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G.R. No.

L-25710 August 28, 1969 prosecuting officers are the only ones who can present the complaint against the defendant.
Juanita Olidar could not validly file the criminal complaint for murder as she is not one of
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF AQUILINO DEL ROSARIO, JR. those authorized by law to sign the same. The complaint in the present case should be filed
and AQUILINO DEL ROSARIO, SR., AQUILINO DEL ROSARIO, JR. and AQUILINO DEL ROSARIO, by the chief of police of Aringay or any peace officer or employee of the government charged
SR.,petitioners-appellees, with the enforcement and execution of the law. As a consequence, the complaint signed by
vs. Juanita Olidar is void, and the warrant of arrest issued by virtue thereof is, likewise, void, so
JUANITA OLIDAR VDA. DE MERCADO, complainant-appellant. that the subsequent arrest and detention of Aquilino del Rosario, Jr. became illegal." 3

FERNANDO, J.: It was likewise stated in the decision: "Under these circumstances, the petition for the
issuance of the writ of habeas corpus is proper because when the Court issued the warrant of
In this habeas corpus proceeding, the pivotal issue is whether a widow may be considered an
arrest it had not acquired any jurisdiction over the defendant, for the complaint is void for
offended party within the meaning of the applicable Rules of Court provision, entitled to file
not having been signed by the offended party or government official or employee charged
a complaint for the murder of her deceased husband? 1 The question raised is thus novel and
with the enforcement of the law violated. Hence, the necessity of another verified complaint
significant. The Court of First Instance of La Union, the Hon. Jose P. Flores presiding,
to be signed by any peace officer authorized by law." 4
answered in the negative, holding that such a complaint was "void for not having been signed
by the offended party." 2 Hence, this appeal to us. For reasons to be hereafter made explicit, The matter, as above-noted, was then taken on appeal to us, the widow, as appellant,
we reverse. It is our view that the widow possesses the right to file such a complaint as an assailing the holding that the criminal complaint filed by her resulting in the issuance of the
offended party. warrant of arrest should be considered void, the contention being pressed that under the
circumstances the surviving spouse should be considered as an offended party within the
The petition for habeas corpus was filed on July 29, 1965, petitioners being Aquilino del
meaning of the appropriate Rules of Court provision. To repeat what was stated at the outset,
Rosario, Sr. and Aquilino del Rosario, Jr., father and son. It was alleged therein that the latter
such a contention finds favor with us, and we sustain her right to file such a complaint as an
was confined as of July 11, 1965 and on the date of the filing of such petition still under
offended party.
confinement in the municipal jail of Aringay, La Union, by virtue of a warrant of arrest issued
by the municipal court of the same municipality, based on a criminal complaint for murder 1. It may well be that the indivisibility that was once thought to be an inherent attribute in a
filed by the widow. Then came the assertion of the nullity of such complaint based on the marital union is now subject to qualifications. As human beings, husband and wife,
contention that the widow was not authorized to file the same, she being merely the heir of individually, have rights, in certain cases even as against each other. Hence, much we may
the offended party but not the offended party herself within the meaning of the above-cited postulate their separate identities, we cannot go so far as to hold that the death of either
provision of the Rules of Court. Consequently, with the alleged nullity of the above complaint, does not vitally affect the interest of the survivor, sufficient in law if such death arose from a
the warrant of arrest was alleged to be void resulting, in the opinion of the petitioners, in the criminal offense to give her the character of an offended party. To view it otherwise would
confinement of Aquilino del Rosario, Jr. being arbitrary and unlawful. Hence, his right to be be an affront to reason. That is precisely one instance where the unity that marks the
released by virtue of this petition for habeas corpus. There was a motion to intervene as well relationship of husband and wife calls for the most emphatic affirmation.
as an opposition to the petition, dated July 31, 1965, filed on behalf of the widow, Juanita
Olidar, maintaining her right to file the complaint and praying that the petition for habeas More specifically, in the case before us, the injury to the widow cannot be disputed. Her right
corpus be denied. to consortium was definitely put an end to. The loss of the material support to which she was
entitled was equally evident. The suffering she had to endure then as the survivor of the
The decision on the habeas corpus proceeding was rendered on October 29, 1965, sustaining tragedy was unavoidable even if time could thereafter be trusted to assuage the pain. It
the right of petitioners to such a writ. Why the lower court arrived at such a decision was would show less than full regard then for the realities of the situation not to reconsider her
explained by it thus: "The most reasonable interpretation that can be given to the an offended party within the meaning of the Rules of Court provision. Certainly, it is not to be
term, offended party, is that it refers to the person, actually injured and whose feeling is interpreted in a manner that defies both logic and common sense, not to mention the deeply
offended, to the exclusion of the surviving spouse or other forced heirs. In the present case, felt sentiment associated with the relationship of such a close intimacy that unity rather than
where the offended party is physically incapable of filing a complaint in person, the divisiveness is its distinctive characteristic.

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2. A contrary holding, perhaps with due obeisance to what literalness may appear to require, For one thing, the Guevarra decision may be distinguished, dealing as it did with the question
is likely to be attended with deplorable consequences, where, as in this case, the accused is a of whether or not a prosecution for the crime of falsification of public documents could be
member of the police force. Under such circumstance, reliance on that portion of the rule continued by a son and a brother of petitioners, who apparently died in the meanwhile. The
empowering any peace officer or any employee of the government or governmental facts are therefore different. Whatever statement, general in character, found expression in
institution in charge of the enforcement or execution of the law violated to file the complaint the opinion of the Court as well as in the concurrence of Justice Feria should be thus limited
might in not a few instances prove futile. For one thing, a false sense of camaraderie may to the particular situation that called for such pronouncement. We can even go further.
paralyze the hand of such officials. Equally, there may be other causes even more There should be no doubt that our present holding renders untenable the implication
indefensible to ward off the filing of the complaint. apparently yielded by the Guevarra decision that a widow may not be considered an
offended party within the meaning of the applicable Rules of Court provision.
Nor is this to indulge in empty theorizing. Reference is made to this allegation in the motion
to intervene and the opposition to the petition filed by the widow: "On July 11, 1965 in the WHEREFORE, as prayed for, the decision of the lower court of October 29, 1965, granting the
afternoon, the petitioner being a member of the municipal police force of Aringay, La Union, petition for the writ of habeas corpus, is reversed and the case ordered remanded to the
critically shot Orencio Mercado within the said municipality, allegedly with his service pistol municipal court of Aringay, La Union, for further proceedings in accordance with law. With
which was turned over to the P.C. La Union Command by the Chief of Police of Aringay. That costs against petitioners.
same afternoon the petitioner Aquilino del Rosario, voluntarily surrendered to the
authorities as evidenced by a true copy of the entries made in the Municipal Police Blotter Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Capistrano, Teehankee and Barredo, JJ.,
for July 11, 1965 ... . On July 13, 1965, the victim died. No criminal complaint was ever filed concur. Zaldivar, J., took no part. Reyes, J.B.L., J., is on leave.
before or after his death, either by the P.C. or the Chief of Police. On July 14, 1965, a criminal
Footnotes
complaint for Murder, bearing Criminal Case No. 901, was subscribed and filed by Juanita
Olidar, surviving spouse of the victim, before the Municipal Court of Aringay." 5 1Rule110, Section 2 reads as follows: "Complaint is a sworn written statement charging a
person with an offense, subscribed by the offended party, any peace officer or other
Such a conspicuous failure on the part of the peace officers to start a criminal prosecution
employee of the government or governmental institution in charge of the enforcement or
could very well be repeated in the hundreds of municipalities where the alleged assailant is a
execution of the law violated."
comrade. At the very least, if not a failure, there is likely to be a delay in meting out justice to
transgressors of the law. There is thus an equally cogent consideration based on the primacy 2Decision Special Proceeding No. 787 of the Court of First Instance of La Union, Record on
of the principle that public interest demands that a crime should not go unpunished. That
Appeal, p. 57.
bolsters and fortifies the interpretation adopted by us concerning the right of a widow to file
a complaint as an offended party. 3Decision, Record on Appeal, pp. 56-57.

3. The lower court decision apparently could not ignore the emphasis placed in the 4Ibid.,p. 57. Petitioner Aquilino del Rosario, Jr. was not, however, released as shown by this
memorandum of petitioners, reiterated in their brief as appellees, on what for them is the last paragraph of the decision of the lower court: "Because the defendant, Aquilino del
principle announced in Guevarra v. Del Rosario. 6According to the opinion of the Court Rosario, Jr. has surrendered to the police authorities of Aringay before the complaint of
penned by Justice Padilla: "The right of the petitioners to file a complaint charging the Juanita Olidar was filed, the said accused shall remain in custody of the chief of police, who is
commission of a crime is personal. It is so, because as required in section 2, Rule 106, a ordered to immediately file, upon the receipt of this decision, the necessary and appropriate
complaint charging a person with an offense must be subscribed by the offended party. The criminal charges against Aquilino del Rosario, Jr. as a more thorough investigation shall
right being personal, the complaint filed by the petitioners with the respondent court abated warrant." Ibid., p. 57.
upon their death." Petitioner would likewise invoke what for them is an even more explicit
5Record on Appeal, pp. 7-8.
declaration found in the concurring opinion of Justice Feria in the same case. Thus: "The
Rules of Court do not directly define the meaning of "offended party," but from the provision
677 Phil. 615, 617 (1946).
of section 11, Rule 106 of the said Rules, it may clearly be inferred that offended party is the
person against whom or against whose property the crime was committed." 7
2
ELISEO R. FRANCISCO, JR., G.R. No. 177720 Bankard engaged the services of Equitable Computer Services, Inc. (Equicom) to encode and
post credit card transactions and submit reports on those services.Procedurally, Bankard
Petitioner Promulgated: transmits to Equicom the invoices, instructions for debiting, credit advances and other
documents relevant to encoding and posting. Equicom then transmits through electronic
- versus - February 18, 2009
mail the reports on the transactions to Bankard. Petitioner Francisco was tasked to convert
the Equicom reports sent through electronic mail from its original ARJ Text Format to the
PEOPLE OF THE PHILIPPINES,
Amipro Format used by Bankard. Petitioner Francisco was the only one assigned to perform
Respondent. this task.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Sometime in August 1999, Solidbank, one of the companies which issues credit cards, relayed
to Bankard that there were four questionable transactions reflected in Solidbank Mastercard
DECISION Account No. 5464 9833 0005 1922 under the name of petitioner Francisco. An amount
of P663,144.56 was allegedly credited to said account of petitioner Francisco, the credit
CHICO-NAZARIO, J.: apparently being a reversal of charges from four establishments. The amount of P18,430.21
was also credited to petitioner Franciscos AIG Visa Card based on another supposed credit
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
advance.
Court of Appeals Decision[1] dated 28 February 2007 and Resolution dated 4 May 2007 in CA-
G.R. CR No. 29699 be set aside. Bankard conducted an investigation. Upon comparison of the original reports of Equicom
with those converted by petitioner Francisco, it was found that based on Equicoms original
The facts of the case are as follows:
Daily Transaction Prooflist, there was a reversal of charges from Bankard Travel Services in
In an Amended Information dated 9 November 2000, which was filed on 13 November the amount of $5,989.60 which was credited to the credit card under the name of petitioner
2000 with the Regional Trial Court (RTC) of Pasig City, petitioner Eliseo Francisco, Jr. Francisco, with a conversion date of 10 August 1999. The Outgoing Interchange Transaction
(Francisco) was charged with Estafa in an Amended Information, as defined in Article 315, also reflected a reversal of a transaction with Bankard Travel and the credit of the amount of
par. 2(a)[2] of the Revised Penal Code. $5,989.60 to Cardholder No. 5464 9833 0005 1922 on 1 August 1999. The converted report
no longer reflected the reversal of charges. The crediting of the amount of $5,989.60 as
On arraignment, petitioner Francisco pleaded not guilty. Trial ensued. stated in the original reports coming from Equicom and Mastercard was deleted and
replaced with the figure zero.
The prosecutions evidence tends to establish the following facts:
There was also no record of the transactions or purchases from the four establishments
Private complainant Bankard, Inc. is a credit card company engaged in issuing credit cards charged against petitioner Franciscos Mastercard Account No. 5464 9833 0005 1922 and AIG
and in acquiring credit card receivables from commercial establishments arising from the Visa Account No. 4009 9218 0463 3006 that may be reversed. Only those availments which
purchase of goods and services by credit card holders using Mastercard or Visa credit cards have been charged against the credit cards could be reversed, and the amount charged for
issued by other banks and credit card companies. Mastercard or Visa pays Bankard for the such availments would then be returned and credited to the same credit card. Since there
amount Bankard has paid the commercial establishments for the invoices it acquires. On the were no original purchase transactions charged against petitioner Franciscos credit cards, the
other hand, Mastercard or Visa debits Bankard for the amount due to other credit card reversal of charges and the crediting of sums of money to petitioner Franciscos credit cards
companies or banks which acquire the invoices where the credit card used for the purchase appeared to be fictitious.
is issued by Bankard.
Petitioner Francisco was the person who received the transmittals from Equicom of
Petitioner Francisco was an employee of Bankard at the time the alleged crime occurred. He documents including any purported cash advice at the time the credit transactions were
was knowledgeable in computer programming, and held the position of Acquiring made in favor of his credit card accounts.
Chargeback Supervisor.

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As a result of the fraudulent crediting of the amount of P663,144.56 to petitioner Franciscos four (4) years and two (2) months of prision correccional, as the minimum period, to twenty
Solidbank credit card account, Bankard was made to pay the same to Solidbank in the course (20) years of reclusion temporal, as the maximum period.[4]
of the settlement of transactions between the issuing banks from the time of the crediting of
the amount to petitioner Franciscos credit card account until the fraudulent credits were According to the Court of Appeals, the total amount defrauded, P681,574.77, gave rise to a
charged back to Solidbank on 27 August 1999. Solidbank again charged back Bankard for the minimum penalty under prision correccional and a maximum penalty of twenty years,
said amount, from 4 September 1999 to 3 October 1999.Thus, during the time the amount pursuant to Article 315 of the Revised Penal Code, which provides:
was charged against Bankard, the latter was unable to use such amount. Bankard was unable
Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means
to recover the amount of P18,430.21 which petitioner Francisco fraudulently credited to his
mentioned hereinbelow shall be punished by:
AIG Visa Card No. 4009 9218 0463 3006.
1st. The penalty of prision correccional in its maximum period to prision mayor in its
The defense presented petitioner Francisco as its lone witness. Petitioner Francisco denied
minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000
that he caused the crediting of said amounts to his credit cards.
pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph
On 10 January 2005, the RTC rendered its Decision convicting petitioner Francisco as follows: shall be imposed in its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty years. In such case, and
WHEREFORE, IN VIEW OF THE FOREGOING CONSIDERATIONS, considering that the in connection with the accessory penalties which may be imposed under the provisions of
prosecution has proven beyond reasonable doubt that accused ELISEO FRANCISCO is GUILTY this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may
of the crime charged, the Court hereby sentences said accused of the crime of Estafa under be.
Article 315, paragraph 2(a) of the Revised Penal Code, as amended.
Petitioner Francisco now comes before this Court, bringing forth the issue for our
Accordingly, accused is hereby sentenced to suffer an indeterminate penalty of consideration:
imprisonment of 2 years 4 months of arresto mayor as minimum to 6 years 2 months and 11
days of prision mayor as maximum and ordered to reimburse private complainant Bankard, WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
Inc., of the amount of PhP18,430.21.[3] AFFIRMING THE ASSAILED ORDER AND DECISION OF
THE REGIONAL TRIAL COURT OF PASIG CITY, BRANCH 267, DESPITE THE ABSENCE OF AN
Petitioner Francisco filed a Motion for Reconsideration/New Trial, praying for the re-opening ELEMENT IN THE CRIME CHARGED FOR WHICH PETITIONER WAS INDICTED.[5]
of the case in order that he may present the credit card statements and demand
letters. Petitioner Francisco contended that Bankards line of business affected by the instant The element of estafa referred to by petitioner Francisco is the third one under Article 315(a)
case was that of acquiring credit card receivables. According to petitioner Francisco, this of the Revised Penal Code in the following list provided by this Court in several cases:
meant that he, like any other credit card holder, remained indebted to the issuers of the
(1) the accused uses a fictitious name, or falsely pretends to possess power, influence,
credit card, which were Solidbank Mastercard and AIG Visa. He should, therefore, be
qualifications, property, credit, agency, business or imaginary transactions, or employs other
acquitted since private complainant Bankard was not the entity that incurred damage, but
similar deceits;
Solidbank Mastercard and AIG Visa. In an Order dated 12 July 2005, the RTC denied
petitioner Franciscos Motion for Reconsideration/New Trial.
(2) such false pretense, fraudulent act or fraudulent means must be made or executed prior
to or simultaneously with the commission of the fraud;
Petitioner Francisco proceeded to the Court of Appeals. On 28 February 2007, the Court of
Appeals rendered its Decision affirming the conviction of petitioner Francisco, but with
(3) the offended party must have relied on the false pretense, fraudulent act or fraudulent
modification of his prison sentence:
means, that is, he was induced to part with his money or property because of the false
pretense, fraudulent act or fraudulent means; and
WHEREFORE, the appealed Decision dated January 10, 2005 is affirmed, subject to the
modification of the imprisonment sentence which should be an indeterminate penalty of

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(4) as a result thereof, the offended party suffered damage.[6] (Emphasis supplied.) Stated otherwise, this element speaks of an offended party which undoubtedly may only
refer to Solidbank Mastercard and AIG Visa simply because it was these two credit card
Petitioner Francisco argues that the prosecution failed to present evidence that he was privy companies that extended credit facilities to herein petitioner when the latter used his credit
to the business deal between Bankard and the credit card companies (Solidbank Mastercard cards.
and AIG Visa). Petitioner Francisco seems to be implying that since he was not privy to the
business deal between Bankard and the credit card companies, he could not have induced Despite this factual setup however, not even one of these credit card companies appeared as
Bankard to part with its money or property because of any false pretense, fraudulent act or private complainant in the instant case. BANKARD Inc., the former employer of herein
fraudulent means committed by him, directed to the credit card companies. petitioner is the one who lodged the criminal complaint after the latter filed an illegal
dismissal case against it before the National Labor Relations Commission. Worse, the assailed
We disagree. Decision of the Honorable Court of Appeals even awarded civil liabilities in favor of BANKARD
Inc. corresponding to the accumulated credit balances of petitioner with Mastercard and Visa,
The third element of estafa under Article 315(a) merely requires that the offended party
when in truth and in fact, Mastercard and Visa continues even up to the present to exert
must have relied on the false pretense, fraudulent act or fraudulent means. It does not
collection effort against petitioner by sending him corresponding demand letters.[9]
require that the false pretense, fraudulent act or fraudulent means be intentionally directed
to the offended party. Thus, in this case wherein a person pretended to possess credit in Firstly, as discussed above, it was duly proven that Bankard also suffered damages by reason
order to defraud third persons (Solidbank Mastercard and AIG Visa), but the offended party of fraudulent acts committed by petitioner Francisco.
nevertheless relied on such fraudulent means and consequently suffered damage by virtue
thereof, such person is liable for estafa under Article 315(a), even though the fraudulent Secondly, even assuming for the sake of argument that Solidbank Mastercard and AIG Visa
means was not intentionally directed to the offended party. A person committing a felony is were the proper offended parties in this case, petitioner Francisco is mistaken in his assertion
criminally liable although the consequences of his felonious act are not intended by him. [7] that it was essential for either Solidbank Mastercard or AIG Visa to have filed the complaint
for estafa.
In any case, the prosecution has successfully proven damage on the part of private
complainant Bankard. As held by the Court of Appeals: Except in cases that cannot be prosecuted de oficio, namely adultery, concubinage, seduction,
abduction and acts of lasciviousness,[10] a complaint filed by the offended party is not
As a result of the fictitious credits which the accused caused to be posted in his credit cards, necessary for the institution of a criminal action. The Information filed by the prosecutor with
private complainant [Bankard] suffered damages when it was made to pay Solidbank the the proper court is sufficient.
fictitious credit in the course of the settlement of transactions between the issuing banks
from the time of the crediting of the said amount to the credit card of the accused until the A crime is an offense against the State, and hence is prosecuted in the name of the People of
fraudulent credits where charged back to Solidbank on 27 August 1999. Solidbank again the Philippines. The participation of the private offended party is not essential to the
charged back private complainant for the said amount from 4 September 1999 to 3 October prosecution of crimes, except in the crimes stated above, or in the prosecution of the civil
1999. Hence, during the time the amount was charged against private complainant, the latter action deemed instituted with the criminal action.[11] A complaint for purposes of preliminary
was unable to use its fund in the amount of PhP663,144.56 for a period of at least three (3) investigation by the prosecutor need not be filed by the offended party but may be filed by
months. Likewise, private complainant was unable to recover the amount of PhP18,430.21 any competent person, unless the offense subject thereof cannot be prosecuted de oficio.[12]
which the accused fraudulently credited to his AIG Visa Credit Card No. 4009 9218 0463
3006.[8] The Court of Appeals was correct in modifying the penalty to be imposed on petitioner
Francisco. Article 315 of the Revised Penal Code provides that the penalty for estafais (t)he
Petitioner Francisco further argues that Bankard had no personality to file the complaint, penalty of prision correccional in its maximum period to prision mayor in its minimum period,
since the credit card companies were the ones which really suffered damage in the case at if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if
bar. Thus, argued petitioner Francisco, the third element of estafa under Article 315(a) was such amount exceeds the latter sum, the penalty provided in this paragraph shall be
lacking: imposed in its maximum period, adding one year for each additional 10,000 pesos; but the
total penalty which may be imposed shall not exceed twenty years.

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Applying the Indeterminate Sentence Law, the minimum term of the indeterminate penalty
should be one degree lower than prision correccional in its maximum period to prision
mayor in its minimum period, the period prescribed in the Revised Penal Code. One degree
lower than the above penalty would be prision correccional in its minimum period to prision
correccional in its medium period, the inclusive imprisonment duration for which is 6 months
and 1 day to 4 years and 2 months. The minimum term of the indeterminate sentence
imposed by the Court of Appeals, which is 4 years and 2 months, is within the above-stated
period.

The maximum term of the indeterminate penalty, according to the Indeterminate Sentence
Law, is that which, in view of the attending circumstances, could be properly imposed under
the Rules of the said Code. As held by the Court of Appeals, the total amount defrauded
is P681,574.77. This exceeds the threshold amount of P22,000 byP659,547.77. There are,
thus, 65 additional P10,000.00s. This would have resulted in an additional 65 years, if not for
the maximum imposable penalty of twenty years. The Court of Appeals, therefore, properly
pegged the maximum term of the indeterminate sentence at twenty years.

WHEREFORE, the Decision of the Court of Appeals dated 28 February 2007 and Resolution
dated 4 May 2007 in CA-G.R. CR No. 29699, are hereby AFFIRMED.Costs against petitioner
Francisco.

SO ORDERED.

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G.R. No. L-12247 August 26, 1958 No. Q-2270) seeking to compel the aforesaid officials to file the corresponding information
against Burgos Pangilinan for estafa under Article 315, subsection 3, paragraph (a) of the
BEATRIZ RAMOS VDA. DE BAGATUA, ET AL., petitioners-appellants, Revised Penal Code, contending that the respondents, in dismissing the complaint,
vs. committed a grave abuse of discretion.
PEDRO A. REVILLA and LEONIAS S. LOMBOS, as City Attorney and Assistant City Attorney,
respectively, of Quezon City, respondents-appellees. To this petition, respondents filed a motion to dismiss for failure to state a cause of action,
on the theory that as the duties of a fiscal are not ministerial but involve discretion, it cannot
Segundo C. Mastrili for appellants. be controlled by mandamus unless there had been a grave abuse thereof. It is averred that
Pedro A. Revilla and Leonides S. Lombos for and in their own behalf. the respondent Assistant City Attorney, in recommending the dismissal of the complaint and
the City Attorney, in dismissing the same did not commit any grave abuse of discretion.
FELIX, J.:
In its order of February 23, 1957, the Court of First Instance of Quezon City sustained the
Lot No. 569 of the Piedad Estate, formerly falling within the jurisdiction of Caloocan, Rizal,
motion to dismiss on the ground that there was no clear indication that in the performance
now of Quezon City, with an area of 43,371 square meters more or less, was originally
of their duties, respondents abused their discretion. From this order, petitioners appealed to
registered in the name of Apolonio Bagatua and covered by Transfer Certificate of Title No.
this Court.
21411. Upon his demise, his widow, Beatriz Ramos, and their children, Rodrigo, Paz, Lydia,
and Basilia, all of legal age and surnamed Bagatua, executed a document styled "Settlement Section 28-(h) of Republic Act No. 537, known as the Revised Charter of Quezon City,
of Estate and Donation of Real Property" dated June 2, 1953, wherein Beatriz Ramos donated prescribes that:
to her said 4 children the aforementioned property and which donation was accented in the
same instrument. As such common owners the Bagatuas were able to secure a certificate of (h) He (the City Attorney) shall cause to be investigated shall charges of crimes,
title in their names (T. C. T. No. 21995). Thereafter, as they decided to subdivide the lot misdemeanors, and violations of ordinances and have the necessary information or
among themselves, they engage the services of Burgos L. Pangilinan, a real estate broker. complaint prepared or made against the persons accused. He or any of his Assistants may
conduct such investigations by taking oral evidence of reputable witnesses, and for this
It appears that on June 29, 1954, the Bagatuas, together with their spouses and their mother purpose may issue subpoena, summon witnesses to appear and testify under oath before
Beatriz Ramos, executed a public instrument which was duly registered, wherein they sold him, . . .
and conveyed ownership unto Burgos Pangilinan of a part of the lot with an area of 3,358
square meters in consideration of the sum of P6,000. On June 21, 1956, however, Rodrigo The Rules of Court also specifically provide that all criminal actions, either commenced by
Bagatua, acting for himself and on behalf of his sisters, accused Burgos L. Pangilinan complaint or information, shall be prosecuted under the direction and control of the fiscal
of estafa before the City Attorney of Quezon City for having allegedly induced them to sign (Section 4, Rule 106, Rules of Court), and from these legal mandates springs the principle that
papers supposedly necessary for the subdivision of their lot, but one of which turned out to where the fiscal, after conducting a preliminary investigation is convinced that the evidence
be a deed of sale. In virtue of which, they charged that they were prejudiced in the amount is insufficient to establish, at least prima facie, the guilt of the accused, he has the perfect
of P13,432. authority to dismiss the same (See Gonzales vs. Court of First Instance of Bulacan, 63 Phil.,
846; People vs. Orias, 65 Phil., 744; People vs. Natoza, 100 Phil., 533; 53 Off. Gaz. [22] 8099).
Upon receipt of said complaint, the Assistant City Attorney of Quezon City, acting for the City Under the aforesaid ruling, the fiscal or the city attorney, as prosecuting officer, is under no
Attorney, conducted a preliminary investigation which lasted for several days, during which compulsion to file the corresponding information based upon a complaint, where he is not
occasions both parties were duly represented by counsel. Testimonial as well as convince that the evidence gathered or presented would warrant the filing of an action in
documentary evidence was presented and after the parties had filed their respective court. It is true that this authority involves the exercise of discretion to a wide latitude and
memoranda, the Assistant City Attorney, in a memorandum addressed to the City Attorney while it may invite the commission of abuses, yet it must also be recognized that necessity
recommended the dismissal of the complaint for lack of merit. Accordingly, the complaint demands that prosecuting officers should be given such authority if we are to avoid the
was dismissed. The complainants thus filed a petition for mandamus with the Court of First courts from being flooded with cases of doubtful merit or to unduly compel the fiscals to
Instance of Quezon City against the City Attorney and the Assistant City Attorney (Civil Case work against their convictions. It may be stated in this connection, that although prosecuting

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officers under the power vested upon them by law not only have the authority but also the
duty of prosecuting persons who, according to the evidence received from the complainant,
are shown to be guilty of a crime committed within the jurisdiction of their offices, they are
likewise bound by their oath of office to protect innocent persons from groundless, false or
malicious prosecution. And since as lawyers they have sworn not to aid or consent to any
unlawful suit, the respondents would certainly commit a serious dereliction of duty by
prosecuting any person whom they do not believe to have committed the offense he was
charged with by an alleged offended party, or when the evidence available is not, in their
opinion, sufficient to warrant the conviction of the accused. Of course, the power of the City
Attorney or prosecuting fiscal in connection with the filing and prosecution of criminal
charges in court is not altogether absolute; but the remedy is not that of mandamus but the
filing with the proper authorities or court of criminal or administrative charges if the alleged
offended parties believe that the former maliciously refrained from instituting actions for the
punishment of violators of the law (Article 208, Revised Penal Code).

In the case at bar, appellants in charging that there was a grave abuse of discretion involved
herein bring out the fact that the preliminary investigation elicited no improper motive on
the part of said complainants (appellants) to accuse Pangilinan of the offense charged, and
thus considered the dismissal of the complaint as erroneous. The absence of motive alone is
not sufficient to presume the existence of a prima facie case. The circumstances and
evidence on record must be taken together before such a conclusion may be arrived at. We
have gone over the report or memorandum of the Assistant City Attorney and from the facts
established by the preliminary investigation conducted by him as well as the reasons given
for the dismissal of the complaint, we could glean nothing that would reveal or tend to reveal
any semblance of abuse perpetrated by respondents and appellees.

A fiscal's failure to give credence or weight to the testimony of witnesses or otherwise


appreciate the evidence presented in a preliminary investigation, unless patently capricious
or arbitrary, cannot be taken as an abuse of discretion, for he must have formed his
impression after observing and evaluating the demeanor and conduct of a witness testifying
before him.

Wherefore, the order appealed from being in consonance with law is hereby affirmed, with
costs against appellants. It is so ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes,
J.B.L. and Endencia, JJ., concur.

8
G.R. No. L-22000 November 29, 1966 From the affidavits of the witnesses, which were attached to the complaint and presented
during the investigation by the prosecuting officers, the incident appeared to have happened
ESTELITA BERNABE, petitioner-appellant, as follows:
vs.
ANDRES BOLINAS JR., as Asst. Provincial Fiscal of Iloilo and ALFONSO B. BAGUIO, as In the evening of November 25, 1962, the deceased Sedesias del Castillo, one Fernando
Provincial Fiscal of Iloilo, respondents-appellees. Castromayor and the accused Pedro del Castillo, Sr., after a drinking spree in a store, were
forced to seek shelter from the rain in the house of one Tinong in Aguinaldo street, Sara,
R. A. Gonzales for petitioner-appellant. Iloilo. While thereat, Pedro del Castillo, Sr. and Castromayor engaged in a fight where Pedro
A. R. Bolinas Jr., for respondents. was bested. After they were separated by Sedesias, the latter and Castromayor left together.
They met a policeman to whom the incident was reported. At about 9:30, and while they
BARRERA, J.:
were on their way home (Sedesias, Castromayor and the two other witnesses), a speeding
jeep came heading to their direction which caused Sedesias to shout to his companions, "get
Estelita Bernabe, wife of Sedesias del Castillo, who died of injuries inflicted on his person on
away from the road, there is a jeep." The vehicle veered toward Sedesias, bumping and
the night of November 25, 1962, filed a petition for mandamus in the Court of First Instance
throwing him to the ground. Thereupon, Pedro del Castillo, Sr. jumped from the jeep, struck
of Iloilo (Civil Case No. 6323), seeking to compel the respondent Provincial Fiscal of Iloilo to
the fallen man with something on the head and then stabbed the latter twice in the neck.
amend the information in Criminal Case No. 9624 of the same court, from homicide to
When Castromayor saw this, he ran away pursued by Pedro. When it was realized that the
murder, with aggravating circumstance of use of motor vehicle.
stricken man was Sedesias, and not Castromayor, Pedro del Castillo, Jr., who was driving the
It was alleged therein that in connection with the death of petitioner's husband, a complaint jeep, tried, with others, to bring the former to the doctor, but Sedesias expired without
for homicide through reckless imprudence was first filed by the Chief of Police of Sara, Iloilo, receiving medical treatment. With the foregoing version of the facts by the supposed
against Pedro del Castillo, Jr., which complaint was later amended to charge him, together eyewitnesses the Fiscals concluded that there was no treachery in the commission of the
with Pedro del Castillo, Sr., with the crime of homicide. When the case was remanded to the offense, and thus refused to amend the information for homicide, to murder, as prayed for
court of first instance for further proceedings, petitioner widow requested the provincial by the petitioner-appellant.
fiscal for reinvestigation, maintaining that the accused should properly be charged with
The issues presented by this appeal are (1) whether considering the affidavits of the
murder. However, after such reinvestigation, the Assistant Provincial Fiscal reproduced the
supposed eyewitnesses which are also the basis of the homicide-charge, there was abuse of
complaint for homicide. Thus, the widow instituted the action, claiming that in refusing to
discretion committed by respondent-appellees when they refused to amend the information
amend the information from homicide to murder, the respondents Provincial Fiscal and
to murder; and (2) if there was such abuse of discretion, whether respondents-appellees may
Assistant Provincial Fiscal acted with the grave abuse of discretion and neglected the
be compelled by mandamus to amend the information.
performance of an act which the law enjoined them to do.
To justify their action of refusing to amend the information, respondents-appellees capitalize
Respondents moved for the dismissal of the mandamus case. It was their contention that
on appellant's contention that when the incident happened, the night was dark. They argue
from the affidavits of the witnesses for the government, there was no treachery attending
that if this were so, the supposed witnesses could not have seen, as they alleged to have
the stabbing and killing of the victim, for which reason they found that the offense
seen, the striking of the head and stabbing of the neck of the victim by the accused.
committed was only homicide. As the government prosecutors have the discretion to
Furthermore, it is maintained that since it was the deceased himself who warned his
determine not only the sufficiency or insufficiency of evidence establishing a prima facie case,
companions of the coming of the jeep of the accused, the attack cannot be considered
but also the nature or kind of offense committed, it is claimed that mandamus will not lie to
sudden to qualify the slaying to murder.
compel them to change the information already filed. Sustaining the foregoing allegations,
the court, in its order of June 28, 1963, granted the motion and dismissed the petition for
It may be pointed out that appellees do not claim insufficiency of evidence of the probable
mandamus for lack of legal basis. Petitioner files the present appeal.
guilt of the accused for the death of the victim. They only say that in their appreciation or
appraisal of the facts as narrated by the witnesses, there was no treachery attending the
commission of the crime. It is the established jurisprudence that for alevosia to exist, the

9
aggressor must have adopted a mode of attack intended to facilitate the commission of the
crime without risk to himself. (People v. Caete, 44 Phil. 478; U.S. v. Balagtas, 19 Phil. 194;
People v. Calinawan, 83 Phil. 642; People v. Tagaro G.R. No. L-18518, Jan. 31, 1963; People v.
Baloyo, G.R. No. L-11215, Jan. 30, 1960). What is necessary to determine, therefore, is
whether the attack or infliction of the fatal injuries on the victim in this case was made in
such a manner as to insure the commission thereof with ease and without danger to the
accused, of retaliation or defense that might be put up by the deceased.

The supposed eyewitnesses, Virgilio Palencia, Risalino Patanao, and Fernando Castromayor,
unanimously declared under oath that after the deceased was bumped, in all appearances,
intentionally, by the jeep in which the accused was riding, the latter jumped off the vehicle,
struck Sedesias on the head while prostrate on the ground, and then stabbed him twice in
the neck. Under the situation as declared by these witnesses, there can hardly be any doubt
as to the helpless condition of the victim when he received the injuries which caused his
death. The fact that he had seen the coming of the vehicle does not justify the conclusion
that he could have been prepared for the attack by the accused. The fact that the victim was
bumped by the jeep seems to indicate that he was not anticipating that he would be bumped
or hit by it much less that while he was lying on the ground, somebody would come around
and inflict injuries on him.

