accuse Andres G. L-8957 April 29. plaintiff-appellant. influence. No. dated January 12 and 27. the information in this case shall be deemed cancelled and released. duly qualified and appointed as such. respectively. feloniously and knowingly. and within the jurisdiction of this Honorable Court. (Election Day). and in disregard of the civil service rules and regulations. 1953. being then and there a Foreign Affairs Officer. PADILLA. Philippines. de Castro for appellant. and classified civil service officer.G. the above-named accused. unless in the meantime the prosecution amends the information so as to allege sufficient facts constituting an offense under section 51 of our Revised Election Code. unlawfully. sway and make the electors . Jacinto Calanta for appellee. Ferrer. of the Secretary of Justice. Ferrer of the offense violation of Sections 51 and 54 in the relation to Sections 51 and 54 in relation to Section 183. and for sometime prior thereto in the municipality of Binmaley. the dispositive part of which states: Five (5) days after receipt of a copy of this Order by the prosecution. 184 and 185 of the revised Election Code. in utter disregard and defiance of the specific and several legal prohibition on the subject. induce. J. Department of Foreign Affairs. The information held defective by the trial court reads as follows: The undersigned Provincial Fiscal of Pangasinan and the Provincial Fiscals of Nueva Ecija and Batanes.: This is an appeal from an order of the Court of First Instance of Pangasinan. FERRER. defendant-appellee. 1957 THE PEOPLE OF THE PHILIPPINES. on special detail in Pangasinan by Administrative Orders Nos.R. ANDRES O. committed as follows: That on or about 10th day of November. Class III. province of Pangasinan. Andres G. 1954. Office of the Solicitor General Ambrosio Padilla and Solicitor Pacipico P. 6 and 13. vs.

1958. The trial court is also of the opinion that the defendant is not a classified civil service officer or . going from house to house and induced the electors to whom he distributed sample. because it is not giving "food" for tobacco is not food. of the said municipality of Binmaley. to be distributed. etc. Ferrer. 180. cigarettes are not food. but they have and are of value and the charge that the defendant caused cigarettes and pamphlets concerning the Liberal Party to be distributed to the people who attended a political meeting mentioned in the information is a sufficient allegation that he gave or contributed things of value for electioneering purposes. nor does it constitute a violation of that part of section 51 which makes unlawfully the contributing or giving. does not constitute a violation of section 51 of the Revised Election Code. Case No. sometime prior to the last elections campaigned in the Barrio of Caloocan Norte. and it does not state that the cigarette belonged to the defendant and were being given away by him as his contribution for electioneering purposes. True.) The defendant moved to quash the information on the ground that it charges more than one offense and that the facts alleged in the information do not constitute a violation of either section 51 or section 54 of the Revised Election Code. the said accused. If the cigarettes did not belong to him. Andres G. inducing the electors to vote for the candidates of the Liberal Party but more particularly for President Quirino and Speaker Perez. that during said political meeting the said accused caused to be distributed to the people who attended said meeting cigarettes and pamphlets concerning the Liberal Party. Pangasinan. vote in favor of the candidates of the Liberal Party in the following manner. to wit: (1) that sometime before the elections on November 10. Contrary to sections 51 and 54 in relation to Sections 183. because the information merely charges the defendant with-having caused cigarettes. 20320. Andres G. of money or things of value. ballots of the Liberal Party. charged against the defendant. directly or indirectly. Ferrer. as amended. and (2) that the said accused. of the said municipality of Binmaley. 184 and 185 of Republic Act No. that is a matter of defense. (Crim. The trial court is of the opinion that causing cigarettes or pamphlets concerning the Liberal Party to be distributed to the people who attended a political meeting. delivered a speech during a political rally of the Liberal Party in Barrio Caloocan Norte.

is deemed admitted. made unlawful by section 51 and punished by section 183. because to be such it is necessary that he be assigned in the Department of Foreign Affairs under section 6. and section 54 for which a lighter penalty is provided. to wit: section 51 to which a heavier penalty is attached. has no application to the case. the information is defective. who was not . Republic Act No. assignment or detail in the Department of Foreign Affairs would make him by mere legal fiction a first grade civil service eligible under section 6. Buenviaje.employee. The trial court cannot go beyond the allegations of the information. still such assignment would not make him a classified civil service officer embraced within the provisions of section 54 of the Revised Election Code. duly qualified and appointed as such. because it charges two violations of the Revised Election Code. 536. 708. as amended. 184 and 185 of Republic Act No. cited and invoked by the State. paragraph b. Republic Act." for purposes the motion to quash. Department of Foreign Affairs. that the defendant is in the unclassified civil service under section 671.. and that the. And the prosecuting attorneys had that in mind when at the end of the information filed by them they stated: "Contrary to Sections 51 and 54 in relation to Sections 183. for. 708 and if and when thus assigned he will for purposes of civil service law and regulations. and later on as Vice Consul the last appointment having been duly confirmed by the Commission on Appointments. The allegation in the information that the defendant is "a classified civil service officer. section 670 of the Revised Administrative Code provides that the classified civil service embraces all persons not expressly declared to be the unclassified civil service and section 671 enumerates the persons embraced in the unclassified civil service. Nevertheless. because the defendant was appointed by the President first as Foreign Affairs Officer Class III." and that even if the prosecution could establish that the defendant at the time of the commission of the violation charged was assigned in the Department of Foreign Affairs under the section just mentioned. be considered as first grade civil service eligible. cannot be deemed a necessary means to commit the lesser violation of section 54 were the penalty attached to it taken into consideration. The rule in the case of People vs. 180. according to the trial court. and concludes. 47 Phil. The reason advanced by the trial court are defense matters." Causing cigarettes which are things of value to be distributed. of the Revised Administrative Code. because there the defendant. No.