With regard to the other issue of the propriety of the remedy of mandamus, it may be true
that, as appellees aver, it is a relief for official inaction. It is claimed that with the filing of the
information for homicide, appellees have already performed their duty and, therefore, there
is no cause of action against them. It must be remembered, however, that a prosecuting
officer is sworn, under his oath of office, not merely to file charges against an accused, but to
file the corresponding complaint or information in accordance with the facts and/or evidence
obtaining in a case. Considering the circumstances stated above, there was created and
imposed upon herein respondents-appellees a legal duty to file the information which, in
view of the declarations of the alleged eyewitnesses, should be for murder. Clearly, their
failure to do so rendered the respondents Fiscals subject to the writ of mandamus.1

WHEREFORE, the order appealed from is hereby reversed and set aside. Respondents-
appellees are hereby directed to amend the information in Criminal Case No. 9624 of the
Court of First Instance of Iloilo accordingly. No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro,
JJ., concur.
Dizon, J., took no part.

10
[G.R. No. L-8224. October 31, 1955.] This is an appeal by the offended parties from an order of dismissal of the case as against one
of the accused, Roy Franco.
THE PEOPLE OF THE PHILIPPINES, Plaintiff, v. BENJAMIN LIGGAYU, ET AL., Defendants. ROY
FRANCO, defendant-appellee, LEONCIO DYOGI, ET AL., complainants-appellants. The record discloses that the first complaint filed by a member of the police force in the
Justice of the Peace Court of Caloocan, Rizal charged Benjamin Liggayu y Sion with homicide
Ramon C. Aquino for Appellants. through reckless imprudence for having run over and caused the death of one Teresita Young
de Dyogi. Two weeks after the presentation of this complaint Leoncio Dyogi, husband of the
Solicitor General Juan R. Liwag and Assistant Solicitor General Guillermo E. Torres and deceased, and his nine children filed another complaint charging not only Liggayu but also
Assistant Solicitor Ramon L. Avancea for plaintiff. Roy Franco. The inclusion of Roy Franco as an accused was supported by the allegation that
after the car driven by Liggayu had run over Teresita Young, Liggayu stopped the car and
ordered his co-accused Franco to drive it forward, and Franco did so in such a negligent
SYLLABUS manner that the other wheel of the car hit Teresita Young and aggravated her injuries. The
justice of the peace of Caloocan, after a preliminary investigation, remanded the case to the
1. CRIMINAL PROCEDURE; PROSECUTION OF CRIMINAL ACTIONS BY THE FISCAL RIGHT OF
Court of First Instance for further proceedings. When the case reached the Court of First
OFFENDED PARTY TO INTERVENE UNDER GENERAL ORDERS, NO. 58 AND THE REVISED RULES
Instance, the fiscal filed a motion to dismiss the case as against the accused Roy Franco. The
OF COURT; PRESENT RULE. The right to appeal from an order of dismissal granted by the
motion is worded as follows:jgc:chanrobles.com.ph
court on motion of the fiscal may new be challenged under the theory that the right of an
offended party to intervene in a criminal action is subject to the fiscals right of control. To
"On investigation of this case preparatory to the filing of the information, the undersigned
permit an offended party to appeal from an order dismissing a criminal case upon petition of
believes that the accused Roy Franco has no criminal responsibility in the death of Teresita
the fiscal would be tantamount to giving said party as much right to the direction and control
Young de Dyogi. The accused Benjamin Liggayu y Sion admitted being solely responsible for
of a criminal proceeding as that of the fiscal. Granting that the right of appeal is recognized
the incident and the undersigned believes he is. It appears from the evidence that at the time
under the old law (Sec. 107, Gen. Orders No. 58), it would seem that under the new law,
the deceased was run over the accused Benjamin Liggayu was on the wheel."cralaw
especially section 4 of Rule 106 which provides that the prosecution shall be "under the
virtua1aw library
direction and control of the fiscal," without the limitation imposed by section 107 of General
Orders No. 58 subjecting of the prosecution to the right "of the person injured to appeal
The court granted the motion and dismissed the case as against Roy Franco and the bond
from any decision of the court denying him a legal right," said right to appeal by an offended
filed by him for his provisional release was cancelled. At the same time that the motion for
party an order of dismissal should no longer be recognized in the offended party. Under
dismissal was filed, the fiscal filed an information accusing Benjamin Liggayu alone. The
General Orders No. 58, the fiscal was merely to direct the prosecution and this direction is
offended parties, husband and children of the deceased, have appealed against the order of
subject to the right of the offended party; under the new Rules of court, the fiscal has the
dismissal, alleging (1) that they were not notified of the hearing conducted by the provincial
dissection and control of the prosecution, without being subject to the right of intervention
fiscal or of the motion for dismissal, and (2) that the court erred in not holding that a prima
on the part of the offended party., Even under the old Code of Criminal Procedure (Gen.
facie case exists against Roy Franco, and in dismissing the case against him.
Orders No. 58) this Court has held if the criminal action is dismissed by the court on motion
of the provincial fiscal upon the ground of insufficiency of evidence, the offended party has
The argument supporting the first alleged error assigned by the appellant is based on the
no right to appeal, his remedy being a separate civil action if the proper reservation is made
cases of Gonzales v. Court of First Instance of Bulacan, 63 Phil., 846 and People v. Bataller, 66
therefore. (People v. Joaquin Lipana, 72 Phil., 166 and People v. Florendo, 73 Phil., 679.)
Phil., 422, to the effect that an offended party has the right to be heard at all stages of the
case and can appeal from any decision denying that right. The basis of the right is section 107
DECISION
of the Code of Criminal Procedure, which provides:jgc:chanrobles.com.ph
LABRADOR, J.:
"SEC. 107. The privileges now secured by law to the person claiming to be injured by the
commission of an offense to take part in the prosecution of the offense and to recover

11
damages for the injury sustained by reason of the same shall not be held to be abridged by prosecution, without being subject to the right of intervention on the part of the offended
the provisions of this order; but such person may appear and shall be heard either party. Even under the old Code of Criminal Procedure (Gen. Orders No. 58) this Court has
individually or by attorney at all stages of the case, and the court upon conviction of the held that if the criminal action is dismissed by the court on motion of the provincial fiscal
accused may enter judgment against him for the damages occasioned by his wrongful act. It upon the ground of insufficiency of the evidence, the offended party has no right to appeal,
shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the his remedy being a separate civil action if the proper reservation is made therefor. (People v.
right of the person injured to appeal from any decision of the court denying him a legal Joaquin Lipana, 72 Phil. 166.) To the same effect is the case of People v. Florendo, 73 Phil.,
right."cralaw virtua1aw library 679, decided under the new Rules of Court, wherein we said:jgc:chanrobles.com.ph

The above provision is not carried in the revised Rules of Court. On the other hand, the new "It is thus evident, in the light of the history of the enactment of section 107 of General
Rules contain the following provisions:jgc:chanrobles.com.ph Orders No. 58, as reflected in the observations of one of its framers and the explanatory
decisions of this Court, that the offended party may, as of right, intervene in the prosecution
"SEC. 4. Who must prosecute criminal actions. All criminal actions either commenced by of a criminal action, but then only when, from the nature of the offense, he is entitled to
complaint or by information shall be prosecuted under the direction and control of the indemnity and his action therefor has not by him been waived or expressly reserved. This is
fiscal." (Rule 106). the rule we have now embodied in section 15 of Rule 106 of the new Rules of Court,
elsewhere quoted. But, as expressly provided in this same section, this right of intervention
"SEC. 15. Intervention of the offended party in criminal action. Unless the offended party in appropriate cases is subject to the provision of section 4 of the same Rule which reads as
has waived the civil action or expressly reserved the right to institute it after the termination follows:jgc:chanrobles.com.ph
of the criminal case, and subject to the provisions of section 4 hereof, he may intervene,
personally or by attorney, in the prosecution of the offense." (Id.) "All criminal actions either commenced by complaint or information shall be prosecuted
under the direction and control of the fiscal.
There is no room for doubt that while General Orders No. 58 was in force, it was the right of
the offended party to be notified of the proceedings, including those on a motion of dismissal As a necessary corollary to this provision, we laid down the principle that even if the offense
as to one of the accused. To this effect are decisions of this Court in cases brought before the is one where civil indemnity might rightly be claimed, if the criminal action is dismissed by
new Rules took effect, like the case of People v. Bataller, supra. the court, on motion of the fiscal, on the ground of insufficiency of the evidence, the
offended party cannot appeal from the order of dismissal because otherwise the prosecution
The situation seems to have been changed, however, because of the clear change in the law. of the offense would, in the last analysis, be thrown beyond the direction and control of the
The right to appeal from an order of dismissal granted by the court on motion of the fiscal fiscal. (Gonzales v. Court of First Instance of Bulacan, supra; People v. Orais, supra; People v.
may now be challenged under the theory that the right of an offended party to intervene is Moll, 40 Off. Gaz., 2d Supp., p. 231; People v. Lipana, 40 Off. Gaz, 3456.) In the cases cited,
subject to the fiscals right of control. To permit an offended party to appeal from an order statements were, however, made by this Court importing a grant of right to the offended
dismissing a criminal case upon petition of the fiscal would be tantamount to giving said party to appeal upon a question of law. We reaffirm these statements as a correct
party as much right to the direction and control of a criminal proceeding as that of the fiscal. qualification of the rule, it being understood, however, that such right to appeal upon a
Granting that the right of appeal is recognized under the old law (Sec. 107, Gen. Orders No. question of law presupposes the existence of a rightful claim to civil indemnity and the
58), it would seem that under the new law, especially section 4 of Rule 106 which provides offended party has neither waived nor reserved expressly his action therefor."cralaw
that the prosecution shall be "under the direction and control of the fiscal," without the virtua1aw library
limitation imposed by section 107 of General Orders No. 58 subjecting the direction of the
prosecution to the right "of the person injured to appeal from any decision of the court In a post-liberation case decided by us, with the concurrence of three of the present
denying him a legal right," said right to appeal by an offended party from an order of members of the Court, Justices Paras, Bengzon and Padilla and that of Chief Justice Moran,
dismissal should no longer be recognized in the offended party. Under General Orders No. 58, Justice Feria held:jgc:chanrobles.com.ph
the fiscal was merely to direct the prosecution and this direction is subject to the right of the
offended party; under the new Rules of Court, the fiscal has the direction and control of the "Besides, even if the offended party has not instituted a separate civil action nor reserved his

12
right to do so, and has intervened in the prosecution of the criminal action, as his Florendo, supra, as inconsistent with the fiscals control of the criminal action.
intervention is subject to the direction and control of the fiscal, that is, the provincial fiscal or
the Solicitor General, the latter in the exercise of his authority to control the prosecution has The appeal is hereby dismissed, with costs against the appellants. So ordered.
the right to move for the dismissal of the appeal interposed by the offended party, if such
dismissal would not affect the right of the offended party to civil indemnity. And in the Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion and
present case the dismissal of the information or the criminal action does not affect the right Reyes, J.B.L., JJ., concur.
of the offended party to institute or continue the civil action already instituted arising from
the offense, because such dismissal or extinction of the penal action does not carry with it
the extinction of the civil one under section 1 (d), Rule 107, Rules of Court, . . ." (People v.
Veles, 77 Phil., 1026, 1028.)

Although the above-mentioned portion of the decision seems to be only an additional


ground for the judgment, not the ratio decidendi and, therefore, merely an obiter, it reflects
the opinion that from the adoption of section 4 of Rule 106, granting the fiscal "the direction
and control of prosecution," the right to appeal from an order of dismissal based on the
motion of the fiscal, should be denied to the offended party, because such right of appeal
will curtail or limit the control that the fiscal exercises over the prosecution of a criminal case,
which control is now free from the old limitation contained in section 107 of General Orders
No. 58.

Let us now apply the principles adopted in the various decision cited above. The reason
stated in the motion for dismissal is that the fiscal was satisfied from the statement of the
accused Benjamin Liggayu that the latter alone was responsible for the crime. There may
have been statements contained in the affidavits of witnesses presented at the preliminary
investigation to the effect that accused Roy Franco was responsible in part for the offense in
that he supposedly was asked by Liggayu to drive the car after it had already run and passed
over the body of the deceased Evidently, the fiscal refused to believe these statements and
preferred to believe the frank confession of Liggayu that it was he alone who drove the car. If
the fiscal must have control of the prosecution of a criminal case, he must have the ultimate
power to decide which as between two conflicting testimonies should be believed, otherwise
said control would be subject to interference or dictation from the offended party.

However, appellants objection is not directed against the unreasonableness of the fiscals
decision or opinion on the evidence, but against the supposed absence of notice to the
offended party of the motion for dismissal, a technical unsubstantial objection. As the fiscal
made an actual investigation and, thereafter, decided that there was no sufficient evidence
against Roy Franco, notification of his motion to dismiss to the offended party would have
served no purpose and would be mere idle ceremony, as the fiscal is supposed to have direct
control. The decision of the fiscal that the evidence against the other accused is insufficient is
not appealable, under the doctrines pointed out in the cases of People v. Lipana and People v.

13
G.R. No. L-44723 August 31, 1987 review has become a moot question as the Provincial Fiscal has lost jurisdiction to dismiss
the charge for attempted theft.
STA. ROSA MINING COMPANY, petitioner
vs. On March 6, 1975, the Secretary of Justice, after reviewing the records, reversed the findings
ASSISTANT PROVINCIAL FISCAL AUGUSTO ZABALA, in his capacity as OFFICER-IN-CHARGE of of prima facie case of the Provincial Fiscal and directed said prosecuting officer to
the Provincial Fiscal's OFFICE of Camarines Norte, and GIL ALAPAN et. al., respondents. immediately move for the dismissal of the criminal case. Petitioner sought reconsideration of
the directive of the Secretary of Justice but the latter denied the same in a letter dated June
11, 1975.

BIDIN, J.: A motion to dismiss dated September 16, 1975 was then filed by the Provincial Fiscal but the
court denied the motion on the ground that there was a prima facie evidence against private
Mandamus to compel respondent Fiscal to prosecute Criminal Case No. 821 of the then
respondents and set the case for trial on February 25, 1976.
Court of First Instance of Camarines Norte until the same is terminated.
Private respondents sought reconsideration of the court's ruling but in an Order dated
The facts of the case are not disputed. On March 21, 1974, petitioner filed a complaint for
February 13, 1976, the motion filed for said purpose was likewise denied. Trial of the case
attempted theft of materials (scrap iron) forming part of the installations on its mining
was reset to April 23, 1976.
property at Jose Panganiban, Camarines Norte against private respondents Romeo Garrido
and Gil Alapan with the Office of the Provincial Fiscal of Camarines Norte, then headed by Thereafter, Fiscal Ilustre was appointed a judge in the Court of First Instance of Albay and
Provincial Fiscal Joaquin Ilustre. respondent Fiscal Zabala became officer-in-charge of the Provincial Fiscal's Office of
Camarines Norte.
The case was assigned to third Assistant Fiscal Esteban P. Panotes for preliminary
investigation who, after conducting said investigation, issued a resolution dated August 26, On April 19, 1976, respondent Fiscal filed a Second Motion to Dismiss the case. This second
1974 recommending that an information for Attempted Theft be filed against private motion to dismiss was denied by the trial court in an order dated April 23, 1976. Whereupon,
respondents on a finding of prima facie case which resolution was approved by Provincial respondent fiscal manifested that he would not prosecute the case and disauthorized any
Fiscal Joaquin Ilustre. Private respondents sought reconsideration of the resolution but the private prosecutor to appear therein. Hence, this petition for mandamus.
same was denied by Fiscal Ilustre in a resolution dated October 14, 1974.
In this action, petitioner prays for the issuance of the writ of mandamus "commanding
On October 29, 1974, Fiscal Ilustre filed with the Court of First Instance of Camarines Norte respondent fiscal or any other person who may be assigned or appointed to act in his place
an Information dated October 17, 1987 docketed as Criminal Case No. 821, charging private or stead to prosecute Criminal Case No. 821 of the Court of First instance of Camarines
respondents with the crime of Attempted Theft. Norte" (Petition, Rollo, p. 27).

In a letter dated October 22, 1974, the private respondents requested the Secretary of There is no question that the institution of a criminal action is addresses to the sound
Justice for a review of the Resolutions of the Office of the Provincial Fiscal dated August 26, discretion of the investigating fiscal. He may or he may not file the information according to
1974 and October 14, 1974. whether the evidence is in his opinion sufficient to establish the guilt of the accused beyond
reasonable doubt. (Gonzales vs. Court of First Instance, 63 Phil. 846) and when he decides
On November 6, 1974, the Chief State Prosecutor ordered the Provincial Fiscal by telegram to
not to file the information, in the exercise of his discretion, he may not be compelled to do so
"Please elevate entire records PFO Case 577 against Garrido et al., review in five days and
(People vs. Pineda, 20 SCRA 748). However, after the case had already been filed in court,
defer all proceedings pending review."
"fiscals are not clothed with power, without the consent of the court, to dismiss or nolle
prosequi criminal actions actually instituted and pending further proceedings. The power to
The letter-request for review was opposed by petitioner in a letter to the Secretary of Justice
dismiss criminal actions is vested solely in the court" (U.S. vs. Barredo, 32 Phil. 444, 450;
dated November 23, 1974 alleging, among other things, that an information for Attempted
Gonzales vs. Court of First Instance, supra).
Theft had already been filed against private respondents for which reason the request for

14
However, the matter of instituting an information should be distinguished from a motion by then turn over the presentation of evidence to another fiscal or a private prosecutor subject
the fiscal for the dismissal of a case already filed in court. The judge may properly deny the to his direction and control (U.S. vs. Despabiladeras, 32 Phil. 442; U.S. vs. Gallegos, 37 Phil.
motion where, judging from the record of the preliminary investigation, there appears to be 289). Where there is no other prosecutor available, he should proceed to discharge his duty
sufficient evidence to sustain the prosecution. This is, as it should be, because the case is and present the evidence to the best of his ability and let the court decide the merits of the
already in court and, therefore, within its discretion and control (Abela vs. Golez, 131 SCRA case on the basis of the evidence adduced by both parties.
12).
The mere fact that the Secretary of Justice had, after reviewing the records of the case,
This ruling is just being consistent with the principle first laid down in U.S. vs. Valencia (1 Phil. directed the prosecuting fiscal to move for the dismissal of the case and the motion to
642) where it was held that "after the complaint has been presented, and certainly after the dismiss filed pursuant to said directive is denied by the trial court, is no justification for the
trial has been commenced, the court and not the fiscal has full control of it. The complaint refusal of the fiscal to prosecute the case. It is the court where the case is filed and not the
cannot be withdrawn by the fiscal without the consent of the court." It is discretionary on the fiscal that has full control of it. Very recently, this Court in Mario Fl. Crespo vs. Hon.
court where the case is pending to grant the motion to dismiss or deny the same (Asst. Leodegario L. Mogul (G.R. No. 53373, promulgated June 30, 1987) ruled:
Provincial Fiscal of Bataan vs. Dollete, 103 Phil. 914).
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court
In the case at bar, the court below denied the fiscal's motion to dismiss on the ground that any disposition of the case as its dismissal or the conviction or acquittal of the accused rests
there was a prima facie case against private respondents. The question presented for in the sound discretion of the Court. Although the fiscal retains the direction and control of
determination now is-after a case has been filed in court, can a fiscal be compelled to the prosecution of criminal cases even while the case is already in Court, he cannot impose
prosecute the same, after his motion to dismiss it has been denied? his opinion on the trial court. The Court is the best and sole judge on what to do with the
case before it. The determination of the case is within its exclusive jurisdiction and
This court is of the view that the writ prayed for should issue. Notwithstanding his personal competence. A motion to dismiss the case filed by the fiscal should be addressed to the
convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the Court who has the option to grant or deny the same. It does not matter if this is done before
court to enable the court to arrive at its own independent judgment as to the culpability of or after the arraignment of the accused or that the motion was filed after a reinvestigation or
the accused. The fiscal should not shirk from his responsibility much less leave the upon instructions of the Secretary of Justice who reviewed the records of the investigation.
prosecution of the case at the hands of a private prosecutor. At all times, the criminal action
shall be prosecuted under his direction and control (Sec. 4, Rule 110, Rules of Court). In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice
Otherwise, the entire proceedings wig be null and void (People vs. Beriales, 70 SCRA 361). who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of
Justice should, as far as practicable, refrain from entertaining a petition for review or appeal
In the trial of criminal cases, it is the duty of the public prosecutor to appear for the from the action of the fiscal, when the complaint or information has already been filed in
government since an offense is an outrage to the sovereignty of the State." (Moran, Court. The matter should be left entirely for the determination of the Court.
Comments on the Rules of Court, Vol. IV, 1980 Ed., p. 10). This is so because "the prosecuting
officer is the representative not of an ordinary party to a controversy but of a sovereignty WHEREFORE, petition is hereby Granted. Public respondent or any other person who may be
where obligation to govern impartially is as compelling as its obligation to govern at all; and assigned or appointed to act in his place or stead, is hereby ordered to continue prosecuting
whose interest, therefore, in criminal prosecution is not that it shall win a case, but that Criminal Case No. 821 until the same is terminated.
justice shall be done. As such, he is in a peculiar and very definite sense the servant of the
law, the two-fold aim of which is that guilt shall not escape or innocence suffer (Suarez vs. SO ORDERED.
Platon, 69 Phil. 556).
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Accordingly, if the fiscal is not at all convinced that a prima facie case exists, he simply cannot Gancayco, Padilla and Cortes, JJ., concur.
move for the dismissal of the case and, when denied, refuse to prosecute the same. He is
Sarmiento, J., took no part
obliged by law to proceed and prosecute the criminal action. He cannot impose his opinion
on the trial court. At least what he can do is to continue appearing for the prosecution and

15
G.R. No. L-53373 motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April
10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary
MARIO FL. CRESPO, petitioner, Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an
vs. opposition thereto.10 On November 24, 1978 the Judge denied the motion and set the
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, arraigniment stating:
9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL,
RICARDO BAUTISTA, ET AL., respondents. ORDER

For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on
insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex
"A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for
GANCAYCO, J.: the reason that the check involved having been issued for the payment of a pre-existing
obligation the Hability of the drawer can only be civil and not criminal.
The 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 The motion's thrust being to induce this Court to resolve the innocence of the accused on
case was elevated for review, may refuse to grant the motion and insist on the arraignment evidence not before it but on that adduced before the Undersecretary of Justice, a matter
and trial on the merits. that not only disregards the requirements of due process but also erodes the Court's
independence and integrity, the motion is considered as without merit and therefore hereby
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal
DENIED.
filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena
City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock
for arraigment the accused filed a motion to defer arraignment on the ground that there was in the moming.
a pending petition for review filed with the Secretary of Justice of the resolution of the Office
of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the SO ORDERED. 11
presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for
reconsideration of the order was denied in the order of August 5, 1977 but the arraignment The accused then filed a petition for certiorari, prohibition and mandamus with petition for
was deferred to August 18, 1977 to afford time for petitioner to elevate the matter to the the issuance of preliminary writ of prohibition and/or temporary restraining order in the
appellate court. 3 Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a
restraining order was issued by the Court of Appeals against the threatened act of
A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was arraignment of the accused until further orders from the Court. 13 In a decision of October 25,
filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January
an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a
with the arraignment of the accused until further orders of the Court. 5 In a comment that resolution of February 19, 1980. 15
was filed by the Solicitor General he recommended that the petition be given due
course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ Hence this petition for review of said decision was filed by accused whereby petitioner prays
and perpetually restraining the judge from enforcing his threat to compel the arraignment of that said decision be reversed and set aside, respondent judge be perpetually enjoined from
the accused in the case until the Department of Justice shall have finally resolved the petition enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal
for review. 7 case, declaring the information filed not valid and of no legal force and effect, ordering
respondent Judge to dismiss the said case, and declaring the obligation of petitioner as
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the purely civil. 16
petition for review reversed the resolution of the Office of the Provincial Fiscal and directed
the fiscal to move for immediate dismissal of the information filed against the accused. 8 A
16
In a resolution of May 19, 1980, the Second Division of this Court without giving due course the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the
to the petition required the respondents to comment to the petition, not to file a motiod to other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued
dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he by the courts to restrain a criminal prosecution 29 except in the extreme case where it is
recommends that the petition be given due course, it being meritorious. Private respondent necessary for the Courts to do so for the orderly administration of justice or to prevent the
through counsel filed his reply to the comment and a separate conunent to the petition use of the strong arm of the law in an op pressive and vindictive manner. 30
asking that the petition be dismissed. In the resolution of February 5, 1981, the Second
Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of However, the action of the fiscal or prosecutor is not without any limitation or control. The
February 26, 1981, the Court En Banc resolved to give due course to the petition. 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
Petitioner and private respondent filed their respective briefs while the Solicitor General filed power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the
a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or
Appeals be reversed and that respondent Judge be ordered to dismiss the information. otherwise, that an information be filed in Court. 31

It is a cardinal principle that an criminal actions either commenced by complaint or by The filing of a complaint or information in Court initiates a criminal action. The Court thereby
information shall be prosecuted under the direction and control of the fiscal. 17 The acquires jurisdiction over the case, which is the authority to hear and determine the
institution of a criminal action depends upon the sound discretion of the fiscal. He may or case. 32 When after the filing of the complaint or information a warrant for the arrest of the
may not file the complaint or information, follow or not fonow that presented by the accused is issued by the trial court and the accused either voluntarily submited himself to the
offended party, according to whether the evidence in his opinion, is sufficient or not to Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the
establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the accused. 33
criminal prosecution under the direction and control of the fiscal is to prevent malicious or
unfounded prosecution by private persons. 19 It cannot be controlled by the The preliminary investigation conducted by the fiscal for the purpose of determining whether
complainant. 20 Prosecuting officers under the power vested in them by law, not only have a prima facie case exists warranting the prosecution of the accused is terminated upon the
the authority but also the duty of prosecuting persons who, according to the evidence filing of the information in the proper court. In turn, as above stated, the filing of said
received from the complainant, are shown to be guilty of a crime committed within the information sets in motion the criminal action against the accused in Court. Should the fiscal
jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an find it proper to conduct a reinvestigation of the case, at such stage, the permission of the
investigation they become convinced that the evidence adduced is not sufficient to establish Court must be secured. After such reinvestigation the finding and recommendations of the
a prima facie case. 22 fiscal should be submitted to the Court for appropriate action. 34 While it is true that the
fiscal has the quasi judicial discretion to determine whether or not a criminal case should be
It is through the conduct of a preliminary investigation 23 that the fiscal determines the filed in court or not, once the case had already been brought to Court whatever disposition
existence of a puma facie case that would warrant the prosecution of a case. The Courts the fiscal may feel should be proper in the rase thereafter should be addressed for the
cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not consideration of the Court, 35 The only qualification is that the action of the Court must not
prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding impair the substantial rights of the accused. 36 or the right of the People to due process of
originally initiated by him on an information, if he finds that the evidence relied upon by him law. 36a
is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to
prosecute or file an information within a certain period of time, since this would interfere Whether the accused had been arraigned or not and whether it was due to a reinvestigation
with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was
the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that submitted to the Court, the Court in the exercise of its discretion may grant the motion or
grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently deny it and require that the trial on the merits proceed for the proper determination of the
move for the dismissal should the re-investigation show either that the defendant is innocent case.
or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views
between the judge who did not investigate and the fiscal who did, or between the fiscal and
17
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the Sarmiento and Cortes, JJ., concur.
prosecution? A state prosecutor to handle the case cannot possibly be designated by the Teehankee C.J., took no part.
Secretary of Justice who does not believe that there is a basis for prosecution nor can the
fiscal be expected to handle the prosecution of the case thereby defying the superior order
of the Secretary of Justice.

The answer is simple.1wphi1 The role of the fiscal or prosecutor as We all know is to see
that justice is done and not necessarily to secure the conviction of the person accused before
the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed
with the presentation of evidence of the prosecution to the Court to enable the Court to
arrive at its own independent judgment as to whether the accused should be convicted or
acquitted. The fiscal should not shirk from the responsibility of appearing for the People of
the Philippines even under such circumstances much less should he abandon the prosecution
of the case leaving it to the hands of a private prosecutor for then the entire proceedings will
be null and void. 37 The least that the fiscal should do is to continue to appear for the
prosecution although he may turn over the presentation of the evidence to the private
prosecutor but still under his direction and control. 38

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

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

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

SO ORDERED.

18
G.R. Nos. L-41213-14 October 5, 1976 General informed this Court, thus: that they are "persuaded that there are bases for stating
that the rendition of respondent Judge's decision and his resolution on the motion for new
JORGE P. TAN, JR., CESAR TAN, LIBRADO SODE TEOFANIS BONJOC, OSMUNDO TOLENTINO trial were not free from suspicion of bias and prejudice ... . Considering the circumstances of
and MARIANO BARTIDO, petitioners, the instant case, the seriousness of the charges and counter-charges and the nature of the
vs. evidence on hand to support them, we feel that respondent Judge "appeared to have been
JUDGE PEDRO GALLARDO, in his capacity as Presiding Judge of Circuit Criminal Court, 13th heedless of the oft-reiterated admonition addressed to trial judges to avoid even the
Judicial District, Tacloban City, and PEOPLE OF THE PHILIPPINES, respondents. impression of the guilt or innocence of the accused being dependent on prejudice or
prejudgment" and, therefore, it was the submission of said official "that the case should he
Pelaez, Jalandoni & Adriano for petitioner Jorge P. Tan, Jr.
remanded to the trial court for the rendition of a new decision and with instruction to
receive additional evidence proferred by the accused with the right of the prosecution to
K.V. Faylona & Associates for petitioner Cesar Tan.
present rebuttal evidence as inay be warranted" and, therefore, they interpose no objection
Ruperto Kapunan, Jr. for petitioner Teofanis Bondoc. to the remand of the aforementioned criminal cases "for the rendition of a new decision by
another trial judge, after the parties shall have adduced such additional evidence as they may
Amadeo Seno, Artemio Derecho & Manuel Quimbo for petitioners Librado Isode, Osmundo, wish to make, under such terms and conditions as this Honorable Court may deem fit to
Tolentino and Mariano Bartido. impose. 2

Solicitor General Estilito P. Mendoza, Assistant Solicitor General Alicia Simpio-Diy and Solicitor On January 30, 1976, private prosecutors submitted their Comment in justification of the
Eduardo L. Kilayko for respondents. challenged Orders of the respondent Judge and objected to the remand of this case.

Estanislao A. Fernandez and Dakila F. Castro & Associate as private prosecutors. On February 12, 1976, the petitioners moved to strike out the "Motion to Admit Attacked
Comment" and the "Comment" of the private prosecutor on the ground that the latter has
"absolutely no standing in the instant proceedings before this Honorable Court and, hence,
without any personality to have any paper of his entertained by this Tribunal.
ANTONIO, J.:
The private prosecutors now contend that they are entitled to appear before this Court, to
In this Special Civil Action for certiorari with Prohibition, petitioners seek the annulment of
take part in the proceedings, and to adopt a position in contravention to that of the Solicitor
respondent Judge's Orders in Criminal Cases Nos. CCCXIII-50-L-S'72 and CCC-XIII-51-L-
General.
S'72, 1 to wit: (a) Order of July 21, 1975, denying petitioners' motion for respondent Judge to
disqualify or to inhibit himself from hearing and acting upon their Motion for New Trial The issue before Us is whether or not the private prosecutors have the right to intervene
and/or Reconsideration and Supplemental Motion for New Trial; (b) Order of July 23, 1975, independently of the Solicitor General and to adopt a stand inconsistent with that of the
denying petitioners' Motion for New Trial and/or Reconsidertion and Supplemental Motion latter in the present proceedings.
for New Trial; and (c) Order of July 25, 1975, ordering the transfer of the accused (petitioners
herein) from Camp Bumpus PC headquarters, Tacloban city, to the Nationial Penitentiary, There are important reasons which support the view that in the present proceedings, the
New Bilibid Prisons, Muntinlupa, Rizal. It is likewise sought, by way of prohibition, to compel private prosecutors cannot intervene independently of and take a position inconsistent with
respondent Judge to desist from further proceeding with the afore-mentioned criminal cases. that of the Solicitor General.

By Resolution of this Court dated August 27, 1975, the respondent Judge was required to file To begin with, it will be noted that the participation of the private prosecution in the instant
his answer within ten (10) days from notice, and in connection therewith, a temporary case was delimited by this Court in its Resolution of October 1, 1975, thus: "to collaborate
restraining order was issued to enjoin the respondent from further proceeding with the with the Solicitor General in the preparation of the Answer and pleadings that may be
afore-mentioned criminal cases. The petition was subsequently amended to include the required by this Court." To collaborate means to cooperate with and to assist the Solicitor
People of the Philippines and thereafter, on January 14, 1976, the Solicitor General, on behalf
of the People of the Philippines, submitted his Comment to the petition. The Solicitor
19
General. It was never intended that the private prosecutors could adopt a stand independent Therefore, although the private prosecutors may be permitted to intervene, they are not in
of or in contravention of the position taken by the Solicitor General. control of the case, and their interests are subordinate to those of the People of the
Philippines represented by the fiscal. 9 The right which the procedural law reserves to the
There is no question that since a criminal offense is an outrage to the sovereignty of the injured party is that of intervening in the prosecution for the sole purpose of enforcing the
State, it is but natural that the representatives of the State should direct and control the civil liability for the criminal action and not of demanding punishment of the accused. 10 As
prosecution. As stressed in Suarez v. Platon, et al., 3 the prosecuting officer "is the explained in People v. Orais: 11
representative not of. an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern at all; and whose ... the position occupied by the offended party is subordinate to that of the promotor fiscal
interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice because, as promotor fiscal alone is authorized to represent the public prosecution, or the
shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the People of the Philippine Islands, in the prosecution of offenders, and to control the
twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute proceeding, and as it is discretionary with him to institute and prosecute a criminal
with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he proceeding, being at liberty to commence it or not, depending upon whether or not there is,
is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods in his opinion, sufficient evidence to establish the guilt of the accused beyond reasonable
calculated to produce a wrongful conviction as it is to use every legitimate means to bring doubt, except when the case is pending in the Court of First Instance, the continuation of the
about a just one." Thus, it was stressed in People v. Esquivel, et al., 4 that there is an absolute offended party's intervention depends upon the continuation of the proceeding.
necessity for prosecuting attorneys to lay "before the court the pertinent facts at their Consequently, if the promotor fiscal desists from pressing the charge or asks the competent
disposal with methodical and meticulous attention, clarifying contradictions and filling up Court of first Instance in which the case is pending for the dismissal thereof, and said court
gaps and loopholes in their evidence, to the end that the court's mind may not be tortured grants the petition, the intervention of the person injured by the commission of the offense
by doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious ceases by virtue of the principle that the accessory follows the principal. Consequently, as the
to all, this is the prosecution's prime duty to the court, to the accused, and to the state." It is offended party is not entitled to represent the People of the Philippine Islands in the
for the purpose of realizing the afore-mentioned objectives that the prosecution of offenses prosecution of a public offense, or to control the proceeding once it is commenced, and as
is placed under the direction, control, and responsibility of the prosecuting officer. his right to intervene therein is subject to the promotor fiscal's right of control, it cannot be
stated that an order of dismissal decreed upon petiton of the promotor fiscal himself
The role of the private prosecutors, upon the other hand, is to represent the offended parts, deprives the offended party of his right to appeal from an order overruling a complaint or
with respect to the civil action for the recovery of the civil liability arising from the offense. information, which right belongs exclusively to the promotor fiscal by virtue of the provisions
'This civil action is deemed instituted with the criminal action, unless the offended party of section 44 of General Orders, No. 58. To permit a person injured by the commission of an
either expressly waives the civil action or reserves to institute it separately. 5 Thus, "an offense to appeal from an order dismissing a criminal case issued by a Court of First Instance
offended party may intervene in the proceedings, personally or by attorney, specially in case upon petition of the promotor fiscal, would be tantamount to giving said offended party of
of offenses which can not be prosecuted except at the instance of the offended party. 6 The the direction and control of a criminal proceeding in violation of the provisions of the above-
only exception to this is when the offended party waives his right to civil action or expressly cited section 107 of General Orders, No. 58.
reserves his right to institute it after the termination of the case, in which case he lost his
right to intervene upon the theory that he is deemed to have lost his interest in its Consequently, where from the nature of the offense, or where the law defining and
prosecution. 7 And in any event, whether an offended party intervenes in the prosecution of punishing the offense charged does not provide for an indemnity, the offended party may
a criminal action, his intervention must always be subject to the direction and control of the not intervene in the prosecution of the offense. 12
prosecuting official. " 8 As explained in Herrero v. Diaz, supra, the "intervention of the
offended party or his attorney is authorized by section 15 of Rule 106 of the Rules of Court, There is no question that the Solicitor General represents the People of the Philippines or the
subject to the provisions of section 4 of the same Rule that all criminal actions either State in criminal proceedings pending either in the Court of Appeals or in this Court. Thus,
commenced by complaint or by information shall be prosecuted under the direction and Section 1 of Presidential Decree No. 478, "Defining the Powers and Functions of the Office of
control of the Fiscal." (Emphasis supplied) the Solicitor General", provides:

20
SECTION 1. Function and Organization. (1) The Office of the Solicitor General shall represent (c) On one occasion, Mayor Larrazabal had a short talk with respondent judge, after which
the Government of the Philippines, its agencies and instrumentalities and its officials and the latter received from one of the private prosecutors a bottle of wine wrapped in a
agents in any litigation, proceeding, investigation or matter requiring the services of a newspaper which was "thick" and "bulky" and which allegedly contained "something else
lawyer. ... The office of the Solicitor General shall constitute the law office of the inside";
Government, and such, shall discharge duties requiring the services of a lawyer. It shall have
the following specific powers and functions: (d) Respondent judge prepared the decision in the Tan cases based on the memorandum of
the prosecution which was literally copied in said decision although with some corrections;
(a) Represent the Governemnt in the Supreme Court and the Court of Appeals in all criminal and
proceedings; represent the Government and its officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all civil actions and special proceedings in which (e) After an alleged meeting with Mayor Inaki Larrazabal, respondent judge amended his
the Government or any officer thereof in his official capacity is the party. already prepared decision in the two criminal cases involved herein by changing the penalty
of double life sentence for the double murder charge against the petitioners to the death
xxx xxx xxx penalty.

(k) Act and represent the Republic and/or the people before any court, tribunal, body or The foregoing alleged irregularities are mainly supported by an affidavit executed on June 26,
commission in any matter, action or proceeding which in his opinion, affects the welfare of 1975 by Gerardo A. Makinano Jr., court stenographer of the Circuit Criminal Court, Tacloban
the people as the ends of justice may require. City (Annex "E", Petition). The truth of the charges made in such affidavit are denied by
respondent judge (in his answer to the instant petition dated October 11, 1975), who in turn
xxx xxx xxx claims that it was petitioners who tried to bribe him into acquitting them in the aforesaid
criminal cases, after they were illegally furnished a copy of the draft of his decision of
It is evident, therefore, that since the Solicitor General alone is authorized to represent the
conviction by the same court stenographer Gerardo A. Makinano Jr. (please see Answer of
State or the People of the Philippines the interest of the private prosecutors is subordinate to
respondent judge, pp. 12-13). Unlike in the cases of Mateo vs. Villaluz, 50 SCRA 191 (1973),
that of the State and they cannot be allowed to take a stand inconsistent with that of the
and Castillo vs. Juan, 62 SCRA 124 (1974) relied upon mainly by herein petitioners, the facts
Solicitor General, for that would be tantamount to giving the latter the direction and control
alleged as constituting the grounds for disqualifying the respondent judge in the instant
of the criminal proceedings, contrary to the provisions of law and the settled rules on the
petition are disputed.
matter.
Apart from the sworn statements submitted before this Court in support or in denial of the
Moreover, the position taken by the Solicitor General in recommending the remand of the
alleged bribery of respondent judge, we have been informed of evidence obtained by the
case to the trial court is not without any plausible justification. Thus, in support of his
National Bureau of Investigation when it cannot appropriate for us at this time, however, and
contention that the rendition of the decision and the resolution on the subsequent motions
we are unable to do so, to submit to this Court definite conclusions on the charges and
by the respondent Judge were not free from suspicion of bias and prejudice, the Solicitor
counter-charges. An exhaustive inquiry and open hearing should perhaps precede the making
General stated:
of categorical conclusions. But we are persuaded that there are bases for stating that the
rendition of respondent Judge's decision and his resolutions on the motions for new trial
In alleging bias and manifest partiality on the part of respondent judge, petitioners assert
were not free from suspicion of bias and prejudice (See Martinez Gironella, 65 SCRA 245 [July
that:
22, 1975]).
(a) Respondent judge kept improper contact with and was illegally influenced by the
Considering the circumstances of the instant case, the seriousness of the charges and
Larrazabals in connection with the decision of the two cases against petitioners herein;
counter-charges and the nature of the evidence on hand to support them, we feel that
(b) In the latter part of 1973, with the trial of the Tan cases still in progress, respondent judge respondent Judge appeared to have been heedless to the oft-reiterated admonition
received, through one of his court stenographers, two bottles of whisky from Mayor Inaki addressed to trial judges to avoid even the impression of the guilt or innocence of the
Larrazabal, brother and uncle of the deceased victims Feliciano and Francisco Larrazabal;

21
accused being dependent on prejudice or prejudgment (Fernando, J., Concurring
opinion, Martinez Gironella, supra, at 252). ...

It is undisputed that the sole purpose of courts of justice is to enforce the laws uniformly and
impartially without regard to persons or their circumstances or the opinions of men. A judge,
according to Justice Castro, now Chief Justice of this Court, should strive to be at all times
"wholly free, disinterested, impartial and independent. Elementary due process requires a
hearing before an impartial and disinterested tribunal. A judge has both the duty of
rendering a just decision and the duty, of doing it in a manner completely free from suspicion
as to its fairness and as to his integrity. 13 Thus, it has always been stressed that judges
should not only be impartial but should also appear impartial. For "impartiality is not a
technical conception, It is a state of mind" 14 and, consequently, the "appearance of
impartiality is an essential manifestation of its reality. 15 It must be obvious, therefore, that
while judges should possess proficiency in law in order that they can competently construe
and enforce the law, it is more important that they should act and behave in such a manner
that the parties before them should have confidence in their impartiality.

It appears, however, that respondent Judge is no longer in the judicial service, hence, the
question as to whether or not he should be disqualified from further proceeding with the
aforementioned criminal cases has already become moot.

WHEREFORE, this Court grants the petition and hereby demands the case to the trial court in
order that another Judge may hear anew petitioners' motion for new trial and to resolve the
issue accordingly on the basis of the evidence. No Special pronouncement as to costs.

Fernando, (Chairman), Barredo, Aquino, and concepcion Jr. JJ., concur.

22
[G.R. No. L-5335. November 8, 1910. ] 7. ID.; ID.; DESIGNATION OF THE CRIME BY ITS TECHNICAL NAME IS USURPATION OF
JUDICIAL FUNCTION. The designation by the fiscal of the crime in the information by its
THE UNITED STATES, Plaintiff-Appellee, v. LIM SAN, Defendant-Appellant. technical name is a usurpation of the powers of the court and, if binding, would be in effect
an adjudication by him of the crime of which the accused must be convicted, if he were to be
J. Courtney Hixson, for Appellant. convicted of any offense.

Solicitor-General Harvey, for Appellee.

SYLLABUS
DECISION
1. CRIMINAL PRACTICE AND PROCEDURE; COMPLAINT OR INFORMATION; CHARGE OF
"ATTEMPTED MURDER," CONVICTION FOR "FRUSTRATED MURDER." Although the crime
designated in the information is that of "attempted murder," this court may, on appeal,
convict the accused of "frustrated murder," notwithstanding the fact that the latter crime is
MORELAND, J. :
the more severely punished, when the crime of frustrated murder is clearly and unmistakably
described by the facts set forth in the information.

2. ID.; ID.; CRIME CHARGED IS THAT DESCRIBED. The crime of which the defendant stands
accused is that described by the facts stated in the information, and not that designated by The defendant in this case was convicted of the crime of attempted murder in the Court of
the fiscal in the preamble thereof. First Instance of the city of Manila and sentenced to seven years of presidio mayor and to pay
one-third of the costs of the trial.
3. ID.; ID.; DESIGNATION OF CRIME BY TECHNICAL NAME IS A CONCLUSION OF LAW. The
designation of the crime by name in the caption of the information is a conclusion of law on It is alleged that on or about the 18th day of October, 1908, the defendant Lim San
the part of the fiscal. The denial of that conclusion raises no issue. attempted to kill one Keng Kin by assaulting him with a bolo and inflicting upon him several
wounds; that one of the wounds would have proved fatal had not the injured person
4. ID.; ID.; ISSUE, AND HOW RAISED. An issue in a criminal action is one of fact. It is raised received prompt and efficient medical assistance.
by the allegation of facts in the information and the denial of those facts by a plea of not
guilty. The guilt of the defendant was established beyond reasonable doubt, if the testimony of
Keng Kin, Chua Hung, and Gregorio Mariano is to be believed. All of these witnesses testify
5. ID.; ID.; DESIGNATION OF CRIME BY TECHNICAL NAME NOT IMPORTANT. It is not that the accused assaulted Keng Kin without cause or provocation and stabbed him several
necessary, for the protection of the substantial rights of the accused, nor for the effective times with a bolo. All unite in saying that Keng Kin, at the time, was standing just outside the
preparation of his defense, that he be informed of the technical name of the crime of which limits of the street, his attention upon a dog which he had with him, when the accused
he stands charged. He must look to the facts alleged. leaped upon him with his bolo and committed the acts complained of. All of these witnesses
saw the accused in the act, fully recognized him, and later identified him as the person who
6. ID.; ID.; COURT ALONE CAN CONCLUDE WHAT CRIME HAS BEEN COMMITTED. As a committed the offense.
matter of fact the court is the only person or institution authorized by law to say what crime
has been committed. Such designation is a conclusion of law resulting from the facts proven The defense interposed by the accused was an alibi. He produced several witnesses to
upon the trial. Until that time arrives it is of no consequence, either to the people or to the support it. Between the testimony of these witnesses and that of the witnesses of the
accused, what the technical name of the crime of which the accused is charged may be. prosecution there is an irreconcilable contradiction. The court below, having heard the
witnesses testify and having observed their manner and attitude upon the witness stand,

23
decided that credibility lay with those of the prosecution. A careful reading of the testimony accused from proceeding further in the commission of the crime, the accused not believing
discloses no reason why the conclusion of the court in this particular should be disturbed. that he had performed all of the acts necessary to cause death, he would have been guilty of
The court decided between witness and witness. There are no conditions found in the record attempted murder.
which render the story told by the witnesses for the prosecution inherently improbable.
There is no circumstance disclosed which impeaches their truthfulness. There is nothing The information in his case reads as follows:jgc:chanrobles.com.ph
found which impugns in any way their credibility. Under such conditions we will not interfere
with the conclusion of the trial court respecting credibility. "Pursuant to a preliminary investigation heretofore conducted in the office of the
prosecuting attorney for the city of Manila, under the provisions of section 39 of Act No. 183
The crime in this case was committed about 10 oclock at night. It was somewhat dark, the of the United States Philippine Commission, as amended, the undersigned, prosecuting
only light being that given by a lamp suspended from the ceiling of a tienda directly across attorney of the city of Manila, gives the court information against Lim San, Lim Chu, and Que
the street. Keng Kin was not expecting to be attacked. His attention was directed exclusively Lat, and accuses the same, and each of them, of the crime of attempted assassination,
to his dog. He was wholly unsuspicious. Every faculty was withdrawn from consideration of committed as follows:jgc:chanrobles.com.ph
danger. The accused, without warning of any kind, careful not to disturb the quiescent
attitude in which he found his victim until the very instant of the blow, attacked him with "That on or about the 18th day of October, 1908, in the city of Manila, Philippine Islands, the
great rapidity and force, driving his bolo straight into his face. On the first blow the point of said Lim San, Lim Chu, and Que Lat, conspiring together, did then and there willfully,
the knife entered the left eye, penetrating to and slightly cutting the brain, destroying the unlawfully, feloniously, with treachery, deliberate and known premeditation, and n the
eye completely and rendering him entirely incapable of protecting himself. As a necessary nighttime, attempt to kill and assassinate one Keng Kin, by then and there, in the nighttime,
result, the assaulted had no opportunity whatever to defend himself, to escape the blow, to lying in wait for and assaulting, cutting, and stabbing the said Keng Kin with deadly weapons
ward it off, or to mitigate its consequences. He was wholly surprised and incapable of to wit, large bolos and inflicting then and there upon the head and body of the said
offering the slightest resistance. This means simply that the accused committed the crime Keng Kin numerous cuts, wounds, and physical injuries, with intent then and there to kill and
maliciously and treacherously by methods which tended, directly and especially, to insure assassinate the said Keng Kin; that the said accused then and there performed all of the acts
him against risk that might proceed from any defense which his victim might make. In other of execution which should constitute the crime of assassination, but which did not constitute
words, the combination of the conditions, darkness, distracted attention, lack of knowledge said crime by reason of the fact that though said wounds were intended by the said accused
of the attack, lack of warning, the suddenness of the assault, the maneuvering of the accused to cause the death of the said Keng Kin, and were believed by the said accused to be
in such way as not to attract attention till the very moment of the blow, keeping him sufficient to cause the death of the said Keng Kin, did not cause his death, by reason of
quiescent until the end was accomplished, constitutes alevosia under subdivision 2 of article prompt and efficient medical assistance, which prevented the said wounds from becoming
10 of the Penal Code. This would have made the crime murder had Keng Kin been killed. fatal.

The court found the defendant guilty of the crime of attempted murder. We are unable to "All contrary to law."cralaw virtua1aw library
agree with that finding. We regard the crime as frustrated murder. The distinction between
frustrated murder and attempted murder is this: In frustrated murder the accused performs It appears from this pleading that the prosecuting attorney characterized the crime in the
all of the acts which he believes necessary to consummate the crime. Death, however, fails to caption of the information as attempted assassination. It appears, however, that the facts set
follow for causes entirely apart from his will. In attempted murder the accused begins the out in the body of the information describe the crime of frustrated assassination.
commission of the crime by overt acts, but involuntarily desists from performing the other Notwithstanding apparent contradiction between caption and body, we believe that we
acts from so doing by some cause outside of his own will. In the case at bar it appears clearly ought to say and hold that the characterization of the crime by the fiscal in the caption of the
that the defendant believed that he had performed all of the acts necessary to consummate information is immaterial and purposeless, and that the facts states in the body of the
the crime of murder, and, therefore, of his own will, desisted from striking further blows. He pleading must determine the crime of which the defendant stands charged and for which he
believed that he had killed Keng Kin. Death did not result for reasons entirely apart from the must be tried. The establishment of this doctrine is permitted by the Code of Criminal
will of the accused. This surely stamps the crime as frustrated murder. If, after the first blow, Procedure, and is thoroughly in accord with common sense and with the requirements of
some one had rushed to the assistance of Keng Kin and by his efforts had prevented the plaint justice. We are aware that such a doctrine departs somewhat from the established

24
theories of American criminal jurisprudence; but we are confident that the result obtained where the people are prosecuting than when assailed civilly by a private individual.
fully justifies our holding. Many cases might be cited in which justice has either been greatly
delayed or wholly defeated by adhering to the doctrine which we discard. Procedure in The failure to observe this fundamental distinction has been one of the causes of the
criminal actions should always be so framed as to insure to each criminal that retributive frequent miscarriage of justice in criminal cases in many parts of the United States. If a
punishment which ought swiftly and surely to visit him who willfully and maliciously violates plaintiff in a civil action should open his complaint with the statement, "This is an action of
the penal laws of society. We believe that a doctrine which does not produce such a result is tort," and then proceed to set out fully facts showing that his action was really to foreclose a
illogical and unsound and works irreparable injury to the community in which it prevails. mortgage, asking the remedy proper to that end, no court would hesitate a moment as to
what was the real nature of the action. It could not be contended for an instant that the
From a legal point of view, and in a very real sense, it is of no concern to the accused what is plaintiff, in order to recover, would be obliged to prove an action in tort. The statement,
the technical name of the crime of which he stands charged. It in no way aids him in a "This is an action in tort," is a mere conclusion of law and not a statement of fact. It has no
defense on the merits. Whatever its purpose may be, its result is to enable the accused to influence whatever upon the nature of the action. It is pure surplusage. It can not fairly be
vex the court and embarrass the administration of justice by setting up the technical defense said to deceive the defendant. So far as the procedure or the merits are concerned, it is of no
that the crime set forth in the body of the information and proved in the trial is not the crime consequence what the name of the action may be. Issues are not made by asserting and
characterized by the fiscal in the caption of the information. That to which his attention denying names. They are framed by the allegation and denial of facts. The acts or omissions
should be directed, and in which he, above all things else, should be most interested, are the of the defendant, as set out by the plaintiff in the complaint as the basis of his action, are
facts alleged. The real question is not did he commit a crime given in the law some technical that to which the defendant looks to prepare his defense. They are that to which, when
and specific name, but did he perform the acts alleged in the body of the information in the proved, the court looks to apply the remedy.
manner therein set forth. If he did, it is of no consequence to him, either as a matter of
procedure or of substantive right, how the law denominates the crime which those acts So it is with pleadings in criminal actions. To quibble about names is to lose sight of realities.
constitute. The designation of the crime by name in the caption of the information from the To permit an accused to stand by and watch the fiscal while the guesses as to the name
facts alleged in the body of that pleading is a conclusion of law made by the fiscal. In the which ought to be applied to the crime of which he charges the accused, and then take
designation of the crime the accused never has a real interest until the trial has ended. For advantage of the guess if it happens to be wrong, while the acts or omissions upon which
his full and complete defense he need not know the name of the crime at all. It is of no that guess was made and which are the real and only foundation of the charge against him
consequence whatever for the protection of his substantial rights. The real and important are clearly and fully stated in the information, is to change the battle ground in criminal cases
question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you from issues to guesses and from fact to fancy. It changes lawyers into dialecticians and law
commit a crime named murder?" If he performed the acts alleged, in the manner stated, the into metaphysics that fertile filed of delusion propagated by language.
law determines what the name of the crime is and fixes the penalty therefor. It is the
province of the court alone to say what the crime is or what it is named. If the accused Section 5 of the Code of Criminal Procedure reads as follows:jgc:chanrobles.com.ph
performed the acts alleged in the manner alleged, then he ought to be punished and
punished adequately, whatever may be the name of the crime which those acts constitute. "An information is an accusation in writing charging a person with a public offense,
presented and signed by the promoter fiscal or his deputy and filed with the clerk of the
The plea of not guilty ought always to raise a question of fact and not of law. The court."cralaw virtua1aw library
characterization of the crime is a conclusion of law on the part of the fiscal. The denial by the
accused that he committed that specific crime so characterized raises no real question. No Section 6 is as follows:jgc:chanrobles.com.ph
issue can be raised by the assertion of a conclusion of law by one party and a denial of such
conclusion by the other. The issues raised by the pleadings in criminal actions, as well as in "A complaint or information is sufficient if it shows:jgc:chanrobles.com.ph
civil, are primarily and really issues of fact and not of law. The issue to be tried in all criminal
cases should be one of fact, raised by the allegation of certain facts in the information and a "1. The name of the defendant, or, if his name can not be discovered, that he is described
denial of those facts by the plea of not guilty on the part of the defendant. There is no more under a fictitious name with a statement that his true name is unknown to the informant or
reason why the defendant should be allowed to take advantage of a misnomer of the action official signing the same. His true name may be inserted at any stage of the proceedings

25
instituted against him, whenever ascertained. here lay down. This is the form in which information should be drawn.

"2. The designation of the crime or public offense charged. We are aware that it may be said that, when a fiscal has characterized by name the offense
with which he charges the defendant, and the defendant has accepted that characterization
"3. The acts or omission complained of as constituting the crime or public offense in ordinary in good faith and prepared his trial in accordance therewith, he ought not to be required
and concise language, without repetition, not necessarily in the words of the statute, but in upon appeal or elsewhere to meet a new or different crime; that such a proceeding would
such form as to enable a person of common understanding to know what is intended and the prejudice him severely and might be the means of convicting him without a real hearing, if
court to pronounce judgment according to right. not without due process of law. Our reply is, in the first place, that it is very rare indeed that
circumstances would be presented in which an accused could be any change be thus
"4. That the offense was committed within the jurisdiction of the court and is triable therein. prejudiced. Such contingency is so remote as to be almost negligible. But, should such a
condition arise, we say, in the second place, that this court will not permit the doctrine here
"5. The names of the persons against whom, or against whose property, the offense was laid down to prejudice any defendant who has been innocently misled in any action
committed, if known."cralaw virtua1aw library heretofore tried. However, after the lapse of a reasonable time following the publication of
this decision, its contents and tenor will be presumed to be known to all. After the doctrine
Section 8 reads as follows:jgc:chanrobles.com.ph here promulgated is fully known, no one will be heard to say that he has been prejudiced by
its application. We reply, in the third place, that the people of the land are interested more
"A complaint or information may be substantially in the following than any single individual in the punishment of those who offend against its laws; that the
form:jgc:chanrobles.com.ph fiscal has no right to characterize a crime in defiance of the interests of society; that he has
no authority to speak for the State and say what crime has been committed. That is the duty
"The United States against A. B. of the court the duty of a coordinate branch of the government, one of its three
departments to which and to which alone the sovereignty has delegated the right to
"In the Court of _______________ for ___________________, Province of denominate crime from facts alleged or proved and to impose punishment in accordance
____________________, the _____________________ day of _______________, 19 _____ with that denomination. The duty of the fiscal in framing an information is limited to a
statement of the facts which the accused has performed and the manner in which he
"A. B. is accused by the undersigned of the crime of (giving its legal appellation, such as performed them. It is no part of his duties to give a technical name to the crime which is born
murder, arson, robbery, or the like, or designating it as a felony or misdemeanor), committed of the facts set forth, or draw an inference or conclusion as to how the courts will or will not
as follows:jgc:chanrobles.com.ph denominate the crime described by the facts. If the fiscal denominate or characterize the
crime and if that denomination binds the court, as it always does under the doctrine were
"That said A. B., on the _____________ day of _______________, 19 ________, at the are criticizing, then it is clear that the fiscal has, by such act, usurped the function of the
________ of ________, Province of ______________, (here set forth the acts or omissions court, inasmuch as he has thereby irrevocably decided by his own fiat of what crime, if any,
charged as an offense), contrary to the statute in such case made and provided. the defendant shall be convicted. This is not only performing duties ministerial, but
legislative and judicial as well. He thus not only tries the case as fiscal, but he also, by his
"(Signed) ____________________________________" mischaracterization, changes the law really applicable to the case. Moreover, such
mischaracterization being binding on the courts, he also thereby in a sense adjudicates the
Subdivision 2, section 6, above quoted, requires that the information shall contain "the offense for which the defendant shall be punished. He thus leaves little for the court to do
designation of the crime or public offense charged." But while that is so and while section 8 but apply the penalty. Even that must be in accordance with the fiscals characterization. We
provides that the information may stated the legal appellation of the crime, "such as murder, would say, fourthly, that a careful lawyer ought always to prepare the defense of his client to
arson, robbery, or the like," nevertheless, said section also provides that such offense may be meet every allegation of material fact presented by the peoples pleading, and to deny, and
designated generally "as a felony or misdemeanor." This evidently and unquestionably to substantiate that denial by proof, every such fact which is alleged and proved to his
permits an information to be drawn and framed upon the lines marked in the doctrine we prejudice, and that wholly irrespective of the characterization of the crime by the fiscal. It is

26
undoubted that every innocent man can and will do that. No innocent man will permit maximum degree to presidio mayor in its medium degree. There being present the
himself to rest under proof that he has been guilty of a malicious and criminal act against the aggravating circumstance of nocturnity, the penalty must be imposed in its maximum
law of the land. He desires above all things to disprove, and will always insist upon disproving, degree.
everything presented by the prosecution which smirches his character or taints his honor.
Generally speaking, it is only the criminal, either by act or intention, who is willing to rest his The judgment of the court below is, therefore, reversed, and the defendant is convicted of
defense upon the technicality of a characterization, leaving the main facts proved against the crime of frustrated murder and sentenced to eight years and day of presidio mayor and
him untouched and the conclusions from them unreduced. Every innocent man wants to to pay one-third of the costs. There being no evidence in the case of the damages which Keng
meet facts and not theories. He wants to strike at the substance of fact and not the straw Kin has suffered by reason of the acts complained of, no indemnity can be required paid in
man of conclusion. He will insist on meeting the thing and not the characterization of the this action.
thing.
Arellano, C.J., Torres, Johnson, and Trent, JJ., concur.
Moreover, one can not claim to be prejudiced who voluntarily and willfully shuts his eyes to
the facts alleged. Why are the facts alleged at all if not to specify the real nature of the
crime? If the accused looks to the characterization of the fiscal and not to the facts, why have
facts at all; why not have the information state conclusions only? But it will be observed that
if we should urge that proposition, the accused would be he who would first object. His
instant reply would be, "I want facts and not conclusions. I can prepare no defense against
the allegation of mere conclusions." Nevertheless he insists on holding the people strictly to
the pure conclusion involved in the fiscals characterization of the crime. In other words, he
wants conclusions if the facts hurt him, and he wants facts if the conclusions hurt him. A
technicality is something which makes a criminal life worth living. This is here fully
exemplified.

We are not forgetful, in what we have said, of those sacred and immutable rights which
belong to every freeman. We do not forget, either, that institutions and states which do not
sacredly protect and guard those rights can not live. To their protection every man is willing
to dedicate his life, his fortune, and his honor. The doctrine here laid down conserves those
rights swiftly and perfectly far more so than does the doctrine we are criticizing. On the
other hand and in addition, it protects society from the malicious activities of those who are
ever ready to commit crime if there exists in the law anywhere a technicality upon which the
may rest a hope of escape.

For these reasons it is competent for this court to find the defendant guilty of the crime
described by the facts stated in the information, these facts being fully and satisfactorily
proved and the accused having in no wise been prejudiced.

Under article 407 of the Penal Code the defendant should be punished with a penalty lower
by one degree than that which would have been applied had he consummated the crime.
The penalty for the consummated crime ranges from cadena temporal in its maximum
degree to death. The penalty lower by one degree is from presidio correccional in its

27
United States Court of Appeals,Eleventh Circuit. Rehabilitative Services (HRS).2 Although Starks and Henry were employees of HRS, they
actually worked in a federally-funded research project in Tampa, Florida known as Project
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Angela F. STARKS, Support. As part of their duties, Starks and Henry advised pregnant women about possible
Defendant-Appellant, Andrew R. Siegel, Defendant-Appellant, Cross-Appellee. treatment for drug abuse. Upon beginning their work at HRS, Starks and Henry learned
from their supervisor both that they could not accept any outside employment that might
No. 96-3117.
pose a conflict of interest with their work at HRS and that they were obligated to report any
outside employment to HRS.
Decided: October 09, 1998
During the spring of 1992, Future Steps had difficulty attracting patients. One of Future
Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior District Judge.Miriam L.
Steps's salaried liaison workers, Robin Doud-Lacher, however, identified Project Support as
Sumpter, Tampa, FL, for Defendant-Appellant. Arnold D. Levine, Levine, Hirsch, Segall &
a potential source of referrals because of its relationship with high-risk pregnant women.
Northcutt, P.A., Tampa, FL, for Siegel. Charles R. Wilson, U.S. Atty., Tamra Phipps, Terry A.
When Doud-Lacher's initial efforts to establish a referral relationship between Future Steps
Zitek and Susan H. Rothstein, Asst. U.S. Attys., Tampa, FL, Susan Humes Raab, Asst. U.S. Atty.,
and Project Support failed, Siegel suggested to Doud-Lacher that she spend more time at
Jacksonville, FL, for Plaintiff-Appellee, Cross-Appellant.
Project Support, give diapers to Project Support, take Project Support workers to lunch, and
Defendants Angela Starks and Andrew Siegel seek to overturn their convictions under the otherwise build a relationship with Project Support's employees.
anti-kickback provision of the Social Security Act, 42 U.S.C. 1320a-7b (the Anti-Kickback
During one of her subsequent visits to Project Support, Doud-Lacher learned from Starks and
statute). Specifically, Starks and Siegel argue that the district court erred by refusing to
Henry that cuts in federal spending threatened to reduce their work hours. When Starks
instruct the jury concerning the relevant mens rea. In addition, Starks and Siegel contend
and Henry asked if Doud-Loucher knew of other available work, she promised to inquire for
that the Anti-Kickback statute is unconstitutionally vague. While denying the defendants'
them about opportunities at Future Steps.
allegations of error, the government cross-appeals Siegel's sentence on the grounds that the
district court should not have reduced his offense level for acceptance of responsibility, and
After discussing Starks and Henry's interest with her immediate supervisor, Doud-Lacher
that the district court should have applied the guideline for bribery of a public official rather
spoke directly with Siegel about hiring the two women. Despite Starks and Henry's extant
than the guideline for fraud and deceit. We AFFIRM IN PART, REVERSE IN PART, and
employment with HRS, Siegel told Doud-Loucher that he would pay Starks and Henry $250
REMAND.
for each patient they referred: $125 when a referred woman began inpatient drug
treatment with Future Steps and $125 after each such woman had stayed in Future Steps's
BACKGROUND1
program for two weeks.3 After accepting Siegel's terms, Starks and Henry did not report
In 1992, Andrew Siegel was both the president and the sole shareholder of Future Steps, Inc., their referral arrangement to anyone at Project Support or HRS.
a corporation that developed and operated treatment programs for drug addiction. On
At the outset of their work for Future Steps, Starks and Henry received checks written on
April 22, 1992, Future Steps contracted with Florida CHS, Inc. to run a chemical dependency
Future Steps's account and signed by Siegel. Before issuing these checks, Siegel verified
unit for pregnant women at Florida CHS's Metropolitan General Hospital (the Hospital). In
that the referred patients had actually entered the Future Steps program; he did not, though,
return, Florida CHS promised to pay Future Steps a share of the Hospital's profits from the
verify that the referrals were legal. Although the checks Siegel signed were coded variously
program. As a Medicaid provider, the Hospital performed medical services for indigent and
as payments for aftercare, counseling, and marketing expenses, Siegel was actually only
disabled persons and received payment for these activities through Consultec, the fiscal
paying Starks and Henry for their referrals. In fact, Siegel did not at any time pay Starks and
intermediary for the Florida Medicaid program. Before executing the Future Steps-Florida
Henry for any of their time, effort, or business expenses, or for any covered Medicare service.
CHS contract, Siegel initialed each page of the agreement, which included a provision
explicitly forbidding Future Steps from making any payment for patient referrals in violation
When Doud-Lacher left Future Steps, Siegel had Michael Ix, another liaison worker, assume
of the Anti-Kickback statute.
responsibility for the Starks and Henry referral arrangement. Generally, either Starks or
Henry would call Ix and ask him to pick up a referral directly from the Project Support clinic.
At the time Siegel signed this contract, Angela Starks and Barbara Henry had just become
When Ix arrived at Future Steps with the referred patient, Siegel would give Ix a check for
community health aides in the employ of the State of Florida Department of Health and

28
Starks and Henry. Later, after Henry told Ix that she did not want anyone at Project Support On February 22, 1996, the jury returned guilty verdicts as to all of the defendants on all five
to see her receiving checks from Future Steps, Ix agreed to deliver the checks to Starks and counts. Thereafter, the district court sentenced Siegel to serve three concurrent terms of
Henry either in the Project Support parking lot or at a restaurant. Between June 1992 and twenty-four months of imprisonment and five years supervised release. In choosing this
January 1993, Future Steps wrote checks payable to Starks totaling $2750 and to Henry sentence, the district court reduced Siegel's offense level under U.S.S.G. 3E1.1 for
totaling $1975. acceptance of responsibility and applied the guideline for fraud, U.S.S.G. 2F1.1. The district
court sentenced Starks to two concurrent terms of thirty months of home detention.
At the end of 1992, Future Steps began paying Starks and Henry in cash. To make these
payments, Ix would withdraw cash from his personal bank account and meet Starks and DISCUSSION
Henry either at a restaurant or at a twelve-step program; Siegel and Future Steps would then
reimburse Ix. On one occasion, Siegel accomplished this reimbursement by meeting Ix in a On appeal, defendants Starks and Siegel renew two contentions from their trial. First, they
restaurant restroom and giving him $600. In total, Ix paid Starks and Henry approximately claim that the district court committed reversible error when it refused to instruct the jury
$1000 to $1200 in cash. that, because of the Anti-Kickback statute's mens rea requirement, Starks and Siegel had to
have known that their referral arrangement violated the Anti-Kickback statute in order to be
Beyond the impropriety of Starks and Henry's acceptance of referral payments from Siegel, convicted. Second, Starks and Siegel argue that the Social Security Act's prohibition on paid
the referral arrangement directly affected Starks and Henry's counseling of the pregnant referrals, when considered together with the Act's safe harbor provision, 42 U.S.C. 1320a-
women who relied on them and Project Support for help. At trial, several of Future Steps's 7b(b)(3) (the Safe Harbor provision), is unconstitutionally vague. We address each of
clients testified that Starks and Henry threatened that HRS would take away their babies if these arguments before turning to the government's cross-appeals concerning Siegel's
they did not receive treatment for their drug addictions; in some instances, Starks and Henry sentence.
threatened women with the loss of their babies if they did not go specifically to Future Steps.
According to these women's testimony, Starks and Henry informed them only about Future I. STARKS AND SIEGEL'S APPEALS
Steps's program (eschewing discussion of alternative treatments), and most waited with
A. THE WILLFULLY INSTRUCTION
Starks and Henry at the Project Support clinic until someone from Future Steps arrived to
take them to the Hospital. Starks and Henry's physician supervisor also testified that she
Starks and Siegel argue that the district court erred in its instruction concerning the mens
told the two HRS employees to be more evenhanded in their advice to Project Support's
rea required under the Anti-Kickback statute. According to 42 U.S.C. 1320a-7b(b), it is
patients, after the number of women going to Future Steps from Project Support increased
illegal for a person to knowingly and willfully solicit[] or receive[] any remuneration for
substantially.
referrals for services covered by the federal government. At trial, the district court gave our
circuit's pattern instruction regarding the term willfully:
In total, Starks and Henry referred eighteen women from Project Support to Future Steps.
From these referrals, the Hospital received $323,023.04 in Medicaid payments.
The word willfully, as that term is used from time to time in these instructions, means the act
was committed voluntarily and purposely, with the specific intent to do something the law
On July 29, 1994, a federal grand jury indicted Siegel, Starks, Henry, and Doud-Lacher on five
forbids, that is with a bad purpose, either to disobey or disregard the law.
counts related to the referrals. Count One charged all four defendants with conspiring
against the United States, in violation of 18 U.S.C. 371, by offering to pay remuneration for
R26 at 18; see also 11th Cir. Pattern Jury Instr. 9.1. In reviewing the district court's charge,
referral of Medicare patients, in violation of 42 U.S.C. 1320a-7b(b)(2)(A), and by soliciting
we determine whether the court's instructions as a whole sufficiently informed the jurors so
and receiving such referral payments, in violation of 42 U.S.C. 1320a-7b(b)(1)(A). Counts
that they understood the issues and were not misled. See U.S. v. Hooshmand, 931 F.2d 725,
Two and Three charged Siegel and Doud-Loucher with paying remuneration to Starks and
733 (11th Cir.1991).4
Henry to induce referrals of Medicaid patients, in violation of 42 U.S.C. 1320a-7b(b)(2)(A).
Finally, Count Four charged Starks and Count Five charged Henry with soliciting and receiving In support of their claim, Starks and Siegel rely heavily on United States v. Sanchez-Corcino,
referral payments, in violation of 42 U.S.C. 1320a-7b(b)(1)(A). 85 F.3d 549 (11th Cir.1996), and Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126
L.Ed.2d 615 (1994). Since we heard oral argument on this case, however, the Supreme