Endencia.L. the defendant may be convicted and sentenced under either section or both.concur.a duly licensed physician. That a violation of section 51 is distinct from that of section 54 is further shown by the fact that a violation of the former may be committed by any candidate. and both violations are punishable with the same penalty. gave medical assistance and treatment to a certain person and advertised himself and offered services as a physician by means of cards or letterheads and advertisement in the newspapers. him to prepare his defense. . the rule in the case of People vs. Bautista Angelo. not upon the grounds relied upon by the trial court.. If the penalty provided for violation of section 51 and 54 were the same as in the case of the violation of the Medical Law. whereas a violation of the latter may only be committed by a justice. Labrador. whereas in the present case causing cigarettes or things of value to be distributed by the defendant to the people who attended a political meeting is a violation distinct from that of electioneering committed by a classified civil service officer or employee. and Felix.. officer or employee of the Army.. might be invoked and applied. Bengzon. Concepcion. Reyes. A. municipal or rural police force. The former has no connection with the latter. member of the national. without pronouncement as to costs. The order appealed from is affirmed. JJ. political committee. J. fiscal. if the charges be proved. provincial. The State should not heap upon the defendant two or more charges which might confuse him in his defense. city. but on the ground that the information charges two different violations. The rule enjoining the charging of two or more offenses in an information has for aim to give the defendant the necessary knowledge of the charge to enable. voter or any other person. judge. Buenviaje supra. latter being a means to commit the former. and classified civil service officer or employee. Montemayor.B. Reyes. treasurer or assessor of any province. Under the information in question.

accused-appellee. Kawit. 1939 PEOPLE OF THE PHILIPPINES. of lawful age. and in the presence of lawful authority do hereby declare the following:chanrobles virtual law library That Ong Lo. G. and a native of Binakayan. 1935 the accused Sotero Peji Bautista was charged by one Ong Loo in the justice of the peace court of Kawit. Tirona for appellee. that the accused Sotero Peji Bautista was not given a preliminary investigation before trial. Emiliano T. in the name of the law. with having violated the provisions of article 183 of the Revised Penal Code on May 30. and second. 1935 by knowingly subscribing under oath a false affidavit couched in the following language: I. 1937 dismissing said case for the following reasons: first. SOTERO PEJI BAUTISTA. the undersigned herein affirmed. No. is personally known to me and we had been acquainted with each other within a period of several months. L-45739 April 25. that said accused had been twice put in jeopardy.chanroblesvirtualawlibrary chanrobles virtual law library That several times and oft during the period of our acquaintanceship I had told and informed the said defendant of the value of manuscript as specified thereto in the . the alleged defendant to the case.R. J.: chanrobles virtual law library This case is before us by virtue of an appeal interposed by the Solicitor-General to the resolution of the Court of First Instance of Cavite of September 10. DIAZ. Plaintiff-Appellant. Cavite. Office of the Solicitor-General Tuason for appellant. under the guidance of normal mind.chanroblesvirtualawlibrary chanrobles virtual law library The undisputed facts bearing upon the case are the following: On July 22. Cavite. vs.

and under no constraint whatsoever. the defendant herein named willfully.chanroblesvirtualawlibrarychanrobles virtual law library That defendant promised upon his word of honor to abide by the obligation to return and produce said manuscript upon my demand as rightful owner. and still denies. voluntarily. effected and executed contrary to law by city policeman badge No. after a skillful management actually taking due advantage of our acquaintanceship. and has thereafter denied. 1934. and will even refuse to return and produce the manuscript upon my demand as rightful owner.chanroblesvirtualawlibrary chanrobles virtual law library That the manuscript is my source of income and it must therefore be valued according to its earning capacity to the amount of two . and feloniously refused and still refuses. fraudulently. voluntarily. and unlawfully converts and misappropriates the same with intent to profit himself at my own detriment and prejudice. said defendant willfully.chanroblesvirtualawlibrary chanrobles virtual law library That on or about December 12. and will even deny having received said manuscript. 733 and thus having deprived of the necessary instruments as a lawful means of defense in case of a controversy like this. defendant succeeded to acquire possession of said manuscript.chanroblesvirtualawlibrary chanrobles virtual law library That later and again. a pledge of security. Province of Cavite.complaint. in the municipality of Kawit. voluntarily. and unlawfully managed to dispossess me of the pledge of security through an incriminatory machination prepared and devised by the same defendant. on or about January 1. deceitfully.chanroblesvirtualawlibrary chanrobles virtual law library That said defendant guaranteed himself by delivering to me wilfully. 1935.