29
Court has issued an opinion in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 shall not apply to any amount paid by an employer to an employee (who has a bona fide
L.Ed.2d 197 (1998), that clearly refutes Starks and Siegel's position. employment relationship with such employer) for employment in the provision of covered
items and services
In Sanchez-Corcino, a panel of this court held that the term willfully in 18 U.S.C.
922(a)(1)(D) (requiring license for firearms), meant that the government had to prove that a 42 U.S.C. 1320a-7b(b)(3); see also 42 C.F.R. 1001.952. According to Starks and Siegel,
defendant acted with knowledge of the [ 922(a)(1)(D)] licensing requirement. Id. at 553, this provision is vague because ordinary people in their position might reasonably have
554 ([k]nowledge of the general illegality of one's conduct is not the same as knowledge thought that Starks and Henry were bona fide employees who were exempt from the Anti-
that one is violating a specific rule). In Bryan, though, the Supreme Court explicitly Kickback statute's prohibition on remuneration for referrals.
rejected our decision in Sanchez-Corcino. See Bryan, 524 U.S. at ----, 118 S.Ct. at 1946.
According to the Bryan Court, a jury may find a defendant guilty of violating a statute Starks and Siegel are correct that a criminal statute must define an offense with sufficient
employing the word willfully if it believes that the defendant acted with an evil-meaning clarity to enable ordinary people to understand what conduct is prohibited. See, e.g.,
mind, that is to say, that he acted with knowledge that his conduct was unlawful. Id. at ----, Hofstatter, 8 F.3d at 321. Both the particular facts of this case and the nature of the Anti-
118 S.Ct. at 1946. Further, the Supreme Court distinguished tax or financial cases, such as Kickback statute, however, undercut Starks and Siegel's vagueness argument. First, even if
Ratzlaf, that involved highly technical statutes that presented the danger of ensnaring Starks and Siegel believed that they were bona fide employees, they were not providing
individuals engaged in apparently innocent conduct. Id.5 Because the jury found that covered items or services. As the government has shown, Starks received payment from
[the defendant] knew that his conduct was unlawful, the Bryan Court wrote, [t]he danger Siegel and Future Steps only for referrals and not for any legitimate service for which the
of convicting individuals engaged in apparently innocent activity that motivated our decisions Hospital received any Medicare reimbursement. At the same time, persons in either
in the tax cases and Ratzlaf is not present here. Id. (footnote omitted). Thus, the Court Siegel's or Starks's position could hardly have thought that either Starks or Henry was a bona
held that the willfulness requirement of 924(a)(1)(D) does not carve out an exemption to fide employee; unlike all of Future Steps's other workers, Starks and Henry did not receive
the traditional rule that ignorance of the law is no excuse; knowledge that conduct is regular salary checks at the Hospital. Instead, they clandestinely received their checks
unlawful is all that is required. Id.6 (often bearing false category codes) or cash in parking lots and other places outside the
Project Support clinic so as to avoid detection by other Project Support workers.
Analogously, the Anti-Kickback statute does not constitute a special exception. Section
1320a-7b is not a highly technical tax or financial regulation that poses a danger of ensnaring Furthermore, beyond these particular facts, we see no reason to view the Anti-Kickback
persons engaged in apparently innocent conduct. Indeed, the giving or taking of kickbacks statute as vague. In Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498-499, 102
for medical referrals is hardly the sort of activity a person might expect to be legal; S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982), the Supreme Court set out several factors for a court
compared to the licensing provisions that the Bryan Court considered, such kickbacks are to consider in determining whether a statute is impermissibly vague, including whether the
more clearly malum in se, rather than malum prohibitum. Compare Bryan, 524 U.S. at ----, statute (1) involves only economic regulation, (2) provides only civil, rather than criminal,
118 S.Ct. at 1946.7 Thus, we see no error in the district court's refusal to give Starks and penalties, (3) contains a scienter requirement mitigating vagueness, and (4) threatens any
Siegel's requested instruction.8 Accord United States v. Davis, 132 F.3d 1092, 1094 (5th constitutionally protected rights. As two of our sister circuits have already concluded, these
Cir.1998); United States v. Jain, 93 F.3d 436, 440 (8th Cir.1996), cert. denied, 520 U.S. 1273, factors militate against finding the Anti-Kickback statute unconstitutional. See Hanlester, 51
117 S.Ct. 2452, 138 L.Ed.2d 210 (1997); United States v. Bay State Ambulance and Hosp. F.3d at 1398; Bay State, 874 F.2d at 32-33. Indeed, the statute regulates only economic
Rental Serv., Inc., 874 F.2d 20, 33 (1st Cir.1989). But cf. Hanlester Network v. Shalala, 51 conduct,10 and it does not chill any constitutional rights. Moreover, although the statute
F.3d 1390, 1400 (9th Cir.1995). does provide for criminal penalties, it requires knowing and willful conduct, a mens rea
standard that mitigates any otherwise inherent vagueness in the Anti-Kickback statutes's
B. VAGUENESS provisions. Hanlester, 51 F.3d at 1398; Bay State, 874 F.2d at 33. In sum, we agree with
the district court that the Anti-Kickback statute gave Starks and Siegel fair warning that their
Starks and Siegel also argue that the Anti-Kickback statute is unconstitutionally vague conduct was illegal and that the statute therefore is not unconstitutionally vague.
because people of ordinary intelligence in either of their positions could not have ascertained
from a reading of its Safe Harbor provision that their conduct was illegal. 9 Under the Safe II. THE GOVERNMENT'S CROSS-APPEAL
Harbor provision, the Anti-Kickback statute's prohibition on referral payments

30
In its cross-appeal, the government contends that the district court incorrectly granted Siegel B. THE FRAUD AND DECEIT GUIDELINE
a U.S.S.G. 3E1.1 reduction for acceptance of responsibility. In addition, the government
maintains that the district court erred by sentencing Siegel under the fraud and deceit Additionally, the government argues that the court erred by sentencing Siegel under the
guideline, U.S.S.G. 2F1.1, rather than the bribery of a public official guideline, U.S.S.G. 2F1.1 Fraud and Deceit guideline rather than the 2C1.1 Bribe of a public official
2C1.1. guideline. Appendix A of the Sentencing Guidelines references three guideline sections
which are applicable to violations of 1320a-7b: U.S.S.G. 2B1.1 (larceny), U.S.S.G.
A. ACCEPTANCE OF RESPONSIBILITY 2B4.1 (commercial bribery), and 2F1.1 (fraud). U.S.S.G. app. A, at 384. If more than
one guideline section is referenced for the particular statute, Appendix A instructs the
On appeal, the government argues that Siegel should not have received a three-level sentencing court to use the guideline most appropriate for the nature of the conduct charged.
reduction for acceptance of responsibility because he denied having had any guilty intent. See U.S.S.G. app. A, at 373 (introduction). Further, the Appendix provides that if, in an
In response, Siegel contends that he was entitled to the reduction because he admitted all atypical case, the guideline section indicated for the statute of conviction is inappropriate
the relevant facts and cooperated with the government's investigation, while preserving his because of the particular conduct involved, [courts should] use the guideline section most
legitimate legal position regarding the applicability of the statute to his conduct. We review applicable to the nature of the offense conduct charged in the count of which the defendant
the district court's determination that Siegel accepted responsibility for clear error. United was convicted. Id. We review the district court's determination of the applicable guideline
States v. Anderson, 23 F.3d 368, 369 (11th Cir.1994) (per curiam). de novo. United States v. Acanda, 19 F.3d 616, 618 (11th Cir.1994).12

To receive a reduction under 3E1.1, a defendant must prove that he clearly accepted Regarding the three guidelines listed as potentially applicable in Appendix A, the government
responsibility for his offense. See id. The reduction does not apply to a defendant who and Siegel properly agree that Siegel should not be sentenced under 2B1.1 or 2B4.1.
puts the government to its burden of proof at trial by denying the essential factual elements Since 2B1.1 applies to crimes involving stolen property, it clearly has no relevance.
of guilt, is convicted, and only then admits guilt and expresses remorse. U.S.S.G. 3E1.1, Moreover, since 2B4.1 applies only to bribery offenses and kickbacks that do not involve
comment. (n.2). Nonetheless, a defendant may, [i]n rare situations, be entitled to this officials of federal, state, or local government, 2B4.1 comment. (n.1), this guideline
reduction if he goes to trial to assert and preserve issues unrelated to factual guilt, such as provision, too, cannot be appropriate for Siegel, who illegally induced referrals from a state
the applicability of a statute to his conduct. Id. Still, a defendant who contends that he did employee working in a federal Medicare project.13
not possess fraudulent intent is making a factual, not a legal, challenge to the government's
criminal allegations that precludes a sentence reduction for acceptance of responsibility. Siegel, however, asserts that the third listed guideline, 2F1.1, is relevant and applicable.
See United States v. Smith, 127 F.3d 987, 989 (11th Cir.1997) (en banc) cert. denied, 523 U.S. To support this position, which was also that of the district court, Siegel relies on United
1011, 118 S.Ct. 1202, 140 L.Ed.2d 330 (1998); see also Sanchez-Corcino, 85 F.3d at 555-56. States v. Adam, 70 F.3d 776, 781 (4th Cir.1995). In that case, the Fourth Circuit affirmed a
district court's sentence, under 2F1.1, of a physician who had violated the Anti-Kickback
By its terms, 42 U.S.C. 1320a-7b(b)(2) makes it illegal for any person knowingly to offer statute. Although Adam involved application of 2F1.1 to the Anti-Kickback statute, we
any payment to induce a referral for services covered by the federal government. Citing find the case to be of little help to our consideration of Siegel's sentence, because the Adam
this provision, Siegel argues that by conceding at trial that he made payments to Starks and court addressed only the district court's calculation of the government's loss, without
Henry, he admitted all the conduct prohibited by the statute. As the government correctly discussing whether 2F1.1 or some other provision was the most appropriate guideline.
points out, however, Siegel has denied having had any intent to induce referrals, an essential See id. at 781-82.
element of the charges on which he was convicted. Because Siegel put the government to
its burden of proof by contesting his intent to violate 42 U.S.C. 1320a-7b(b), Siegel's Further, we see little reason to view 2F1.1 as any more applicable to Siegel's conduct than
arguments at trial amounted to a factual denial of guilt and were therefore inconsistent with 2B1.1 or 2B4.1. As a central part of any application of 2F1.1, a district court must
acceptance of responsibility.11 Given the factual positions that Siegel has taken-and calculate the loss suffered by the defrauded or deceived victim. See generally 2F1.1.
continues to take-we conclude that he should not have been eligible for a reduction for Yet, in this case Siegel did not steal from anyone, including the government; Siegel did not
acceptance of responsibility and that the district court therefore clearly erred in awarding file false Medicare claims but rather engaged in a kickback scheme that corrupted Project
him a three-level reduction under 3E1.1. Support's referral process. While a district court should sentence persons committing Anti-

31
Kickback crimes involving fraud or false statements under 2F1.1, this provision is not FOOTNOTES
appropriate for this case.
1. Because this case arises from a jury verdict against Starks and Siegel, we view the facts
In fact, Siegel's crime presents the atypical case in which the listed guideline for the Anti- in the light most favorable to the prosecution. See United States v. Sanchez, 722 F.2d 1501,
Kickback statute is inapposite and a court should resort to a more applicable section, in this 1505 (11th Cir.1984).
instance 2C1.1. First, we note that the term induce in 42 U.S.C. 1320a-7b(b)(2) can be
reasonably understood in this case to connote bribery. Indeed, the term induce is defined 2. Although Henry was convicted along with Starks and Siegel for violating the
as [t]o bring on or about, to affect, cause, to influence to an act or course of conduct , AntiKickback statute, she died during the course of this appeal. We have therefore vacated
Black's Law Dictionary at 775; in the context of this case, induce and bribe are thus her sentence and instructed that she be dismissed from the case.
virtually synonymous, since Siegel induced Starks and Henry to refer patients to Future Steps
3. Although Starks and Henry had suggested limiting their referrals to patients living
through illicit payments. Compare id. at 191 (Any money, preferment or undertaking to
outside the area surrounding Project Support and/or restricting their recruiting for Future
give any [money or preferment] with a corrupt intent to induce action, vote, or opinion
Steps to their non-HRS hours, Siegel imposed no bounds on the nature of their referral
) (emphasis added). See also United States v. Kummer, 89 F.3d 1536, 1540 (11th
efforts.
Cir.1996) (discussing meaning of bribe). Second, the Anti-Kickback statute explicitly refers
to kickbacks, bribes, and rebates as prohibited forms of remuneration for referrals,
4. In Hooshmand, we explained further that [a] trial court's refusal to give a requested
bringing Siegel's crime within the purview of the terms of 2C1.1. See 42 U.S.C. 1320a-
instruction is reversible error only if (1) the substance of the instruction was not covered in
7b(b)(2)(A). Thus, the indictment and jury instructions in this case referred to payment of
an instruction given, (2) the requested instruction is a correct statement of the law, (3) the
remuneration (including kickbacks, bribes, or rebates). R1-2 at 3 (indictment); see also
requested instruction deals with an issue properly before the jury, and (4) the party seeking
R26 at 24 (instruction defining remuneration). Finally, by paying Starks and Henry for
the requested instruction suffered prejudicial harm by the court's refusal. 931 F.2d at 734.
referrals, Siegel sought to corrupt their execution of their duties as state employees and
workers in a federal program-just the sort of corrosive activity that the Sentencing 5. In Ratzlaf, the Court reviewed a gambler's conviction for illegally structuring his banking
Commission designed 2C1.1 to punish. Cf. 2C1.1 comment. (background).14 Therefore, transactions so as to avoid technical reporting requirements. See 510 U.S. at 137-38, 114
we hold that the district court erred in applying 2F1.1 rather than 2C1.1 in sentencing S.Ct. at 657.
Siegel.
6. The Bryan Court thus upheld a jury instruction strikingly similar to the district court's
CONCLUSION willfully charge in this case:A person acts willfully if he acts intentionally and purposely and
with the intent to do something the law forbids, that is, with the bad purpose to disobey or
In this case, Starks and Siegel ask that we reverse their convictions for violating and
to disregard the law. Now, the person need not be aware of the specific law or rule that his
conspiring to violate the Anti-Kickback statute, while the government requests that we
conduct may be violating. But he must act with the intent to do something that the law
reverse the district court's application of two guideline provisions to Siegel's sentence. With
forbids.524 U.S. at ----, 118 S.Ct. at 1944. Compare R26 at 18 and 11th Cir. Pattern Jury Instr.
regard to Starks and Siegel's appeal, we hold that the district court did not err when it
9.1.
refused to give their requested instruction, and that the Anti-Kickback statute is not
unconstitutionally vague as applied to Starks and Siegel. Therefore, we AFFIRM these parts 7. Regardless of their knowledge of the law, Starks and Siegel should reasonably have
of the district court's judgment. With regard to the government's cross-appeal, we hold anticipated that their kickback scheme for referrals was immoral in its nature and injurious
that the district court clearly erred in granting Siegel a reduction for acceptance of in its consequences, because of the obvious risk it posed of corrupting Project Support and
responsibility, and we conclude that the district court should have sentenced Siegel under HRS's roles as providers of medical advice to drug addicted pregnant women. Cf. Black's
2C1.1 rather than 2F1.1. Therefore, we REVERSE these parts of the district court's Law Dictionary 959 (6th ed.1990) (defining malum in se).
judgment and REMAND for further proceedings consistent with this opinion.
8. Starks and Siegel also claim that the evidence was not sufficient to prove that they
AFFIRMED IN PART, REVERSED IN PART, and REMANDED. acted willfully. Given that the government only had to show that they knew that they
were acting unlawfully, however, this claim is unpersuasive. The government produced

32
ample evidence, including the furtive methods by which Siegel remunerated Starks and 14. At Siegel's sentencing hearing, the district court refused to sentence him under
Henry, from which the jury could reasonably have inferred that Starks and Siegel knew that 2C1.1 because it didn't charge the jury on bribery of public employees. R29 at 30. The
they were breaking the law-even if they may not have known that they were specifically district court's reasoning, however, conflated two separate issues: first, whether Siegel was
violating the Anti-Kickback statute. involved in bribery; and second, if so, whether he had been involved with bribery of a public
official. If Starks and Henry were bribed but were not public officials, then 2B4.1
9. Starks and Siegel offer a variety of arguments to the effect that persons working in the (commercial bribery) would have applied. See Jain, 93 F.3d at 442-43 (affirming application
medical field cannot anticipate what is prohibited under the Anti-Kickback statute and what of 2B4.1 to a physician who violated 1320a-7b by paying another, private physician for a
is protected by that statute's Safe Harbor provision. They do not, and cannot, challenge, referral). Since, as Siegel has conceded to this court, Starks and Henry were government
however, the government's contention that, since this is not a First Amendment case, we officials, then, if Siegel bribed them, 2C1.1 (bribery of a public official) should apply. It
must evaluate their claim of vagueness only on an as-applied basis. See Maynard v. would be incongruous for this court to hold that a defendant who paid a private person for
Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988). Thus, we an illegal 1320a-7b referral should be sentenced for bribery, but that another defendant
consider Starks and Siegel's claim in light of the facts of this individual case, looking only to who participated in the same conduct with a government official should be sentenced for
the constitutionality of the Anti-Kickback statute as the government has applied it to Starks fraud rather than bribery of a public official.
and Siegel. See United States v. Hofstatter, 8 F.3d 316, 321 (11th Cir.1993); United States v.
Awan, 966 F.2d 1415, 1424 (11th Cir.1992). BIRCH, Circuit Judge:

10. In Hoffman Estates, the Court explained that economic regulation is subject to a less
strict vagueness test because its subject is often more narrow, and because businesses,
which face economic demands to plan behavior carefully, can be expected to consult
relevant legislation in advance of action. 455 U.S. at 498, 102 S.Ct. at 1193 (footnote
omitted).

11. Moreover, Siegel contested other aspects of the offense, further supporting the
government's claim that he did not accept responsibility: that he signed a contract that
specifically forbade him to pay for referrals or to take any action in violation of 1320a-
7b; that he agreed to the specifics of Starks and Henry's payment arrangements; that he
reimbursed Michael Ix for cash payments made to Starks and Henry for referrals; and that he
instructed his secretary to prepare referral checks for Starks and Henry.

12. At sentencing, the government did not explicitly object to the district court's
application of 2F1.1 once the court found that this provision governed Siegel's sentence.
The government did, however, vigorously contend that Siegel's conduct constituted bribery.
Because the government objected to this factual determination, and the decision about
which guideline to apply necessarily followed from the district court's ruling, the issue has
been preserved for appeal.

13. By contending that 2B4.1 does not apply because Siegel's kickback scheme involved
a public official, Siegel appears to concede that we should treat Starks and Henry as
government officials in reviewing his sentence.

33
[G.R. No. 128839. July 20, 1999] That on or about the 1st day of January 1995, in the Municipality of Kawit, Province of Cavite,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GODOFREDO TEVES y LEMEN, accused- means of force, violence and intimidation, with lewd designs and taking advantage of his
appellant. superior strength over the person of his own daughter who is only thirteen years old, did,
then and there, wilfully, unlawfully and feloniously, have carnal knowledge of Cherry Rose Q.
DECISION
Teves, against her will and consent, thereby causing her damage and prejudice.
DAVIDE, JR., C.J.:
CONTRARY TO LAW.
This case is before us on automatic review[1] of the decision[2] of 14 March 1997 of the
The accusatory portions of the informations in Criminal Case No. 3874-95 and Criminal Case
Regional Trial Court of Imus, Cavite, Branch 20, in four (4) criminal cases, finding accused-
No. 3875-95 are similarly worded as that in Criminal Case No. 3872-95, except as to the dates
appellant Godofredo Teves y Lemen (hereafter GODOFREDO) guilty of the crime of multiple
of the commission of the crimes, which were specified as 3 January 1995 and 8 January 1995,
rape and sentencing him to suffer the penalty of death and to pay the victim the amount
respectively.
of P50,000.00 as compensatory damages.
The four cases were consolidated and jointly tried. At his arraignment on 9 October 1995,
On the basis of a sworn statement[3] executed by Cherry Rose Teves (hereafter CHERRY),
GODOFREDO entered a plea of not guilty in each case.[10]
daughter of GODOFREDO, a criminal complaint[4] for multiple rape committed since the year
1993 up to the 1st, 8th and 3rd day of January 1995, was filed against GODOFREDO before At trial on the merits, the prosecution presented the offended party, CHERRY, but dispensed
the Municipal Trial Court (MTC) of Kawit, Cavite. Although not clear from the record, with the testimonies of the social worker, Leonida Ramos, and of the Medico-Legal Officer,
GODOFREDO was somehow arrested and detained. Dr. Owen Lebaquin, as the parties stipulated on the substance of their testimonies.

Despite due notice, GODOFREDO did not file his counter-affidavit with the MTC. After due On his part, GODOFREDO relied solely on his testimony, raising the defenses of denial and
proceedings, the MTC found a prima facie case against GODOFREDO and thus forwarded the alibi. He further imputed ill motive on the part of CHERRY in having filed the case.
record of the case to the Office of the Provincial Prosecutor of Cavite.[5]
The trial court gave full faith and credence to the testimony of CHERRY, having been given
On 4 July 1995, the Office of the Provincial Prosecutor of Cavite filed four (4) separate spontaneously and in a straightforward manner and which stood unrebutted. On the other
informations for rape against GODOFREDO with the Regional Trial Court of Cavite, Branch 20, hand, the trial court considered GODOFREDOs claim of ill motive hollow and totally unworthy
in Imus. The informations were docketed as Criminal Cases Nos. 3872-95,[6] 3873-95,[7] 3874- of belief.
95[8] and 3875-95,[9] respectively.
The trial court faithfully summarized the evidence for the prosecution and the defense, as
The accusatory portion of the information in Criminal Case No. 3872-95, denominated as one follows:
for multiple rape, reads as follows:
Taking the witness stand, the victim Cherry Rose Teves narrated how she was raped by her
That sometimes [sic] in the year 1993, in the Municipality of Kawit, Province of Cavite, father on several occasions. She claimed that sometime in 1994 when she was only thirteen
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, (13) years old and while washing dishes, her father touched her breast. A day before New
taking advantage of his superior strength over the person of his thirteen (13) year old Year of 1995, her father told her not to leave their house; that in a little while, her father laid
daughter, by means of force, violence and intimidation and with lewd designs, did then and her down, removed her panty and shorts, touched her breast and inserted his sex thing into
there, wilfully, unlawfully and feloniously, have repeated carnal knowledge of Cherry Rose Q. her organ; that after a week, while she was taking a bath, her father asked her to hand him
Teves, against her will and consent, to her damage and prejudice. the dipper; that when she obeyed, he suddenly entered the bathroom and again sexually
abused her; that she even noticed blood coming out of her organ. Continuing, she elucidated
CONTRARY TO LAW.
that on January 1, 1995, she was instructed by her father to clean the house and to take care
of her younger brothers and sisters after sending her twelve (12) year old brother [on] an
The accusatory portion of the information in Criminal Case No. 3873-95 reads as follows:
34
errand to buy cigarettes; after her brother left, she was molested by her father. The assault WHEREFORE, premises considered, judgment is hereby rendered finding accused Guilty of
on her virtue was always followed by a threat for her not to report the incident to her Multiple Rape. He is thus sentenced to death for the rape of his 13 year old daughter and to
mother or else she [would] be killed; that during all those times that she was abused by her indemnify her of the sum of P50,000.00 as compensatory damages.
father, her mother who [was] a laundry woman, was out of the house.
SO ORDERED.
When cross-examined, she declared that her father was then working as a carpenter and
usually arrived home at around 5:00 oclock in the afternoon or late in the evening. She, being In his Appellants Brief, GODOFREDOs lone error is that the trial court erred in finding him
the eldest among the six children in the family, was the one taking care of her little brothers guilty beyond reasonable doubt of the crime of rape.
and sisters because she already stopped schooling. Nobody knew of the abused [sic] heaped
GODOFREDO asserts that since his conviction rests on the uncorroborated testimony of the
upon her by her father until she confided it to her friends who [resided] at Kaingin, Kawit,
complainant, there must be a careful and painstaking scrutiny of the latter; it should not be
Cavite.
easily accepted and believed with precipitate credulity.[12] GODOFREDO contends that
After presenting the victim, the parties entered into stipulations to wit: CHERRYs testimony contained "uncertain and conflicting answers" and that the following
circumstances warrant a reversal of the challenged judgment: (1) CHERRYs testimony was
1. That Social Worker Leonida Ramos was the one who assisted and brought the complainant tainted with uncertainties and implausibilities as evidenced by inconsistencies and her failure
to the PC Crime Laboratory for examination resulting in the issuance of a medico-legal to recall the number of times and the dates she was allegedly raped by her father, as well as
report; of the details thereof; (2) CHERRYs testimony did not prove existence of force and
intimidation; (3) the evidence for the prosecution was purely speculative and conjectural;
2. That said Social Worker knew the complainant because the latter came to see her and so, and (4) the unreasonable delay of two years in the filing of the complaint.
she brought her to the Kawit Police Station where her statement was taken.
In the Brief for the Appellee, the People maintain that the alleged inconsistencies in CHERRYs
In view of the above stipulations, the testimony of Social Worker Leonida Ramos was testimony are not sufficient to cast serious doubt upon her credibility since victims of rape
dispensed with. cannot be expected to remember every grisly detail of the fact of the commission of the
offense and thereafter "keep an accurate account of her traumatic experience."[13] At any
Likewise, the testimony of Dr. Owen Lebaquin, Medico-Legal Officer of the PNP Crime
rate, the inconsistencies were only on minor matters which, instead of weakening CHERRYs
Laboratory Service, was dispensed with after the defense admitted the findings of the said
credibility, all the more strengthened it as they eradicated the suspicion of rehearsed
physician as contained in Medico-Legal Report No. M-0092-95 (Exh. B). As stated in the
testimony.[14] Moreover, the assessment of credibility of witnesses is best left to the trial
Report of the Medico-Legal Officer which was completed on January 31, 1995, the subject is
court whose judgment thereon is entitled to the highest respect by appellate courts, it having
in non-virgin state physically without external signs of application of violence.
had the unique opportunity to observe the demeanor of the witnesses. This, the People
observe, is especially true in the instant case where CHERRY, a young and unschooled barrio
Accused claimed that he knew of no reason why he was charged [with] rape, except that he
lass, had no evil motive to charge her father with a grievous offense.
did not approve of [his] daughter coming home late from her friend at the DSWD. And
because of this, he maltreated her. He added that he only comes home on weekends, being a
Anent the issue of force and intimidation, the People assert that it was of no moment that
construction worker at the Arcontica on a pakyawan basis; that there were occasions that he
the prosecution failed to show its presence in the commission of the offense, since in a rape
and his daughter were the only ones left at their house.[11]
case committed by a father against his daughter, the moral ascendancy and influence of the
latter over the former substitutes for the force and intimidation.[15]
Applying Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act
(R.A.) No. 7659, which imposes the death penalty in rape cases committed by a parent when
As to the delay in reporting the rape incident, the People contend it is settled that such delay
the victim is under 18 years of age, the trial court then decreed:
neither diminishes complainants credibility nor undermines the charges of rape where the
delay can be attributed to death threats of the assailant upon the complainant.[16] Be that as
it may, GODOFREDOs contention that the charges of rape were made known only two years

35
thereafter was baseless, for as a matter of fact, it did not take two years before CHERRY Q That would be sometime in 1994?
finally broke her silence: the first rape incident happened sometime in 1994 before New
Years day of 1995, and that on 25 January 1995, a complaint charging GODOFREDO with rape A Yes, mam [sic].
was filed before the Municipal Trial Court of Kawit, Cavite.
Q Can you tell the court what happened on the first occasion when you were raped by your
In reviewing rape cases we are guided by the following well-entrenched principles: (1) an father?
accusation for rape can be made with facility: it is difficult to prove but more difficult for the
A Yes, mam [sic].
person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the
crime of rape where only two persons are usually involved, the testimony of the complainant
Q What were you doing on that day when you were first raped by your father?
must be scrutinized with extreme caution; and (3) the evidence for the prosecution must
stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of A I was washing dishes.
the evidence for the defense.[17]
Q Do you remember what time was it [sic]? Was it morning, afternoon or evening?
Basic in every prosecution for rape is the determination of the credibility of the offended
partys testimony, for the lone testimony of the victim, if credible, is sufficient to sustain the A I cannot recall. It happened quite some time.
verdict of conviction.[18] On this note, when the issue is one of credibility of witnesses,
appellate courts will generally not disturb the findings of the trial court, considering that the Q While you were washing dishes, what did your father do?
latter is in a better position to decide the question as it heard the witnesses themselves and
A He touched my breast.
observed their deportment and manner of testifying during trial.[19] The exceptions to the
rule are when such evaluation was reached arbitrarily, or when the trial court overlooked, Q After that what else did you do?
misunderstood or misapplied some facts or circumstance of weight and substance which
could affect the result of the case.[20] We sustain the trial courts ruling as to the credibility of A Nothing happened anymore. On that day before New Year, my father told me not to go out
CHERRY and find that GODOFREDO miserably failed to demonstrate the existence of any of of the house.
the exceptions aforementioned. Our review of CHERRYs testimony has us fully convinced of
her sincerity, candor and truthfulness as to the fact of rape, to the extent that the only issue Q After your father told you not to go out of the house, what happened?
to be resolved is the number of times she was raped.
A My father told me to lie on the floor. He laid me down.
The following excerpt of CHERRYs testimony established with moral certainty GODOFREDOs
guilt: Q After he laid you down, what did he do?

Q Do you remember when your father raped you? A He inserted his organ into my organ.

A I cannot remember. Q Were you wearing a dress at that time?

Q How many times were you raped by your father? A Yes, mam [sic].

A Many times. Q What were you wearing?

Q Miss Witness, how old were you when you were first raped by your father? A T-shirt and short pants.

A 13 years old. Q Before your father inserted his organ inside your organ, what if any, did he do with your
short?

36
A He removed my shorts. A Inside our bathroom.

Q How about your pantie? Q Where is that bathroom located?

A He also removed my pantie. A Kaingin, Kawit, Cavite.

Q After he removed your shorts and pantie what else did he do? Q The first instance when you said your father raped you in what place where you then?

A He inserted his organ into my organ. He touched my breast. My mother was out of the A At Kaingin, Kawit, Cavite.
house.
Q You said that in the second instance your father asked you to hand him the tabo [dipper],
Q You said that your father inserted his organ into your organ, what did you feel? what did you do when your father asked you to hand the dipper?

A I felt pain. A I handed it to him.

Q What did you do? Q What did you do after that?

A I just bore the pain. Tiniis ko na lang ang sakit. A He suddenly entered in [sic] the bathroom.

Q After that, what else did your father do? Q After entering the bathroom, what did he do?

A None. A He inserted his organ into my organ. I noticed blood came out of my organ.

Q Did he leave the house? Q You said that you were raped several times by your father, when was the last time your
father raped you?
A He felt [sic] asleep. He was drunk then.
A January 23.
Q You said awhile ago that you were raped several times by your father, after that first night
when did your father rape you again, can you remember? Q What year?

A I cannot recall. A January 23, 1995.

Q Could it be one week after? Q Where were you on Jan. 23, 1995?

A After a week. A I was cleaning our house.

Q Can you tell the court how your father raped you on the second instance? Q While you were cleaning your house, what happened?

A I was taking a bath. A My mother came and then [the] raped [sic] [did] not pushed [sic] through.

Q When you were taking a bath, what happened? Q Madam Witness, in connection with this case, do you remember having executed an
affidavit?
A My father asked me to give him the tabo.
A Yes, mam [sic].
Q Where were you taking a bath at that time?
37
Q If you were shown that document will you be able to identify it? A I was again raped by my father and it happened many times.

A Yes, mam [sic]. Q During all those times when you were being raped by our father, where was your mother?

Q I am showing to you this document below is a signature above the typewritten name A She was not around.
Cherry Rose Teves, will you please tell us if that is the statement which you said you
executed? Q Where was she?

A Yes, mam [sic]. A She went somewhere else. Only my small brothers and sisters were around.

Q Whose signature is this above the typewritten name cherry Rose Teves? Q What was the occupation of your mother?

A Mine, mam [sic]. A Laundrywoman.

PROS. DE CASTRO Q During those times when you were raped by your father, do you remember where your
mother was?
For purposes of identification, we request that this document be marked as Exh. A and the
signature of the witness as Exh. A-1. A She was washing clothes.

Q In this statement particularly par. 5 the question was Kailan ka ni rape ng iyong Q Where?
tatay? Ans: Sa Kawit, Cavite.
A In the apartment a little bit near our house.
Q Can you tell the Court what happened on Jan. 1, 1995?
Q Why did you not tell you mother about what your father did to you the first time that you
A I went out of the house and then I went home. were raped?

Q What happened after you went home on that day? A I was afraid.

A My father called me. Q Why were you afraid?

Q What did you do after he called you? A I did not tell my mother because father told me not to tell her.

A He asked my brother to buy cigarette[s]. Q What else did your father tell you?

Q After that, what happened? A Not to tell the matter to my mother because if I will tell my mother he will kill me.

A He asked me to clean our house and to take care my small brothers and sister. Q Before you were raped by your father for the first time, did you love your father?

Q What did you do? A Yes, mam [sic].

A I cleaned our house. Q How about now how do you fell [sic] towards your father?

Q After that what happened? A I am mad at him.[21]

38
Respecting the charge that CHERRYs testimony consisted mainly of uncertain, conflicting, the trouble and inconvenience of a public trial and endure the embarrassments and
vague and inconsistent answers to specific questions propounded upon her during the direct humiliation which a public revelation of what ought to be kept secret, she had nothing in
and cross-examination, suffice it to state that her failure to remember and elaborate on mind except to obtain justice.[28]
every detail of her unfortunate experience was inconsequential. What must be borne in mind
was that she was merely fourteen (14) years old when she testified; moreover, GODOFREDO From the aforequoted testimony of CHERRY, it is clear to us that the rapes that were duly
did not object to her testimony as to the time of the commission of the crime. [22] It is settled proved were those committed on: (a) New Years day of 1995; (b) a week after said New
that the precise time of the commission of rape is not an essential element of the Years day; and (c) on 23 January 1995. That committed on New Years day of 1995 is the
crime.[23] Likewise, GODOFREDOs harping on CHERRYs failure to recall the exact number of subject of Criminal Case No. 3837-95, while that committed a week after New Years day of
times she was raped is not persuasive. We cannot reasonably expect her to recount in detail 1995 is covered by the Information in Criminal Case No. 3875-95. There is no factual basis for
her humiliating experience since the accused is of her own flesh and blood. The natural the rapes charged in the information in Criminal Case No. 3872-95, allegedly committed
vacillation of a daughter to publicly denounce her father and to testify in an unfamiliar and sometime in the year 1993, and in the information in Criminal Case No. 3874-95, on 3
unfriendly environment on such a delicate matter very well explain the minor lapses in her January 1995. GODOFREDO has not been charged for the rape committed on 23 January
testimony. More than anything else, the alleged inconsistencies and discrepancies in 1995.
CHERRYs testimony referred only to minor and trivial matters and were, undoubtedly,
Concretely then, GODOFREDO might only be convicted of the crimes of rape charged in the
insufficient to dilute the truthfulness and destroy the probative value of her testimony. We
informations in Criminal Case No. 3873-95 and in Criminal Case No. 3875-95. It was then
find no iota of evidence showing that CHERRYs account was a result of deliberate
error for the trial court to find him guilty of rape in the four (4) cases and, worse, impose
falsehood. Settled is the rule that discrepancies and inconsistencies on minor matters do not
upon him one penalty of death for multiple rape. In view of its findings, the court a
impair the essential integrity of the prosecutions evidence as a whole nor reflect on the
quo should have imposed the death penalty in each of the four (4) cases.
witness honesty. Such inconsistencies, which may be caused by the natural fickleness of the
memory, even tend to strengthen rather than weaken the credibility of the witness because
At this point, however, we are compelled to inquire into the propriety of the imposition of
they erase any suspicion of rehearsed testimony.[24]
capital punishment. To repeat, the trial court so imposed the death penalty, reasoning that
under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, the same was
Neither can GODOFREDO be allowed to make much of the fact that the prosecution was
warranted in rape cases committed by a parent when the victim was under 18 years of age.
unable to establish forcible carnal knowledge of CHERRY. In a rape committed by a father
against his daughter, the moral dominance and parental influence that essentially flows from
Initially, we note that the trial court found that R.A. No. 7659 took effect in January 1994.
the reverence and respect a child has toward their parents which are ingrained and observed
However, in People v. Simon,[29] as reiterated in a multitude of cases since, we categorically
in the minds of the Filipino children, substitute for force and intimidation, which produce
held that said statute took effect on 31 December 1993.
reasonable fear in the child.[25]
Pursuant to Section 11 of the amendatory statute, the death penalty may be imposed in rape
The delay in instituting the present criminal prosecution likewise does not engender doubt as
cases under the last paragraph of Article 335 of the Revised Penal Code, when the rape is
to GODOFREDOs guilt, in light of the established fact that CHERRY kept silent about the
committed with any of the following attendant circumstances:
incident because of GODOFREDOs death threat. CHERRY, a young barrio lass and with a
simple and unsophisticated mind, cannot be expected to have the fortitude and courage of The death penalty shall also be imposed if the crime of rape is committed with any of the
an adult, mature and experienced woman who may disregard the threat and, with following attendant circumstances:
promptitude, condemn in the open the shameful scandal wrought upon her by her very own
father. It is not uncommon that young girls usually conceal for some time the assault upon 1. When the victim is under eighteen (18) years of age and the offender is a parent,
their virtue because of the threats on their lives.[26] ascendant, step-parent, guardian, relative by consaguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim.
Finally, there is absolutely no showing that CHERRY was actuated by a sinister motive to
falsely charge and implicate her own father in a serious crime. [27] Briefly, if she did admit the 2. When the victim is under the custody of the police or military authorities.
ignominy she had undergone, allowed her private parts to be examined, exposed herself to
39
3. When the rape is committed in full view of the husband, parent, any of the children or Section 9. Cause of accusation. -- The acts or omissions complained of as constituting the
other relatives within the third degree of consaguinity. offense must be stated in ordinary and concise language without repetition, not necessarily
in the terms of the statute defining the offense, but in such form as is sufficient to enable a
4. When the victim is a religious or a child below seven (7) years old. person of common understanding to know what offense is intended to be charged and
enable the court to pronounce a judgment.
5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease. Pertinent to this case is the phrase of the current set of adjective rules: a person of common
understanding, which had its origins in this jurisdiction in the phrase: a person of ordinary
6. When committed by any member of the Armed Forces of the Philippines or the Philippine
intelligence.[33]
National Police or any law enforcement agency.
In this light, we hold that the informations in Criminal Cases Nos. 3873-95 and 3875-95 do
7. When by reason or on the occasion of the rape, the victim has suffered permanent
not sufficiently allege the twin special qualifying circumstances of the victims age and the
physical mutilation. (As amended by Sec. 11, Ra 7659.)
relationship between the culprit and the victim. The informations in these two cases provide,
respectively:
These seven attendant circumstances, given that they alter the nature of the crime of rape
and thus increase the degree of the penalty, are in the nature of qualifying
[A]nd taking advantage of his superior strength over the person of his own daughter who is
circumstances. Plainly, these attendant circumstances added by R.A. No. 7659 are not mere
only thirteen years old...
aggravating circumstances, which merely increase the period of the penalty. So we held
in People v. Ramos,[30] to the effect that a qualifying circumstance must be specifically [T]aking advantage of his superior strength over the person of his thirteen (13) year old
pleaded in the information, thus: daughter...

While Republic Act No. 7659 did not give a legal designation to the crime of rape attended by What strikes us about the informations is that, as phrased, they unduly lay stress on the
any of the seven new circumstances introduced in Article 335 on December 31, 1993, this generic aggravating circumstance of taking advantage of superior strength.[34] Be it in terms
Court has referred to such crime as qualified rape in a number of its decisions. However, with of syntax or composition, the wording of the informations is unable to sufficiently notify the
or without a name for this kind of rape, the concurrence of the minority of the victim and her accused, a person of common understanding or ordinary intelligence, of the gravity or nature
relationship with the offender give a different character to the rape defined in the first part of the crime he had been charged with, especially considering that the generic aggravating
of Article 335. They raise the imposable penalty upon a person accused of rape circumstance of taking advantage of superior strength is not even an element of the
from reclusion perpetua to the higher and supreme penalty of death. Such an effect attendant circumstances treated under number 1 of the last paragraph of Article 335. The
conjointly puts relationship and minority of the offended party into the nature of a special aforequoted clauses in the informations can thus not be read nor understood as constituting
qualifying circumstance. a specific allegation of the special circumstances of relationship of father and daughter and
that the daughter was less than 18 years of age at the time the crime of rape was committed.
As this qualifying circumstance was not pleaded in the information or in the complaint
against appellant, he cannot be convicted of qualified rape because he was not properly All told, to impose upon GODOFREDO the penalty of death under these circumstances would
informed that he is being accused of qualified rape. The Constitution guarantees the right of be to deprive him of his constitutional right to be informed of the nature and cause of the
every person accused in a criminal prosecution to be informed of the nature and cause of accusation. The penalty should thus only be for simple rape, in each of the two cases, which
accusation against him.[31] This right finds amplification and implementation in the different is punishable by reclusion perpetua under the second paragraph of Article 335 of the Revised
provisions of the Rules of Court.[32] Foremost among these enabling provisions is the office of Penal Code, as amended.
an information.
Finally, as regards the civil indemnity. The P50,000.00 compensatory damages awarded by
Anent the Constitutional right afforded an accused to be informed of the nature and cause of the trial court shall represent indemnity in one case, but another P50,000.00 must be
an accusation against him, as implemented by the relevant provisions of the Rules on awarded in the second case. Moral damages of P50,000.00 in each case, must likewise be
Criminal Procedure, Section 9 of Rule 110 provides:

40
awarded, even in the absence of proof of mental and physical suffering of the victim, these
being an inherent and necessary consequences of the crime of rape.[35]

WHEREFORE, the appealed joint decision of the Regional Trial Court (RTC) of Imus, Cavite, is
REVERSED insofar as Criminal Cases Nos. 3872-95 and 3874-95 are concerned and accused-
appellant GODOFREDO TEVES y LEMEN is ACQUITTED therein for lack of evidence, and
MODIFIED as to Criminal Cases Nos. 3873-95 and 3875-95. As modified, said accused-
appellant GODOFREDO TEVES y LEMEN is, in each of said cases, found GUILTY beyond
reasonable doubt as principal of the crime of rape and hereby sentenced to suffer the
penalty of reclusion perpetua, and ordered to pay complainant Cherry Rose Q. Teves
indemnity of P50,000.00 and moral damages of P50,000.00.

Costs de oficio.

SO ORDERED.

Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Panganiban, J., in the result.

41
[G.R. No. 3851. December 17, 1908. ]

THE UNITED STATES, Plaintiff-Appellee, v. CHAN TOCO, Defendant-Appellant.


The accused in this case was charged with an infraction of section 4 of Act No. 1461 of the
J. N. Wolfson, for Appellant. Philippine Commission, in that on the 23d day of October, 1906, he smoked opium in the
store of a Chinaman named Liangco, in the municipality of Santo Nio, in the Province of
Attorney-General Araneta, for Appellee. Samar, without being duly registered, and without having secured a certificate to that effect,
as provide in section 4 of the Act. The evidence of record fully sustains the findings of the
SYLLABUS trial court, and establishes the guilt of the accused beyond a reasonable doubt, and we find
no error in the proceedings prejudicial to the rights of the Appellant.
1. PENAL STATUTES; INTERPRETATION AND CONSTRUCTION. Where a statute defining an
offense contains an exception in the enacting clause of the statute which is so incorporated Counsel for the accused demurred to the information on the ground that it failed to allege
with the language defining the offense that the ingredients of the offense can not be that the use of opium had not been prescribed as a medicine by a duly licensed and
accurately and clearly described if the exception is omitted, the rules of good pleading practicing physician; and in support-of his contention that the demurrer filed in the court
require that an indictment founded upon the statute must allege enough to show that the below was improperly overruled, counsel for the appellant insists that the statutory offense
accused is not within the exception; but if the language of the section defining the offense is defined in section 4 of Act No. 1461, of which the appellant was convicted, was not
so entirely separable from the exception that the ingredients constituting the offense may be sufficiently alleged in the information, and a formidable array of authorities have been cited
accurately and clearly defined without any reference to the exception, the pleader may holding that, where the enacting clause in a statute describes an offense with certain
safely omit any such reference, as the matter contained in the exception is matter of defense exceptions, the exceptions should be negative in the indictment, complaint, or information.
and must be shown by the accused. (U. S. v. Cook, 84 U. S. Rep., 168, 173.)
Section 4 of Act No. 1461 is as follows:jgc:chanrobles.com.ph
2. ID.; ID. As a rule, an exception in a penal statute, by which certain particulars are
withdrawn from or excepted out of the enacting clause thereof, defining a crime concerning "(a) Except when prescribed as a medicine by a duly licensed and practicing physician, it shall
a class or species, constitutes no part of the definition of such crime, whether placed close to be unlawful for any person to smoke, chew, swallow, inject, or otherwise consume or use
or remote from the enacting clause. opium in any of its forms unless such person has been duly registered as provided in section
two hereof and has secured the certificate therein prescribed. Except when prescribed as a
3. ID.; CRIMINAL PRACTICE AND PROCEDURE; INFORMATION. It is not necessary, in an medicine by a duly licensed and practicing physician, no registered confirmed user of opium
information charging a violation of section 4 of Act No. 1461, to negative the exception in shall smoke, chew, swallow, inject, or otherwise use or consume opium except in his own
favor of persons using opium under prescription of a duly licensed and practicing physician, residence.
the matter contained in the exception being a matter of defense which must be alleged and
proven by the accused if he relies upon it. "(b) Any person violating the provisions of this section shall be punished by a fine not
exceeding two hundred pesos, or by imprisonment for a period not exceeding six months, or
by both such fine and imprisonment, in the discretion of the court."cralaw virtua1aw library

Bishop, in his work on Criminal Procedure (Vol. I, paragraphs 631-645), discusses the
DECISION
question of negativing exceptions at length. He says that the older writers, with whom we
may now class Chitty, present the distinctions without the nicer shades discoverable in the
later decisions, Chitty being of the opinion that, where this excusing matter stands in clauses
separate from the main provision, "it is not necessary to state in the indictment that the
CARSON, J. : defendant does not come within the exceptions, or to negative the provisos it contains. Nor

42
is it even necessary to allege that he is not within the benefit of its provisos, though the
purview should expressly notice them, as by saying that none shall do the act prohibited, "Where a statute defining an offense contains an exception in the enacting clause of the
except in the cases thereinafter excepted. For all these are matters of defense, which the statute which is so incorporated with the language defining the offense that the ingredients
prosecutor need not anticipate, but which are more properly to come from the prisoner." of the offense can not be accurately and clearly described if the exception is omitted, the
But Bishop insists that the correct doctrine is that "if exceptions are in the enacting clause, it rules of good pleading require that an indictment founded upon the statute must allege
will be necessary to negative them, in order that the description of the crime may in all enough to show that the accused is not within the exception; but if the language of the
respects correspond with the statute," and amplifies this rule by laying down the following section defining the offense is so entirely separable from the exception that the ingredients
propositions:jgc:chanrobles.com.ph constituting the offense may be accurately and clearly defined without any reference to the
exception, the pleader may safely omit any such reference, as the matter contained in the
"First. The negative of all exceptions in the enacting clause should be averred, unless such in exception is matter of defense and must be shown by the accused.
form and substance that an affirmative offense will appear without.
"Offenses created by statute, as well as offenses at common law, must be accurately and
"Second. A negative descriptive of the offense must be alleged. clearly described in an indictment, and if they can not be, in any case, without an allegation
that the accused is not within an exception contained in the statute defining the offense, it is
"Third. However mutually located are the provisions of a statute, an indictment thereon, as clear that no indictment founded upon the statute can be a good one which does not contain
on the common law, must aver all negatives necessary to show affirmatively an offense. such an allegation, as it is universally true that no indictment is sufficient if it does not
accurately and clearly allege all the ingredients of which the offense is composed.
"Fourth. As on the common law, so on a statute, the indictment need not negative matter of
defense. "With rare exceptions, offenses consist of more than one ingredient, and in some cases of
many, and the rule is universal that every ingredient of which the offense is composed must
"Fifth. In general, and subject to exceptions growing out of doctrines already stated, an be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be
exception or proviso which is not in the enacting clause, whether in the same section with it quashed on motion, or the judgment may be arrested, or be reversed on error.
or not, need not be negatived.
"Text writers and courts of justice have sometimes said that if the exception is in the
"Sixth. Where there is in the enacting clause a reference to an exception or proviso more enacting clause the party pleading must show that the accused is not within the exception,
fully stated in a separate clause or statute, the indictment is required to negative it or not, but where the exception is in a subsequent section or statute, that the matter contained in
according as the form of the expression and the nature of the matter render the latter an the exception is matter of defense and must be shown by the accused. Undoubtedly that rule
element in the prima facie offense or in the defense. will frequently hold good, and in many cases prove to be a safe guide in pleading, but it is
clear that it is not a universal criterion, as the words of the statute defining the offense may
"Seventh. A negative not required by law may be rejected as surplusage. be so entirely separable from the exception that all the ingredients constituting the offense
may be accurately and clearly alleged without any reference to the exception.
"Eighth. A negative averment need not be so minute, or so nearly in the statutory words, as
must an affirmative one; but any negation in general terms, covering the entire substance of "Cases have also arisen, and others may readily be supposed, where the exception, though in
the matter, will suffice."cralaw virtua1aw library a subsequent clause or section, or even in a subsequent statute, is nevertheless clothed in
such language, and is so incorporated as an amendment with the words antecedently
It must be admitted that, with varying modifications, the doctrine as to negativing exceptions, employed to define the offense, that it would be impossible to frame the actual statutory
thus laid down by Bishop, appears to be the accepted doctrine as expressed in the opinion of charge in the form of an indictment with accuracy, and the required certainty, without an
most of the courts of last resort of the various; States of the United States, but the Supreme allegation showing that the accused was not within the exception contained in the
Court of the United States in the case of U. S. v. Cook (S4 U. S. Rep., 168, 173), modifies this subsequent cause, section, or statute. Obviously such an exception must be pleaded, as
doctrine in the following terms:jgc:chanrobles.com.ph

43
otherwise the indictment would not present the actual statutory accusation, and would also exception as to the sale of liquor for mechanical, medicinal, or scientific purposes merely
be defective for the want of clearness and certainty. withdrew such sales from the operation of the enacting clause of the statute, and that it
mattered not that the exception appeared to be grammatically a provision of the enacting
x x x clause, and that under the technical rule laid down by the law writers it should be negatived,
practically it was more logical and convenient that the accused should aver and prove the
fact that the sale made by him fell within the exception, than that the prosecutor should
anticipate such defense and deny it.
"Commentators and judges have sometimes been led into error by supposing that the
words enacting clause, as frequently employed, mean the section of the statute defining the
So in the case at bar, the evident intent and purpose of the statute is to prohibit and to
offense, as contradistinguished from a subsequent section in the same statute, which is a
penalize generally the smoking of opium in these Islands. But the legislator desired to
misapprehension of the term, as the only real question in the case is whether the exception
withdraw from the operation of the statute a limited class of smokers, to wit, those who
is so incorporated with the substance of the clause defining the offense as to constitute a
smoked under the advice and by prescription of a licensed and practicing physician, and we
material part of the description of the acts, omission, or other ingredients which constitute
do not think that it makes the slightest practical difference, whether the excepting proviso as
the offense. Such an offense must be accurately and clearly described, and if the exception is
to such persons is found in the enacting clause of the statute in a separate provision thereof
so incorporated with the clause describing the offense that it becomes in fact a part of the
or in a separate Act. Hence where one is charged with a violation of the general provisions of
description, then it can not be omitted in the pleading, but if it is not so incorporated with
the Opium Law, it is "more logical as well as more practical and convenient," if he did in fact
the clause defining the offense as to become a material part of the definition of the offense,
smoke opium under the advice of a physician, that he should set up this fact by way of
then it is matter of defense and must be shown by the other party, though it be in the same
defense, than that the prosecution should be called upon to prove that every smoker,
section or even in the succeeding sentence."cralaw virtua1aw library
charged with a violation of the law, does so without such advice or prescription. Indeed,
when it is considered that under the law any person may, in case of need and at any time,
And in the case of Nelson v. U. S. (30 Fed. Rep., 112), the court, after discussing the material
procure the advice of a physician to use opium or some of its derivatives, and that in the
modification in the above-cited decision of the Supreme Court of the United States of the
nature of things no public record of prescriptions of this kind is or can be required to be kept,
rule as laid down by Bishop and other law writers, says:jgc:chanrobles.com.ph
it is manifest that it would be wholly impracticable and absurd to impose on the prosecution
the burden of alleging and proving the fact that one using opium does so without the advice
"But in my judgment they referring to the fact that certain cases decide that exceptions such
of a physician. To prove beyond a reasonable doubt, in a particular case, that one using
as that mentioned in the indictment in that case should be negatived) are more distinguished
opium does so without the advice or prescription of a physician would be in most cases a
for verbal dialectics than good sense, and are better calculated to puzzle and pervert than to
practical impossibility without the aid of the defendant himself, while a defendant charged
promote the administration of justice. As a rule, an exception in a statute by which certain
with the illegal use of opium should find little difficulty in establishing the fact that he used it
particulars are withdrawn from or accepted out of the operation of the enacting clause
under the advice and on the prescription of a physician, if in fact he did so.
thereof defining a crime concerning a class or species, constitutes no part of the definition of
such crime, whether placed close to or remote from such enacting clause. And, whenever a
We conclude, therefore, that the demurrer was properly overruled by the trial court, both
person accused of the commission of such a crime claims to be within such exception, it is
from the necessity of the case and under the doctrine laid down in the case of Nelson v. U. S.,
more logical and convenient that he should aver and prove the fact than that the prosecutor
which we accept and approve, that, "as a rule, an exception in a statute by which certain
should anticipate such defense, and deny it."cralaw virtua1aw library
particulars are withdrawn from or excepted out of the enacting clause thereof defining a
crime concerning a class or species, constitutes no part of the definition of such crime,
The question raised in the case of Nelson v. U. S. was almost identical with the question
whether placed close to or remote from such enacting clause."cralaw virtua1aw library
submitted in the case at bar. An Act of Congress prohibited and penalized the sale of
intoxicating liquor in the territory of Alaska, except for mechanical, medicinal, or scientific
It is worthy of consideration in this connection that in Act No. 1761, which repeals Act No.
purposes, and the indictment failing to negative this exception, counsel for defendant urged
1461, reenacting most of its provisions with certain amendments and additions, it is
that it was fatally defective. The court held, however, that the purpose of the statute was to
expressly provided that the possession of opium, opium pipes, and other instruments for its
prohibit generally the sale of intoxicating liquors throughout the territory, and that the
44
use, shall be deemed prima facie evidence that the person in possession thereof has used
one of the prohibited drugs without the prescription of a duly licensed and practicing
physician, unless such prescription is produced by such person.

It is not necessary to discuss the remaining alleged errors in procedure assigned by counsel
for appellant, because it does not appear that objection based on these alleged errors was
made to the proceedings in the lower court, and we have frequently held in similar cases that
accused persons can not be heard to raise such objections for the first time in this court.

The judgment and sentence of the trial court should be and is hereby affirmed, with the costs
of this instance against the Appellant. So ordered.

Arellano, C.J., Torres, Mapa, Willard and Tracey, JJ., concur.

45
[G.R. No. 8781. March 30, 1914. ] and carnally know a woman, Isabel de la Cruz, under 12 years of age, in the following manner,
to wit: the aforesaid accused is the stepfather of the aforesaid Isabel de la Cruz and during
THE UNITED STATES, Plaintiff-Appellant, v. ANTONIO JAVIER DICHAO, Defendant-Appellee. the aforesaid period was the legal guardian of said Isabel de la Cruz; that by threats and
corporal punishment upon said Isabel de la Cruz ,the aforesaid accused, Antonio Javier
Attorney-General Villamor for Appellant. Dichao, had sexual intercourse with and did lie with and carnally know-said Isabel de la Cruz;
as a result whereof the said Isabel de la Cruz gave birth on August 5, 1912, to a child. All
J. F. Yeager for Appellant. contrary to law."

SYLLABUS The demurrer alleged:

1. CRIMINAL LAW; COMPLAINT OR INFORMATION; REQUISITES AND SUFFICIENCY; TIME OF "That the facts therein set forth and contained do not constitute a public offense.
OFFENSE. The allegation in a complaint or information relative to the date of the
commission of the crime set forth therein must be sufficiently definite and certain to give the "That the said criminal complaint does not conform substantially to the prescribed form.
accused an opportunity to prepare his defense.
"That said complaint is vague and ambiguous."cralaw virtua1aw library
2. ID.; ID.; ID; ID. While the precise date of the commission of the crime need not be
alleged in the complaint or information, nevertheless, it should be as near to the actual state We are of the opinion that the order appealed from must be affirmed. The allegations of an
as the information of the prosecuting officer will permit, and when that is done any date may information should, if possible, be sufficiently explicit and certain as to time to inform the
be proved which does not surprise and substantially prejudice the defense. defendant of the date on which the criminal act is alleged to have been committed. Unless
the accused is informed of the day, or about the day, he may be, to an extent, deprived of
3. ID.; ID.; ID.; ID. While section 7 of the Code of Criminal Procedure provides that "except the opportunity to defend himself.
when time is a material ingredient of an offense, the precise time of commission need not be
stated in a complaint or information, but the act may be alleged to have been committed at While the section 7 of the Code of Criminal Procedure provides that "except when time is a
any time before the filing thereof," it does not authorize the total omission of the date or material ingredient of an offense, the precise time of commission need not be stated in a
such an indefinite allegation with reference thereto as amounts to the same thing. complaint or information, but the act may be alleged to have been committed at any time
before the filing thereof," this does not mean that the prosecuting officer may be careless
DECISION about fixing the date of the alleged crime, or that he may omit the date altogether, or that he
may make the allegation so indefinite as to amount to the same thing. Where the exact date
MORELAND, J. : cannot be fixed, or where the prosecuting officer is thoroughly satisfied that he can prove a
precise date, he should allege in the information that the crime was committed on or about a
This is an appeal from an order the Court of First Instance of the Fourteenth Judicial District
date named. Under such allegation he is not required to prove any precise date but may
sustaining a demurrer to an information and dismissing the case.
prove any date which is not so remote as to surprise any prejudice the defendant. In case of
surprise the court may allow an amendment of the information as to time and an
The information is as follows:jgc:chanrobles.com.ph
adjournment to the accused, if necessary, to meet the amendment.

"The undersigned accuses one Antonio Javier Dichao of the crime of rape, committed as
In the case of United States v. De Castro (2 Phil. Rep., 616), the information demurred to was
follows:jgc:chanrobles.com.ph
as follows:

"On or about and during the interval between October, 1910, to August, 1912, in the "The undersigned provincial fiscal accuses the defendant of the crime of bribery, committed
municipality of Davao, District of Davao, Moro Province, P. I., the aforesaid accused did then as follows:
and there, willfully, maliciously, and feloniously have sexual intercouse with, and did lie with,

46
"That as municipal president of the town, in consideration of gifts of money, he permitted on the 25th of March of a certain year. The evidence introduced showed that the crime was
opium joints and gambling houses. This contrary to the law." committed on the 5th or 6th of March of the same year. The defendant in his brief claimed
that the evidence introduced should have been restricted to the date mentioned in the
information, or the 25th of March.
Among the many defects of this information the court pointed out the following:
The court in response to this contention said: "The testimony as the whereabouts of the
"The complaint is also defective in not stating the time at which the offense occurred,. While
defendant on March 25 was unimportant, as the evidence shows the robbery was committed
it is not necessary, unless time is a material ingredient of the offense, that the precise time of
about the 5th or 6th of March. The defendant in his brief claims that the evidence should be
the commission of the offense should be stated, still the act should be alleged to have been
restricted to the date mentioned in the complaint, which was the 25th of March. In this case,
committed at some time before the filing of the complaint."cralaw virtua1aw library
however, the date was not a material ingredient of the offense, and under the provisions of
section 7 General Orders, No. 58, the Government was not limited in its proof to the date
The decisions in the case of United States v. Enriquez (1 Phil. rep., 179), and United States v.
stated therein."
Cardona (1 Phil. Rep., 381), are not in conflict with the doctrine herein laid down, nor with
the case of United States v. De Castro from which the above quotation is made. In the first In these two cases, therefore, different questions are presented from those found in the case
case the information alleged that the estafa complained of was committed on the 20th of before us. In the first case the question of time as alleged in the information was discussed in
November 1897. A demurrer was filed to the information on statutory grounds. It was an incidental way for the sole purpose of determining whether it of itself, or in connection
overruled and the defendant put upon trial. He was convicted and appealed to this court, with the other allegations, sufficiently identified the transaction which it was claimed
bringing up on that appeal the questions arising on the order overruling the demurrer as well constituted the estafa, so as to notify the defendant of the transaction referred to, the other
as on the merits. It is clear that the demurrer did not raise, so far as the information is allegations of the information not being sufficient of themselves to do so. In the Cardona
concerned, the questions of time, as in the case at bar, as the precise date upon which the case the question was raised by demurrer. The allegation in the information as to the time
crime was alleged to have committed was set out in the information. The question presented when the crime was committed was definite and certain. The only question raised on the
to the Supreme Court was, thereof, not whether the information alleged the time with appeal related to the alleged variance between the date of the crime as alleged in the
sufficient certainty. The question in that case was whether the allegations of the complaint information and that proved on the trial. In that case, as we have seen, the court said that,
sufficiently notified the defendant "of the transaction from which it is claimed the crime the time alleged not being, under section 7, a material ingredient of the offense, it did not
results, so that he can prepare his defense." The discussion in that case turned on whether have to be proved as laid. It did not hold that, if it had appeared to the trial court, on the trial,
the defendant, after reading the complaint, was able to tell "to what acts of his done in the that the variance between the allegation of the information and the proof on the trial had
past the complaint refers." In determining that question the court discussed, among other been such as to surprise the defendant and prejudice him in his defense, the court would not
things, the allegation with reference to the time when the estafa was committed. In that have been authorized to amend the information and to grant an adjournment, if necessary,
connection it was said: to give the defendant an opportunity to meet the charge as amended.

"In this complaint the estafa is alleged to have been committed on November 20, 1897. Time,
The same remarks apply to the case of United States v. Arcos (11 Phil. Rep., 555), where the
however, was not a material ingredient in the offense of estafa here charged, and under the
information alleged "that between the 2d and the 15th of August, 1906," the accused
provisions of article 7 of General Orders, No. 58, that date need not have been alleged."
committed the crime described therein; and the case of United Stated v. Smith (3 Phil Rep.,
20), in which the information charged "that the accused, in the month of December last,"
After discussing the various elements off an information charging estafa necessary to identify
committed the crime therein set forth.
the act which constitutes the crime, thereby notifying the defendant of the precise act of his
complained of, the court concluded: "It is plain that the complaint did not restrict the
The question whether the allegations of the information are sufficiently definite as to time
Government to proof of any defined specific transaction, and consequently that the
and the question which arises on a variance between the allegations and the proof are
defendant had no notice of the transaction which was to be investigated.
different in nature and legal effect, and are decided on different principles.

In the Cardona case the theft of a carabao was alleged in the information to have taken place
47
In the case before us the statement of the time when the crime is alleged to have been
committed is so indefinite and uncertain that it does not give the accused the information
required by law. To allege in an information that the accused committed rape on a certain
girl between October, 1910, and August, 1912, is too indefinite to give the accused an
opportunity to prepare his defense, and that indefiniteness is not cured by setting out the
date when a child was born as a result of such crime. Section 7 of the Code of Criminal
Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of
the commission of the crime as near to the actual date as the information of the prosecuting
officer will permit, and when that has been done any date may be proved which does not
surprise and substantially prejudice the defense. It does not authorize the total omission of a
date or such an indefinite allegation with reference thereto as amounts to the same thing.

As before intimidated, we are not to be understood as saying that a variance between the
date of the commission of the crime as alleged in the information and that as proved on the
trial warrants necessarily the acquittal of the accused. The result of what we intend to say is
that, if such a variance occurs and it is shown to the trial court that the defendant is surprised
thereby, and that, by reason of that surprise he is unable to defend himself properly, the
court may, in the exercise of sound discretion based on all the circumstances, order the
information amended so as to set forth the correct date and may grant an adjournment for
such length of time as will enable the defendant to prepare himself to meet the variance in
date which was the cause of his surprise.

The judgment appealed from is affirmed.

Arellano. C. J., and Araullo, J., concur.

Carson and Trent, JJ., concur in the result.

48
U.S. v. Stollings, 128 W.Va. 483, 37 SE 2nd 98 (1946) In a number of cases prior to the Keller case this Court has considered warrants and
indictments involving statutes which describe several offenses or several different modes of
RILEY, JUDGE: committing an offense by separating them with the disjunctive "or". In State v. Dawson, 117
W. Va. 125, 184 S.E. 253, it was held that the use of the word "or" in conjunction with gaming
The defendant, Wayne Stollings, was indicted by the grand jury of Lincoln County, West
devices enumerated in Code, 61-10-1, in an indictment which charged the keeping and
Virginia, of feloniously and unlawfully operating "a motor vehicle, to-wit: a 1937 Ford Tudor
exhibiting of different sorts of gaming devices, naming them in the disjunctive, is bad on
Sedan * * * upon a public road in said Lincoln County, West Virginia, to-wit: State Route No.
demurrer. There the first count of the indictment, following the language of the statute,
10 in said Lincoln County while intoxicated or under the influence of intoxicating liquor, drugs
charged that defendant did "unlawfully keep and exhibit gaming tables commonly called A. B.
or narcotics", in violation of Code, 17-8-25, and of a prior conviction before a justice of the
C. and E. O. tables or faro bank or keno tables and other gaming tables and devices of like
peace of Lincoln County, West Virginia, upon a warrant issued on October 8, 1936, charging
kind"; and the second count of the indictment charged that defendant was "concerned in
that said Wayne Stollings "did unlawfully operate a motor vehicle upon a public road in said
interest" in keeping and exhibiting gaming tables, described in the identical language used in
Lincoln County while intoxicated or under the influence of intoxication liquors, drugs or
the first count of the indictment. In State v. Miller, 68 W. Va. 38, 69 S.E. 365, an indictment
narcotics". Defendant demurred to and moved to quash the indictment, and objected and
charging the practicing of dentistry for a salary, fee or reward without a state license,
excepted to the action of the court in overruling the demurrer and motion to quash.
disjunctively, towit: "Performance of operations or parts of operations, treating of diseases
or lesions of the human teeth or jaw" was bad because the indictment should have used the
In addition to the conviction in Lincoln County embraced in the indictment, the prosecuting
conjunctive "and" instead of the disjunctive "or". In the earlier case of State v. Charlton, 11 W.
attorney filed information of three prior convictions for violation of the National Prohibition
Va. 332, an indictment which charged the defendant with selling, without license,
Act in the District Court of the United States for the Southern District of West Virginia, on
intoxicating liquors to be drunk where sold was held defective on demurrer because of the
January 2, 1930, April 19, 1933, and March 12, 1935, respectively. Defendant was found
use of the disjunctive "or", though the indictment, following the language of Chapter 99,
guilty "as charged in the within indictment" and sentenced to life imprisonment in the
Section 1, Acts of the West Virginia Legislature, 1872-73, which created the offense, charged
penitentiary.
that defendant sold intoxicating liquors to be drunk "in, upon, or about the building or
In this Court the defendant urges several assignments of error, the first of which is that the premises where sold, without [first] obtaining a State license therefor according to law".
circuit court erred in overruling defendant's demurrer to and motion to quash the indictment. (Italic supplied.) But in Cunningham v. State, 5 W. Va. 508, this Court, following the Virginia
The question arising on this first assignment of error is, in our opinion, controlling on this writ case of Morgan v. Commonwealth, 48 Va. 592 (7 Gratt.), decided without opinion, affirmed a
of error. conviction of defendant on the charge of sale at retail of "rum, wine, brandy, or other
spirituous liquors" to be drunk in his house. Judge Berkshire, who wrote the opinion of this
Code, 17-8-25, as amended and reenacted by Chapter 64, Acts 1935, the statute upon which Court, declared, in effect, that if the question were open, he would be disposed to think that
this prosecution is based, reads in part: "No person shall drive or operate any vehicle, motor there was much force in it, but that the Court was bound by the decision of the Virginia court
driven or otherwise, upon any public road or street in this state, while intoxicated or under in Morgan's case. Thereafter, in the Charlton case, Judge Green, speaking for the Court,
the influence of intoxicating liquor, drugs or narcotics." This Court had the foregoing statute expressed the opinion that the rule in Morgan v. Commonwealth, should not be extended to
under consideration in the rather recent case of State v. Keller, 118 W. Va. 296, 191 S.E. 201, what was then the general rule to a case not involving a description of different kinds of
which involved a warrant charging defendant with unlawfully driving and operating a "certain liquor. At this late date, we are unable to say whether Judge Green and his colleagues on this
[motor] vehicle, to wit: An automobile on a certain public highway within this state while he Court thought that the rule as to use of disjunctive allegations in an indictment involving the
the said Freeman Keller was then and there intoxicated and under the influence of sale of intoxicating liquors, was too well settled to be disturbed or it was too difficult to
intoxicating liquor, drugs or narcotics." (Italic ours.) It is to be noted that in the Keller case charge offenses for the illegal sale of intoxicating liquor in view of the difficulty of specifying
the warrant followed the language of the statute except that the word "and" was used the various kinds.
between the words "intoxicated" and "under", instead of the word "or", as used in the
statute. The majority opinion of the Court, to which two members dissented, held that the The instant indictment, in our opinion, sets forth four distinct statutory offenses, that is
warrant met the requirement of Article III, Section 14, of the Constitution, that the accused driving or operating any vehicle, motor driven or otherwise, upon any public road or street
person "shall be fully and plainly informed of the character and cause of the accusation." while (1) "intoxicated"; (2) "under the influence of intoxicating liquor"; (3) "under the

49
influence of drugs"; or (4) "and under the influence of narcotics." It is noted that in
the Keller case the warrant charged that defendant was "intoxicated and under the influence
of intoxicating liquors, drugs or narcotics". (Italics supplied). We disapprove the decision in
that case in so far as it justifies the use of the disjunctive "or" between the words "drugs" and
"narcotics", for the reason that we do not feel justified in departing from the rule inherent in
our criminal practice that indictments should not set forth in the disjunctive separate and
distinct offenses. This rule has been applied uniformly by this Court in every case, except
the Keller case and those cases, such as Cunningham v. State, supra, in which the defendant
was charged with the sale at retail of "rum, wine, brandy, or other spirituous liquors" to be
drunk in defendant's house. The rule simply requires that a defendant be distinctly informed
in the indictment of the crime or crimes for which he is to be tried. It is, as suggested by this
Court in the Dawson case, a "time-honored and rudimentary rule of criminal pleading," It is
consonant with justice that a person should not be arraigned for criminal trial, in the absence
of a warrant or indictment fully informing him as to the crime with which he is charged. A
contrariwise rule would break down the constitutional safeguards which have been wrapped
around the citizenry of this State. We, therefore, are of the opinion that the instant
indictment does not meet the requirements of West Virginia Constitution, Article III, Section
14.