chanroblesvirtualawlibrarychanrobles virtual law library That I am willing to submit this to trial for the speedy administration of Justice. Juzgado de Paz de Kawit. illegally and maliciously and knowingly make under oath untruthful statements and give false testimony against one by the name Ong Loo. without further proceedings. the defendant in the criminal case for estafa No. 1935. the justice of the peace of Kawit remanded the case to the Court of First Instance because it did not fall under his jurisdiction and he reached the conclusion that there were reasonable grounds to believe that the crime was committed and that the accused was the one who committed it. 1047. the said accused did then and there and there voluntarily. Philippine Islands. in the municipality of Kawit.) SOTERO PEJI Y BAUTISTA Complainant chanrobles virtual law library Subscribed and sworn to before me this 30. Instead of filing an information against the accused for the purpose of charging him with the aforesaid violation of the Revised Penal Code. (Sgd. day of March.000) Philippine currency or its equivalent value in pesetas.thousand pesos (P2. Cavite). the provincial fiscal. filed another charging him with false testimony in a criminal case under article 180 of the said Code. 1044 of the justice of the peace of . Province of Cavite. which is a felony entirely different from that which had been the subject of the preliminary investigation by the justice of the peace of Kawit. VINIEGRA Justice of the Peace Municipality of Kawit (Causa Criminal No. The information so filed by the fiscal contains the following allegations: That on or about September 26. 1935. (Sgd. After the preliminary investigation required by law.) FERNANDO T.

" After trial has commenced with the fiscal presenting his first witness.)chanrobles virtual law library The accused on arraignment pleaded "not guilty. The judge then presiding over the Court of First Instance of Cavite. and that he had had given him as security for the return to him of the said manuscript. 1936. as the accused knew it full well.Kawit. the Honorable Emilio Pe�a. two books (Webster dictionary and English grammar). ordered the transfer of the case to the justice of the peace court of the capital of the province to the end that the necessary preliminary investigation be there made. however. 7167 of the . Court of First Instance of Cavite. the accused objected that he had not been given a preliminary investigation and that the crime with which he was then charged was entirely different from that which had been imputed to him in the justice of the peace court. on May 16. having found the objection of the accused to be well taken. Cavite. In view thereof. or on March 21. declaring falsely and knowingly that Ong Loo had borrowed from him a certain manuscript for English Idioms in the municipality of Kawit. Cavite. 1936. (Criminal case No. the said Court of First Instance then presided by the Honorable Leopoldo Rovira. when in truth and in fact. This done. reserving. Contrary to law. 6999. the justice of the peace returned the case to the Court of First Instance with the report that he did not find reasonable grounds to believe that the accused had committed the crime of false testimony in a criminal case which had been imputed to him. the provincial fiscal filed a new information in a separate case (criminal case No. Five days after. to the provincial fiscal the right to file a new information whenever should he deem proper with the aid of the same preliminary investigation which the justice of the peace of the capital of said province had already conducted. ordered the filing away of the case. that Ong Loo did not borrow in Kawit from him nor elsewhere the said manuscript nor he gave him the Webster dictionary and English grammar as security for the return of the supposed manuscript.

it not being possible to declare that the same were observed just .Court of First Instance of Cavite) charging the same accused Sotero Peji Bautista with false testimony in a criminal case. Boncan ). personally to conduct the necessary preliminary investigation on the ground that the justice of the peace of the provincial capital had previously expressed the opinion that there were no reasonable grounds to believe that the accused was guilty. Endencia. case No. 1936 as evidenced by his order of said date. the accused raised the two questions which. He had then undoubtedly a right to said investigation because when the fiscal first charged him with false testimony in a criminal case. Neither is it true that said accused had been twice put in jeopardy or in danger of being tried for the same crime of false testimony in a criminal case. and when formal trial was about to be held before another judge (the Honorable Marcelo T. 6999. Endencia. All that took place was a preliminary investigation in the first case. and asked the Judge Pastor M. said fiscal disregarded the aforementioned procedure and formality. then acting in the place of Judge Rovira. that the accused has not been given a preliminary investigation. as has been shown by the Solicitor-General. which says: It appearing from the preliminary investigation made in this case that there are reasonable grounds to believe that the accused has committed the crime of false testimony and that he is liable therefor. It is not true. This was done. 1. invoking his right to a preliminary investigation before the submission of the charge against him. namely. 2. for this was conducted precisely by the judge himself Honorable Pastor M. the arrest of the accused Sotero Peji Bautista is ordered after which a day shall be set for the corresponding trial. on May 20. And this proceeding had to be taken because the accused asked for it. resolved favorably to him through the appealed order. led to the final dismissal of the case. that endorsed to the justice of the peace of the capital of the province so that said investigation might be conducted.

by delegation of the judge of the Court of First Instance. Therefore. a preliminary investigation prayed for by the accused himself. From the foregoing it is obvious that it is not the same thing to charge one with false testimony in a criminal case and to charge him with false testimony in a civil case. (U. nor may they be lower than arresto mayor or a fine not exceeding one thousand pesos. 209. false testimony in other cases. This is because a preliminary investigation is not a trial or any part thereof and does not have for its object that of determining definitely the guilt of the accused by proofs.)chanrobles virtual law library .)chanrobles virtual law library The justice of the peace of the capital of the Province of Cavite. The Revised Penal Code divides false testimony into three forms: first. and that the penalties which justices of the peace of capitals of provinces may impose by virtue of their original jurisdiction are arresto which cannot exceed six months or a fine which cannot exceed two hundred pesos or both penalties at the same time. false testimony in a civil case (art. 180 and 181) . 182). S. clearly it could not be said that the accused had ever been in jeopardy. by reason of the penalty prescribed by law for the crime with which the accused was then charged. and the other formalities prescribed by law. counterproofs. The requisites for each of these three forms are different. (Section 2. if there had been nothing more than a preliminary investigation. Act No. 6999 in which he did nothing more than to conduct.. vs. false testimony in a criminal case (arts. was not competent to take cognizance of case No. In this connection it must be noted that the penalties prescribed for false testimony against an accused in criminal cases are not. and with the same crime in other cases. and third. 2131.because he had them in case No. 1047 of the justice of the peace court of Kawit for the reason that in the latter case a crime distinct from that imputed to him afterwards was involved. and the penalties for each one of them and for each of their variations are also different. second. Yu Tuico. 34 Phil.

11 Phil. the right of the government to prosecute the crime subsists and must be attended to by the competent judge called upon to take cognizance of the same.One cannot be considered to have been in jeopardy unless the prior judgment. 206 U. has been rendered by a court having jurisdiction to try the same by reason of the crime with which he was charged and the penalty prescribed therefor. 431. 28 Phil. Ledesma and Bernad.. the aforesaid order is reversed and it is ordered that the case be returned to the lower court so that the trial may proceed for the purpose of receiving the evidence which the prosecution and the defense may present. 100. So ordered. 776. Therefore. vs. and judgment may be rendered according to law. 29 Phil. it is evident that the final dismissal of the case ordered by the lower court under the circumstances above-mentioned was clearly erroneous. 333. not being in accordance with law.. S. U..)chanrobles virtual law library In cases of lack of authority or jurisdiction on the part of the judge. S.. whether one of acquittal or conviction in the proper case. 669.Rubin. 11 Phil. U. 631. S. 195 U..S. U. 90.. with costs de oficio. Jayme..chanroblesvirtualawlibrary chanrobles virtual law library Wherefore.. U.. Arceo. S. 530. 11 Phil. (U. the proceedings taken by him are null and the trial of the accused under said circumstances has not placed him in danger of conviction because there has been no really valid trial.)chanrobles virtual law library For the reasons set forth. S. and the defense of jeopardy does not lie against it. 24 Phil. vs. must be reversed. The order appealed from. S. S.. . vs. Kepner vs. (Grafton vs. U. vs.

Assistant Solicitor-General Concepcion and Acting Assistant Attorney Roxas for appellee.: A criminal complaint was lodged against Felipe Magpale in the justice of the peace court of San Jose. . In the latter court. Nueva Ecija. Nueva Ecija. feloniously. All contrary to law. knowingly and without lawful purpose. plaintiff-appellee. the justice of the peace remanded the records of the case to the Court of First Instance of Nueva Ecija for further proceedings. . and within the jurisdiction of this court. defendant-appellant. Convinced. in the municipality of San Jose. in public documents. . Perlas for appellant. on or about the 25th day of March. Philippine Islands. from the evidence before him. maliciously. did then and there voluntarily. with the intent of using it for falsifying the official brand of the said municipality of San Jose. I. LAUREL.G. P. the defendant was informed against by the provincial fiscal as follows: That on or about the 25th day of March. Nueva Ecija. custody and control one brand of the municipal government of San Jose. 1938. 1938. The preliminary investigation conducted by the justice of the peace was marked by the presentation of evidence by the prosecution and by the waiver of the defense to present any evidence in rebuttal. in the municipality of San Jose. the above-named accused did then and there wilfully.R. . Province of Nueva Ecija. that there was reasonable ground to believe that the defendant committed the crime complained of. FELIPE MAGPALE. vs. No. 1940 THE PEOPLE OF THE PHILIPPINES. charging him with a violation of Article 176 of the Revised Penal Code allegedly committed as follows: That. Felipe Magpale.. have in his possession. Constancio Padilla and Zoilo P. Province of Nueva Ecija. the above-named defendant.. J. and within the jurisdiction of this court. illegal and criminally make an iron brand purported to be of the municipality of San Jose. to wit:. Nueva Ecija. L-46656 June 26. to wit: Certificate of Ownership of Large Cattle.