For the foregoing reasons the judgment of sentence is reversed, the verdict set aside, and
the case remanded to the Circuit Court of Lincoln County, with direction that the indictment
be dismissed.

Reversed and remanded.

50
G.R. No. L-57841 July 30, 1982 in the Board for Marine Deck Officers, thereby giving unwarranted benefits to the said
examinees in the discharge of their official and/or administrative functions through manifest
BERNARDO GALLEGO and FELIX AGOCILLO, petitioner, partiality, evident bad faith or gross inexcusable negligence.
vs.
SANDIGABAYAN, respondent. Petitioners Bernardo Gallego and Felix Agoncillo filed a motion to quash the information
against them on the following grounds:
Antonio R. Bautista for petitioners.
1. the facts alleged do not constitute an offense; or, in the alternative,
Solicitor General Estelito P. Mendoza, Asst. Solicitor General Romeo C.De la Cruz and Solicitor
Antonio L. Villamor for respondent. 2. The information charges more than one offense.

Petitioners claim that the information concludes that the ratings given by the accused to
particular examinees constituted the giving to them of "unwarranted benefits"; that the
RELOVA, J.: statutory provision defines as a corrupt practice of the public officer "the giving to any
private party any unwarranted benefits in the discharge of his official, administrative or
In this petition for certiorari, prohibition and mandamus, petitioners seek to set aside in toto
judicial functions through manifest partiality, evident bad faith or gross inexcusable
the Sandiganbayan's resolution promulgated on August 27, 1981 in Criminal Case No. 2940,
negligence"; that Section 3(e) of the Anti-Graft and Corrupt Practices Act is null and void
entitled: People of the Philippines vs. Ramon Deseo, et al.; to restrain the Sandiganbayan
because it is unconstitutionally vague and therefore cannot be a basis of any criminal
from further proceeding with said Criminal Case No. 2940; and to quash the information in
prosecution; that even if said Section 3(e) of the Anti-Graft and Corrupt Practices Act were to
said case. The antecedent facts are as follows:
be sustained as definite, "still the allegations of the information are not sufficiently definite
to charge an offense to which the accused may be required to plead." Further, petitioners
An information was filed in the Sandiganbayan by Tanodbayan Special Prosecutor Mariflor
allege that the term "unwarranted" is a "highly imprecise and elastic term which has no
Punzalan-Castillo against Ramon Deseo, Bernardo Gallego, Herminio Erorita and Felix
common law meaning or settled definition by prior judicial or administrative precedents";
Agoncillo, for violation of Section 3(e) of Republic Act No. 3019, as amended, otherwise
that for its vagueness, said Section 3(e) violates due process in that it does not give fair
known as the Anti-Graft and Corrupt Practices Act, which reads:
warning or sufficient notice of what it seeks to penalize.
That on or about the period from May to September, 1979, in Metro Manila, Philippines, and
Finally, petitioners claim that the information charges the accused with three (3) distinct
within the jurisdiction of this Honorable Court, the following accused. RAMON DESEO,
offenses, to wit: "(a) the giving of 'unwarranted' benefits through manifest partiality; (b) the
Chairman of the Board for Marine Engine Officers in the May 28-30,1979 examinations, in
giving of 'unwarranted' benefits through evident bad faith; and (c) the giving of
checking Test Paper No. 839 in the subject Steam Boiler, Engines, Turbines, Internal
'unwarranted' benefits through gross inexcusable negligence" while in the discharge of their
Combustion and Machine Shop, gave a rating of 18% out of a total of 20% to Test II thereof,
official and/or administrative functions; that the right of the accused to be informed of the
the answer of the examinee being a recital of the prayer 'Hail Mary' and in Test III of the
nature and cause of the accusation against them is violated because they are left to guess
same Test Paper, gave a rating of 18% out of 20%, the answer of the examinee being the
which of the three, if not all, offenses they are being prosecuted.
prayer 'Our Father', BERNARDO GALLEGO, Member of the Board for Marine Engine Officers,
acting as Second Corrector to Ramon Deseo affirmed the ratings given by the latter to Test
The motion to quash was opposed by the prosecution alleging that the term "unwarranted"
Paper No. 839; FELIX AGONCILLO, Member of the Board for Marine Deck Officers in the May
in Section 3(e) of Republic Act 3019 is clear, unambiguous and unequivocal and is presumed
28-30, 1979 examinations, in checking Test Paper No. 144, in the subject Meteorology and
to have been used in its primary arid general acceptation; that the objection by petitioners
Electronics, gave a rating of 19% out of 20% to Test I A and B thereof, the answer of the
on the clarity of the term "unwarranted" does not suffice for the courts to declare said
examinee to Test I A being a long love letter; and HERMINIO ERORITA, Member of the Board
section unconstitutional; that said Section 3(e) of Republic Act 3019 is valid unless otherwise
for Marine Deck Offices acting as Second Corrector to Felix Agoncillo, affirmed the ratings
held by final judgment of a competent court.
given by the latter to Test Paper No. 144, the above acts of all the accused resulting in the
passing of Examinee No. 839 in the Board for Marine Engine Officers and Examinee No. 144

51
With respect to petitioners' allegation that the information charge more than one offense, charged both illegal practice of medicine and illegally advertising oneself as a doctor, it was
the prosecution avers that what is charged in the information "is the giving of unwarranted held that "the information was not bad for duplicity inasmuch as the acts charged were
benefits to the owners of Test Booklets Nos. 839 and 144, while manifest partiality, evident merely different means of committing the same offense, notwithstanding the fact that they
bad faith or gross inexcusable negligence are only the means of commission." are prohibited by separate sections of the statute."

Respondent Sandiganbayan sustained the prosecution and denied the motion to quash. ACCORDINGLY, for lack of merit, instant petition is hereby dismissed.

We hold that Section 3(e) of the Anti-graft and Corrupt Practices Act does not suffer from the SO ORDERED.
constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith" and
"gross inexcusable negligence merely describe the different modes by which the offense Fernando, C.J., Teehankee, Barredo, Makasiar, Concepcion, Jr., Guerrero, Abad Santos, De
penalized in Section 3(e) of the statute may be committed, and the use of all these phrases in Castro, Melencio-Herrera, Plana, Escolin, Vasquez and Gutierrez, Jr., concur.
the same information does not mean that the indictment charges three distinct offenses.

The information definitely states the names of the parties, the tune, place, manner of
commission and designation of the offense. The argument that failure in the information to
state the reasons why the benefits bestowed are unwarranted renders it defective is without
merit informations need only state the ultimate facts; the reasons therefor could be proved
during the trial. As aptly observed by respondent Sandiganbayan in its resolution dated
August 27, 1981:

The word unwarranted is not uncertain. It seems lacking adequate or official support;
unjustified; unauthorized Webster, Third New International Dictionary, p. 2514); or without
justification or adequate reason. (Philadelphia Newspapers, Inc. vs. U.S. Dept. of justice, C. D.
Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 3-A 1978,
Cumulative Annual Pocket Part, P. 19.)

The assailed provisions of the Anti-Graft and Corrupt Practices Act considers a corrupt
practice and makes unlawful the act of a public officer in:

... or giving any private party any unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence, ... (Section 3[e], Rep. Act 3019, as
amended.)

It is not all difficult to comprehend that what the afore-quoted penal provisions penalizes is
the act of a public officer, in the discharge of his official, administrative or judicial functions,
in giving any private party benefits, advantage or preference which are unjustified,
unauthorized or without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.

Neither is the information defective. As held in the case of People vs. Buenviaje, 47 Phil.536,
where the defendant was charged with violation of the Medical Law and the information

52
G.R. No. L-25176 February 27, 1968 On August 31, 1965, the court, sustaining the stand of the accused, directed its
amendment, as follows:
PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs. WHEREFORE, the information is hereby ordered AMENDED such that there must not be
AGAPITO YAP, JR., defendant-appellee. an opportunity for the prosecution to put the accused in danger more than once, or that
because of lack of objection and because of allegation in the complaint that there is an after
Rufino J. Abadies and Francis J. Militante for defendant-appellee. effect, in the form of abortion, which might be a criminal abortion, and for which the same
Office of the Solicitor General for plaintiff-appellant. accused might be held criminally responsible and duly sentenced therefor, the said
information must be amended immediately such that the accused will not be placed in
useless danger of being convicted more than once, or for two crimes in an information;
OTHERWISE, the case is ordered DISMISSED.
REYES, J.B.L., Actg. C.J.:
The prosecution interposed the present appeal.
Appeal on a pure question of law, from the order of the Court of First Instance of
The only issue to be resolved here is, whether or not the above-quoted information
Misamis Occidental directing the amendment of the information in Criminal Case No. 763 of
violates the prohibition against duplicity of offenses as provided in Section 12 of Revised Rule
said court.
110 of the Rules of Court.
There is no dispute as to the facts of this case:
It is claimed for the defense that under the averment of the information that, "on or
about May 15, 1959, and for sometime subsequent thereto . . . said accused by means of
Convicted by the Municipal Court of Baliangao (Misamis Occidental) of the crime of
deceit and false promise of marriage, did then and there willfully, unlawfully and feloniously
simple seduction, upon complaint of Catalina Babol, and sentenced to imprisonment for two
seduce and have sexual intercourse several times with Catalina Babol a virgin over 12 but
months and one day of arresto mayor, accused Agapito Yap, Jr. brought the case on appeal to
under 18 years of age," the accused may be convicted of as many instances of seduction as
the Court of First Instance of Misamis Occidental, 1 where the following information was
may be proved during the trial. In short, it is their theory that there is a complete and
filed:
consummated offense of seduction for every sexual intercourse the accused may have had
The undersigned (Provincial Fiscal), accuses Agapito Yap, Jr. of the crime of Simple with the offended party, so that under the disputed information the former runs the risk of
Seduction, committed as follows: being found guilty of as many seduction as the number of sexual contacts between the
parties that the prosecution would be able to establish. In opposing the motion, the
That on or about May 15, 1959, and for sometime subsequently thereto, in the town of prosecution advances the argument that there is no continuing offense of seduction; that the
Baliangao, province of Misamis Occidental, Philippines, and within the jurisdiction of this criminal act is consumated on the first violation of the chastity of the offended girl and any
Honorable Court, the said accused by means of deceit and false promise of marriage, did subsequent coition would already be beyond the reach of the penal provision on seduction.
then and there willfully, unlawfully and feloniously seduce and have sexual intercourse
several times with Catalina Babol a virgin over 12 but under 18 years of age, resulting in These views, both extreme, may be rejected. On contention of the prosecution, it may
pregnancy with abortion thereafter. be pointed out that in simple seduction, unlike that in a qualified case, the matter of virginity
of the offended party, is not essential; it is only necessary that the complainant be an
Contrary to Art. 338 of the Revised Penal Code. unmarried woman and of chaste life and good reputation. 2 Under the law, simple seduction
is synonymous with loss of virginity; a widow can be the victim of seduction. 3 Upon the other
The accused moved to quash the aforequoted information, claiming that it alleged hand, the fact that there should be different acts of intercourse, consented by the woman in
multiple acts of simple seduction, in addition to the offense of criminal abortion. The motion reliance upon the same promise of marriage would not mean separate offenses of seduction,
was duly heard, during which the prosecuting fiscal signified willingness to eliminate the (cf. U.S. vs. Salud, 10 Phil. 208). Nowhere in the information does it appear that every act of
word abortion from the information. intercourse was the result of a separate act of deceit.

53
It is, therefore, incorrect to conclude that the information in this case charged the
accused of more than one offense. A reading thereof would show that he was there being
charged for the seduction of Catalina Babol, with the clause "May 15, 1959 and for sometime
subsequent thereto" serving as the point of time against which the allegation that she was
over 12 years, but under 18 when the alleged criminal offense was committed, may be
checked or reckoned. Such recital of fact, forming the basis of the statement that the
accused had sexual relations with the offended party "several times", together with the
allegations of the subsequent pregnancy of the offended girl and the expulsion of the foetus,
constitute no more than the details of the entire incident upon which the seduction charge
was based. They partake of the nature of particulars, with which the prosecution intends to
inform the accused of the matter it will prove at the trial; and this does not come within the
prohibition of the rules. Thus, in one case, 4 an information that charge the defendant with a
specific crime set forth in various counts, each of which may constitute a distinct offense,
was allowed. The narration in the information of the specific acts was considered a bill of
particulars of facts upon which the inference of the guilt of the accused of the crime charged
may be based and, consequently, was held not objectionable. The same thing may be said of
the information in the present case.

WHEREFORE, the order appealed from is hereby set aside and the case is ordered
remanded to the court below for proceedings on the merits. It appearing that the
prosecution had expressed willingness to delete from the information the averment of
abortion, an amendment to this effect would be in order. No costs.

Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ.,
concur.1wph1.t

Footnotes

1Docketed as Criminal Case No. 763.

2People vs. Iman, 62 Phil. 92.

3Art. 338, Revised Penal Code.

4U.S vs. Cernia, 10 Phil. 682, 690.

54
G.R. No. L-12453 July 15, 1918 Eugenio Tenedero, son-in-law of Lahoylahoy. The two children Miguela and Bartolome say
that they were threatened with death if they should make complaint. Nevertheless their lives
THE UNITED STATES, plaintiff-appellee, were spared, and for sometime they stayed with their sister in the home of Madanlog; and
vs. after staying for a long time on the island, they were afterwards taken to the home of
PEDRO LAHOYLAHOY and MARCOS MADANLOG, defendants-appellants. another sister, named Dionisia Estriba, at Escalante, on the Island of Panay. They here
revealed the facts above narrated. This sister, Dionisia, afterwards filed the complaint in this
W. A. Kincaid for appellants.
case. Pedro Lahoylahoy was arrested first; and when he was examined before the justice of
Attorney-General Avancea for appellee.
the peace, he made a confession in which he stated that the four deceased persons had been
killed by Madanlog, with is assistance.
STREET, J.:
At the trial the two children gave a very consistent account of the robbery and of the murder
This case is submitted to the Supreme Court for review of a decision of the Court of First
of their grandmother; but the boy said that he did not remember that Madanlog was present
Instance of the Province of Iloilo, sentencing the defendants Pedro Lahoylahoy and Marcos
when Lahoylahoy struck the fatal blow. Another important witness for the prosecution was
Madanlog to death upon a complaint charging the crime of robbery with multiple homicide
Eugenio Tenedero, the son-in-law of Lahoylahoy. This witness testified that the defendants
under the circumstances stated below.
killed the four deceased persons, and that early in the morning they came to his house and
It appears that in the year 1912 some ten or a dozen people were living on the small island of required him to help them bury the dead, which he did. The accused gave no explanation to
Sicogon, in the jurisdiction of the municipality of Balasan, Province of Iloilo. Two of these Tenedero of their motive or of the reason for the commission of the deed, and told him not
were an aged couple named Francisco Seran and his wife Juana. Two others were Roman to tell anybody. During the next day or two after the tragedy above narrated, the defendant
Estriba and his wife Rosa. The latter couple had two children Miguela and Bartolome, aged at Madanlog went to the house where Francisco and Juana had lived and carried away some
that time respectively about 14 and 9 years. Upon the night of the commission of the crime palay, some dawa, three pigs, and a trunk containing wearing apparel. We believe that the
charged in the complaint the two children were staying with Juana, their grandmother, in a asportation of these things should not be considered as a continuation of the acts of robbery
house some distance removed from that occupied by Roman and Rosa and located farther and murder previously committed, but rather as a spoliation of the state of a deceased
back from the shore. The grandfather, Francisco, had gone to the beach as was his custom to person. It results that the only property taken in the act of robbery was the P100 obtained
watch for turtles. After the grandmother and the children had gone to rest on a mat where from Juana.
they slept together, and probably only a short while after it had become dark, the two
As against Madanlog, the case rests chiefly upon the testimony of Miguela, who says he was
accused appeared and demanded money of Juana. She gave them P100 in money in
present at the robbery and at the murder of Juana. His guilt is also indicated by his own
response to this demand, and the accused then required the three to leave the house and go
conduct subsequent to the murder. We are satisfied with the conclusion reached by the
in the direction of the sea. When the party had arrived at or near the beach, a further
lower court with respect to the sufficiency of the evidence, and we have no doubt of the guilt
demand was made upon the old woman for money, which demand she was unable to
of both the accused.
comply with. Lahoylahoy then struck her with a bolo just below her breast, killing her
instantly. The two children were at the time close to their grandmother, and being greatly
An important question arises upon the matter of the complaint in connection with the proof
frightened, they ran away separately for some distance and remained hidden during the
as to the ownership of the property which was taken by the accused. The part of the
night in the bushes.
complaint here material to be considered reads as follows:
The next morning the children made their way to the house where the old couple had lived,
The aforesaid accused taking advantage of the darkness of the night, voluntarily, illegally, and
which was vacant; but they there found each other and proceeded together to the house of
criminally and by means of force on the things, took and appropriated to themselves with
their parents. Going in that direction they stopped at the house of their sister, the wife of the
intent of gain and against the will of the owner thereof, the sum of P100, 5 bayones of palay,
defendant Madanlog. When they went a little later to the house where their parents had
4 bayones of dawa, and 1 trunk which contained various wearing apparel, of the total value
lived, the fact was revealed that Francisco, Roman, and Rosa had also been killed. All the
of P150, the property of Roman Estriba; in consequence thereof and on the occasion of the
bodies were collected and buried early in the morning by the two accused, assisted by

55
said robbery, the aforesaid accused criminally and with known premeditation and treachery, it is perfectly clear that they could be prosecuted tomorrow for robbery committed upon the
killed Roman Estriba, Rosa Galoso, Francisco Seran, and Juana. property of Juana; and the plea of former jeopardy would be of no avail.

According to the proof the person robbed was Juana; while the complaint charges that the Reference to a few accredited decisions from American courts will make this clear.
property taken belong to Roman Estriba. What is the effect of this variance between the
language of the complaint and the proof? Subsection 5 of section 6 of General Orders No. 58 In Comm. vs. Hoffman (121 Mass., 369), it was held that an acquittal on an indictment for
declares that a complaint or information shall show, among others things, the names of the breaking and entering the dwelling house and stealing therein, the property of A, is no bar to
persons against whom, or against whose property, the offense was committed, if known. The a complaint for stealing in the same dwelling house at the same time the property of B,
complaint in this case therefore properly contained an averment as to the ownership of the without proof that A and B are the same persons.
property; and upon principle, in charging the crime of robbery committed upon the person,
In Comm. vs. Andrews (2 Mass., 409), the defendant in an indictment for receiving stolen
the allegation of the owner's name is essential. But of course if his name cannot be
goods which were the property of A, alleged that he had been convicted of receiving stolen
ascertained, it may be alleged that it is unknown.
goods the property of B. The plea was adjudged insufficient, although it was alleged that the
From the fact that the name of the injured person may, in case of necessity, be alleged as two parcels of stolen goods were received by the defendant of the same person, at the same
unknown it should not be inferred that the naming of such person, when known, is of no time, and in the same package, and that the act of receiving them was one and the same.
importance. Where the name of the injured party is necessary as matter of essential
In Alexander vs. State (21 Tex. Cr. App., 406; 57 Am. Rep., 617), it was held that where the
description of the crime charged, the complaint must invest such person with individuality by
goods of two different owners were stolen at the same time, an acquittal on an indictment
either naming him or alleging that his name is unknown. (Wharton, Criminal Pleading and
for stealing the goods of one would not constitute a bar to an indictment for stealing the
Practice, 9th ed., secs. 111, 112.) It is elementary that in crimes against property, ownership
goods of the other; though it was observed that if the defendant had been convicted upon
must be alleged as matter essential to the proper description of the offense.
the first trial, he would have been protected from the second prosecution.
To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious (See Wright vs. State, 17 Tex. Cr. App., 152.)
mischief, etc., the property obtained must be that of another, and indictments for such
In Comm. vs. Wade (17 Pick. [Mass.], 395), the offense of burning a building was charged,
offenses must name the owner; and a variance in this respect between the indictment and
and the indictment stated that the owner was a certain individual (naming him). It was held
the proof will be fatal. It is also necessary in order to identify the offense. (Clark's Criminal
that, although the name might possibly have been omitted altogether, yet as the indictment
Procedure, p. 227. See also page 338.)
did allege the name, the allegation of ownership was material, being descriptive of the
Now a complaint charging the commission of the complex offense of robbery with homicide offense, and must be proved.
must necessarily charge each of the component offenses with the same precision that would
It should be borne in mind that the plea of former conviction or acquittal, or former jeopardy,
be necessary if they were made the subject of separate complaints. It is well recognized in
is supposed to be proved by the pleadings and judgment in the former case, supplemented
this jurisdiction that where a complex crime is charged and the evidence fails to support the
only by proofs showing the identity of the party, or parties. Courts are not accustomed to
charge as to one of the component offenses the defendant can be convicted of the other.
determine the plea of former jeopardy by examining the proof to discover just what facts
The mere circumstance that the two crimes are so related as to constitute one transaction in
may have been developed in the former case. (Henry vs. State, 33 Ala., 389; Grisham vs. State,
no way affects the principles of pleading involved in the case. To permit a defendant to be
19 Tex. Cr. App., 504.) In fact it is not always practicable or even possible to produce for
convicted upon a charge of robbing one person when the proof shows that he robbed an
inspection upon the trial of this issue the evidence which was adduced in court at the trial of
entirely different person, when the first was not present, is violative of the rudimentary
the former case.
principles of pleading; and in addition, is subject to the criticism that the defendant is
thereby placed in a position where he could not be protected from a future prosecution by a
The second sentence of section 7 of General Orders No. 58 declares that when an offense
plea of former conviction or acquittal. If we should convict or acquit these defendants today
shall have been described with sufficient certainty to identify the act, an erroneous allegation
of the robbery which is alleged to have been committed upon the property of Roman Estriba,
as to the person injured shall be deemed immaterial. We are of the opinion that this
provision can have no application to a case where the name of the person injured is matter
56
of essential description as in the case at bar; and at any rate, supposing the allegation of The case of United States vs. Manalang (2 Phil., Rep., 64) has been called to our attention as
ownership to be eliminated, the robbery charged in this case would not be sufficiently an authority upon the point that insufficiency of a complaint is waived by failure of the
identified. A complaint stating, as does the one now before us, that the defendants "took and defendant to object thereto in the Court of First Instance. It there appeared that the
appropriated to themselves with intent of gain and against the will of the owner thereof the statutory offense with which the defendant was charged could only be committed by a
sum of P100" could scarcely be sustained in any jurisdiction as a sufficient description either Constabulary officer. There was no allegation in the complaint that the defendant was such;
of the act of robbery or of the subject of the robbery. There is a saying to the effect that but he appeared at the trial, testified in his own behalf, without questioning his character as
money has no earmarks; and generally speaking the only way money, which has been the such officer. It was held upon appeal that the objection to the complaint on the ground
subject of a robbery, can be described or identified in a complaint is by connecting it with the stated was unavailing, "as no exception was taken to this defect by counsel for the defendant
individual who was robbed as its owner or possessor. And clearly, when the offense has been in the court below, in which it might have been successfully raised by demurrer."
so identified in the complaint, the proof must correspond upon this point with the allegation,
or there can be no conviction. The following cases are also found in our Reports, showing that a complaint may be held
sufficient although the commission of the offense is charged by inference only, provided no
In United States vs. Kepner (1 Phil. Rep., 519), this court had before it a case where the objection is made in the court below. (U.S. vs. Cajayon, 2 Phil. Rep., 570; U.S. vs. Vecina, 4
defendant was charged with estafa in the misappropriation of the proceeds of a warrant Phil. Rep., 529; U.S. vs. Sarabia, 4 Phil. Rep., 566.) In all of these cases the complaint was
which he had cashed without authority. It was said that the erroneous allegation in the demurrable for defect of substance, but the language used was so far sufficient that the
complaint to the effect that the unlawful act was to the prejudice of the owner of the check, commission of the crime could be inferred. These cases are not relevant to the case at bar, as
when in reality the bank, which cashed the warrant was the sufferer, was immaterial. This the complaint is not demurrable for defect of any sort.
observation was, we think, correct as applied to that case, for the act constituting the offense
of estafa was described in the complaint with sufficient fullness and precision to identify the In the light of what has been said it is evident that, by reason of the lack of conformity
act, regardless of the identity of the offended person. Section 7, General Orders No. 58, was between the allegation and the proof respecting the ownership of the property, it is
therefore properly applicable. It should be added, however, that the observation to which impossible to convict the two accused of the offense of robbery committed by them in this
reference has been made was, strictly speaking, unnecessary to the decision, for it is further case; and therefore they cannot be convicted of the complex offense of robbery with
stated in the opinion that there was in fact an injury to the owner of the check, which homicide, penalized in subsection (1) of article 503 of the Penal Code. No such difficulty
consisted of the "delay, annoyance, and damage caused by the unlawful misappropriation of exists, however, with respect to the quadruple homicide committed upon the persons named
the warrant." (U.S. vs. Kepner, 1 Phil. Rep., 519, 526.) There is evidently nothing in the case in the complaint; and in conformity with the provisions of article 87 of the Penal Code, the
cited which can afford support for the idea that an erroneous allegation in a complaint as to penalties corresponding to all these crimes must be severely imposed. This court has already
ownership of the property robbed is immaterial. If we should hold that a man may be held in United States vs. Balaba (37 Phil. Rep., 260), that where more than one offense (not
convicted of robbing one person when he is charged with robbing another, the complaint complex offenses) are charged in the complaint, and the accused fails to demur or ask for a
instead of being a means of informing him of the particular offense with which he is charged severance, the penalties corresponding to all of the offenses which are charged and proved
would rather serve as a means of concealing it. may be imposed. The doctrine announced in that case applies with even greater propriety
offenses in one complaint. (See sec. 11, General Orders No. 58.)
It is important to note that the complaint in this case is not defective in form, for the charge
is clear, direct, and unambiguous. No formal objection could possibly be made by the The acts causing the violent death of the four deceased must be qualified as homicide, as the
defendants to this complaint; and their only course, if desirous of making any defense, was to record does not satisfactorily show how and in what manner they were executed.
plead not guilty, as was done in this case. The difficulty of the case arises from the facts
Even conceding the benefits or article 11 of the Penal Code, this circumstance, as regards
adduced in evidence. Section 10, General Orders No. 58, declares that no complaint is
both defendants is counterbalanced by the aggravating circumstances of nocturnity and that
insufficient by reason of a detect in matter of form which does not tend to prejudice a
the crime was committed in an uninhabited place, and, as respects Marcos Madanlog, by
substantial right of the defendant upon the merits. This provision has no application to such
that of relationship by affinity. The accused Pedro Lahoylahoy has accordingly become liable
a case as that now before us; and all arguments based upon the circumstance that the
to four penalties, each of seventeen years four months and one day, reclusion temporal, and
defendants made no objection to the complaint in the Court of First Instance are irrelevant
his co-accused Marcos Madanlog also, to the same number of penalties of twenty years
to the matter in hand.
57
each, reclusion temporal, for the homicide of the four deceased, each also being liable to
one-half of the costs.

In view of rule 2 of article 88 of the Penal Code, inasmuch as the maximum duration of three
times the length of the most severe of the penalties to be imposed upon the accused
exceeds forty years, the judgment reviewed is reversed, and we find that each of the accused
Lahoylahoy and Madanlog should be, as they are hereby, sentenced to suffer of aforesaid
penalties of reclusion temporal, not to exceed forty years, to the accessories prescribed by
article 59, to indemnify, severally and jointly, the heirs of each of the deceased in the amount
of P1,000 and each to pay one-half of the costs of both instances. So ordered.

Arellano, C.J., Torres, Johnson and Araullo, JJ., concur.

58
[G.R. No. 118944. August 20, 1998] the C-3 Road, North Bay Boulevard, Navotas, Metro Manila, one of the passengers, who was
later identified as Romulo Versoza, suddenly cried out: Hold-up ito. Walang papalag.[3]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMULO VERSOZA y GARCIA and JERRY
AVENDAO y MENDOZA, defendants-appellants. Versoza grabble the necklace of one of the passengers who was later identified as Alberto
Aplaon. Aplaon immediately reacted and shouted, Anong Hold-up? as he simultaneoulsy
DECISION grabbed the firearm of Versoza. When Aplaon successfully wrested the firearm from Versoza,
someone seated at the rear of the jeepney, who was later identified as Jerry Avedao, pulled
KAPUNAN, J.:
out a gun and shot Aplaon, hitting his head just above the nape. Aplaon fell to the floor of
the jeepney. Before alighting from the jeepney along North Bay Boulevard, one of the three
This is an appeal from the 11 November 1994 Decision in Criminal Case no. 14940 of the
perpetrators snatched the wristwatch of a passenger seated in front of the jeepney. Versoza,
Regional Trial Court of Malabon, Branch 72,[1] finding appellants Romulo Versoza y Garcia and
Avendao and their unnamed associate ran towards the squatters area in front of the Sulpicio
Jerry Avendao y Mendoza, guilty beyond reasonable doubt of highway robbery with
Lines Compound along North Bay Boulevard.
homicide as defined and penalized under Presidential decree No. 532 and imposing upon
them the penalty of life imprisonment and the payment of civil indemnity in the amount
The police authorities were subsequently summoned. Dojenas alighted from the jeepney and
of P50,000.00, interment of P70,000.00, moral damages of P100,000.00 and the costs of suit.
waited for the policeman to arrive. Meanwhile, the driver of the jeepney rushed Aplaon to
the Tondo General Hospital for treatment. He was pronounced dead on arrival.
The Information[2] dated 5 May 1994 charged:
Minutes later, several policeman arrived at the crime scene and conducted an investigation
That on or about the 21st day of April 1994, in Navotas, Metro Manila, and within the
on the holdup incident. Dojenas volunteered to accompany the policemen to the squatters
jurisdiction of this Honorable Court, the above-named accused; armed with a gun, conspiring,
area to look for and identify the perpetrators, but their search proved futile. Dojenas and the
confederating and mutually helping with (sic) one another, with intent to gain and by means
policemen proceeded to the Tondo General Hospital where they were informed that Aplaon
of violence and intimidation, did then and there wilfully, unlawfully and feloniously take, rob
had died. Dojenas went with the policemen to the Navotas Police Station where he gave his
and carry away the passengers wristwatches with an unestimated amount while abroad a
statement about the incident before SPO1 Daniel Ferrer, the investigator on the duty at the
passenger jeepney with Plate No. NYZ-655, along NBB South, Navotas, Metro Manila and in
Navotas Police Station.[4] SPO1 Ferrer requested the PNP Crime Laboratory Services-National
the course thereof said accused with intent to kill, wilfully, unlawfully and feloniously, shoot
Capital Region Unit, to conduct an autopsy on the body of Aplaon. [5]
passenger ALBERTO APLAON, hitting the latter on the back of his head, thereby inflicting
upon the victim gunshot wound cause (sic) his immediate death.
Dr. Florante Baltazar, Chief Inspector and Medico-Legal Officer, conducted the autopsy at
around 1:00 in the afternoon of the same day. His examination revealed that victim Aplaon
Contrary to law.
died of a single gunshot wound to the back of his head.[6] He issued a medico-legal
Appellants pleaded not guilty to the offense charged. Their other co-accused, John Doe, report[7] with the following findings: (1) gunshot wound, right parietal as the point of entry,
remains at-large. Trial on the merits of the case ensued with the prosecution presenting four 156.5 cm, from heel, 5 cms. From midsagittal line, measuring 0.8 x 0,7 cm., with contusion
(4) witnesses, namely: (a) Estrella Aplaon, the victims wife; (2) eyewitness, Arthur Dojenas; collar, measuring 0.9 x 0.8 cms., directed downwards, forwards (sic), right to left, fracturing
(3) SPO1 Daniel Ferrer, the investigating/arresting officer; and (4) Dr. Florante Baltazar, the the right parietal, left orbital plate, greater wing of the left sphenoid with a deformed slug
medico-legal officer who performed the autopsy on the victim. recovered embedded thereat, lacerating the left and right cerebral hemisphere of the brain,
(2) abrasion, right frontal region, measuring 3 x 2 cms., 5 cms. from anterior midline, and (3)
This case was spawned by an incident that occurred at around 9:00 in the morning of 21 April hematoma, left infra-orbital region measuring 4.5 x 2 cms., 4 cms. from anterior midline.
1994. According to eyewitness Arthur Dojenas, he left his house at Sawata, Dagat-dagatan,
Caloocan City that morning to report for work as headwaiter at the Savory Restaurant in Dr. Baltazar also recovered a .38 caliber slug from Aplaons head. He opined that the relative
Greenhills, San Juan, Metro Manila. He boarded a passenger jeepney with plate no. NYZ-655, distance between the assailant and the victim was more than 24 inches and that based on
en route to Divisoria. At around 9:00 a.m., while the passenger jeepney was cruising along the downward trajectory of the bullet on the forehead from right to left, the assailant was in
a higher position than, and was at the back of, the victim.[8]

59
At around 12:05 a.m. of 1 May 1994, SPO1 Ferrer was along R-10 Road, Sitio Sto. Nio, North Dojenas came and initially could not point to him as one of the malefactors. It was only when
Bay Boulevard conducting a follow-up investigation when Lito Francisco, another victim in a Dojenas went to the police station a second time that he identified him (Versoza) as one of
separate robbery hold-up incident, approached him. Francisco told him that he could identify the perpetrators. Versoza asserted on the witness stand that he was not acquainted with
one of his assailants and accompanied SPO1 Ferrer to nearby Barangay Puting Bato where Avendao whom he met for the first time when the latter was also detained two days after his
the alleged perpetrator was attending the wake of his grandmother. Upon their arrival, own detention on 1 May 1994. Versoza learned that Avendao lived 200 to 250 meters away
Francisco positively identified Versoza, a resident of R-10 Road, No. 1350 Sitio Sto. Nio, BBB from their house only after they were detained at the police station.
South, Navotas, Manila, as the perpetrator of the holdup in which he was one of the
victims. Immediately, SPO1 Ferrer frisked Versoza. He found and confiscated from Versoza a For his part, Avendao swore that at 7:30 in the morning of 21 April 1994, he was at the
ruler measuring 8-1/2 inches long with an improvised knife at its end. SPO1 Ferrer Powerman Employment Agency in Padre Faura St., Ermita, Manila to file his application for a
apprehended Versoza and brought him to the Navotas Police Station for further job in Bahrain. He left the agency at 11:00 a.m.
investigation.[9]
Avendao narrated that on 3 May 1994, SPO1 Ferrer arrested him and brought him to the
Thereafter, SPO1 Ferrer went to Dojenas house and asked Dojenas to go to the Navotas Naval Massage Parlor along North Bay Boulevard where one of its personnel was asked to
Police Station to find out if any of those detained there were the perpetrators of the 21 April identify him as the person who held them up. The person failed to identify him but he was
1994 robbery with homicide incident. A police line-up of the detained persons, including nevertheless brought to and detained at the Navotas Police Station. While in detention, he
Versoza, was formed and Dojenas unhesitantly and positively identified Versoza as the one was informed that he would be charged with concealing a deadly weapon. Thereafter, a
who grabbed the necklace of Aplaon.[10] certain Mrs. Aplaon entered the detention cell but she did not point to him. Later, SPO1
Ferrer asked him to line up with four (4) other detainees. Avendao positioned himself in the
Three days later, a follow-up police team apprehended and detained Avendao. Once again, middle of the line-up. Dojenas entered and pointed to him as one of the malefactors in the
SPO1 Ferrer contracted Dojenas and asked him to go to the police station to identify any of 21 April 1994 robbery with homicide incident. When Dojenas pointed at him, Avendao just
the culprits among the detainees. Dojenas positively identified Avendao as the person who bowed his head and did nothing.
shot Aplaon.[11]
On cross-examination, Avendao testified that he left his house at around 7:30 a.m. to apply
On 4 May 1994, Dojenas executed a Sinumpaang Salaysay[12] attesting to the fact that he for a job in Bahrain at a recruitment agency in Padre Faura. He boarded a jeepney for
witnessed the holdup staged by at least three persons, two of whom being Verzosa and Divisoria at 7:50 a.m. At around 8:12 a.m. he arrived in Divisoria where it took him about
Avendao. eighteen (18) minutes before he could get a ride for Padre Faura. At 9:00 a.m. or thirty (30)
minutes later, he reached Padre Faura and filed his application for a job at the Powerman
Testifying in his defense, Versoza maintained that at around 9:00 in the morning of 21 April Employment Agency. Two hours later or at around 11:00 in the morning, he arrived
1994, he and his cousin, Henry Redoblado, were vending prawns at the small market located home. Avendao affirmed that he first met Versoza when they were both detainees at the
in Marcelo St., Navotas. While doing so, Versoza saw three (3) fair-skinned person with high Navotas Police Station. He also learned that Versoza resided in Sitio Sto. Nio, R-10 Road,
noses and who were wearing long sleeved shirts, run towards the squatters area with North Bay Boulevard.[14]
policemen in pursuit. The authorities, however, failed to arrest them.[13] Later in the
afternoon, some policemen went to the squatters area to pick up a suspect in connection On 11 November 1994, the trial court promulgated the challenged decision that found
with a robbery with homicide case. The said suspect later on told Versoza that the police Versoza and Avendao guilty beyond reasonable doubt of the crime of highway robbery with
released him after the victim, who was then at the Tondo General Hospital, failed to identify homicide. In meting out the penalty of life imprisonment upon them, the trial court gave full
him as one of the malefactors. faith and credit to the eyewitness account of Arthur Dojenas, rejected the defense of alibi
that both accused interposed for miserably failing to support their claims with any
Versoza was drunk and attending the wake of his grandmother at Barangay Puting Bato when evidence.[15] The dispositive portion of the decision reads, thus:
the police picked him up. He alleged that the police frisked him and place a deadly weapon
inside his pocket. Then he was brought to the Navotas Police Station where he was falsely WHEREFORE, premises considered, judgment is hereby rendered finding both accused
charged with illegal possession of deadly weapon. While in detention, Versoza claimed that namely: Romulo Versoza y Garcia and Gerry Avendao y Mendoza guilty beyond reasonable

60
doubt of the crime of Highway Robbery with Homicide, defined and penalized under PD No. appellants again at the police station and at the police line-up within two weeks after the
532 and they are both sentenced to life imprisonment. incident, Dojenas could still sufficiently remember their features and distinctly tag them as
the culprits in the 21 April 1994 robbery with homicide.
Both accused are also ordered to pay the heirs of Alberto Aplaon the following: (a) the
admitted amount of P70,000.00 spent for the death and burial of Aplaon; (b) P100,000.00 by Furthermore, Dojenas testified in a straightforward and categorical manner regarding the
way of moral damages; and (c) P50,000.00 for loss of Aplaons life. identities of the malefactors. He did not waver despite the grueling and extensive question
fielded by the defense. He remained consistent and steadfast despite the defense counsels
Costs against the two (2) accused. repetitive questions seemingly designed to confuse him.[20] He testified, thus:

SO ORDERED.[16] Q: Now, did you ever see the two (2) accused again after that incident of April 21, 1994?