or a previous inquiry of some kind. 2. Grant and Kennedy. The lower court erred in finding the accused guilty of the crime charged in the information. the Court of First Instance of Nueva Ecija rendered a decision the dispositive part which reads: Wherefore. All contrary to law. and also to protect the State from unless and expensive prosecutions. After trial. 122. and hereby sentences to an indeterminate penalty ranging from four months and one day of arresto mayor to two years. 3. to pay a fine of P100 with subsidiary imprisonment in case of insolvency. expenses and anxiety of a public trial. and in not acquitting him of the same. malicious and oppressive prosecutions. as coming within the purview of article 176 of the Revised Penal Code. said manufactured brand having been found in the possession of said accused. to the accessories of the law and to pay the costs. four months and one day of prison correccional. The case is before this court on appeal by the defendant and appellant. from the trouble. expenses and burden of defending himself in the course of a formal trial until the . this court has set out the purposes of a preliminary investigation as follows: "The object of a preliminary investigation..) "Preliminary investigations are intended to secure the right to every person charged which crime to be free from the inconvenience. The lower court erred in finding the acts imputed to the defendant punishable. is to secure the innocent against hasty. vs. 18 Phil. and to protect him from an open and public accusation of crime. before an accused person is placed upon trial. but conveying the same central thought. who makes the following assignment of errors: 1. with the intention of using it knowingly in the falsification of certificates of ownership of large cattle. the court finds the defendant Felipe Magpale guilty of a violation of article 176 of the Revised Penal Code. The lower court erred in overruling the demurrer interposed by the defendant that the said court has no jurisdiction over the case on the ground that the accused is deprived of the right to preliminary investigation on the information charged." (U. In varying phraseology. S.

448).S. vs. thus giving the appellant a chance." (U.... frivolous or groundless charges. 443. the appellant should have brought the appropriate proceedings to compel the trial court to grant him another preliminary investigation. In People vs. this right being a substantial one. But the appellant has seen fit to waive his right to present any evidence at said investigation. and for that reason the court a quo would have been justified in denying the said motion. Instead. to defend himself not only against the charge of illegal possession of the iron brand but also against that of making or ordering the making thereof." (U. it will be noted that the officer charged in the complaint and that alleged in the information are defined and penalized by the same article 176 of the Revised Penal Code. it was intimidated that "Whether said motion was made or after the arraignment. the prime purposes for which preliminary investigations are ordained by law and sanctioned of the decisions. that in the notices sent out by the justice of the peace in connection with the preliminary investigation of the complaint. at which the prosecution presented who brought in testimony.) In the case at bar. and we cannot now entertain his last-minute defense that he should have been investigated anew for the crime alleged in the information. that he was entitled to a second preliminary investigation. however. Marfori. To grant him such a belated remedy would not be in obedience to. vs. ." After his motion contesting the jurisdiction of the trial Court was denied. Granting. (47 Phil. 35 Phil. it would indicated that they have waived their right to a preliminary examination. 666. Yu Tuico. as he invariably spoke of a violation of article 176 of the Revised Penal Code. he did not specially refer to only one of said offenses but to both. and putting him on his guard. 209.S.reasonable probability of his guilt has been passed upon in a more or less summary proceeding by a competent officer designated by law for that purpose. It will further be noted. still his right thereto was invoked after he pleaded not guilty when arraigned. and are so related that an inquiry into one would have elicited substantially if not precisely the same facts that an inquiry into the other would have brought into light. and that they are intended further to guard the state from the burden of unnecessary expense involved in holding trials based on false. the appellant folded his arms and went forward with the trial. Solon. but in disregarded of. 34 Phil. is of some importance for the reason that if it was not made before the arraignment or before the plea of the defendants was entered.) "A preliminary investigation is not a trial or any part thereof and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe the accused guilty thereof.