On appeal, Versoza and Avendao anchor their prayer for acquittal on the alleged unreliability A: Yes, sir, at the Navotas Police Station.
of the positive identification made by the lone eyewitness who testified at the trial Arthur
Dojenas. They claimed that when Arthur Dojenas pointed to them as the perpetrators, there Q: When was that, when you saw them at the Navotas Police Station?
were other detainees inside the detention cell and it was possible that one of those other
detainees could have been the real culprit. They assert that Dojenas did not point to them A: May 1, 1994.
right away during the confrontation at the police station. Neither was Dojenas' testimony
xxx xxx xxx
corroborated by any other witness.[17]
Q: Why did the police investigator has to fetch you (sic), what is the purpose?
Specifically, appellant Avendao attempts to discredit his identification as one of the
perpetrators of the crime by claiming that his name is Cherry and that his middle name is
A: To identify the holduppers.
Pagatpat while the information and the dispositive portion of the assailed decision speak of a
certain Jerry Avendao y Mendoza. Q: And were you able to go to the police headquarters?

Appellants contentions deserve little credit. A: Yes, sir.

In People vs. Teehankee,[18] the Court enumerated the factors that should be considered in Q: At the Navotas Police Station?
adopting the totality of circumstances test in resolving the admissibility of out-of-court
identification of suspects: A: Yes, sir.

xxx (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness Q: What happened there?
degree of attention at that time; (3) the accuracy of any prior description given by the
witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the A: I pointed to the suspects.
length of time between the crime and the identification; and (6) the suggestiveness of the
Q: Where were the suspects when you pointed them both of them at one instance?
identification procedure.[19]
A: They were on two (2) different cells.
Using this test in the case at bar, eyewitness Dojenas identification of appellants at the police
line-up as the perpetrators of the 21 April 1994 robbery with homicide is solid and Q: Whom did you identify first?
convincing. The robbery was staged in broad daylight, thus, undoubtedly, visibility was clear
and Dojenas had all the opportunity to see the culprits. He witnessed every detail of the A: Him. (Witness pointing to Romulo Versoza.)
holdup since he was one of the passengers inside the jeepney and would naturally be keenly
observing what would happen next as he faced the same danger that the victim did. Seeing Q: Where was Romulo Versoza when you identify him.

61
A: Inside the cell. xxx xxx xxx

Q: Was he alone.? Q: Where was he when you pointed to him as a person involved in the incident?

A: He was with several detainees. A: Inside the cell.

Q: How many detainees were there when you identified Romulo Versoza? Q: Was he alone?

A: More or less five (5). A: He was with several.

Q: What made you identified (sic) Romulo Versoza? Q: How many?

A: Necause (sic) I recognized his face. A: More or less ten (10).

Q: Why, was the appearance of Romulo Versoza so easy for you to identify? Q: What did he say when you pointed to him as a person involved in the incident?

A: Yes, sir, because I remembered his face because I was near him. A: He remained silent also.

Q: When the incident happened, where were you seated at the passenger jeepney in relation Q: He did not protest or react to what you have done in pointing to him?
to where Romulo Versoza (sic)?
A: No, sir.[21]
A: We were facing each other at the rear portion of the jeep. (Underscoring ours.)
Appellants were placed in police line-ups with other persons precisely to test the eyewitness,
xxx xxx xxx Arthur Dojenas, if he could readily identify the real perpetrators. The presence of several
other detainees, notwithstanding, Dojenas was successful in picking as the culprits in the
Q: After you have pointed Romulo Versoza inside the detention cell together with the five (5) robbery with homicide.
detainees, what did you say (sic)?
In attempting to destroy his identification by Dojenas, appellant Avendao insist that said
A: He remained silent. witness was not aware of his true and real name as he was mentioned in the sinumpaang
salaysay, charged in the information and convicted by the trial court as Jerry Avendao y
Q: He did not say no I am not the one?
Mendoza and not as Cherry Abendao y Pagatpat, his real name. In sum, it is appellant
Avendaos view that the identities of the malefactors can only be established if the witness
A: No, sir.
knows their names.
Q: Why did he get mad he just received you identifying him (sic)?
This is puerile reasoning. Identification of a person is not established solely through
A: Yes, sir. knowledge of the name of a person. Familiarity with physical features particularly those of
the face, is actually the best was to identify a person. One may be familiar with the face but
Q: How about the other one Gerry Avendao, when did you see him again after the killing? not necessarily the name. It does not follow, therefore, that to be able to identify a person,
one must first know his name.[22] Moreover, it is completely illogical to equate and limit
A: There also at the detention cell. positive identification to a knowledge of the real names of the culprits since more often than
not, robbers victimize people who are complete strangers to them and who do not know
Q: On the same date when you identified Romulo Versoza?
them by face or name purposely to avoid being recognized and positively identified.
A: Not on the same date when I pointed to Romulo Versoza, three (3) days after.
62
It is, therefore, enough that an eyewitness positively identify the culprits in a crime by means In the same manner, appellants' alibi collapses in the face of their positive identification as
of their faces or physical features. Experience shows that precisely because of the unusual the perpetrators of the crime.[28] Appellant Versoza contends that he was sellling prawns in
acts of bestiality committed right before their eyes, eyewitnesses, especially the victims of a the market located at Marcelo St. in Navotas. His alibi, however, deserves scant
crime, can remember with a high degree of reliability the identify of criminals.[23] The natural consideration. Jurisprudence dictates that for the defense of alibi to prosper, it is not
reaction of victims of criminal violence is to strive to see the appearance of their assailants sufficient that appellant proves that he was not at the crime scene when the incident
and observe the manner the crime was committed. Most often, the face and the body happened but, likewise, that it was physically impossible for him to be there at the time of
movements of the assailants create an impression that cannot be erased easily from their the commission of the offense. In this case, when the robbery with homicide occurred,
memory.[24] In the instant case, moreover, it was not shown that Dojenas had any ill motive Versoza was within the vicinity of the scene of the crime.
to falsely testify against appellants. In this age of indifference, this citizen should be
commended for not shirking from his duty as a responsible member of society. In Avendaos case, other than his self-serving statement, not a single witness or document
was presented to corroborate his story that he was at the Powerman Employment Agency.
It bears stressing that appellant Avendao raised the issue of his being charged and convicting
allegedly under a wrong name for the first time on appeal. When eyewitness Dojenas The identification of appellants as the persons who robbed the passenger jeepney and
identified him in court, no objections were made by the defense as to Avendaos first and gunned down Aplaon after robbing him of his necklace is, therefore, beyond peradventure of
middle names and none were registered in the transcript of stenographic notes. Neither do doubt. However, the trial court erred in convicting them of the crime of highway robbery
the records bear out any effort on Avendaos part to raise the issue that the person being with homicide under P.D. 532, the Anti-Piracy and Anti-Highway Robbery Law of 1974. What
charged with the crime is named Jerry Avendao y Mendoza and not Cherry Abendao y appellants committed is the crime of robbery with homicide, which is distinct from the
Pagatpat.Having failed to make an objection as to his exact name in the course of the trial, it offense covered by P.D. 532 which punishes, among others, indiscriminate highway robbery.
was too late for appellant Avendao to raise the matter on appeal. It is axiomatic that an
Highway robbery/brigadage is defined in Section 2 (e) of said decree as (t)he seizure of any
objection in the course of the oral examination of a witness should be made as soon as the
person fro ransom, extortion or other unlawful purposes, or the taking away of the property
grounds shall become apparent. Since no objection to the admissibility of evidence was made
of another by means of violence against or intimidation of person or force upon things or
in the court below, an objection raised for the first time on appeal will not be considered.[25]
other unlawful means, committed by any person on any Philippine Highway. As manifest in
Appellants further claim that the elements of conspiracy had not been indubitably proven in the preamble of said decree, its objective is to deter and punish lawless elements who
the case at bar. They assert that they did not know each other prior to their detention at the commit acts of depredation upon persons and properties of innocent and defenseless
police station. However, contrary to appellants assertion, the prosecution has proven beyond inhabitants who travel from one place to another thereby disturbing the peace and
a shadow of doubt that they conspired in the commission of the crime. In conspiracy, direct tranquility of the nation and stunting the economic and social progress of the
proof of a previous agreement to commit by which the offense was perpetrated, or inferred people. Consonant with this expressed policy, in People v. Puno,[29] the Court said:
from the acts of the accused when such point to a joint purpose and design, concerted action,
In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the
and community of interest.[26]
purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are
Conspiracy has been amply and sufficiently proven in this case. Appellant Versoza at least four armed participants. The martial law legislator, in creating and promulgating
simultaneously announced the holdup, pulled out his gun tucked in his pants, pointed his gun Presidential Decree No. 532 for objectives announced therein, could not have been unaware
at Aplaon and grabbed the latters necklace. When Aplaon resisted and succesfully wrested of that distinction and is presumed to have adopted the same, there being no indication to
Versozas gun, appellant Avendao pulled out his gun and shot Aplaon on the head. Not the contrary. This conclusion is buttressed by the rule on contemporaneous construction,
contented with what happened, before alighting from the jeepney, one of them grabbed the since it is one drawn from the time when and the circumstance under which the decree to be
wristwatch of another passenger seated in front of the jeepney. Both appellants and their construed originated. Contemporaneous exposition or construction is the best and strongest
unnamed cohort ran in the same direction towards the squatters area along North Bay in the law.
Boulevard. There is, therefore, no doubt that there was unity of purpose and design in the
Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only
execution of the unlawful act.[27]
acts of robbery perpetrated by outlaws indiscriminately against any person or persons on

63
Philippine highways as defined therein, and not acts of robbery committed against only a Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable
predetermined or particular victim, is evident from the preambular clauses thereof, to wit: by reclusion perpetua to death. No mitigating or aggravating circumstances attended the
commission of the crime. Thus, in accordance with Article 63 (2) providing that in the
WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still absence of neither mitigating or aggravating circumstances in crimes in which the law
committing acts of depredation upon the persons and properties of innocent and defenseless prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied,
inhabitants who travel from one place to another, thereby disturbing the peace, order and and therefore the imposable penalty in this case is reclusion perpetua.
tranquility of the nation and stunting the economic and social progress of the people;
The claims for P70,000 burial and incidental expenses and P100,000 moral damages had all
WHEREAS, such acts of depredations constitute x x x highway robbery/brigandage which are been conceded by counsel for appellants who found these claims quite reasonable. [34]Hence,
among the highest forms of lawlessness condemned by the penal statutes of all countries; the trial court treated the same as admissions and accordingly dispensed with the
presentation of evidence.[35] In line with well-established jurisprudence, appellants shall also
WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such
be solidarily liable to pay the heirs of the vistim the amount of P50,000.00 as civil indemnity.
acts of depredations by imposing heavy penalty on the offenders, with the end view
of eliminating all obstacles to the economic, social, educational and community progress of WHEREFORE, the Decision convicting appellants Romulo Versoza and Jerry Avendao y
the people. (Emphasis supplied.) Mendoza (Cherry Abendao y Pagatpat) of the crime of highway robbery with homicide is
hereby MODIFIED. Appellants are found guilty of the crime of robbery with homicide defined
Indeed, it is hard to conceive of how a single act of robbery against a particular person
and penalized under Article 294 (1) of the Revised Penal Code and are accordingly each
chosen by the accused as their specific victim could be considered as committed on the
imposed the penalty of reclusion perpetua. They shall jointly and severally pay the heirs of
innocent and defenseless inhabitants who travel from one place to another, and which single
Alberto Aplaon the amount of P50,000.00 as civil indemnity, P70,000.00 as interment and
act of depredation would be capable of stunting the economic and social progress of the
burial expenses, and P100,000.00 as moral damages . Costs de oficio.
people as to be considered among the highest forms of lawlessness condemned by the penal
statutes of all countries, and would accordingly constitute an obstacle to the economic, social, SO ORDERED.
educational, and community progress of the people, such that said isolated act would
constitute the highway robbery or brigandage contemplated and punished in said Narvasa, CJ. (Chairman), Romero and Purisima , JJ., concur.
decree. This would be an exaggeration bordering on the ridiculous.

In other words, a conviction for highway robbery requires proof that several accused were
organized for the purpose of committing highway robbery indiscriminately. There is no such
proof in this case. Neither is there proof that appellants previously attempted to commmit
similar robberies to show the indiscriminate perpetration thereof.[30]

Nonetheless, the designation of the crime in the information as highway robbery with
homicide (Violation of P.D. 532) does not preclude conviction of the appellants of the crime
of robbery with homicide. In the interpretation of an information, what controls is not the
designation but the description of the offense charged. [31] The crime of robbery with
homicide is clearly alleged in the information notwithstanding its erroneous caption. It is an
offense necessarily included in that with which they were charged. Accordingly, appellants
should be liable for the special complex crime of robbery with homicide. Said crime is
committed when, on the occasion of the robbery, homicide resulted. [32] Consequently, all
those who took part in the robbery are liable as principals therein although they did not
actually take part in the homicide.[33]

64
[G.R. No. 45332. October 27, 1936.] discretion in permitting the amendment to the information.

BRUNO AREVALO and CECILIO AREVALO, Petitioners, v. RICARDO NEPOMUCENO, Judge of We are of the opinion that the court did not abuse its discretion. The amendment to the
First Instance of Nueva Ecija, and THE PROVINCIAL FISCAL OF NUEVA ECIJA, Respondents. information was merely a matter of form. It neither affects nor alters the nature of the crime
because, whether it be Bruno or Cecilio who inflicted the mortal wound, the crime would be
Pablo Caizares and S.V. Lata, for Petitioners. the same. Neither does it affect the extent of the liability of the appellants because, it being
alleged in the information that both accused conspired and helped each other to commit the
No appearance for Respondents. crime, they would be liable to the same extent, whoever inflicted the would which resulted
in the death of the deceased. Therefore, it is purely an amendment of form which does not
SYLLABUS substantially alter the information nor affect the rights of the accused.

1. CRIMINAL LAW; COMPLAINT OR INFORMATION; AMENDMENT OF FORM OF AN The petition is denied, with the costs to the petitioners. So ordered.
INFORMATION. The petitioners in these certiorari proceedings, Accused in an information
for murder, allege that the court exceeded its jurisdiction and abused its discretion in Villa-Real, Abad Santos, Imperial, Diaz and Laurel, JJ., concur.
permitting the amendment to the information. There was no such abuse. It was alleged in
the original information that B was armed with a knife and C with a revolver. In the amended
information, which was admitted, it is alleged that it was B who carried the revolver and C
the knife. Held: That said amendment was merely a matter of form and neither altered the
nature of the crime nor affected the criminal liability of the petitioners, because, it being
alleged that both accused conspired and helped each other to commit the crime, they are
liable to the same extent, whoever inflicted the wound caused by a revolver which resulted
in the death of the deceased.

DECISION

AVANCEA, C.J. :

In the Court of First Instance of Nueva Ecija, an information for the crime of murder was filed
against Bruno Arevalo and Cecilio Arevalo, alleging that Bruno was armed with a knife and
Cecilio with a revolver. After the accused had pleaded not guilty upon arraignment, and upon
proceeding with the trial of the case on the day fixed therefor, a witness was presented who
testified that it was Bruno who carried the revolver and Cecilio, the knife. Alleging that
according to the information it was Bruno who carried the knife and Cecilio the revolver, the
attorney for the defense filed an objection to said testimony. The court stated that if the
fiscal did not amend the information, it would sustain the objection. The fiscal filed an
amended information alleging that it was Bruno who carried the revolver and Cecilio the
knife. The court admitted said amendment.

Bruno and Cecilio Arevalo, the petitioners in this case, who are the accused in said
information, filed this petition for certiorari and ask that the resolution so rendered be
declared null and void on the ground that the court exceeded its jurisdiction and abused its

65
G.R. No. L-30146 February 24, 1981 That on or about the 31st day of March, 1968, in the municipality of San Juan, province of
Rizal, a place within the jurisdiction of this Honorable Court, the above named accused
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Joseph Casey alias "Burl" being then armed with a knife, together with the accused Ricardo
vs. Felix alias "Carding Tuwad" who was then armed with a firearm, and the two of them
JOSEPH CASEY alias "Burl" and RICARDO FELIX alias "CARDING TUWAD", defendants- conspiring and confederating together and mutually helping and aiding one another, with
appellants. intent to kill, evident premeditation and treachery and taking advantage of superior strength,
did, then and there wilfully, unlawfully and feloniously attack, assault and shoot and stab
with the said firearm and knife one Alfredo Valdez, thereby inflicting upon the latter fatal
wounds which directly caused his death.
GUERRERO, J.:
Contrary to law. 2
Automatic review of the judgment of the Circuit Criminal Court in Criminal Case No. CCC-VI -6
Rizal (1 7857), imposing upon Joseph Casey alias "Burl" and Ricardo Felix alias "Carding
On October 15, 1968, accused Ricardo Felix entered the plea of not guilty upon being
Tuwad" the capital punishment for the death of Alfredo Valdez. The dispositive portion
arraigned and trial was accordingly had.
thereof, states:
Mercedes Palomo, 28, resident of 242 Mahinhin Street, San Juan, Rizal, testified that on
WHEREFORE, the Court finds the accused, Joseph Casey alias "Buri" and Ricardo Felix alias
March 31, 1968, at around three o'clock in the afternoon, while in the house of her aunt, she
"Carding Tuwad", GUILTY, beyond reasonable doubt, of the commission of the crime of
heard a shot coming from the pool room located near her aunt's place. She then looked
Murder, under Article No. 248 of the Revised Penal Code, as charged in an Information, and
towards the direction of the pool room and saw three men coming out, one of them being
hereby sentences them to suffer the PENALTY OF DEATH, with accessory penalties as
pursued by the two others. She recognized the man being pursued as Alfredo Valdez alias
prescribed by law; to indemnify the heirs of the deceased, Alfredo Valdez, in the amount of
"G.I." She, however, did not know the names of the pursuers but described one of them as a
TWELVE THOUSAND (P12,000) PESOS, jointly and severally; and to pay the costs.
short man, with curly black hair and black complexion while the other as having a fair
complexion. When asked as to whether she can Identify them, she answered in the
On May 22, 1968, Assistant Fiscal Herminio I. Benito filed an Information for Murder against
affirmative and pointed to Joseph Casey and Ricardo Felix. 3
accused-appellant Joseph Casey alias "Burl", alleging:
Continuing her testimony, she said that she saw the one with curly hair overtake and stab the
That on or about the 31st day of March, 1968, in the municipality of San Juan, province of
victim several times, while in the meantime, Ricardo Felix stood nearby holding a gun which
Rizal, a place within the jurisdiction of this Honorable Court, the above- named accused,
he later fired once at the victim. 4
being then armed with a knife, together with one Ricardo Felix alias "Carding Tuwad" who is
then armed with a firearm and who was (sic) still at large, and the two of them conspiring
Jose Rivera, 57 years old, a policeman, was presented by the prosecution to testify on the
and confederating together and mutually helping and aiding one another, with intent to kill,
investigation he conducted before Judge Alfredo M. Gorgonio on April 1, 1968 involving the
evident premeditation and treachery and taking advantage of superior strength, did, then
accused Joseph Casey. He submitted in evidence the extrajudicial statement of the said
and there wilfully, unlawfully and feloniously attack, assault and shoot and stab with the said
accused, contained in a two page sworn statement wherein said accused narrated having a
firearm and knife one Alfredo Valdez, thereby inflicting upon the latter fatal wounds which
rendezvous with the accused Ricardo Felix and with another person named Rudy at Cubao
directly caused his death.
Rotonda, Quezon City at about nine o'clock in the morning of March 31, 1968 and thereafter
proceeding to Barrio Halo-Halo, San Juan, Rizal at about three o'clock in the afternoon,
Contrary to law. 1
where the incident happened. 5
On June 24, 1968, upon arraignment, said accused pleaded not guilty to the crime charged in
Patrolman Honorio Carritero, 46 years old, also a policeman, testified that in the afternoon of
the said complaint. Then, sometime in September, 1968, accused ' appellant Ricardo Felix
March 31, 1968. he was awakened by noise that somebody was stabbed and shot. Upon
alias "Carding Tuwad" was arrested. Accordingly, an Amended Information was filed by the
going out to investigate, he saw the victim lying down near the toilet with stab wounds but
same fiscal to include Ricardo Felix as an accused, stating as follows:

66
still alive, hovering between life and death. He then called for a jeep and brought him to a Heart and its big vessels, almost empty of blood.
hospital. 6
Brain and other visceral organs, markedly pale.
Finally, Dr. Mariano B. Cueva, 32 years of age, a physician, was presented to testify on the
Necropsy Report No. 58-425 of Alfredo Valdez, herein quoted as follows: Stomach, filled with dark fluid and clotted blood about 800 cc. 7

Marked paleness of lips, nailbeds, and integument. Case of Death: Hemorrhage, severe, secondary to stab wounds of abdomen.

Abrasion, 1.5 x 0.7 cm., right scapular region of back, 12.0 cm. from posterior median line. On the other hand, the evidence for the defense consisted of the testimonies of the two
accused. Joseph Casey, when called to testify on his behalf, admitted having stabbed the
Stab wounds: (1) 1.1 cm. long, spindle shape, located at left hypochondriac region of victim, Alfredo Valdez but alleged that he did so in self-defense. His version of the incident
abdomen, 11.0 cm. from anterior median line, level of 8th intercostal space; long axis is was that on March 31, 1968, he went to the house of Ricardo Felix but was told that he was
oriented horizontally, medial extremity sharp, lateral extremity contused, edges clean-cut not in. So he proceeded to the pool room, located around two or three meters away from
and slightly gaping, with bevelled lower border; attract is directed backward upward medially, the residence of Ricardo Felix. At the start, he simply witnessed those playing pool and when
entering abdominal cavity and perforating along its track the greater momentum, body of they were through, he himself played. While playing, he accidentally bumped the victim with
stomach, body of pancreas, and partly severing the abdominal aorta at the level of 12th the pool cue (tako). He accordingly asked for apoloy but the victim simply ignored him and
thoracic vertebra; approximate depth, 10.0 cms. left the place immediately. 8

(2) 1.1 cm. long, spindle shape, located at umbilical region of abdomen, 2.3. cm. to the left of When he was through playing, he went out and saw the victim waiting for him outside,
anterior median line, 6.0 cm. above the level of navel; long axis oriented horizontally, medial accompanied by six or seven persons holding pieces of wood. As the place had no other exit,
extremity sharp, lateral extremity contused, edges clean- cut and gaping, with bevelled lower he proceeded on his way together with one person named "Rody." While passing by, the
border; track is directed backward upward and medially, entering abdominal cavity and victim suddenly drew a "balisong" and lunged it on him. But he was able to parry the thrust.
perforating along its track the greater momentum, pylorus of stomach and body of pancreas; He then took hold of the victim's right hand and grappled with him. In the process, he
approximate depth, 10.0 cms. successfully wrested the knife from him. He then used the weapon against him, hitting him
about two or three times. While he was contending with the victim, the latter's companions
(3) 1.0 cm. long, spindle shape, located at left infra scapular region of the back, 8.5 cm. from joined in and hit him with pieces of wood, inflicting "gasgas" or abrasions on his back. 9
posterior median line, level of 9th rib; long axis is oriented slightly downward and laterally,
lateral extremity sharp, medial extremity contused, edges clean-cut and gaping with bevelled The other accused, Ricardo Felix, testified that he did not see Joseph Casey on March 31,
upper border; track is directed downward slightly forward and medially taking a deep intra- 1968. Likewise, he said that he knew the victim, Alfredo Valdez; that he last saw him alive in
muscular route at left posterior lumbar region to a depth of 9.0 cm. a store on the same day that he was killed when he was about to leave for Manila; and that
he learned that he was dead when he returned home. 10
(4) 1.2 cm. long, slightly curvilinear in shape, located at right posterior lumbar region, 8.0 cm.
from posterior lumbar region, 8.0 cm. from posterior median line, 12.0 cm. above iliac crest On the basis of the aforesaid evidence, the court a quo rendered the aforementioned
convexity of wound is directed upward, medial extremity sharp, lateral extremity contused, judgment of conviction. It found that two aggravating circumstances attended the
edges clean-cut and gaping, with bevelled upper border; track is directed downward slightly commission of the crime, namely: employing or taking advantage of superior strength and
forward and laterally, taking a subcutaneous route at right lateral lumbar region to a depth of evident premeditation, one of which qualified the killing to murder. Hence, this automatic
6.5 cm. review.

Hemoperitoneum 840 cc. The able counsel de oficio for the accused-appellant raised the following assignments of
errors in a well-prepared brief:
Hematomas, retroperitoneal, severe, bilateral.
FIRST ASSIGNMENT OF ERROR

67
The Court a quo erred in illegally trying appellant Casey on the amended information without The test as to whether a defendant is prejudiced by the amendment of an information has
arraignment, and in finding him guilty after such illegal trial. been said to be whether a defense under the information as it originally stood would be
available after the amendment is made, and whether any evidence defendant might have
SECOND ASSIGNMENT OF ERROR would be equally applicable to the information in the one form as in the other. 12 A look into
Our jurisprudence on the matter shows that an amendment to an information introduced
The Court a quo erred in holding that the appellants acted with evident premeditation and
after the accused has pleaded not guilty thereto, which does not change the nature of the
abuse of superior strength, and in qualifying the crane committed as aggravated murder.
crime alleged therein, does not expose the accused to a charge which could call for a higher
penalty, does not affect the essence of the offense or cause surprise or deprive the accused
THIRD ASSIGNMENT OF ERROR
of an opportunity to meet the new averment had each been held to be one of form and not
The Court a quo erred in holding that the appellants had forged a conspiracy to kill the victim, of substance not prejudicial to the accused and, therefore, not prohibited by Section 13,
Alfredo Valdez. Rule 110 of the Revised Rules of Court. 13

FOURTH ASSIGNMENT OF ERROR We, however, find the second assignment of error of accused- appellants meritorious. The
lower court erred in its findings and conclusions, herein quoted below, that the aggravating
The Court a quo erred in holding that both appellants were liable for the death of Alfredo circumstances of evident premeditation and abuse of superior strength attended the
Valdez; if any crime had been committed at all, the only person responsible therefore was commission of the crime:
appellant Casey, and, at that, only for homicide, instead of murder.
In the morning of March 31, 1968, from the evidence on the record, the two (2) accused,
FIFTH ASSIGNMENT OF ERROR Joseph Casey and Ricardo Felix, had rendezvous in Cubao, Quezon City, and planned to kill
the victim, Alfredo Valdez. (Evident premeditation and conspiracy) There was superior
The Court a quo erred in discounting appellant Casey's defense that he acted in legitimate strength that was used because the victim, Alfredo Valdez, was alone, being pursued by the
self-defense. two accused, who were both armed. The two accused did not waste time in planning the
killing of the victim on March 31, 1968. They clung to their determination of killing the victim.
SIXTH ASSIGNMENT OF ERROR
From 9:00 o'clock in the morning, they had the firm conviction and strong determination of
The Court a quo erred in discounting the defense of alibi interposed by appellant Felix. killing the victim up to the time of the execution of their evil motive. (People vs. Caushi, G. R.
No. L16495) 14
SEVENTH ASSIGNMENT OF ERROR
Indeed, accused-appellant Joseph Casey gave an extrajudicial sworn statement that he met
The Court a quo erred in not acquitting both appellants. 11 accused-appellant Ricardo Felix and another person named Rudy in Cubao, Quezon City on
that fateful day. However, there is no showing that this meeting was purposely arranged to
We do not find merit in the first assignment of error. The lack of arraignment under the plan the killing of the victim. In fact, the following questions and answers in the said sworn
amended information is objected to by accused-appellant Joseph Casey allegedly on the statement show that there was no preconceived design to kill the victim:
ground that there is a violation of his constitutional right to be informed of the charge
against him. There can be a violation of such right, however, only when the amendment 7. T Sino ang sinasabi mong binaril at sinaksak mo?
pertains to matters of substance. In the case at bar, the alterations introduced in the
information refer to the inclusion of accused appellant Ricardo Felix to the same charge of S Hindi ko po kilala dahil noon ko po lamang nakita ang nasabing tao.
murder. They do not change the nature of the crime against accused-appellant Casey.
8. T Maari mo bang isalaysay ang buong pangyayari?
Conspiracy, evident premeditation, treachery and taking advantage of superior strength are
similarly alleged in both informations. No extenuating circumstance is likewise alleged in S Kami po ay nagkita nila Carding Tuwad at isang nagngangalang Rody sa Cubao, Quezon
both. Thus the amendment of the information as far as accused-appellant Casey is concerned City, ng mga alas 9:00 ng umaga, Marzo 31, 1968, at kami ay nag-inuman. Matapos kaming
is one of form and not of substance as it is not prejudicial to his rights. mag-inuman, ng mga mag-aalas 3:00 ng hapon ng araw ding iyon, nagyaya po si Carding doon
68
sa kanila sa Barrio Halo-Halo, San Juan, Rizal, at sa paglalakad namin doon sa daang Mahinhin, There must be proof of the relative physical strength of the aggressors and the assaulted
San Juan, Rizal, nakita ni Carding ang isang lalaki, at ang ginawa ay nilapitan niya. Ng makita party; 20 or proof that the accused simultaneously assaulted the deceased. 21 As likewise held
ng lalaki si Carding, tumakbo po, at ang ginawa ni Carding ay kanyang hinabol. 15 in People vs. Trumata and Baligasa, 22 the mere fact that the two accused may have inflicted
fatal wounds on the deceased with their respective bolos does not justify a finding that
The subsequent portions of the said sworn statement further militate against the existence advantage was taken of superior strength in the absence of proof showing that they
of evident premeditation. Thus, when accused-appellant Casey was asked why Ricardo Felix cooperated in such a way as to secure advantage from their superiority of strength.
shot the victim, he answered: "Noon pong nakasakay na kami sa jeep, tinanong ko siya kung
bakit nangyari ang away na yaon at ang sabi ni Carding ay. DATI KO NANG Thus, in the face of the evidence on record showing that although the victim was pursued by
NAKAENKWENTRO YAONG TAO" (Question No. 28). And when asked why he stabbed the both of the accused-appellants 23 and that he was unarmed 24 while the accused-appellants
victim, he replied: Dahilan kasama ko po si Carding kaya ko po nasaksak ang tao. Hindi ko were both armed, one with a gun and the other with a long pointed weapon, 25 since it is also
kusang kagustuhan na saksakin ang tao kung hindi dahil sa nakasama ko si Carding. duly proved that it was only accused-appellant Casey who assaulted and inflicted stab
wounds on him as the other accused-appellant merely stood nearby toying with his gun,
(Question No. 29) abuse of superiority cannot be said to have attended the commission of the crime.