and twenty-one days to four years. Nueva Ecija. establishing the fact that the appellant was the one who ordered the making of the iron brand in question. imposable in its medium period (three years. he is criminally liable for the making thereof. The offense committed by the appellant under the aforecited article of the Revised Penal Code is penalized withprision correccional in its medium and maximum periods... — The penalty of prision correccional in its medium and maximum periods and a fine not to exceed 10. concur.000 pesos shall be imposed upon any person who shall make or introduce into the Philippine Islands any stamps. JJ. to brand its own large cattle and to counterbrand large cattle belonging to its inhabitants. Revised Penal Code. nine months. and a fine to exceed P10. to an indeterminate penalty. the minimum of which is four months and one day of arresto mayor. Appellant himself admits that the ordered the questioned iron brand to be made. six months. Concepcion and Moran. C.without any objection on the part of the appellant. and the maximum three years.000.J. Avanceña. six months and twenty-one days of prision correccional. Manufacturing and possession of instruments or implements for falsification. The judgment is thus modified and the defendant sentenced. As thus modified. (Article 17. Diaz. article 176 of the Revised Penal Code provides as follows: ART. marks. the appealed judgment is affirmed. and ten days) because unattended by any modifying circumstances. dies. Imperial. 4103. As to the last two assigned errors.) It also appears that the said brand is an exact imitation of that owned and used by the municipality of San Jose. with costs to the defendant and appellant. wherefore. 176. So ordered. . or other instruments or implemented intended to be used in the commission of the offenses of counterfeiting or falsification mentioned in the preceding sections of this chapter. under Act No.

1938 THE PEOPLE OF THE PHILIPPINES. voluntarily. defendant-appellee. Nueva Ecija. for theft of large cattle. the abovenamed accused.. Francisco . on June 3.. both belonging to Pedro A. on October 29.. vs. 1936.. Office of the Solicitor-General Tuason for appellant. Mariano Sta.: This is an appeal by the prosecution form an order of the Court of First Instance of Pampanga whereby said court declared itself without jurisdiction to take cognizance of and decided two criminal cases pending before it. 7361553.. worth sixty pesos (P60) each and to his damage and prejudice in the total amount of P120. said crimes had taken place and had been committed in the municipality of Gapan. Nos.. Province of Pampanga. and ...G.. with intent of gain. against the appellee Francisco Mercado. maliciously. Philippine Islands.. plaintiff-appellant. That on or about the 21st day of June 1936.. 1933. dated at Peñaranda. Pampanga.. in the municipality of Candaba.. although the stolen animals were afterwards brought by the appellee to the municipality of Candaba..... on the ground that. steal.. in the municipality of Candaba.. J.. DIAZ.. respectively. The commission of the crime having been commenced at Gapan... the abovenamed accused. take. and consummated at the municipality of Candaba.. Province of Pampanga. and carry away two male carabaos branded as . did.. Philippine Islands. Pampanga. Ladores.. The informations which gave rise to the criminal cases above-mentioned are of the following tenor: That on or about the 21st day of June.. illegally and criminally. Nueva Ecija. and within the jurisdiction of this court. with certificates Nos. of the Province of Nueva Ecija. Romana for appellee. and without the knowledge and consent of the owner. where they were found in his possession.... Nueva Ecija. 1929 and 6993322 dated at Gapan..R. Francisco Mercado.. and within the jurisdiction of this court. then and there. FRANCISCO MERCADO... L-45471 and L-45472 June 15.

1928. steal.. it being alleged in the informations by which they were commenced that the accused stole the carabaos described therein in Gapan. without his knowledge and consent. Briefly. maliciously illegally and criminally take. then and there. being of the opinion that the appellee committed the two thefts in question no in the Province of Pampanga over which its jurisdiction is exclusive of the Province of Nueva Ecija. 6696261. Pampanga. the rule is that one can not be held to answer for any crime committed by him except in the jurisdiction where it was committed. Cunanan (26 Phil. and carry away a male carabao branded as .. is limited to certain . the question raised by the prosecution on appeal is the following: Has the Court of First Instance of Pampanga jurisdiction to try and decide the two cases in question. voluntarily. in order to bring them. Said rule is based on the legal provision which prescribes the essential requisites of a good complaint or information... but in the latter province. dated at Peñaranda. by the justice of the peace court of Candaba. The commission of the crime having been commenced at Gapan... Pampanga. Nueva Ecija... the jurisdiction of the Courts of First Instance of the Philippine Islands. in criminal cases. where the case originated. which is beyond the jurisdiction of the court. on April 11. and completed at the municipality of Candaba. with certificate No.. In criminal proceedings. No. one of which is the allegation that the crime was committed within the jurisdiction of the court where the complaint or information is filed and that said court has authority to try it. valued at ninety pesos (P90). Mercado.. Nueva Ecija. owned by Leon Ladores. (Sec. to Candaba. as he in fact did afterwards.. General Orders.. in the Province of Nueva Ecija. and to his damage and prejudice in the said sum of P90.. upon complaint. 6. did.. where they were found in his possession? The lower court upheld the negative. 3760. but without the use of violence upon persons nor force upon things. The appellee waived his right to a preliminary investigation and asked that the two cases be remanded to the Court of First Instance for trial and final judgment. Pampanga. with intent of gain.) As was said in the case of United States vs. The foregoing informations were filed by the provincial fiscal of Pampanga in the Court of First Instance of said province after receiving the report of the preliminary inquiries made. 58.

Cardell) and 27 Phil. page 1389). in compliance with the order which they had previously received fro their principals. as to property which is made the subject of larceny by the common law.. 154). so that they can not take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory. were not made manifest or begun until the offender and his victim were already in Rizal. states in his commentary on Criminal Law. wherefore. in the following language: PAR. vs.S. in turn.) . 1389. It was held in that case that the carrying away of the offended party took place in Manila and that the unchaste designs. The rule applied as well to property which is made the subject of larceny by statute. however. 408 (U. or where they are consummated for the first time. because the execution or consummation of those crimes continues successively and uninterruptedly until stopped by a cause independent of the will of the offender.. contends that there are crimes which are considered as continuing.. they expressly and formally bound themselves to render an accounting or to deliver their collections in Manila. find any similarity between the Bernabe case and those now under consideration.well-defined territory. It alleges that certain cases of abduction. pages 366. guilty of larceny in every country into which the subject may thus have been carried. in the eye of the law. 11th ed. the appellant invokes the commentary found on pages 192 and 193 of Volume 16 of Corpus Juris and what Wharton has to say in his criminal law (11th edition. partake of this nature because they are partly executed in one province and partly in another. For this reason. like that of United States vs.S. — Where a larceny has been committed in one country and the thief removes the stolen property into another county (animus furandi) he is. in truth. 1116. Neither do the present cases bear any similarity with those of estafa which appear in 23 Phil. p. Bernabe (23 Phil. however. and what Clark. although the offense was commenced in Manila. (2 Wharton's Criminal Law. respectively. because although the accused in said cases appropriated their collections in Cebu and in Iloilo. Appellant. Thief carrying goods from county to county may be convicted in either country. it was held that it was consummated only in said province. as for instance those whose commission does not terminate where the acts of execution began. an essential element of abduction. it could correctly be held in said cases that the crimes committed by the accused were triable in the City of Manila. We can not. Santiago). 207 (U. vs. To sustain its theory..

. (Com. there is a larceny in the latter..) To constitute larceny. 748). by a person not entitled to the possession thereof. apply to the cases in question. "where goods are stolen in one state and carried into another. "to constitute larceny the first essential is that the thing which is the subject of the crime should be taken from the possession of the owner into the possession of the thief. for. In the aforesaid State. but the person taking must also carry it away. on the ground that each moment's continuance of the trespass and felony amounts to a new taking and asportation. and so all the essential elements of larceny exist in the second. he may be indicted in either. with intent to deprive the owner of his property permanently. feloniously. the courts have generally held that. 747. But in all the other States. 44. the last requisite is not indispensable. and brought into another. because his unlawful carrying in the second is deemed a continuance of the unlawful taking. 734. without his consent. much as they are entitled to our respect. p. In larceny." (36 C.. (Clark's Criminal Law. vs. Can the latter state punish the thief? It has been held from the earliest times that if a thief steals goods in one country. there must be a taking and a carrying away of personal property with intent to steal it. 366. at any time. it is not only essential that there must be a taking away or abstracting of personal property belonging to another. for until this is done there is no larceny. property may be stolen in one state. of the personal property of another. Again. and be carried away by him. however definite may be the intent of the prospective thief to commit the theft. Adams. "1 Gra" 43. according to them. Taking without carrying away is not larceny.)" This is so because their definition of larceny is the following: "Larceny at common law may be defined to be the taking and carrying away from any place.J. and however elaborate his preparations for doing so. and to convert it to the use of the taker or of some person other than the owner. and brings them into another.J. and that the courts of the state . 73 Mass.) It may be inferred from the foregoing definition of "larceny" that the essential elements of this crime are in a sense distinct from those of theft as the latter offense is known in this jurisdiction.) We do not believe that these American precedents. except in the State of Texas (36 Corpus Juris." (36 C.

Our opinion is also in conformity with that expressed by the Supreme Court of Spain in its decisions of December 1. On the other hand. but he was found guilty of theft for the reason that he had performed all the acts of execution necessary for consummation of the crime. with intent to gain. It is not an indispensable requisite of theft that the pickpocket or their carry. 167. relying upon the provisions of article 308 of the Revised Penal Code. shall take personal property of another without the latter's consent. in the Province of Pampanga. which says: Where property is stolen in one county and carried off by the offender to another.. Wherefore. third. with intent to gain but without violence against or intimidation of persons nor force upon things. taking away of personal property. In that case a Manila customs inspector took a leather belt from the baggage of a passenger who had just landed at the port of Manila and kept it in his office desk where the other employees found it afterwards. or force upon things. and fifth. Adiao (38 Phil. fourth. Said provision is section 235 of its Code of Criminal Procedural.) This is also the rule in Texas because an express provision is to be found in its procedural law which embodies it. It was enough that on taking them in Gapan. he may be prosecuted either in the country where he took the property or in any other country through or into which he may have carried the same. that there is no violence or intimidation against persons. that it is done without the consent of the owner. ." (16 Corpus Juris. He was not able to make use of said belt." we hold that the thefts charged in the two informations already referred to were wholly committed in Gapan. more or less far away. the thing taken by him from its owner. the elements of theft in this jurisdiction are: First. that the taking must be with intent to gain. second. he was then actuated by the desire or intent to gain. that the property belongs to another. in order to make use of or derive some benefit from them. and that for their consummation nothing else remained to be done from the moment that the appellee took away. It was not necessary that there had been real or actual gain on his party or that he had removed the stolen animals to the town of Candaba. Nueva Ecija. This opinion accords completely with that stated in the case of United States vs.into which the goods are brought have jurisdiction to punish as for larceny in such state. which reads: "Theft is committed by any person who. said animals while they were yet in said municipality and province. p. 754).