There is evident premeditation when the killing had been carefully planned by the offender The third essential issue to be resolved is whether or not there is conspiracy between the
or when he had previously prepared the means which he had considered adequate to carry it two accused in the commission of the crime. Conspiracy exists when two or more persons
out, when he had prepared beforehand the means suitable for carrying it into execution, come to an agreement concerning the commission of a felony and decide to commit
when he has had sufficient time to consider and accept the final consequences, and when it. 26 This agreement need not be in writing or be expressly manifested. 27 It is sufficient that
there had been a concerted plan. 16 It has also been held that to appreciate the there is a mutual implied understanding between the malefactors as shown by their
circumstances of evident premeditation, it is necessary to establish the following; (1) the concerted action towards the fulfillment of the same objective. In People v. Cadag, 28 it was
time when the offender determined to commit the crime; (2) the act manifestly indicating held: "Conspiracy to exist does not require an agreement for an appreciable period prior to
that the culprit has clung to his determination; and (3) a sufficient lapse of time between the the occurrence; from the legal viewpoint, conspiracy exists if, at the time of the commission
determination and execution to snow him to reflect upon the consequences of his act and to of the offense, the accused had the same purpose and were united in its execution." To the
allow his conscience to overcome the resolution of his will had he desired to hearken to its same effect is the ruling in other cases decided by this Court. 29
warning. 17
Pursuant to this uniform and consistent jurisprudence on the existence of conspiracy by the
From the answers of accused-appellant Casey in said sworn statement, it can be gleaned that mere proof of community of design and purpose on the part of the accused, We hold that
the killing was not a preconceived plan. It was not preceded by any reflection or deep conspiracy exists in this case, True enough that there is no direct showing that the accused
thought. It was just a spontaneous decision reached when the victim started to run away had conspired together, but their acts and the attendant circumstances disclose that
upon being approached by accused-appellant Ricardo Felix. Evident premeditation cannot, common motive that would make accused Ricardo Felix as a co-principal with the actual
thus, be considered in this case. The Solicitor General himself agrees with the defense that slayer, Joseph Casey. Without doubt, he performed overt acts in furtherance of the
this circumstance has not been duly proved (People's Brief, p. 8). Hence, the crime conspiracy. In People vs. Peralta, 30 it was held that such overt act may consist in actively
committed is simple homicide (Article 249, Revised Penal Code). participating in the actual commission of the crime, in lending moral assistance to his co-
conspirators by being present at the scene of the crime, or in exerting moral ascendancy over
There are indeed two accused-appellants in this case charged with the murder of not one
the rest of the conspirators as to move them to executing the conspiracy. In the case at bar,
victim but superiority in number does not necessarily mean superiority in strength. It is
Ricardo Felix's overt acts consist in instigating the pursuit of the deceased, in firing a shot at
necessary to show that the aggressors "cooperated in such a way as to secure advantage
him and in giving Joseph Casey encouragement by his armed presence while the latter
from their superiority in strength." 18 In the case of U.S. vs.. Devela, et al., 19 there were two
inflicted the fatal wounds on the deceased.
accused who were armed with a bolo and a dagger. But the circumstance of abuse of
superiority was not taken into consideration because the mere fact, according to this Court, From the extrajudicial confession of the accused-appellant Joseph Casey, it can also be
of there being a superiority of number is not sufficient to bring the case within this provision. inferred that Ricardo Felix was the moving factor of the evil act perpetrated by the former

69
against the victim. While it was Joseph Casey who inflicted the mortal wounds that caused time of the alleged crime. He merely said that he was at home and that he went to
the death of the victim, he did so out of his perverted sense of friendship or companionship Manila. 34 As pointed out by the Solicitor General, he did not even specify the exact place at
with Ricardo Felix. Manila where he had gone and the purpose for going there. Then, while said defense was
corroborated by Joseph Casey, the latter's testimony lacks that character of trustworthiness
Hence, it would be incongruous to acquit Ricardo Felix and put all the blame of the killing on since it is very apparent that he was merely attempting to assume full and exclusive
Joseph Casey when it was the latter who merely joined the former in his criminal resolution. responsibility for the crime. Finally, said defense is unavailing when there is positive
The fact that he did nothing but toyed with his gun when Joseph Casey successively stabbed Identification. Prosecution witness, Mercedes Palomo, gave distinct attributes of Ricardo
the victim means that he concurred with the wife of Casey to do away with the victim. For Felix in her sworn statement that leave no iota of doubt that he was one of the perpetrators
this reason, he should also be held accountable, notwithstanding the fact that his shot did of the crime.
not hit the victim and that the cause of death of the victim is the stab wounds inflicted by
Casey. In People vs. Peralta, 31 it was held that the moment it is established that the WHEREFORE, the judgment of the trial court under automatic review is MODIFIED in that the
malefactors conspired and confederated in the commission of the felony proved, collective accused-appellants Joseph Casey and Ricardo Felix are found guilty beyond reasonable doubt
liability of the accused conspirators attaches by reason of the conspiracy, and the court shall of the crime of homicide without any attending circumstances and should be sentenced
not speculate nor even investigate as to the actual degree of participation of each of the to reclusion temporal in its medium period. But applying the Indeterminate Sentence Law,
perpetrators present at the scene of the crime. each of the accused is sentenced to an indeterminate penalty of ten (10) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
The above discussion also disposes of the fourth assignment of error of accused-appellants. maximum. The accused are likewise sentenced to indemnify the heirs of the deceased
So We proceed with the fifth assignment of error. Alfredo Valdez in the amount of TWELVE THOUSAND PESOS (P12,000.00) jointly and
severally, and to pay the costs.
We find that the respondent court correctly disregarded Joseph Casey's claim of self-defense.
Besides being unworthy of credence, said claim is uncorroborated and contrary to the SO ORDERED.
testimony of the eyewitness, Mercedes Palomo.
Barredo, Concepcion, Jr., Fernandez, Abad Santos, De Castro and Melencio-Herrera, JJ.,
The fact that the victim sustained four stab wounds while the accused complained merely of concur.
abrasions on his back indicates the falsity of the claim. The accused failed to present a
medical certificate for the bruises he allegedly sustained. He likewise failed to present Fernando, CJ., concurs in the result.
anybody to attest to the truth of his allegations. There is no clear and convincing evidence
that the elements of self-defense are present. On the other hand, the prosecution had not
only one but several eyewitnesses to the crime as shown by the different affidavits attached
to the records of the case. Although only one of the eyewitnesses was presented in court,
her lone testimony on what actually transpired, negating the claim of self-defense, is more
credible than the version of Joseph Casey. Evidence, to be believed, must not only proceed
from the mouth of a credible witness, but it must be credible in itself. Human perception can
be warped by the impact the events and testimony colored by the unconscious workings of
the mind. No better test has yet been found to measure the value of a witness' testimony
than its conformity to the knowledge and common experience of mankind. 32

We likewise find that respondent court correctly denied the defense of alibi of Ricardo Felix.
Alibi, in order to be given full faith and credit must be clearly established and must not leave
any room for doubt as to its plausibility and verity. 33 In the case at bar, said accused-
appellant failed to show clearly and convincingly that he was at some other place about the

70
[G.R. No. 119601. December 17, 1996] That on or about the 16th day of October, 1992, in the City of Roxas, Philippines, the above-
named accused, Danny Buhat armed with a knife, conspiring, confederating and helping one
DANILO BUHAT, petitioner, vs. COURT OF APPEALS and the PEOPLE OF THE another, did and then and there wilfully, unlawfully and feloniously [sic] without justifiable
PHILIPPINES, respondents. motive and with intent to kill, attack, stab and injure one RAMON GEORGE YU, while the two
other accused held the arms of the latter, thus using superior strength, inflicting upon him
DECISION
serious and mortal wounds which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said Ramon George Yu in such amount as maybe [sic]
HERMOSISIMA, JR., J.:
awarded to them by the court under the provisions of the Civil Code of the Philippines.
Delicate and sensitive is the issue in this case, which is, whether or not the upgrading of the
CONTRARY TO LAW.[5]
crime charged from homicide to the more serious offense of murder is such a substantial
amendment that it is proscribed if made after the accused had pleaded not guilty to the
The prosecution had by then already presented at least two witnesses.
crime of homicide, displaying as alleged by the defense, inordinate prejudice to the rights of
the defendant. In an order,[6] dated June 2, 1994, the RTC denied the motion for leave to amend
information. The denial was premised on (1) an invocation of the trial courts discretion in
On March 25, 1993, an information for HOMICIDE[1] was filed in the Regional Trial Court
disregarding the opinion of the Secretary of Justice as allegedly held in Crespo vs.
(RTC)[2] against petitioner Danny Buhat, John Doe and Richard Doe. The information alleged
Mogul[7] and (2) a conclusion reached by the trial court that the resolution of the inquest
that on October 16, 1992, petitioner Danilo Buhat, armed with a knife, unlawfully attacked
prosecutor is more persuasive than that of the Secretary of Justice, the former having
and killed one Ramon George Yu while the said two unknown assailants held his arms, using
actually conducted the preliminary investigation where he was able to observe the
superior strength, inflicting x x x mortal wounds which were x x x the direct x x x cause of his
demeanor of those he investigated[8]
death[3].
The Solicitor General promptly elevated the matter to the Court of Appeals. He filed a
Even before petitioner could be arraigned, the prosecution moved for the deferment of the
petition for certiorari[9] assailing the aforecited order denying the motion for leave to amend
arraignment on the ground that the private complainant in the case, one Betty Yu, moved for
information. Finding the proposed amendment as non-prejudicial to petitioners rights,
the reconsideration of the resolution of the City Prosecutor which ordered the filing of the
respondent court granted the petition for certiorari in a decision, dated March 28, 1995, the
aforementioned information for homicide. Petitioner however, invoking his right to a speedy
decretal portion of which reads:
trial, opposed the motion. Thus, petitioner was arraigned on June 9, 1993 and, since
petitioner pleaded not guilty, trial ensued. THE FOREGOING CONSIDERED, herein petition is hereby granted: the Order dated June 2,
1994 is set aside and annulled; amendment of the information from homicide to murder, and
On February 3, 1994, then Secretary of Justice Franklin M. Drilon, finding Betty Yus appeal
including as additional accused Herminia Altavas and Osmea Altavas is allowed; and finally,
meritorious, ordered the City Prosecutor of Roxas City to amend the information by
the writ of preliminary injunction we issued on January 30, 1995 is made permanent by
upgrading the offense charged to MURDER and implead therein additional accused Herminia
prohibiting the public respondent from hearing aforementioned criminal case under the
Altavas, Osmea Altavas and Renato Buhat[4]
original information.[10]
On March 10, 1994, the Assistant City Prosecutor filed a motion for leave to amend
Hence this petition raising the sole issue of whether or not the questioned amendment to
information. The amendment as proposed was opposed by the petitioner.
the information is procedurally infirm.
The amended information read:
The petition lacks merit.
The undersigned assistant City Prosecutor accuses DANNY BUHAT, of Capricho II, Barangay V,
The additional allegation of conspiracy is only a formal amendment, petitioners participation
Roxas City, Philippines, HERMINIA ALTAVAS AND OSMEA ALTAVAS both resident of Punta
as principal not having been affected by such amendment
Tabuc, Roxas City, Philippines, of the crime of Murder, committed as follows:

71
------------------------------------------------- amendment there did not modify theory of the prosecution that the accused had killed the
deceased by a voluntary act and deed. Here there is an innovation, or the introduction of
Petitioner asseverates that the inclusion of additional defendants in the information on the another alternative imputation, which, to make matters worse, is inconsistent with the
ground of conspiracy is a substantial amendment which is prohibited by Sec. 14, Rule 110 of original allegations.[16]
the 1985 Rules on Criminal Procedure, because the allegation of conspiracy x x x is a
substantial amendment saddling the [p]etitioner with the need of a new defense in order to Applying our aforegoing disquisition in the 1946 case of Regala, we likewise ruled in the 1983
met [sic] a different situation at the trial [c]ourt[11] case of People v. Court of Appeals[17] that a post-arraignment amendment to further allege
conspiracy, is only a formal amendment not prejudicial to the rights of the accused and
Petitioner cites the case of People v. Montenegro[12] as jurisprudential support. Indeed, we proper even after the accused has pleaded not guilty to the charge under the original
stated in the Montenegro case that the allegation of conspiracy among all the private information. We held in said case of People v. Court of Appeals:
respondents-accused, which was not previously included in the original information, is x x x a
substantial amendment saddling the respondents with the need of a new defense in order to x x x The trial Judge should have allowed the amendment x x x considering that the
meet a different situation in the trial court[13]. And to explain the new defense theory as a bar amendments sought were only formal. As aptly stated by the Solicitor General in his
to substantial amendment after plea, we cited the case of People v. Zulueta[14] where we memorandum, there was no change in the prosecutions theory that respondent Ruiz willfully,
elucidated, thus: unlawfully and feloniously attacked, assaulted and shot with a gun Ernesto and Rogelio Bello
x x x. The amendments would not have been prejudicial to him because his participation as
Surely the preparations made by herein accused to face the original charges will have to be principal in the crime charged with respondent Ruiz in the original informations, could not be
radically modified to meet the new situation. For undoubtedly the allegation of conspiracy prejudiced by the proposed amendments.
enables the prosecution to attribute and ascribe to the accused Zulueta all the acts,
knowledge, admissions and even omissions of his co-conspirator Angel Llanes in furtherance In a case (Regala vs. CFI, 77 Phil. 684), the defendant was charged with murder. After plea,
of the conspiracy. The amendment thereby widens the battlefront to allow the use by the the fiscal presented an amended information wherein two other persons were included as
prosecution of newly discovered weapons, to the evident discomfiture of the opposite co-accused.There was further allegation that the accused and his co-defendants had
camp. Thus it would seem inequitable to sanction the tactical movement at this stage of the conspired and confederated together and mutually aided one another to commit the offense
controversy, bearing in mind that the accused is only guaranteed two-days preparation for charged. The amended information was admitted x x x
trial. Needless to emphasize, as in criminal cases the liberty, even the life, of the accused is at
stake, it is always wise and proper that he be fully apprised of the charges, to avoid any xxx xxx xxx
possible surprise that may lead to injustice. The prosecution has too many facilities to covet
Otherwise stated, the amendments x x x would not have prejudiced Ruiz whose participation
the added advantage of meeting unprepared adversaries.
as principal in the crimes charged did not change. When the incident was investigated by the
This jurisprudential rule, however, is not without an exception. And it is in the same case fiscals office, the respondents were Ruiz, Padilla and Ongchenco. The fiscal did not include
of Zulueta that we highlighted the case of Regala v. Court of first Instance of Bataan[15] as Padilla and Ongchenco in the two informations because of insufficiency of evidence. It was
proffering a situation where an amendment after plea resulting in the inclusion of an only later when Francisco Pagcalinawan testified at the reinvestigation that the participation
allegation of conspiracy and in the indictment of some other persons in addition to the of Padilla and Ongchenco surfaced and, as a consequence, there was the need for the
original accused, constitutes a mere formal amendment permissible even after information of the informations x x x.
arraignment. In Zulueta, we distinguished the Regala case in this wise:
The aforegoing principle, by way of exception to the general rule, also appositely applies in
Some passages from Regala contra El Juez del Juzgado de Primera Instancia de Bataan are the present controversy.
quoted by petitioners. Therein the accused pleaded not guilty to an information for murder,
Petitioner undoubtedly is charged as a principal in the killing of Ramon George Yu whom
and later the fiscal amended the indictment by including two other persons charged with the
petitioner is alleged to have stabbed while two unknown persons held the victim's arms. The
same offense and alleging conspiracy between the three. Five justices held that the
addition of the phrase, "conspiring, confederating and helping one another" does not change
amendment was not substantial. But that situation differs from the one at bar. The
the nature of petitioner's participation as principal in the killing.
72
Whether under the original or the amended information, petitioner would have to defend Thus, at the outset, the main consideration should be whether or not the accused had
himself as the People makes a case against him and secures for public protection the already made his plea under the original information, for this is the index of prejudice to, and
punishment of petitioner for stabbing to death, using superior strength, a fellow citizen in the violation of, the rights of the accused. The question as to whether the changing of the
whose help and safety society as a whole is interested. Petitioner, thus, has no tenable basis crime charged from homicide to the more serious offense of murder is a substantial
to decry the amendment in question. amendment proscribed after the accused had pleaded not guilty to the crime of homicide
was, it should be noted, categorically answered in the affirmative by us in the case
Furthermore, neither may the amendment in question be struck down on the ground that of Dionaldo v. Dacuycuy,[23]for then we ruled:
Herminia Altavas, Osmea Altavas and Renato Buhat would be placed in double jeopardy by
virtue of said amendment. In the first place, no first jeopardy can be spoken of insofar as the x x x the provision which is relevant to the problem is Rule 110, Sec. 13 [now Sec. 14 under
Altavases are concerned since the first information did not precisely include them as accused the 1985 Rules on Criminal Procedure] of the Rules of Court which stipulates:
therein. In the second place, the amendment to replace the name, "John Doe" with the name
of Renato Buhat who was found by the Secretary of Justice to be one of the two persons who x x x The information or complaint may be amended, in substance or form, without leave of
held the arms of the victim while petitioner was stabbing him,[18] is only a formal amendment court, at any time before the defendants pleads; and thereafter and during the trial as to all
and one that does not prejudice any of the accused's rights. Such amendment to insert in the matters of form, by leave and at the discretion of the court, when the same can be done
information real name of the accused involves merely a matter of form as it does not, in any without prejudice to the rights of the defendant.
way, deprive any of the accused of a fair opportunity to present a defense; neither is the
xxx xxx xxx
nature of the offense charged affected or altered since the revelation of accused's real name
does not change the theory of the prosecution nor does it introduce any new and material
xxx xxx xxx
fact.[19] In fact, it is to be expected that the information has to be amended as the unknown
participants in the crime became known to the public prosecutor.[20] To amend the information so as to change the crime charged for homicide to the more
serious offense of murder after the petitioner had pleaded not guilty to the former is
Abuse of superior strength having already been alleged in the original information charging
indubitably proscribed by the first paragraph of the above-quoted provision. For certainly a
homicide, the amendment of the name of the crime to murder, constitutes a mere formal
change from homicide to murder is not a matter of form; it is one of substance with very
amendment permissible even after arraignment
serious consequences.[24]
-------------------------------------------
Indeed, petitioner forcefully and strongly submits that, in the light of this ruling, we are
allegedly obliged to grant his prayer for the reversal of the assailed decision of respondent
In the case of Dimalibot v. Salcedo,[21] we ruled that the amendment of the information so as
Court of Appeals and the affirmance of the trial courts ruling that the post-arraignment
to change the crime charged from homicide to murder, may be made even if it may result in
amendment sought by the People is prohibited under Section 14, Rule 110, of the 1985 Rules
altering the nature of the charge so long as it can be done without prejudice to the rights of
on Criminal Procedure, the same being a substantial amendment prejudicial to the rights of
the accused. In that case, several accused were originally charged with homicide, but before
the accused.
they were arraigned, an amended information for murder was filed. Understandably raised
before us was the issue of the propriety and legality of the afore-described amendment, and
The cited ruling, however, differs from the case at bench because the facts herein sustain a
we ruled, thus:
contrary holding. As pointed out by the Court of Appeals:
x x x it is undisputed that the herein accused were not yet arraigned before the competent
x x x the original Information, while only mentioning homicide, alleged:
court when the complaint for homicide was amended so as to charge the crime of murder. x
x x the amendment could therefore be made even as to substance in order that the proper Danny Buhat, John Doe and Richard Doe as the accused; [sic] of Danny Buhat stabbing the
charge may be made. x x x The change may also be made even if it may result in altering the deceased Ramon while his two other companions were holding the arms of Ramon, thus, the
nature of the charge so long as it can be done without prejudice to the rights of the information already alleged superior strength; and inflicting mortal wounds which led to the
defendant.[22] death of Ramon.

73
Superior strength qualifies the offense to murder (Article 248). the designation of the offense by the statute, and the acts or omissions complained of as
constituting the offense.[32] Evidently, the important end to be accomplished is to describe
xxx xxx xxx the act with sufficient certainty in order that the accused may be apprised of the nature of
the charged against him.[33] In the event, however, that the appellation of the crime charged
Before us, the Information already alleged superior strength, and the additional allegation
as determined by the public prosecutor, does not exactly correspond to the actual crime
that the deceased was stabbed by Buhat while the arms of the former were being held by the
constituted by the criminal acts described in the information to have been committed by the
two other accused, referring to John Doe and Richard Doe. x x x
accused, what controls is the description of the said criminal acts and not the technical name
of the crime supplied by the public prosecutor. As this court, through Justice Morelands
xxx xxx xxx
authoritative disquisition, has held:
If the killing is characterized as having been committed by superior strength, then to repeat,
x x x Notwithstanding apparent contradiction between caption and body, x x x the
there is murder x x x
characterization of the crime by the fiscal in the caption of the information is immaterial and
Also the case of Dacuycuy was mentioned, as a justification for not allowing change of purposeless x x x the facts stated in the body of the pleading must determine the crime of
designation from homicide to murder, but then the body of the Information in the Dacuycuy which the defendant stands charged and for which he must be tried. The establishment of
ruling did not allege averments which qualifies [sic] the offense of murder. The case before this doctrine x x x is thoroughly in accord with common sense and with the requirements of
us instead is different in that the Information already alleges that Buhat attacked the plain justice. x x x Procedure in criminal actions should always be so framed as to insure to
deceased while his two other companions held him by the arms, using superior strength. x x each criminal that retributive punishment which ought swiftly and surely to visit him who
x We would even express the possibility that if supported by evidence, Buhat and the willfully and maliciously violates the penal laws of society. We believe that a doctrine which
Altavases could still be penalized for murder even without changing the designation from does not produce such a result is illogical and unsound and works irreparable injury to the
homicide to murder, precisely because of aforementioned allegations. The proposed change community in which it prevails.
of the word form homicide to murder, to us, is not a substantial change that should be
From a legal point of view, and in a very real sense, it is of no concern to the accused what is
prohibited.[25]
the technical name of the crime of which he stands charged. It in no way aids him in a
In the matter of amending a criminal information, what is primarily guarded against is the defense on the merits. x x x That to which his attention should be directed, and in which he,
impairment of the accuseds right to intelligently know the nature of the charge against above all things else, should be most interested, are the facts alleged. The real question is
him. This right has been guaranteed the accused under all Philippine Constitutions[26] and not did he commit a crime given in the law some technical and specific name, but did he
incorporated in Section 1 (b), Rule 115, of the 1985 Rules on Criminal Procedure[27] perform the acts alleged in the body of the information in the matter therein set forth. If he
did, it is of no consequence to him, either as a matter of procedure or of substantive right,
In a criminal case, due process requires that, among others, the accusation be in due form, how the law denominates the crime which those acts constitute. The designation of the
and that notice thereof and an opportunity to answer the charged be given the crime by name in the caption of the information from the facts alleged in the body of that
accused;[28]hence, the constitutional and reglementary guarantees as to accuseds right to be pleading is a conclusion of law made by the fiscal. x x x For his full and complete defense he
informed of the nature and cause of the accusation against him. An accused should be given need not know the name of the crime at all. It is of no consequence whatever for the
the necessary data as to why he is being proceeded against and not be left in the unenviable protection of his substantial rights. The real and important question to him is, Did you
state of speculating why he is made the object of a prosecution, [29] it being the fact that, in perform the acts alleged in the manner alleged? not, Did you commit a crime named
criminal cases, the liberty, even the life, of the accused is at stake. It is always wise and murder? If he performed the acts alleged, in the manner stated, the law determines what the
proper that the accused be fully apprised of the charged against him in order to avoid any name of the crime is and fixes the penalty
possible surprise that may lead to injustice.[30] therefore. It is the province of the court alone to say what the crime is or whatit is named. If t
he accused performed the acts alleged in the manner alleged, then he ought to be punished
In order to sufficiently inform the accused of the charged against him, a written accusation, and punished adequately, whatever may be the name of the crime which those actsconstitut
in the form of a criminal information indicting the accused and subscribed by the fiscal, must e.
first be filed in court.[31] Such information must state, among others, the name of the accused,

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The plea of not guilty ought always to raise a question of fact and not of strength, a circumstance which qualifies a killing to murder, the information sufficiently
law. The characterization of the crime is a conclusion of law on the part of the fiscal. The charged the commission of murder.[37]
denial by the accused that he committed that specific crime so characterized raises no real
question. No issue can be raised by the assertion of a conclusion of law by one party and a On another aspect, we find merit in the manifestation of the Solicitor General to the effect
denial of such conclusion by the other. The issues raised by the pleadings in criminal actions x that the respondent Court of Appeals erroneously supposed that petitioner and Renato
x x are primarily and really issues of fact and not of law. x x x Buhat are one and the same person, hence the non-inclusion of Renato Buhat as additional
accused in its order allowing the amendment of the information. [38] We also agree with the
x x x Issues are not made by asserting and denying names. They are framed by the allegation observation of the Solicitor General that the amended information filed in this case still fails
and denial of facts. x x x To quibble about names is to lose sight of realities. To permit an to embody the correct identity of all of the persons found to be indictable in the Resolution
accused to stand by and watch the fiscal while he guesses as to the name which ought to be of the Secretary of Justice. Explained the Solicitor General:
applied to the crime of which he charges the accused, and then take advantage [sic] of the
guess if it happens to be wrong, while the acts or omissions upon which that guess was made In its Decision under review, the Court of Appeals erroneously supposed that Danny Buhat
and which are the real and only foundation of the charge against him are clearly and fully and Renato Buhat are one and the same person (CA Decision, 1 st par.). This, however, is not
stated in the information, is to change the battle ground in criminal cases from issues to correct because Danny Buhat and Renato Buhat are, in fact, brothers. Moreover, it was not
guesses and from fact to fancy. It changes lawyers into dialecticians and law into metaphysics Osmea Altavas and his wife Herminia Altavas who held the arms of the victim while Danny
-- that fertile field of delusion propagated by language.[34] [Underscoring ours] Buhat stabbed him.According to the Resolution of the Secretary of Justice, which is requoted
hereunder:
In other words, the real nature of the criminal charge is determined not from the caption or
preamble of the information nor from the specification of the provision of the law alleged to The evidence on hand clearly shows that while Osmea Altavas was continuously hitting
have been violated, they being conclusions of law which in no way affect the legal aspects of Ramon Yu with his fists, his wife Herminia aided him by hitting the victim with a chair. It was
the information, but from the actual recital of facts as alleged in the body of the also during this time that Danny Buhat and two (2) unidentified persons appeared and joined
information.[35] spouses Osmea and Herminia. One of the unidentified persons was later identified as Renato
Buhat.Renato Buhat and the other unidentified held the arms of Ramon Yu while Danny
Petitioner in the case at bench maintains that, having already pleaded not guilty to the crime Buhat stabbed Ramon Yu twice on the chest which resulted in his death. The restraint on the
of homicide, the amendment of the crime charged in the information from homicide to person of Ramon Yu before he was stabbed was described by eyewitness Susan Labrador
murder is a substantial amendment prejudicial to his right to be informed of the nature of during the continuation of the preliminary investigation of the instant case on December 2,
the accusation against him. He utterly fails to dispute, however, that the original information 1992.
did allege that petitioner stabbed his victim using superior strength. And this particular
allegation qualifies a killing to murder, regardless of how such a killing is technically The Amendment Information to be filed in this case must, therefore, reflect the above facts
designated in the information filed by the public prosecutor. set forth in the aforesaid Resolution of the Secretary of Justice - which was
the result of the preliminaryinvestigation (as reviewed by the Secretary of Justice) conducted
Our ruling in the case of People v. Resayaga[36] is clearly apropos: in this case. Strangely enough, however, the Amended Information (Annex C) that was
subsequently filed before the Roxas City RTC in this case by Assistant City Prosecutor Alvin D.
The appellant maintains that the information filed in this case is only for Homicide. x x x Calvez of Roxas City does not reflect the above facts set forth in the aforesaid Resolution of
the Secretary of Justice. Said Amended Information in effect alleges that Osmea and
The contention is without merit. Reliance is placed mainly upon the designation of the
Herminia Altavas were the ones who held the arms of the victim while Danny Buhat stabbed
offense given to it by the fiscal. x x x In the instant case, the information specifically alleges
him, whereas, according to the Resolution of the Secretary of Justice
that the said accused conspiring, confederating together and mutually helping one another,
abovecited, it was Renato Buhat and another unidentified person who held the arms of the vi
with intent to kill and taking advantage of superior strength, did then and there willfully,
ctim while Danny Buhat stabbed him. According to the said Resolution of the Secretary of
unlawfully and feloniously attack, assault and stab with ice picks one Paulo Balane x x x Since
Justice, the participation of Osmea Altavas in the crime was that of hitting the victim with his
the killing is characterized as having been committed by taking advantage of superior

75
fists, while x x x the participation of Herminia Altavas in the crime was that of hitting the
victim with a chair.

Verily, the statement of facts in the Information or Amended Information must conform with
the findings of fact in the preliminary investigation (in this case, as reviewed by the Secretary
of Justice) so as to make it jibe with the evidence x x x to be presented at the trial. x x x

The decision of the Court of Appeals in this case (which merely resolved affirmatively the
legal issues of whether or not the offense charged in the Information could be upgraded to
Murder and additional accused could be included in said Information) should not be made
the basis of the Amended Information herein as the said Decision does not constitute
the preliminary investigation conducted in this case. Such Amended Information should be
based on the findings of fact set forth in the Resolution of the Secretary of Justice, as above
quoted and requoted.[39] [Underscoring theirs]

The Solicitor General prays for at least the remanding of this case to respondent Court of
appeals for the correction of the error abovecited and for the ordering of the filing of the
correct Amended Information by the City Prosecutor of Roxas City. Considering, however,
that further delay of the trial of this case is repugnant to our inveterate desire for speedy
justice and that the full and complete disposition of this case virtually serves this end, we see
it to be within our jurisdiction and authority to order the correct amended information to be
filed in this case without the need to remand the same to respondent appellate court.

WHEREFORE, the petition is DISMISSED for lack of merit. The City Prosecutor of Roxas City is
HEREBY ORDERED to file the correct Amended Information fully in accordance with the
findings of fact set forth in the Resolution of the Secretary of Justice, dated February 3, 1994,
and in disregard of the finding of the Court of Appeals in its Decision, dated March 28, 1995,
in CA-G.R. SP No. 35554 to the effect that Danny Buhat and Renato Buhat are one and the
same person.

SO ORDERED.

Vitug, and Kapunan, JJ., concur.

Padilla, J. (Chairman), in the result.

Bellosillo, J., no part.

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SUSAN FRONDA-BAGGAO, G.R. No. 151785 Moreover, considering that illegal recruitment when committed by a syndicate or in a large
scale shall be considered an offense involving economic sabotage, let this case be forwarded
- versus - Promulgated: to RTC, Branch 2, a Special Criminal Court.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, December 10, 2007 Petitioner filed a motion for reconsideration, but it was denied by the trial court in its Order
dated March 21, 2000.
Respondent.
On April 11, 2000, petitioner filed with the Court of Appeals a petition for certiorari and
x --------------------------------------------------------------------------------------x
prohibition with prayer for the issuance of a preliminary injunction and/or temporary
restraining order, docketed as CA-G.R. SP No. 58270.
DECISION
In its Decision dated August 29, 2001, the Court of Appeals denied the petition. Likewise, in
SANDOVAL-GUTIERREZ, J.:
its Resolution dated January 15, 2002, petitioners motion for reconsideration was denied.
Before us is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of
Hence, the present petition.
Civil Procedure, as amended, assailing the Decision[1] dated August 29, 2001 and Resolution
dated January 15, 2002 of the Court of Appeals in CA-G.R. SP No. 58270.
The issue for our resolution is whether the four Informations for illegal recruitment could be
amended and lumped into one Information for illegal recruitment in large scale.
The facts are:
Petitioner contends that (a) Section 14, Rule 110 of the Revised Rules on Criminal Procedure
Sometime in 1989, the Provincial Prosecutor of Abra filed with the Regional Trial Court,
refers to an amendment of one Information only, not four, which cannot be joined in only
Branch 1, Bangued, same province, four separate Informations for illegal recruitment against
one Information; and that (b) the amendment of the four Informations for illegal recruitment
Susan Fronda-Baggao, petitioner, and Lawrence Lee, docketed as Criminal Cases Nos. 744,
into a single Information for a graver offense violates her substantial rights.
745, 746 and 749.
Respondent, on the other hand, prays that the petition be denied for lack of merit.
Petitioner eluded arrest for more than a decade; hence, the cases against her were
archived. On July 25, 1999, petitioner was finally arrested.[2]
Section 14, Rule 110 of the Revised Rules on Criminal Procedure provides:
On July 26, 1999, the prosecutor filed with the trial court a motion to amend the
Section 14. Amendment or substitution. A complaint or information may be amended, in
Informations. He prayed that the four separate Informations for illegal recruitment be
form or in substance, without leave of court, at any time before the accused enters his
amended so that there would only be one Information for illegal recruitment in large
plea. After the plea and during the trial, a formal amendment may only be made with leave
scale. On the same day, the trial court denied the motion for lack of merit .
of court and when it can be done without causing prejudice to the rights of the accused.
On August 6, 1999, the prosecutor filed a motion for reconsideration. In its Order
However, any amendment before plea, which downgrades the nature of the offense charged
dated January 26, 2000, the trial court granted the motion and admitted the Information for
in or excludes any accused from the complaint or information, can be made only upon
Illegal Recruitment in Large Scale, thus:
motion by the prosecutor, with notice to the offended party and with leave of court. The
court shall state its reasons in resolving the motion and copies of its order shall be furnished
Accordingly, the Order dated July 26, 1999 denying the motion to amend Information is
all parties, especially the offended party.
hereby set aside and the Information for Illegal Recruitment in Large Scale is hereby admitted
in substitution of the other four Informations.
If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the filing
77
of a new one charging the proper offense in accordance with section 19, Rule 119, provided WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
the accused would not be placed in double jeopardy. The court may require the witnesses to Appeals in CA-G.R. SP No. 58270 are AFFIRMED. Costs against petitioner.
give bail for their appearance at the trial. (Emphasis ours)

Simply stated, before the accused enters his plea, a formal or substantial amendment of the
complaint or information may be made without leave of court. After the entry of a plea, only
a formal amendment may be made but with leave of court and only if it does not prejudice
the rights of the accused. After arraignment, a substantial amendment is proscribed except if
the same is beneficial to the accused.[3]

Following the above provisions and considering that petitioner has not yet entered her
plea, the four Informations could still be amended.

Petitioner also contends that the above Rule refers to an amendment of one Information
only, not four or multiple Informations which cannot be joined into only one Information.

We disagree.

A careful scrutiny of the above Rule shows that although it uses the singular
word complaint or information, it does not mean that two or more complaints or
Informations cannot be amended into only one Information. Surely, such could not have
been intended by this Court. Otherwise, there can be an absurd situation whereby two or
more complaints or Informations could no longer be amended into one or more Informations.
On this point, Section 6, Rule 1 of the Revised Rules of Court is relevant, thus:

SEC. 6. Construction. - These Rules shall be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action and
proceeding.

In fact, in Galvez v. Court of Appeals,[4] before the accused were arraigned, this Court allowed
the amendment of three original Informations for homicide and frustrated homicide into
four Informations for murder, frustrated murder and illegal possession of firearms.

Petitioner contends that the amendment of the four Informations for illegal recruitment into
a single Information for illegal recruitment in large scale violates her substantial rights as this
would deprive her of the right to bail which she already availed of. Such contention is
misplaced. Obviously, petitioner relies on Section 14 of the same Rule 110 which provides
that after the plea and during the trial, a formal amendment may only be made with leave of
court and when it can be done without causing prejudice to the rights of the accused. As
stated earlier, petitioner has not yet been arraigned. Hence, she cannot invoke the said
provision.

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