and carry away a male carabao branded as . constitutes the crime in question.1897 and October 14. we adopt the same rule followed by the Supreme Court of Spain.. referred to in the Adiao case. The commission of the crime having been commenced at Gapan.. 1894.) It being stated as a proven fact in the appealed decision that the accused took two bundles of barley from a farm. dated at Peñaranda.. 1902. November 15. Nueva Ecija.. 5224.. therefore. 1928. voluntarily. which we have seen applied in those cases to which its decisions of October 14. There is not a single allegation or insinuation in the two informations from which it might be deduced that the desire to gain was not that which led the appellee to steal the animals. 1899. in accordance with the clear provision above- cited of section 6. valued at ninety pesos (P90). then and there. take. January 10. No.. Besides the foregoing.... and completed at the municipality of Candaba.. natural and reasonable to conclude that he took them with intent to gain. illegally and criminally. Nueva Ecija. steal. owned by Leon Ladores. 58... it may be seen that the appellee illegally took the carabaos from the owner thereof in Gapan because the allegation to be found therein. of General Orders. without his knowledge and consent." (II Hidalgo. and to his damage and prejudice in the said sum of P90. No.. It is. G. unless special circumstance reveal a different intent on the part of the perpetrator. In so holding. p. . (Decision of October 14. 662. and that of the same tribunal of November 16. 45471).. No.. but his intention which. 1900. 1898..R. together with the other elements above-mentioned. the following observations may also be made: From a reading of the two information in the two cases in question. that the appellee "did. and others relate and in which it was held that: The intent to gain is the usual motive to be presumed from all furtive taking of useful property appertaining to another. 1895 where it was said that "the crime of theft consists in taking personal property belonging to another person without his consent and it is no bar to its consummation that the offender may not have been able to make use of the stolen articles.. 1898. 18.F. the prosecution of the appellee should have been and should be commenced in Nueva Ecija. maliciously. Pampanga. 1898. it is clear that.. No." it to this effect. 669261. for it is not the gain obtained. on April 11. February 6. particularly in one of the informations (C. with certificate No. 4.) Therefore.I. Codigo Penal.

1900. for him to secure the punishment of the offender. whatever may be the class or condition of the persons doing the illegal taking. without a declaration as also proven that he did so with a purpose other than to gain and with the authorization of the owner. is to put obstacles in his way precisely because this will result in expenses and delay. 1894.) Although the asportation of a thing belonging to another without his consent does not always imply the intent to gain on the part of the perpetrator.) The act of taking figs from the tree of another without his consent constitutes asportation in which the intent to gain is inherent. since his purpose might be different. it not impossible. and 660.) Practical reasons and considerations. it is reasonable to believe that the taking was made with that essential element of the crime of theft. require that no pass be opened to the thief through which he may easily frustrate the right of the owner of a stolen thing to recover it from him or to go after it. surely. 667. but on the contrary. which intent is made manifest by the act of carrying them away. 665. the thief would contrive in all cases to carry as far as possible what he may have stolen so that he would have greater chances of getting unpunished. he alleges title thereto by virtue of a contract of purchase and sale which he has not been able to prove beyond doubt. (Decision of January 10. or which may make if difficult. who might have some other purpose in mind. in order to justify his holding and free disposition of the thing taken.) Although the asportation of a thing appertaining to another without his consent does not necessarily imply in all cases the intent to gain on the part of its author. (Decision of February 6.) (II Hidalgo. If this were done. pp. Codigo Penal. the elements constituting the crime of theft are included in the word "take. however." (Decision of October 18. 664. . will be the effect of sustaining a contrary opinion. 1899. (Decision of November 15. when this is not shown. in order to have him prosecuted which. it is reasonable to infer that the taking was done with intent to gain in the juridical sense which such concept has for purposes of the crime of theft. when said purpose is not shown. 1902. By allowing the owner of the stolen thing to follow the thief no matter how far from the scene of the crime the latter may have brought it.

Wherefore..J. . concur. with costs de oficio. Imperial and Concepcion. Abad Santos.In conclusion. JJ. Avanceña. So ordered.. the appealed order is hereby affirmed. but that of Nueva Ecija in which they should have been and must be instituted. C. Villa-Real. we are of the opinion and so hold that the sole court possessing jurisdiction over the cases against the appellee for the theft of the carabaos in question is not that of Pampanga.